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.
New Hampshire Motion to Dismiss Foreclosure Action: In the state of New Hampshire, a Motion to Dismiss Foreclosure Action is a legal document filed by a homeowner or borrower facing foreclosure. This motion seeks to request the court to dismiss the foreclosure lawsuit brought by the lender or mortgagee. It is an important legal tool that homeowners can utilize to challenge the validity of the foreclosure, protect their rights, and potentially halt the foreclosure process. The Motion to Dismiss Foreclosure Action is typically filed with the court where the foreclosure lawsuit was initiated. It contains a detailed argument outlining the reasons why the foreclosure action should be dismissed. This motion may be based on various legal grounds that challenge the lender's right to foreclose or raise procedural issues regarding the foreclosure process. Some common grounds on which a homeowner can seek a Motion to Dismiss Foreclosure Action in New Hampshire include: 1. Lack of Standing: The homeowner may argue that the foreclosing party does not have legal standing to initiate foreclosure proceedings. This could occur if the lender failed to properly assign the mortgage or demonstrate ownership of the loan. 2. Defective Notice: The homeowner may claim that the lender failed to provide proper notice of default, acceleration, or foreclosure sale as required under New Hampshire law. 3. Violation of Foreclosure Laws: The homeowner may assert that the lender violated specific foreclosure laws, regulations, or statutes during the foreclosure process. This could include illegal foreclosure practices or failure to comply with New Hampshire's foreclosure mediation program. 4. Failure to Comply with Mortgage Terms: The homeowner may argue that the lender failed to comply with the terms of the mortgage agreement, such as not providing required notices or engaging in unfair lending practices. When filing the Motion to Dismiss Foreclosure Action, it is crucial to follow New Hampshire's specific court rules and procedures. Additionally, it is advisable to consult with a knowledgeable foreclosure defense attorney who can assess the individual circumstances of the case and provide guidance tailored to the homeowner's situation. New Hampshire Notice of Motion: In addition to the Motion to Dismiss Foreclosure Action, a homeowner must also file a Notice of Motion along with the motion itself. This document is a formal notification to the court and all parties involved, informing them that a motion is being filed and indicating the date on which the motion will be presented before the court. The Notice of Motion typically includes the following information: 1. Caption: Full details of the court, foreclosure case number, and names of the parties involved. 2. Heading: Clearly stating "Notice of Motion" at the top of the document. 3. Filing Party Details: The name, address, and contact information of the party filing the motion. 4. Motion Details: A brief description of the motion being filed, such as "Motion to Dismiss Foreclosure Action." 5. Court Date: The date on which the motion will be presented before the court. 6. Certificate of Service: A statement confirming that copies of the Notice of Motion have been served to all parties involved in the foreclosure action, including the lender's attorney. Different types of New Hampshire Motion to Dismiss Foreclosure Action: Although the general concept of a Motion to Dismiss Foreclosure Action is the same, the specific legal grounds upon which such a motion can be based may vary from case to case. The types of motions filed will depend on the unique circumstances of each foreclosure case. Some potential types of motions could involve challenging the foreclosure based on: 1. Standing 2. Violation of foreclosure laws 3. Defective notice 4. Failure to follow mortgage terms 5. Unfair lending practices It is crucial for homeowners facing foreclosure in New Hampshire to consult with an experienced foreclosure defense attorney who can assess the specific details of their case and provide appropriate guidance on the type of motion that best suits their circumstances.
