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Today, in this episode, I want to talk to you about the motion for summary judgment in lieu of complaint, motion for summary judgment in lieu of complaint. Now I know that I told you, uh, in the first part of this anatomy of a lawsuit series, that to commence a lawsuit, you have to file a plaintiff, has to file a complaint. That’s true. There is another way to commence a lawsuit as well, and that is by filing a motion for summary judgment in lieu of complaint. Now you’re probably saying, well, what the heck does that mean? And how does it apply to me? What that means is that in lieu of means in place of, so instead of filing a complaint, someone can file a motion for summary judgment. Now it cannot be done in all circumstances with all things and with all plans. Otherwise, that would really, um, get rid of the need for having a complaint and having that system set up in the first place, at least in New York Business Attorney, the motion for summary judgment in lieu of complaint can be filed to enforce the payment on an instrument of money only.
And that’s a very, very key point payment of an on an instrument of money, only payment on an instrument of money, only payment on an instrument of money only New York Business Attorney. Now, does that apply to the contract for the sale of goods? No, because that contract deals with an exchange of money for goods, does that apply? Does that a patent payment on an instrument of money? Is that for instance, a contract form services now, because there are services performed in exchange for money? That’s what the contract and contemplate now on insurance. So what is a payment, excuse me, what is an instrument for the payment of money? Only? There’s two main things. Things that come to mind the first is a promissory note. Okay. What is a promise where I know it’s a loan, it’s a very simple one, two, three, four, five-page. It can be as short as one page.
It can be much longer than that, but it’s typically a very, very short document that says for value of seeds, I owe you a hundred thousand dollars or for value received. You know, the borrower agrees to pay $2 million either on, and then it talks about payment terms. It talks about, you know, whether there’s installments and also addresses interest rate. And then if there’s any, it could be lump sum. It could be installments, it could be lower installments and higher installments. It could talk about a default. What constitutes a default, if it has a cure period and what the cure period would be, you know, it’s, they miss a payment then w how, and when you can make it up, and there are other things that a promissory note can continue. And for example, it can contain that there’s a default and there’s a, there’s a collection action that the attorney’s fees incurred by the lender.
Um, they’ll be charged and the borrower will have to pay for them. Now, motion for summary judgment in lieu of complaint again, and applies to instruments for the payment of money. Only. We just went over one example of what an instrument for the payment of money. Only as the promissory note, it’s a fancy way of saying alone. And it’s really an informal loan. It’s not like a, um, a loan for the purchase of the property, like a mortgage, something like that. That’s a little bit more detailed. I haven’t seen any lawsuits filed to recover in the context of a motion for summary judgment in lieu of complaints in the business context for a, um, a mortgage. Now, uh, typically the banks, they would go right into, let’s say a foreclosure option. Okay. So what else qualifies for instrument for the payment of money only?
I’ll give you an example. I’m giving the answer and I’ll tell you exactly what it is. A personal guarantee. A personal guarantee typically is regarded as an instrument for the payment of money only at once a guarantee. It’s where a, you know, let’s say that there’s a new company or a company that doesn’t have a, uh, a very long or robust, very long or robust payment history, or it has credit issues, or it has some other issues. Typically a lender will say, yeah, I’ll loan the company, the money for business purposes. And you know what you’re going to have to the owner, you owner are going to have to guarantee it. Firstly, in case the help me defaults, these are very, very common. And in some instances, a guarantee doesn’t have to be conditioned upon the failure of the underlying borrower to pay. Can just be basically just another, another note where the lender, if there’s a default can go after the personal guarantor personally, without first having to pursue the, the original company borrower, I see this happen a lot.
A lot of times, if the company gets dissolved or can’t pay or shuts down, the owner just gets sued directly on the, the, the original borrower company isn’t even named. Alright. So that’s basically what two examples of an instrument for the payment of money, um, would, would encompass now the, so how do you do it, right? What do you have to file? Well, with any emotion, at least in, in the, in the state court system, in New York Business Attorney, you need to put the other party on notice that there’s a motion. Typically, the way I see it also done is that there’s a summons, which is the commencement of the case. Then there’s a notice of motion for summary judgment and the complaint. The next is that there’s a memorandum of law. There’s affidavits, the affidavit’s attached to the promissory note and describe what the amount due is and if any payments were made.
And then, um, because you want to get a court involved right away New York Business Attorney, the plaintiff typically files a request for judicial intervention, which lets the, because when, when something is filed and there’s no request for judicial inference to mention file, it just stays on the court’s electronic system. And doesn’t get assigned to a judge once the request for judicial intervention or the RJI is filed, that’s when a judge gets assigned. And so once that happens and, and the date that, you know, the, sometimes it’s 20 to 30 days, they typically say, and then it depends on the service. It doesn’t depend on the date of the summons. Now with the notice of motion, for summary judgment, who complaint, there’s a specific date that you need to apply by, and then identify as a return date, which means the date that it’s presented, uh, it goes from emotion.
The motion room is called emotion support office. And you are, it goes from there to the judge. It doesn’t mean that it’s decided, it just means that that’s when it gets submitted. And so there’s typically a notice of motion, motion and the memorandum law, and then it gives the defendant the opportunity to oppose that motion. And then it, uh, it also gives the, when I say it I’m referring to the procedure and the process, it also gives the, the original plaintiffs, the right to file a reply if it’s opposed. And, you know, we can get into more detail later the basis for opposing a motion for summary judgment and a little complaint. However, as a general proposition, what happens is that the, you have to say that there is a genuine issue of material fact that’s in dispute general, general, excuse me, a genuine issue of material fact that is in dispute.
And this is very, very important because if you can identify that, then you lose the motion for summary judgment New York Business Attorney. Uh, and we can get into that in more detail, you can give me a call, contact me, or, or email or do something, but that’s basically the, the high level overview of what a motion for summary judgment in lieu of complaint looks like how to oppose it, what you need to show at a very, very high level. Of course, there’s more, more to it than that, which I can get into more detail, feel free to contact me, but that concludes today’s episode.
You can reach me online by visiting my website, the lawyer james.com, the lawyer james.com. The lawyer james.com. You can call me at (212) 500-1891. That’s the office (212) 500-1891 (212) 500-1891. You can contact me by email at James at the lawyer, james.com. James at the lawyer, james.com. James at the lawyer, james.com or by text message at (917) 783-3153. Text message (917) 783-3153 that’s (917) 783-3153.