39. Which action should the bank take to ensure a trial by jury?

B is correct. Because the student is relying on an affirmative defense (payment) on which he has the burden of proof, the student must provide evidence that, if uncontroverted, would compel a jury verdict in his favor. By providing affidavits, the student has met that burden. As such, the bank must come forward with evidence to raise a material issue of fact relating to the accuracy of the affidavits and show that a reasonable jury could find for the bank.

A is incorrect. Affidavits submitted by parties must be made, in part, with personal knowledge. Here, the affidavits were by the student himself and from four eyewitnesses to the payment, which shows that these affidavits satisfied this requirement.

C is incorrect. A plaintiff does not have the right to present his case to a jury if the materials filed in support of and in opposition to a motion for summary judgment demonstrate that there is no genuine issue of material fact such that no reasonable jury could find for the plaintiff.

This choice indicates that if the bank submits no evidence in opposition to the summary judgment motion, the court will find a genuine dispute as to a material fact. However, the student has submitted affidavits challenging the bank's claim that the student failed to repay the bank's loan. If the bank does not put forth evidence, it is likely that a court may find there is no genuine issue between the parties.

D is incorrect. By providing the affidavits of the four eyewitnesses, the student has presented evidence that indicates that there is no genuine dispute between the parties and that the student is entitled to judgment as a matter of law. As such, if the bank does not offer any evidence challenging the motion to show a genuine issue of material fact exists, the court is likely to grant the summary judgment.