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.
Title: Understanding Motion to Dismiss Case Sample for Lack of Prosecution in Florida Keywords: motion to dismiss case sample, lack of prosecution, Florida court system, reasons for dismissal, different types Introduction: In legal proceedings, a Motion to Dismiss Case for Lack of Prosecution is a request made by the defendant to dismiss a case due to the plaintiff's failure to move the case forward within a reasonable time frame. This article will provide a comprehensive overview of this motion, offering insights into its purpose, requirements, and various examples that may arise within the Florida court system. What is a Motion to Dismiss Case for Lack of Prosecution in Florida? A Motion to Dismiss Case for Lack of Prosecution is a legal tool employed by defendants to seek dismissal of a case due to the plaintiff's inaction or failure to prosecute within a reasonable time period. This motion asserts that the plaintiff's lack of progress violates their duty to diligently pursue the case. Reasons for Filing a Motion to Dismiss: 1. Delay in service of process: A defendant may file a motion if the plaintiff fails to properly serve the required legal documents within the specified time frame. 2. Lack of action or progress: If the plaintiff's lack of action or delays significantly hinder the progress of the case, the defendant might file a motion to dismiss. 3. Failure to attend hearings: If the plaintiff repeatedly fails to attend hearings, thereby causing unnecessary adjournments, a motion to dismiss for lack of prosecution may be appropriate. Different Types of Motion to Dismiss Case Sample for Lack of Prosecution: 1. Motion to Dismiss Case Sample — Delay in Service of Process: This sample motion could be filed when the plaintiff fails to serve the required legal documents within the specified time frame. The defendant argues that the delay negatively impacts their rights and ability to defend the case properly. 2. Motion to Dismiss Case Sample — Lack of Action or Progress: This sample motion pertains to situations where the plaintiff fails to take necessary actions or regularly delays case progress, causing undue burden on the defendant. The lack of diligence in prosecuting the case is highlighted as grounds for dismissal. 3. Motion to Dismiss Case Sample — Failure to Attend Hearings: This sample motion is relevant when the plaintiff repeatedly fails to attend scheduled hearings, resulting in unnecessary adjournments or postponements. Through this motion, the defendant requests' dismissal due to the plaintiff's failure to fulfill their responsibility to participate actively in the legal process. Conclusion: A Motion to Dismiss Case Sample for Lack of Prosecution in Florida provides defendants with a legal recourse to seek dismissal when the plaintiff fails to diligently pursue the case. Through different samples, such as those related to delay in service, lack of action or progress, and failure to attend hearings, defendants can substantiate the grounds for dismissal. Understanding these motion types allows defendants to protect their rights and ensure timely resolution of legal matters in the Florida court system.
