Arizona Motion to Dismiss Foreclosure Action and Notice of Motion

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Multi-State
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US-02684BG
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Word; 
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Description

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.

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FAQ

Unless the court sets a different time, filing and serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be filed and served within 10 days after notice of the court's action; or (B) if the court grants ...

After the close of evidence on either side, and on motion or on its own, the court must enter a judgment of acquittal on any offense charged in an indictment, information, or complaint if there is no substantial evidence to support a conviction.

When a plaintiff files a motion to dismiss, court personnel must verify the plaintiff's identity. (c) Personal Interview. The judicial officer must personally interview the plaintiff and make sufficient inquiry of the plaintiff to determine that the plaintiff is not making the request under duress or coercion.

Under Rule 11, the defendant has the right to a full mental examination and hearing when reasonable grounds exist for it. A Rule 11 hearing may be held when a defendant is suspected of being mentally incompetent. This hearing is granted when there is substantial evidence of mental incompetence.

In civil cases , Rule 7.1 of Arizona Rules of Civil Procedure states that the opposing party shall file an answer within 10 days after the motion was filed and served. Rule 6(e) of Arizona Rules of Civil Procedure allows an additional 5 calendar days when the motion is served by mail.

A party or a side, if there is more than one plaintiff or one defendant in a lawsuit, may request a change of judge as a matter of right orally or in writing. The party or side must request a change of judge as a matter of right in the precinct where the lawsuit is pending.

These include dismissals for: (b)(1) a lack of subject-matter jurisdiction. (b)(2) a lack of personal jurisdiction. (b)(3) improper venue.

Type of Foreclosure in Arizona If the borrower cannot comply, then the lender can go to court and seek a foreclosure summary. The borrower can choose to answer the petition and have a judge decide the case, or he can let the foreclosure proceed. If it proceeds, the property is sold at auction to the highest bidder.

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Arizona Motion to Dismiss Foreclosure Action and Notice of Motion