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In a Crossmotion, can I ask for the case to be dismissed and motion for summary on my counterclaim?

Indianapolis, IN |

I am the defendant/counterclaim plaintiff in a foreclosure case. The plaintiff issued a motion for Summary Judgment. I want to respond by asking that their motion be denied because the matter has already been settled- res judicata- and all of the facts and evidence are in my favor. At the same time can I ask for Summary Judgment on my Counterclaim- (Which is a claim in recoupment - a UCC 3-305 and 3-306 claim based on the same transaction-) Would this be acceptable procedurally? Also- If my motion for summary judgment is dismissed, how do I get the judge to dismiss the case entirely prior to trial? Thank you so much. Kimbra

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Attorney answers 3


Yes, you can file a cross-motion for summary judgment but you will need to comply with the Indiana Rules of Trial Procedure and will be held to the same standard as an attorney if you are representing yourself. If the other side's motion is granted and yours is denied, you lose; and if the other side's motion is denied and yours is granted, you win. An order granting a motion for summary judgment may be appealed if it disposes of the entire case. If both motions for summary judgment are denied then that means that the judge believes a trial is necessary to determine issues of material fact. Good luck.


You can definately file a cross-motion for summary judgment but you will need to comply with the State of Indiana Rules of Trial Procedure and will be held to the same standard as an attorney if you are in pro per (representing yourself) which is not a good idea! If the opposition's MSJ is granted and your MSJ is denied, you are deemed to have a judgment against you once the judgment is entered and you are served with the notice of entry of judgment. You will then be liable for their court costs and any attorney fees provided for by the contract or statute. Obviously if you win and they lose their MSJ, the opposite is true. You can appeal an order granting an MSJ if the MSJ effectively dismisses the entire case. If the Court denies both MSJs then the case continues onward to settlment or trial. There is too much at risk for you not to have an experienced lawyer assist you!

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.


Yes. You can move for summary judgment on a counterclaim. I would caution you that you are tossing around complex legal theories based on common law and statutes. If you are not represented, you should get a lawyer, pronto, to handle this for you. "res judicata" depends on actual litigation with the same issues and the same parties. There are individual variations to the concept in different states. If you do not have a formal legal education you can miss issues of importance. No offense is intended and your question is well written, showing familiarity with legal issues but saying, "all of the facts and evidence are in my favor" is naively optimistic when fighting with a bank or any kind of mortgage lender.

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