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 New Jersey Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document used in the state of New Jersey to request the dismissal of a foreclosure action. Homeowners facing foreclosure or their legal representatives may file this motion to challenge the validity of the foreclosure process or raise legal defenses that could potentially result in the dismissal of the case. One common type of New Jersey Motion to Dismiss Foreclosure Action is based on procedural grounds. Homeowners may argue that the lender failed to follow the proper legal procedures during the foreclosure process, such as not providing proper notice or not filing the necessary documents with the court. Another type of motion may challenge the lender's standing. In this case, the homeowner argues that the lender does not have the legal right to foreclose on the property because it does not possess the original mortgage note or has not been assigned the rights to the mortgage. Additionally, a New Jersey Motion to Dismiss Foreclosure Action may also be filed if the homeowner believes that they have a valid defense against the foreclosure, such as the lender engaging in predatory lending practices or violating federal or state lending laws. When filing a New Jersey Motion to Dismiss Foreclosure Action, it is crucial to include a Notice of Motion. The Notice of Motion serves as a written notice to the court and the opposing party, typically the lender, that a motion to dismiss is being filed. It includes crucial information such as the case name, docket number, the specific relief sought (dismissal of the foreclosure action), and the legal grounds for the motion. In summary, a New Jersey Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document used to challenge the foreclosure process and request the dismissal of a foreclosure action. Homeowners or their legal representatives may file this motion based on procedural grounds, challenging the lender's standing, or raising valid defenses against the foreclosure. By filing a properly drafted motion and notice, homeowners can effectively contest a foreclosure and protect their rights to their property.
