Delaware Motion to Dismiss Foreclosure Action and Notice of Motion

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US-02684BG
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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

When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is ...

Rule 37 - Failure to Make Discovery: Sanctions (a) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) Appropriate court.

A motion to dismiss may be based on the following grounds: Lack of subject matter jurisdiction. Lack of personal jurisdiction. Improper venue.

Rule 32 - Stays and injunctions pending appeal; security for such stays or injunctions (a)Stay or injunction pending appeal. -Except in a challenge to a final award under the Delaware Rapid Arbitration Act, a motion for stay must be filed in the trial court in the first instance.

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which ...

Ways to Stop Foreclosure in Delaware Declare Bankruptcy. Yes, bankruptcy is a way through which foreclosure can be stopped. ... Applying for Loan Modification. ... Reinstating Your Loan. ... Plan for Repayment. ... Refinancing. ... Sell Out Your Home. ... Short Sale. ... Deed In Lieu of Foreclosure.

An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

Rule 35 - Correction or reduction of sentence (a) Correction of sentence. - The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

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Delaware Motion to Dismiss Foreclosure Action and Notice of Motion