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.
In the state of Massachusetts, a Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document used by homeowners and their attorneys to challenge a foreclosure proceeding initiated by a lender or mortgage holder. This motion requests the court to dismiss the foreclosure action entirely due to various legal grounds. There are several types of Massachusetts Motion to Dismiss Foreclosure Action and Notice of Motion, including: 1. Lack of Standing: This type of motion argues that the party initiating the foreclosure does not have legal standing to bring the action. The homeowner's attorney may claim that the lender cannot prove they hold the proper documentation or assignment of the mortgage and, therefore, lack the authority to foreclose on the property. 2. Failure to Comply with Legal Requirements: A motion based on failure to comply with legal requirements asserts that the foreclosure action is invalid because the lender failed to fulfill essential procedural or statutory obligations. This may include the lender's failure to provide proper notice, adhere to strict timelines, or follow specific guidelines outlined in Massachusetts foreclosure laws. 3. Defective Mortgage or Assignment: Homeowners might file a motion asserting that there are defects in the mortgage or assignment documents, rendering the foreclosure void. These defects may include missing signatures, improper notarization, or incorrect information on the mortgage or assignment documents. 4. Violations of Consumer Protection Laws: A motion based on violations of consumer protection laws argues that the lender engaged in unfair or deceptive practices during the foreclosure process. This may include a failure to provide the borrower with accurate information or properly documenting loan modifications or agreements. 5. Unlawful Foreclosure Sale: If the homeowner believes that the foreclosure sale was conducted unlawfully, they may file a motion to dismiss based on this claim. This can include improper notice of the sale, failure to comply with bidding and auction requirements, or other irregularities in the foreclosure sale process. It is important to note that each case is unique, and the specific grounds for filing a Motion to Dismiss Foreclosure Action and Notice of Motion may vary based on the circumstances of the individual case. Homeowners facing foreclosure in Massachusetts should consult with an experienced foreclosure attorney to determine the most appropriate legal strategies to protect their rights and potentially prevent the loss of their property.
