Motion to dismiss counterclaim by Plaintiff

[Red6849]

Jurisdiction

Illinois

Hello, I am trying to understand if a motion to dismiss is considered a "REPLY" to a complaint?

I had a bank come looking for a deficiency from a short sale 5 years ago. I denied the complaint on the basis that we had a modified agreement that clearly stated the bank was accepting less seeing they triggered the short sale by forcing a loan to be refinanced at a higher rate (long story..I wont bore you with it).

The issue I have...I filed an answer, affirmative defenses and counterclaims.

They filed a motion to dismiss all of my response.

The judge DENIED their request and I have three counterclaims now: 1) promissory estoppel, 2) intentional misrepresentation and 3) breach of contract.

The judge's order set a response date for their REPLY and they missed it! The court order was very clear in the deadline for them to "provide a reply".

So I am trying to understand....are they in default?

A motion to dismiss attacks the legal grounds of the complaint....does it also act as a denial?

Trying to figure out what my next step is. Thank you.

 

[army judge]

Your next step is to wait for a ruling from the bench.
I suspect the judge is pondering your question.
Procedurally a default judgment could deny the lender certain rights.
Does it?
I don't see it that way.
Maybe the judge presiding over your case isn't sure.

 

[adjusterjack]

A motion to dismiss attacks the legal grounds of the complaint....does it also act as a denial?

Depends. What did their motion to dismiss say about the reason for making? It must have addressed your answer and defenses somehow. Whether it's a denial of your allegations depends on the words they use.

Trying to figure out what my next step is.

I think that your next step is to file a motion to dismiss with prejudice on the grounds that the plaintiff has not complied with the judge's order.

Or, you can do nothing (instead of poking the bear) and wait for the reply and address it when it comes, if it comes at all.

If they don't reply, the case doesn't move forward and may ultimately be dismissed at the discretion of the court for lack of activity.

Could be that the plaintiff realizes the mistake of filing the lawsuit and is just not coming back.

 

[Red6849]

Their motion to dismiss argued that my response "did not support a claim for"...each counterclaim. I re-read it and they do not deny or state facts to show otherwise, it is purely says they didn't feel I met the legal standard needed to make the claim.

If they don't respond the case doesn't move forward? Truly? Would that mean the pleadings aren't complete because they haven't replied and as a result the case can't move forward?

So if I am understanding...I have two distinct options listed above:

1) is a request for a summary judgment or
2) do nothing and the case sits until its dismissed by the court for lack of activity or they ask permission to file a late reply?

 

[adjusterjack]

Their motion to dismiss argued that my response "did not support a claim for"...each counterclaim. I re-read it and they do not deny or state facts to show otherwise, it is purely says they didn't feel I met the legal standard needed to make the claim.

Then it's not likely to be construed as a denial of your claims. So the judge wants them to address your claims instead of a boiler plate technicality.

If they don't respond the case doesn't move forward? Truly? Would that mean the pleadings aren't complete because they haven't replied and as a result the case can't move forward?

Yes. Cases often get dismissed by the court or on motion if one party hasn't pursued his required filings.

1) is a request for a summary judgment or
2) do nothing and the case sits until its dismissed by the court for lack of activity or they ask permission to file a late reply?

A request for summary judgment is only proper if the facts are not in dispute. All the other side has to show is that one teeny little fact is in dispute and summary judgment gets denied.

Read the IL statute on summary judgment:

Illinois Rules Finder

The risk of a motion for summary judgment is that you end up going to trial because it's more than likely to get denied and you end up in a highly technical area of law which you may be ill-equipped to handle without an attorney. I suggest not risking it.

What you want, instead, is for the judge to dismiss the case with prejudice to punish the plaintiff for not following instructions. You don't have to prove anything to ask that and a dismissal with prejudice means that the plaintiff cannot file the case again.

That, too, could be denied, but doesn't make you any worse off than you are now where a motion for summary judgment could make you worse off than you are now.

 

[Red6849]

Fascinating. So the safest course of action at this time appears to be waiting until my next hearing before the judge and verbally ask for a motion to dismiss with prejudice because they failed to respond and see what happens from there.

Thank you very much for the information.

 

[adjusterjack]

Fascinating. So the safest course of action at this time appears to be waiting until my next hearing before the judge and verbally ask for a motion to dismiss with prejudice because they failed to respond and see what happens from there.

Make sure you prepare a written motion dated the date of the hearing so you can hand it to the judge when you make your oral motion, and give a copy to the other party (if they show) and keep a copy for yourself. Judge's don't have lots of time and they tend to appreciate having stuff prepared for them.

Of course, if the other side does show up, they can respond to your motion with their excuses, might even have the paperwork prepared and chances are that the judge will deny your motion because judges prefer to rule on the merits of a case not on technicalities and since you are both there, is likely to allow the case to move forward.

However, since you may be handed the papers on the spot and are seeing them for the first time, don't even look at the papers, immediately ask for a 30 day continuance (postponement) so you can have an opportunity to take them home and review them and decide whether to engage counsel. Make sure you throw that in because not having counsel until then doesn't waive your right to engage counsel (or not) at any time during the proceedings.