I wish to present a "hypothetical" foreclosure case. I am not seeking legal advice.
A plaintiff bank files a motion for summary judgement and also moves to dismiss defendants counter claims. The defendants are still seeking evidence through discovery. Defendants believe plaintiffs motion is weak and can be easily defeated. Defendants also believe this is an opportunity to present their evidence which might be enough to prevail on summary judgement against plaintiff. QUESTION(s): Should defendants file a motion for summary judgement in response to plantiffs motion? Defendants want to move court to deny plaintiffs motion as discovery is not complete, but also need to present evidence to prove their counter claims, and defeat plaintiffs motion to dismiss. I am thinking defendants should file summary judgement against plaintiffs, presenting evidence for their counter claims, moving the court to dismiss plaintiffs complaint. Maybe a paragraph such as "in the alternative if summary judgement is denied, move the court to allow additional discovery"?

In answer to my hypothetical question above, I believe the defendants should file a motion in opposition to plaintiffs motion for summary judgement along with a motion for summary judgementin favor of the defendants. A cross-motion for summary judgement, including all of the evidence accumulated in discovery to support the counter claims being challenged by the plaintiff. If both sides fail to get summary judgement, discovery can continue if necessary, and trial preparations will proceed. Sounds about right to me.

Hello JD,

In your hypothetical example I would attempt another tactic.
I explain this in detail under Criminal Proceedings-Trial forum. "What is the purpose of going to Court?"

Summary judgments can be appealed if ALL 4 of the listed elements are not in place. In many instances when a bank, or the government is your adversary, they are not able to meet the criteria of having all 4 elements. Without it a court can NOT rule on the case.

And any summary/default judgment is an automatic VOID!!
And can be Appealed!

My disclaimer: I have ZERO legal training. I'm just sharing my personal experience. Don't take my word on anything.
Dr. Grave's training has been very helpful to me.
Perform your own due diligence.

Good Luck