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Motion to Dismiss Foreclosure Action and Notice of Motion

Motion to Dismiss Foreclosure Action and Notice of Motion

Q: What happens when a foreclosure case is dismissed?

A foreclosure case dismissed with prejudice can&#039;t be brought again for the same default or reasons already alleged by a lender and then dismissed by a court.Mortgage borrowers winning dismissals with prejudice of their foreclosures might eventually end up with free and clear property titles.

Category:

Civil Procedure - Dismissals

State:

Multi-State

Control #:

US-02684BG

Format:

Instant download

$59.00

In stock

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

A foreclosure case dismissed with prejudice can't be brought again for the same default or reasons already alleged by a lender and then dismissed by a court.Mortgage borrowers winning dismissals with prejudice of their foreclosures might eventually end up with free and clear property titles.

Reinstatement. Ask the lender to reinstate the loan. Forbearance Agreement. Ask the lender to forgive the debt. Refinance. Sell your home. Short Sale. LLoan modification. Deed in Lieu of Foreclosure. Rescission of loan.

Negotiate With Your Lender. If you are having financial difficulties, the worst thing that you can do is bury your head in the sand. Request a Forbearance. Modify Your Loan. Make a Claim. Get a Housing Counselor. Declare Bankruptcy. Use A Foreclosure Defense Strategy. Make Them Produce The Not.

Dismissal. When a judge dismisses a foreclosure case, the matter closes and the foreclosure can't proceed. Judges may dismiss foreclosure cases if the lender can't prove it owns your mortgage or if the lender didn't follow the state's foreclosure procedure correctly.

Overview. If one party to a case has filed a motion with the court, the other side can file an opposition. An opposition is a written statement explaining to the judge why the other side is not entitled to whatever he is asking for in his motion. It is your opportunity to oppose the other side's request.

Proving Wrongful Foreclosure If you wish to sue the bank for wrongful foreclosure, you must prove the following: The lender owed you, the borrower, a legal duty. The lender breached that duty. The breach of duty caused your injury or loss (damages)

You simply need to request that the court deny the defendant's motion to dismiss. For example, you could write the following: For the foregoing reasons and all the others discussed in Plaintiff's Complaint, the present Motion to Dismiss should be denied.

You can stop the foreclosure process by informing your lender that you will pay off the default amount and extra fees. Your lender would prefer to have the money much more than they would have your home, so unless there are extenuating circumstances, this should work.