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 Iowa, a Motion to Dismiss Foreclosure Action and Notice of Motion is a legal procedure that allows homeowners facing foreclosure to request the court to dismiss the foreclosure lawsuit against them. This motion is typically filed by homeowners when they believe there are valid legal reasons to dismiss the foreclosure action, such as errors in the lender's documentation or violations of the homeowner's rights during the foreclosure process. Iowa offers various types of motions to dismiss foreclosure actions based on different legal grounds. Some common types include: 1. Lack of Standing Motion: Homeowners can file this motion if they believe the foreclosing party lacks legal standing to initiate the foreclosure action. Lack of standing may occur if the lender fails to provide sufficient evidence of ownership or fails to show that they have the right to enforce the mortgage. 2. Procedural Errors Motion: Homeowners have the option to request a dismissal based on procedural errors committed by the foreclosing party or their legal representatives. This could include failure to follow proper foreclosure procedures, failure to serve required notices, or other violations of state or federal foreclosure laws. 3. Failure to State a Claim Motion: Homeowners may file this motion if they believe the foreclosure lawsuit fails to state a valid legal claim against them. They argue that even if all the allegations made by the lender are true, they still do not constitute a legal basis for foreclosure. 4. Defenses under the Homeowner Bill of Rights (HBO): Iowa has enacted certain homeowner protections under the HBO, which may provide additional grounds for motion to dismiss foreclosure actions. These defenses can include violations of the lender's duty to explore foreclosure alternatives or failure to provide the homeowner with required notices and disclosures. It is essential for homeowners facing foreclosure in Iowa to consult with an experienced foreclosure attorney to assess their specific situation and determine the most appropriate grounds for filing a Motion to Dismiss Foreclosure Action and Notice of Motion. A well-drafted and supported motion can potentially halt the foreclosure process and give homeowners an opportunity to resolve their financial difficulties or negotiate a loan modification with the lender.
