File a Motion to Dismiss the Foreclosure Lawsuit to Get More Time to Save Your Home

Once homeowners fall behind on their payments by a few months, the bank will inevitably begin the process of filing foreclosure paperwork. In states where the lender must (or usually does) go to court to be able to have the home auctioned, a lawsuit is filed against the owners. This is when the clock starts really ticking against borrowers, who must file an answer to the bank's lawsuit, but there is a step that may be taken even to delay the process at this initial juncture in the legal process.

When homeowners are served with a foreclosure lawsuit, they are typically given 20-30 days to file their answer with the court. In the answer, they are able to respond to the allegations the bank made in its complaint, state any affirmative defenses, and claim any defenses to the lawsuit. This is when borrowers can really start making the bank defend each of its positions or attack the lender's ability to bring the lawsuit in the first place.

But homeowners can take a step even before filing their answer that may buy them some extra time and force the bank to begin defending its legal action against the borrowers. Filing a Motion to Dismiss before the answer will put the entire foreclosure process in the courts on hold for a time until the Motion to Dismiss can be ruled upon by the judge in the case. With the slow speed at which many courts operate in the country, this simply maneuver can buy homeowners an extra month or more even before the bank can get a foreclosure judgment on the property.

This is also a way to eliminate a lawsuit very quickly without spending more time defending the bank's arguments point by point in a formal answer. The federal rules of civil procedure state that it is not necessary to file an answer to a complaint until a Motion to Dismiss has been ruled upon by the court. It is also important to note that this legal tactic may be called by other names in other states; for example, it may be referred to as a Demurrer o a Preliminary Objection, depending on the state laws and rules.

One way to begin arguing against the bank's lawsuit without filing an answer addressing the entire complaint is to file a Motion to Dismiss based on the bank's inability to bring the lawsuit in the first place. Homeowners can state that the bank has not shown it even owns the mortgage for it to have a claim to any of the borrower's property. If the bank does not have a right to collect the mortgage payments and foreclose, it is not the party in interest and may not bring a foreclosure lawsuit against the owners.

Especially if the mortgage or note with assignment proof is not attached to the complaint, the bank may have trouble showing it is legally allowed to foreclose on the house. Simply filing a copy of the original mortgage or deed of trust is also not quite good enough, as these documents are a matter of public record. The bank must produce evidence that it is the current owner and assignee of the original note.

Insufficiency of process is another defense homeowners can use to file a Motion to Dismiss before addressing the actual substance of the bank's complaint. When banks do not correctly follow the laws and rules in serving the borrowers with the paperwork, the lawsuit is not valid and may be thrown out of court until the lender can get it right. This is mostly a matter of being familiar with the state and local rules of procedure and pointing out which ones the bank and its attorneys have violated.

Jurisdiction and standing are also issues homeowners may raise in a Motion to Dismiss because they force the bank to prove that it is able to bring the lawsuit and that this particular court has jurisdiction over both the homeowners and the issue. If really pressed on the issue, it is doubtful that the bank's attorneys could prove jurisdiction with facts and evidence, rather than mere legal opinions backed by nothing but fancy legal language designed to trick non-lawyer borrowers.

No matter what defenses they make in their Motion to Dismiss, though, homeowners 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 clock will begin running out again if the motion is denied.

For this reason, homeowners need to prepare for more than just this one hearing, and should be working on other solutions to foreclosure, as well. Filing the motion, just like requesting a delay of the sheriff sale, is one more good way to get more time, but homeowners who do not have a long-term plan to save their home will end up homeless anyway. It is much better to use these ideas in context, rather than as an end in themselves.

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