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 "Motion to Dismiss Foreclosure Action" is a legal document that can be filed in an Oregon court to request the dismissal of a foreclosure case. It is usually filed by the defendant or the homeowner who is facing foreclosure, and it serves as a defense against the foreclosure action initiated by the plaintiff or the lender. In Oregon, there are several types of motions to dismiss foreclosure actions depending on the specific circumstances of the case. Some common types include: 1. Motion to Dismiss for Failure to Comply with Foreclosure Laws: This motion is filed when the plaintiff, typically the lender, has failed to comply with the specific foreclosure laws and regulations in Oregon. The motion argues that the lender has not followed the proper legal procedures required for initiating a foreclosure, such as providing proper notice to the homeowner or failing to comply with mediation requirements. 2. Motion to Dismiss for Lack of Standing: This motion challenges the plaintiff's legal standing to bring the foreclosure action. It asserts that the plaintiff does not have the legal authority or ownership rights to enforce the mortgage or claim the debt owed by the homeowner. Lack of standing may arise when the mortgage has been assigned or sold multiple times, and the proper documentation has not been maintained. 3. Motion to Dismiss based on Procedural Defects: This motion argues that the foreclosure action is flawed due to procedural irregularities or errors committed during the process. It may involve improper service of legal documents, insufficient or inaccurate information presented, or violations of the homeowner's rights during the foreclosure proceedings. 4. Motion to Dismiss for Lack of Default: This motion challenges the plaintiff's claim that the homeowner has defaulted on the mortgage payments. It asserts that the plaintiff has not adequately shown that the homeowner has failed to meet their financial obligations or that the default has been incorrectly calculated. When filing a Motion to Dismiss Foreclosure Action in Oregon, it is crucial to include a "Notice of Motion." This notice informs the court and the opposing party about the intention to file the motion, the specific grounds for the motion, and the requested relief. It provides an opportunity for the opposing party to respond and present counterarguments before the court makes a decision. In summary, an Oregon Motion to Dismiss Foreclosure Action and Notice of Motion are legal documents that help homeowners defend themselves against foreclosure actions. These motions can be based on various grounds, including failure to comply with foreclosure laws, lack of standing, procedural defects, or lack of default. It is crucial to carefully analyze the specific circumstances of the case and consult with an attorney experienced in foreclosure defense to determine the most suitable type of motion to file.
