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.
Connecticut Motion to Dismiss Foreclosure Action is a legal procedure employed by homeowners or property owners facing foreclosure proceedings in the state of Connecticut. When served with a foreclosure lawsuit, individuals may file a Motion to Dismiss Foreclosure Action to challenge the validity or sufficiency of the foreclosure complaint or to contest any procedural defects in the foreclosure process. There are various types of Connecticut Motion to Dismiss Foreclosure Action that individuals may consider filing, depending on the grounds for dismissal. Some common types include: 1. Lack of Standing: Homeowners may file a Motion to Dismiss if they believe the party initiating the foreclosure action lacks standing to foreclose on the property. This may occur when the foreclosing entity does not possess the proper documentation or cannot prove ownership of the mortgage and note. 2. Failure to Comply with Notice Requirements: Connecticut law requires lenders to provide specific notices to homeowners before initiating foreclosure proceedings. If the lender fails to comply with these notice requirements, homeowners can file a Motion to Dismiss based on inadequate notice, seeking to halt the foreclosure action. 3. Violation of Mortgage Servicing Laws: Homeowners may file a Motion to Dismiss if they can prove that the lender or loan service violated state or federal laws related to mortgage servicing practices. These violations could include failure to provide required disclosures, improper loan modifications, or predatory lending practices. 4. Procedural Defects: Individuals may file a Motion to Dismiss if they identify procedural defects in the foreclosure process. This could include errors in the foreclosure complaint, improper service of process, or failure to adhere to statutory timelines. 5. Unconscionable Conduct: Homeowners may file a Motion to Dismiss if they can demonstrate that the lender engaged in unconscionable conduct during the loan origination or foreclosure process. Unconscionable conduct refers to actions that are considered unjust, unreasonable, or lacking in good faith. It is crucial to note that filing a Motion to Dismiss does not guarantee a successful outcome. It is advised for individuals to consult with an experienced foreclosure attorney to understand the specific circumstances and the most appropriate grounds for dismissal in their case. Additionally, individuals must adhere to the specific court rules and deadlines for filing a Motion to Dismiss Foreclosure Action and Notice of Motion in Connecticut.
