The Federal Rules of Civil Procedure (which most states have adopted in one form or another), state in effect that it is not necessary to file an answer to a complaint until a motion to dismiss has been ruled upon by the court. One way to begin arguing against the plaintiffs foreclosure action without filing an answer addressing the entire complaint is to file a motion to dismiss based on the plaintiffs inability to bring the lawsuit in the first place. Defendants can state that the plaintiff has not shown it even owns the mortgage and therefore has no claim to any of the defendant borrower's property. If the plaintiff does not have a right to collect the mortgage payments and foreclose, it is not the party in interest and may not legally bring a foreclosure lawsuit against the owner.
If the mortgage or note with assignment proof is not attached to the complaint, the plaintiff may have trouble showing it is legally allowed to foreclose on the subject property. Simply filing a copy of the original mortgage or deed of trust may not suffice. Some courts have held that the plaintiff must produce evidence that it is the current owner and assignee of the original note and mortgage.
No matter what defenses are set forth in the motion to dismiss, defendants need to be aware that this tactic only puts the foreclosure on hold until the motion can be ruled upon. It does not stop foreclosure entirely, and the defendant will need to file an answer if the motion is denied.
Title: Types of Motion to Dismiss Explained: Examples and Definitions (for Class 6) Introduction: Understanding the various types of motions to dismiss is crucial for anyone involved in legal proceedings. In this article, we will provide a detailed description of different types of motion to dismiss, along with relevant examples. The information shared here is specifically tailored to help Class 6 students comprehend the subject better. 1. Motion to Dismiss for Failure to State a Claim: This type of motion is filed by the defendant to argue that the plaintiff's lawsuit does not provide sufficient legal grounds to proceed. The defendant asserts that even if all allegations made by the plaintiff are true, they don't amount to a valid claim. For example, if a plaintiff sues someone for negligence but fails to show that the defendant owed them a duty of care, the defendant may file a motion to dismiss for failure to state a claim. 2. Motion to Dismiss for Lack of Personal Jurisdiction: A motion to dismiss for lack of personal jurisdiction is submitted by the defendant to contend that the court doesn't have the authority to hear the case due to insufficient connection between the defendant and the jurisdiction in which the lawsuit was filed. For instance, if an individual is sued in a state where they have no significant contacts or business presence, they could file this motion. 3. Motion to Dismiss for Lack of Subject Jurisdiction: This motion argues that the court lacks the authority to hear the specific type of case at hand. It may challenge the court's jurisdiction based on the nature of the dispute or the type of relief sought. For example, if a plaintiff files a lawsuit in a small claims court seeking damages exceeding the court's jurisdictional limit, the defendant could file this motion to dismiss. 4. Motion to Dismiss for Improper Venue: A defendant may file a motion to dismiss for improper venue if they believe that the lawsuit was filed in an inappropriate location. The improper venue could be due to various reasons, such as the contract or agreement between the parties specifying an alternate venue. An example of this would be a case involving breach of contract, where the contract designates a specific city for legal proceedings. Conclusion: Knowing the different types of motion to dismiss provides important insights into the legal tactics used in courtrooms. In class 6, gaining a foundational understanding of these motions and their practical applications will enhance your legal knowledge. By using examples, we aimed to make the topic easily comprehensible.
