Orange California Motion to Dismiss Foreclosure Action and Notice of Motion

State:
Multi-State
County:
Orange
Control #:
US-02684BG
Format:
Word; 
Rich Text
Instant download

Description

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.

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FAQ

The redelivery of a writ, notice, or other form of legal process to the court after its proper service on the defendant or after it cannot be served. For example, the Federal Rules of Civil Procedure require a plaintiff to begin an action in federal court by preparing a complaint and giving it to the court.

A motion may be withdrawn at any time prior to its return date by filing with the clerk a written request signed by counsel for the moving party. A request to withdraw a motion after submission must be supported by a stipulation of withdrawal signed by all counsel.

(a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

The court will not accept motions, orders to show cause, requests for court conferences, or any other papers until an RJI is filed. An RJI may be filed at any time after service of process and must conform to the requirements of 22 NYCRR § 202.6.

1) RJIs Generally The fee for filing an RJI (UCS 840, revised 2012) is paid to the County Clerk via the New York State Courts Electronic Filing System (NYSCEF) in e-filed cases and to the County Clerk's cashier's office, Room 160, in paper cases. A "fillable" form RJI is available on-line.

Motions made by notice of motion and petitions and notices of petition in special proceedings are processed by the General Clerk's Office (Room 119) and are to be made returnable in the Motion Submission Part Courtroom (Room 130) on any business day of the week at AM.

RJI/Motions shall be made returnable in Queens Supreme Court with no address designated. The motion will be administratively rescheduled to the proper day of the week based on the judge (once a judge has been assigned).

A form that a party files in an action that has not yet been assigned to a judge. The RJI is a request for the court to become involved in the matter and will result in the assignment of a judge, who will then preside over the action until its end.

The return date is the court date. The party making the motion chooses the court date and puts it in the Notice of Motion so everyone knows when to come to court.

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Orange California Motion to Dismiss Foreclosure Action and Notice of Motion