New York Motion to Dismiss Foreclosure Action and Notice of Motion

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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.

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FAQ

Let's cover them all: Declare Bankruptcy. Yes, bankruptcy is a way through which foreclosure can be stopped. ... Applying for Loan Modification. It has become difficult to fully pay off the mortgage payments. ... Reinstating Your Loan. ... Plan for Repayment. ... Refinancing. ... Sell Out Your Home. ... Short Sale. ... Deed In Lieu of Foreclosure.

Renewed motion for JMOL ? A post-trial formal request for the court to change the verdict because no reasonable jury could have reached that same verdict.

You have a right to avoid foreclosure if you repay your loan in full at any time prior to the sale of your home, or if you negotiate a settlement with the plaintiff.

Motions to renew are somewhat easier bring before the same judge than motions to reargue since they do not tell the judge that ?they got it wrong? but that the law or facts materially ?changed since your decision and that this change would have affected how your proceeded?.

(d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and.

Unlike a motion for reconsideration, a renewed motion does not ask the court to modify, amend, or revoke the prior order, but instead it is a pure renewal of the first motion.

Motion to reargue: A request to a Judge to talk about an issue in a case again. motion to renew: A request to a Judge to reconsider his or her decision based on new proof or additional proof not used the first time around.

Under New York's one action rule, while an action is pending or after final judgment for the plaintiff, no other action may be commenced to recover the debt without the permission of the court in which the original action was brought.

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Although the lender must affirmatively plead compliance with the 90-day notice requirement in the complaint, in the event of a defective notice the defendant- ... Request for Judicial Intervention (RJI) ask the court to take some action regarding the lawsuit, you must request that a Judge be assigned to the case. This is ...A cross-motion to dismiss the foreclosure, pursuant to CPLR 3211, can be made based on the any of the following grounds: a) a defense derived from documentary ... In special proceedings and with regard to motions pursuant to CPLR 3213, counsel should file the original petition and a summons and the original motion papers ... This means that they have to submit an Order or motion to the court within one year of that date. If they fail to do so, the case should be dismissed ... Jun 11, 2021 — Supreme court granted Equity's motion to dismiss the complaint pursuant to CPLR 3211(5) (statute of limitations) and for summary judgment on the ... CPLR 2214 authorizes a moving party to file two kinds of motions. The first is a notice of motion, and the second is an order to show cause. In addition, the ... To bring a foreclosure action in NY, plaintiff must own both the mortgage and note at the inception of the action; Deutsche Bank National Trust Company v. Apr 7, 2021 — It states that a defendant or a court may seek dismissal for neglect to proceed only after serving a written demand by registered or certified ... ... motion, unless sufficient cause is shown why the complaint should not be dismissed. ... the person mailing the notice and shall be filed with the judgment. Where ...

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New York Motion to Dismiss Foreclosure Action and Notice of Motion