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 Nebraska Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document filed by the defendant (usually the homeowner) in response to a foreclosure lawsuit. This motion is an important tool used to challenge the validity of the foreclosure action and seek dismissal of the case. In Nebraska, there are different types of Motions to Dismiss Foreclosure Action and Notice of Motion, depending on the specific grounds for dismissal. Some common types include: 1. Lack of Standing Motion: This motion asserts that the plaintiff (typically the lender or service) lacks standing to bring the foreclosure action. It argues that the plaintiff does not have a legal interest in the mortgage or note, and therefore, does not have the authority to initiate the foreclosure proceedings. 2. Improper Notice Motion: This motion alleges that the lender did not provide proper notice of default or intent to foreclose to the homeowner. It challenges the sufficiency of the notices sent and argues that the foreclosure action should be dismissed due to inadequate notice. 3. Procedural Defect Motion: This motion claims that the foreclosure lawsuit has procedural defects, such as failure to comply with statutory requirements or court rules. It may argue that the plaintiff failed to follow proper foreclosure procedures, violating the homeowner's due process rights. 4. Fraudulent or Predatory Lending Motion: This motion alleges that the homeowner was a victim of fraudulent or predatory lending practices. It argues that the lender engaged in deceptive or unfair practices during the loan origination process, which should invalidate the foreclosure action. 5. Failure to Mitigate Motion: This motion contends that the lender did not fulfill its duty to mitigate damages by not offering reasonable alternatives to foreclosure. It asserts that the lender failed to explore loan modification options, workout plans, or other loss mitigation alternatives, and therefore, the foreclosure action should be dismissed. When filing a Nebraska Motion to Dismiss Foreclosure Action and Notice of Motion, it is crucial to adhere to specific procedural requirements, such as providing proper notice to the opposing party and the court, including a detailed explanation of the grounds for dismissal, and supporting evidence or legal arguments. Successfully obtaining a dismissal through a Motion to Dismiss Foreclosure Action can stop the foreclosure proceedings, allowing the homeowner an opportunity to defend their rights and potentially negotiate alternatives to foreclosure, such as loan modification or refinancing. It is important to seek legal advice from an experienced foreclosure defense attorney in Nebraska to determine the most suitable type of motion to file and navigate the complexities of the legal process thoroughly. Every foreclosure case is unique, and an attorney can provide guidance tailored to individual circumstances and help protect the homeowner's rights.
