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 New York Motion to Dismiss Foreclosure Action is a legal document filed by the defendant in a foreclosure case to request the court to dismiss the lawsuit. This motion can be based on various grounds that challenge the validity or sufficiency of the foreclosure claim brought against the defendant. One type of New York Motion to Dismiss Foreclosure Action is based on the lack of standing of the plaintiff, typically the foreclosing party. In this case, the defendant argues that the plaintiff does not have the legal right to enforce the mortgage or note, and therefore, cannot bring a valid foreclosure action. Another type of motion often used is a Motion to Dismiss based on lack of subject jurisdiction. The defendant asserts that the court does not have the authority to hear the foreclosure case due to the absence of legal requirements or deficiencies in the plaintiff's complaint. Moreover, the Notice of Motion is a document that must be filed concurrently with the Motion to Dismiss. It notifies the court and the opposing party about the defendant's intention to seek dismissal of the foreclosure action and specifies the date and time for the motion hearing. In general, the Motion to Dismiss Foreclosure Action and Notice of Motion must be supported by relevant legal arguments and documentation. These include copies of the foreclosure complaint, any relevant mortgage documents, and other evidence that demonstrates the lack of standing or jurisdiction. It is crucial to engage an experienced attorney who specializes in foreclosure defense to handle such motions effectively. They can help identify the appropriate grounds for dismissal and build a strong legal strategy to protect the defendant's rights and interests. In summary, the New York Motion to Dismiss Foreclosure Action and Notice of Motion are critical legal documents used to challenge the validity of a foreclosure claim. These motions assert various grounds, such as lack of standing or subject jurisdiction, to seek the dismissal of the case. Consulting with an attorney knowledgeable in foreclosure defense is highly recommended navigating the intricacies of these motions successfully.
