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.
Georgia's motion to dismiss foreclosure action is a legal document filed by homeowners who are facing foreclosure in the state of Georgia. This motion seeks the dismissal of the foreclosure lawsuit by the lender or bank based on various legal grounds. When filing the motion, homeowners must also include the Notice of Motion, which alerts all relevant parties to their intention to seek dismissal. There are several types of Georgia motion to dismiss foreclosure actions that homeowners may choose to file, depending on their specific circumstances. Here are a few key types: 1. Lack of Standing: Homeowners can file a motion to dismiss if they believe the lender or bank initiating the foreclosure does not have legal standing to foreclose on their property. This may be the case if the lender cannot prove they are the rightful owner of the mortgage or if the loan was improperly assigned. 2. Failure to Comply with Legal Requirements: Homeowners can also file a motion to dismiss if they believe the lender failed to comply with all legal requirements necessary for a valid foreclosure. This may include neglecting to provide proper notice, skipping mandatory mediation or foreclosure alternative programs, or not following Georgia state laws regarding foreclosure procedures. 3. Inaccurate or Insufficient Documentation: If homeowners suspect that the lender provided inaccurate or insufficient documentation to support their foreclosure claim, they may file a motion to dismiss based on this ground. This can include instances of forged or fraudulent documents, missing paperwork, or inconsistent records. 4. Violation of Loan Modification or Foreclosure Prevention Programs: If a homeowner has been actively participating in a loan modification or foreclosure prevention program, and the lender proceeds with the foreclosure action without proper adherence to the program's guidelines, they may have grounds to file a motion to dismiss. 5. Improper Service: Homeowners can also file a motion to dismiss if they believe they were not properly served with the foreclosure lawsuit documents. This may include scenarios where the notice was not sent to the correct address or was not served within the legal timeframe required by Georgia law. In conclusion, a Georgia motion to dismiss foreclosure action and the associated Notice of Motion are legal documents used by homeowners to seek dismissal of a foreclosure lawsuit. There are different types of motions to dismiss that can be filed based on specific legal grounds, such as lack of standing, failure to comply with legal requirements, inaccurate documentation, violation of foreclosure prevention programs, or improper service. It is essential for homeowners to consult with an attorney familiar with Georgia foreclosure laws to determine the most appropriate type of motion to file in their specific situation.
