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 Missouri Motion to Dismiss Foreclosure Action is a legal document that allows a defendant to request the dismissal of a foreclosure lawsuit. It is typically filed when the defendant believes that there are legal grounds to have the case dismissed before it goes to trial. The motion outlines the reasons why the defendant believes the foreclosure action should be dismissed and provides supporting evidence or arguments. Keywords: Missouri, Motion to Dismiss, Foreclosure Action, Notice of Motion There are several types of Missouri Motions to Dismiss Foreclosure Action, which can vary based on the specific circumstances of the case. Some common types of motions include: 1. Lack of Standing: This motion argues that the plaintiff, usually a mortgage lender, does not have the legal right to initiate foreclosure proceedings. It may assert that the lender does not possess the original loan documents or has not properly assigned the mortgage. 2. Failure to Comply with Legal Requirements: This motion claims that the plaintiff failed to follow the necessary legal procedures or protocols required for initiating a foreclosure. It may include allegations such as improper notice or insufficient documentation. 3. Mortgage Loan Modification Issues: This motion may be filed when the defendant and plaintiff have been engaged in loan modification negotiations, but the foreclosure action was initiated despite ongoing good faith efforts to modify the loan terms. 4. Insufficient Pleadings: This motion asserts that the plaintiff's complaint or petition lacks specific details or legal elements required to support a foreclosure action. The defendant may argue that the plaintiff has not adequately stated a claim against them. 5. Fraud or Misrepresentation: In cases where the defendant suspects that the plaintiff engaged in fraudulent or misleading practices, this motion seeks to dismiss the foreclosure action based on these grounds. It may involve allegations of predatory lending, deceptive loan terms, or fraudulent documentation. When filing a Missouri Motion to Dismiss Foreclosure Action, a Notice of Motion is typically included. The Notice of Motion informs the plaintiff and the court that the defendant intends to file a motion to dismiss the foreclosure action and provides a timeline for when the motion will be filed. It ensures that all parties involved are aware of the defendant's intentions and allows them an opportunity to respond. In conclusion, the Missouri Motion to Dismiss Foreclosure Action and Notice of Motion are essential legal documents for defendants facing foreclosure. They provide a means for challenging the foreclosure proceedings and can be filed based on various grounds, depending on the specific circumstances of the case.
