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 Wisconsin Motion to Dismiss Foreclosure Action and Notice of Motion is a legal document filed by a defendant in a foreclosure case seeking the dismissal of the action. It serves as a formal request to the court to terminate the foreclosure proceedings for various reasons. This motion can be an effective strategic tool for homeowners facing foreclosure, as it presents an opportunity to challenge the lender's claims or the legality of the foreclosure process. There are several types of Wisconsin Motion to Dismiss Foreclosure Action, each with its own specific purpose and grounds. Here are a few common types: 1. Lack of Standing: This motion argues that the plaintiff (typically the lender) lacks standing to bring the foreclosure action because they cannot prove they are the rightful owner of the mortgage or note. It challenges the plaintiff's ability to demonstrate a legal interest in the property and requests the court to dismiss the case. 2. Failure to Comply with Legal Requirements: This motion contends that the plaintiff failed to fulfill the necessary legal obligations or procedural requirements required to initiate or proceed with a foreclosure action. This can include the lender's failure to provide proper notice, violating foreclosure laws, or not adhering to specific court rules. 3. Lack of Pre-Foreclosure Mediation: In Wisconsin, certain lenders are required to participate in mediation with homeowners before commencing foreclosure proceedings. A Motion to Dismiss can claim that the lender failed to engage in this mandatory mediation process, thereby seeking dismissal of the foreclosure action. 4. Failure to Provide Sufficient Documentation: This motion argues that the lender has not provided adequate evidence to support their foreclosure claim. It challenges the authenticity of the documents submitted, such as the mortgage, note, or assignment of mortgage, and requests the court to dismiss the case due to lack of evidentiary support. 5. Violation of Fair Debt Collection Practices Act (FD CPA): If the lender engaged in illegal or unfair debt collection practices during the foreclosure process, a motion can be filed to dismiss the action. This may include allegations of harassment, misleading statements, or deceptive practices in violation of the FD CPA. In addition to the Motion to Dismiss, a Notice of Motion is filed simultaneously to inform all parties involved in the case about the defendant's intention to request dismissal. This notice typically includes essential information such as the date, time, and location of the hearing where the motion will be heard. It is crucial to note that the success of a Motion to Dismiss Foreclosure Action in Wisconsin depends on the specific circumstances of each case, the legal arguments presented, and the court's interpretation of relevant laws. Consulting with an experienced foreclosure defense attorney is highly recommended ensuring a comprehensive understanding of the Wisconsin foreclosure process and to strategize the best available defense options.
