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 Washington Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document filed by a homeowner or borrower in the state of Washington to request the court to dismiss a foreclosure action initiated against their property. This motion aims to challenge the validity of the foreclosure proceeding, to assert defenses, and to protect the homeowner's rights. The Washington Motion to Dismiss Foreclosure Action is typically filed in response to a foreclosure lawsuit and is accompanied by a Notice of Motion, which informs the court and the lender or their representative about the homeowner's intent to seek dismissal of the foreclosure action. This document is crucial for initiating the legal process to halt or challenge the foreclosure process. There are different types of Washington Motions to Dismiss Foreclosure Action and Notice of Motion, each addressing specific circumstances and legal grounds. Some common types include: 1. Lack of Standing Motion: This motion is filed when the homeowner alleges that the mortgage lender or foreclosing party lacks legal standing or authority to initiate the foreclosure action. It asserts that the party bringing the lawsuit does not have the legal right to foreclose on the property due to defects in the chain of ownership or improper assignment of the mortgage. 2. Incorrect or Insufficient Documentation Motion: This type of motion challenges the foreclosure action based on the lender's failure to provide proper documentation supporting their claim. It questions the authenticity, accuracy, or completeness of the required legal documents, such as the promissory note, mortgage agreement, or assignment of the deed of trust. 3. Violation of Due Process Motion: This motion alleges that the homeowner's procedural rights have been violated during the foreclosure process. This could involve irregularities in the service of process, failure to provide required notices or disclosures, or any other infringement on the homeowner's right to a fair and equitable process. 4. Statute of Limitations Motion: If the foreclosure action is time-barred by the statute of limitations, which limits the time within which a foreclosure lawsuit can be filed, this motion can be filed to request dismissal. It asserts that the lender has exceeded the legal timeframe to initiate the foreclosure action, rendering it invalid. It's crucial to consult with an experienced foreclosure defense attorney in Washington to determine the appropriate Motion to Dismiss Foreclosure Action and Notice of Motion to file based on the specific circumstances of the case. These legal documents are tailored to protect the homeowner's rights and challenge the foreclosure action on valid legal grounds. Legal representation can help navigate the complex foreclosure process and increase the chances of achieving a successful outcome for the homeowner.
