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.
The Michigan Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document that a homeowner can file in a foreclosure case. This motion seeks to terminate the foreclosure proceedings initiated by the lender or mortgage holder. By filing a motion to dismiss, the homeowner is asking the court to dismiss the foreclosure action due to certain legal or procedural deficiencies. There are different types of motions to dismiss foreclosure actions in Michigan, each with its own legal basis and requirements. These types may include: 1. Lack of Standing: This motion argues that the party bringing the foreclosure action does not have the legal right or standing to foreclose on the property. It questions whether the plaintiff is the true and rightful owner of the mortgage and note. 2. Failure to Comply with Notice Requirements: Michigan law requires specific notice procedures to be followed before a foreclosure can proceed. If the lender fails to comply with these requirements, such as providing proper notice to the homeowner, the motion to dismiss can be filed based on the violation of these notice provisions. 3. Procedural Defects: A motion to dismiss can be filed if the foreclosure proceedings were not conducted properly or if there were procedural errors made by the plaintiff or the court. For example, the motion may argue that the lender did not follow the correct foreclosure process or failed to provide the required documentation. 4. Violation of Consumer Protection Laws: This type of motion alleges that the lender engaged in unfair, deceptive, or fraudulent practices during the foreclosure process. It may include claims of predatory lending, misrepresentation, or violations of the Truth in Lending Act (TILL) or other consumer protection statutes. When filing the Michigan Notice of Motion, the homeowner is providing a formal written notice to the court and the opposing party that they intend to file a motion to dismiss. The notice typically includes the date, time, and location of the hearing where the motion will be argued. It allows all parties involved to prepare and present their arguments before the court. Overall, the Michigan Motion to Dismiss Foreclosure Action and Notice of Motion is a vital tool for homeowners facing foreclosure. It serves as a legal means to challenge the lender's right to foreclose or to bring attention to any legal or procedural errors in the foreclosure process. By filing a motion to dismiss, the homeowner can potentially stop or delay the foreclosure and assert their rights in court.
