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.
In Alabama, a motion to dismiss foreclosure action is a legal document filed by a homeowner in response to a foreclosure lawsuit. This motion serves as a request to the court to dismiss the foreclosure action against the homeowner. It is important to note that there may be different types of motions to dismiss foreclosure actions, each with its own unique purpose and grounds for dismissal. One type of motion to dismiss foreclosure action in Alabama is a procedural motion. This type of motion focuses on technicalities and procedural errors made by the lender or the court during the foreclosure process. These errors may include improper notice, failure to follow required foreclosure procedures, or lack of standing by the foreclosing party. By filing a procedural motion to dismiss, the homeowner asserts that the lender did not adhere to the correct legal processes, thereby invalidating the foreclosure action. Another type of motion to dismiss foreclosure action is a substantive motion. This type of motion challenges the underlying legal basis for the foreclosure action. Homeowners may argue various grounds for dismissal, such as lack of evidence, failure of the lender to provide necessary documentation, or violations of state or federal laws governing foreclosure practices. For example, if the lender cannot prove that they are the rightful owner and holder of the mortgage note, the homeowner may file a substantive motion to dismiss based on lack of proper documentation. When filing a motion to dismiss foreclosure action, homeowners are required to provide adequate notice to all involved parties, including the foreclosing party and the court. This notice is generally referred to as a "Notice of Motion" and contains essential information such as the date, time, and location of the court hearing where the motion will be presented. The Notice of Motion serves as a formal notification to all parties involved, ensuring their awareness of the homeowner's intent to dismiss the foreclosure action. In summary, a motion to dismiss foreclosure action in Alabama is a legal document filed by homeowners to request the court to dismiss a foreclosure lawsuit. There may be different types of motions, such as procedural or substantive motions, each focusing on specific grounds for dismissal. In addition, homeowners must provide adequate notice to all parties through a Notice of Motion, ensuring transparency and fairness throughout the legal proceedings.
