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.
Illinois Motion to Dismiss Foreclosure Action and Notice of Motion are legal documents used in the state of Illinois in foreclosure proceedings. These documents are filed by the defendant, typically the homeowner facing a foreclosure action, in order to challenge the validity or procedural errors in the foreclosure action. A Motion to Dismiss Foreclosure Action is a formal request to the court to dismiss the foreclosure case entirely. This motion can be filed for various reasons, such as lack of jurisdiction, failure to state a claim, improper service of process, or if the plaintiff (typically the lender or mortgagee) does not have a valid legal standing to foreclose on the property. It essentially argues that there are legal deficiencies or errors in the foreclosure action that warrant the dismissal of the case. The Notice of Motion is a crucial accompanying document that notifies the opposing party, usually the plaintiff, and the court of the intention to file a motion to dismiss. It informs them about the upcoming motion and provides an opportunity for them to prepare their response and participate in the court hearing. The notice typically includes the date, time, and location of the scheduled hearing where the motion will be addressed, allowing both parties to present their arguments. It's worth noting that there are different types of Motion to Dismiss Foreclosure Action in Illinois based on the grounds for dismissal. Some common types include Motions to Dismiss for Lack of Standing, Motions to Dismiss for Failure to State a Claim, Motions to Dismiss for Lack of Service, and Motions to Dismiss for Lack of Jurisdiction. Each type of motion addresses a specific legal argument or deficiency in the foreclosure action and requires supporting evidence and legal reasoning to back it up. In summary, Illinois Motion to Dismiss Foreclosure Action and Notice of Motion are key legal documents used in foreclosure cases within the state. Homeowners facing foreclosure can file these motions to challenge the validity, jurisdiction, or procedural errors in the foreclosure action. By thoroughly understanding the grounds for dismissal and following the appropriate legal procedures, homeowners can seek relief from foreclosure and protect their rights to their property.
