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.
A North Carolina Motion to Dismiss Foreclosure Action is a legal document filed by a homeowner or borrower facing foreclosure proceedings, seeking to dismiss the foreclosure case or halt the process due to various legal grounds. This motion is typically accompanied by a Notice of Motion, which formally informs the opposing party and the court regarding the intention to file the motion. There are several types of North Carolina Motion to Dismiss Foreclosure Action, each pertaining to different legal aspects that may justify the dismissal of the foreclosure case. Some common types include: 1. Lack of Standing: This type of motion argues that the foreclosing party lacks the legal right or standing to initiate the foreclosure action. It challenges the foreclosing party's ability to demonstrate ownership or the assignment of the mortgage. 2. Defective Notice: This motion alleges that the foreclosing party failed to provide proper notice to the borrower as required by North Carolina foreclosure laws. It contends that the foreclosure action should be dismissed due to inadequate or incomplete notice. 3. Failure to Comply with Statutory Requirements: This motion argues that the foreclosing party did not adhere to the specific statutory requirements outlined in North Carolina foreclosure laws. It could relate to issues such as improper service of process, incomplete or inaccurate documentation, or failure to meet specific deadlines. 4. Violations of the Truth in Lending Act (TILL): This type of motion asserts that the foreclosing party violated the federal Truth in Lending Act, which mandates certain disclosures and procedures in mortgage transactions. It aims to dismiss the foreclosure case based on non-compliance with TILL requirements. 5. Lack of Default: This motion challenges the foreclosure proceeding by claiming that the borrower did not default on the mortgage or loan agreement. It asserts that the foreclosing party has no legal basis to initiate foreclosure due to the absence of a valid default. 6. Unconscionable Terms: This motion argues that the terms or conditions of the mortgage agreement are unconscionable, placing an undue burden on the borrower. It seeks to dismiss the foreclosure case on the grounds of unfair or oppressive contractual provisions. When filing a North Carolina Motion to Dismiss Foreclosure Action, it is crucial to consult with an attorney familiar with foreclosure laws in the state. The attorney can assess the specific circumstances and develop a strong legal argument to support the motion, increasing the likelihood of obtaining a successful outcome and avoiding foreclosure.
