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.
South Dakota Motion to Dismiss Foreclosure Action and Notice of Motion In South Dakota, a Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document filed by a respondent or defendant in a foreclosure case. This motion requests the court to dismiss the foreclosure action initiated by the lender or plaintiff due to various legal reasons, ultimately aiming to halt or cancel the foreclosure process. Keywords: South Dakota, motion to dismiss foreclosure action, notice of motion, legal document, respondent, defendant, foreclosure case, lender, plaintiff, legal reasons, halt, cancel, foreclosure process. Different types of South Dakota Motion to Dismiss Foreclosure Action and Notice of Motion: 1. Lack of Standing Motion: This motion argues that the plaintiff or lender does not have the legal standing to foreclose on the property due to the lack of proper ownership documentation or evidence. 2. Procedural Errors Motion: This motion addresses any procedural errors made by the lender or the court during the foreclosure process. It may include concerns related to the proper notice given to the borrower, failure to follow required filing procedures, or violation of state foreclosure laws. 3. Failure to Provide Notice Motion: This motion claims that the lender failed to provide the necessary pre-foreclosure notice to the borrower as required by South Dakota foreclosure laws. It asserts that without proper notice, the foreclosure action should be dismissed. 4. Violation of the Fair Debt Collection Practices Act (FD CPA) Motion: This motion alleges that the plaintiff or their representatives violated the FD CPA's guidelines and regulations while attempting to collect the debt or enforce the foreclosure. It may argue that the lender used deceptive or abusive practices during communication or failed to provide accurate information. 5. Defective Loan Documentation Motion: This motion contests the validity of the loan documentation, arguing that there are significant defects or irregularities in the mortgage, promissory note, or related paperwork. It may claim that the lender lacks the necessary documentation to prove their right to foreclose. 6. Lack of Default Motion: This motion challenges the plaintiff's claim that the borrower is in default, arguing that the lender failed to provide evidence of default or incorrectly calculated the amount owed. It is essential to consult with a qualified attorney or foreclosure specialist to determine the most appropriate type of motion to file based on the specific circumstances of the foreclosure case in South Dakota.
