Georgia 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

(1) If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. Georgia Code Title 9. Civil Practice § 9-11-12 | FindLaw findlaw.com ? title-9-civil-practice ? ga-cod... findlaw.com ? title-9-civil-practice ? ga-cod...

You can potentially file for bankruptcy or file a lawsuit against the foreclosing party (the "bank") to possibly stop the foreclosure entirely or at least delay it. If you have a bit more time on your hands, you can apply for a loan modification or another workout option.

Did you know that the only legal and complete approach to stop a foreclosure in Georgia is through bankruptcy? Yes, that's right. Chapter 13 Bankruptcy will stop the bank from taking away your home and you will be then able to pay less on your home than you did before. Stop Foreclosure in Georgia | DebtStoppers debtstoppers.com ? georgia ? foreclosure debtstoppers.com ? georgia ? foreclosure

File bankruptcy. Retain a lawyer and file bankruptcy before the foreclosure sale, and notify the foreclosure lawyer of the bankruptcy filing. File a lawsuit and obtain a temporary restraining order (TRO) from the court to stop the scheduled foreclosure sale.

A few potential ways to stop a foreclosure and keep your home include reinstating the loan, redeeming the property, or filing for bankruptcy. If you can arrange a loss mitigation option, like a loan modification, that will also stop a foreclosure. Georgia Foreclosure Laws and Procedures - Nolo nolo.com ? legal-encyclopedia ? georgia-for... nolo.com ? legal-encyclopedia ? georgia-for...

How Long Does Foreclosure Take? In Georgia, the foreclosure process can vary depending on your circumstances. However, on average, it takes about one to three weeks to complete. If your property was sold at a foreclosure auction, the eviction process takes about 14 to 30 days.

In Georgia, the home-foreclosure process is relatively a speedy one, and can happen as quickly as a few months. The foreclosure process begins when the homeowner misses a payment. Under federal law, lenders must wait for a homeowner to be delinquent for at least 120 days before beginning the foreclosure process.

Deadline for Responding to Motion to Dismiss Any party opposing a motion must serve and file a response, reply memorandum, affidavits, or other responsive material within 30 days of being served with the motion. Ga. Unif. Opposition to Motion to Dismiss - Georgia Fulton Superior/State Court smartrules.com ? guides ? fulton-county-op... smartrules.com ? guides ? fulton-county-op...

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Georgia Motion to Dismiss Foreclosure Action and Notice of Motion