Motions to Dismiss Florida Foreclosure Lawsuits
A Motion to Dismiss the bank’s foreclosure lawsuit should be filed prior to your Answer to the lawsuit and often results in dismissal of the case and forcing the bank to start over. In some situations, the case can be permanently dismissed if the banks actions are particularly egregious so make sure to follow our future blogs which will discuss what type of actions qualify for permanent dismissal and highlight important court decisions in this area. Banks must be held accountable for their mistakes and the total lack of concern for the same homeowners who made them wealthy to start and many courts are finally agreeing with aggrieved homeowners.
Once the foreclosure lawsuit is formally served, state law specifies how many days you have to respond. This information is almost always contained on the cover sheet accompanying the lawsuit together with the name and contact information for the bank’s lawyer and you can also contact your local Clerk of Court for this information. If you’ve hired a lawyer to defend your case, the attorney will help you decide on the best strategy and timing overall. Even if you can’t afford to hire a lawyer to handle the entire case, at least try to meet with someone experienced in foreclosure defense to discuss possible defenses and avoid missing important issues.
If you decide to defend your own Foreclosure Lawsuit, you’ll need to respond prior to the deadline indicated in the suit papers and there are two general options at this stage-the first is to file your Answer to the lawsuit and the second is to file a Motion for Extension of Time to Respond (if you need more time to get organized and conduct research) followed by your Motion to Dismiss the Foreclosure Lawsuit.
Regardless of which option you choose, be sure to list all possible Foreclosure Defenses in both the Motion to Dismiss and your Foreclosure Answer to avoid waiving important foreclosure rights by not raising them at every opportunity.
Specific defenses to raise in your Motion to Dismiss (as well as your Answer) vary from state to state and both the local Clerk of Court and your state Bar Association can direct you to a law library and/or online resources to help decide what defenses may apply to your case. Some states require certain defenses to be listed in the first formal response to the lawsuit in either your Motion to Dismiss or Answer so be sure to verify the local rules before proceeding.
Generally, you can always raise issues involving the court’s jurisdiction if you’re sued in the wrong place, can always question whether or not the right bank and plaintiff are suing you and should consistently raise issues regarding the lack of sufficient documentation to support the case. The bank needs to file original versions of both your Promissory Note and Mortgage (not copies of a copy), as well as originals of each and every transfer and assignment of mortgage to prove how they came into possession of your loan and the alleged right to sue you. More on Who Owns Your Mortgage and Why Care. Banks make a lot of mistakes in this area so continue to demand everything involved in the chain of title for your loan.
If a loan servicing company is suing you on behalf of the real owner of your Note and Mortgage, be sure to request both the servicer’s authorization to represent the owner and proof that the lender actually owned the loan before the lawsuit was filed against you. The current owner of the loan has no right to sue if they didn’t own the Note and Mortgage prior to the date suit was filed.
To get you started in the right direction, we’ve prepared a Sample Motion to Dismiss the Foreclosure Lawsuit as a guide to help you develop your own Motion to Dismiss. However, because we can’t offer specific legal advice and due to the varying state requirements and unique facts involved in each case, you’ll need to modify all of the documents to reflect the circumstances in your case and to comply with county and state rules and regulations.
Hire a lawyer to help if at all possible and use the resources available through the courts in your state as well as local Bar Associations and Legal Aid services to produce the best documents and strongest arguments in your case.
Sample Florida Motion to Dismiss Foreclosure Lawsuit
IN THE CIRCUIT COURT OF THE ____TH JUDICIAL CIRCUIT, IN AND
FOR _________ COUNTY, FLORIDA
(Name of Lender Here)
(Your Name(s) Here),
Case No.: ____________
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Defendant(s) (Your Name(s) Here), Pro Se, file this Motion to Dismiss Plaintiff’s complaint and as grounds therefore state(s):
- Plaintiff has filed a lawsuit seeking foreclosure of certain real property located in __________ County, Florida.
- Plaintiff’s complaint should be dismissed for failure to state a cause of action, failure to comply with conditions precedent in both the note and mortgage, and lack of standing and failure of the proper plaintiff to prosecute this action.
- Initially, plaintiff’s complaint should be dismissed for lack of standing and the failure of the proper party to file the lawsuit. Although the note and mortgage clearly identify (Name of the Lender Listed in Your Note and Mortgage Here) as the Lender and Owner of the note and mortgage, the complaint specifically states that the owner of the note and mortgage is (Name of the Bank/Plaintiff in The Lawsuit) which is incorrectly identified as the Plaintiff and as a result the complaint should be dismissed.
- Plaintiff’s complaint should also be dismissed for the failure to attach the original note ( add if true: which was purportedly lost by the plaintiff) and mortgage which contain the key terms and conditions of the underlying agreements as well as possible notations and/or amendments identified solely in the original note and mortgage. Rather plaintiff attached as its exhibit what it refers to as a copy of the note, whatever that may actually be.
- Plaintiff’s complaint should further be dismissed for failure to comply with two mandatory conditions precedent required before filing suit and/or accelerating the terms of the note.
- Paragraph 20 of the mortgage requires written notice when the loan servicer has been changed. Although the documents are intentionally confusing, it appears that the original servicer of the loan was changed to ( Name of Company on Your Loan Statement) without the requisite written notice; and
- Paragraphs 18 and 22 of the mortgage state in bold black print that specific notice containing mandatory language must be provided to the borrower before filing a lawsuit or accelerating the terms of the note. No such notice was ever provided to borrowers, no copy of such notice is attached to the lawsuit as an exhibit and the complaint must be dismissed as a result.
- As a result of these deficiencies, plaintiffs have failed to state a cause of action and the complaint should be dismissed.
- (Other possible defenses that may be applicable depending on the facts in your case and which can be raised in the Motion to Dismiss include “Lack of Jurisdiction” and/or “Improper Venue” if you’re sued in the wrong court, and “Improper/Insufficiency of Service of Process” if the lawsuit papers were not served properly.)
WHEREFORE, Defendant(s) (Your Name(s) Here), respectfully request the Court to grant the instant Motion to Dismiss and for such other and further relief as this Court deems just and proper.
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via US Mail this _____ day of ___________, 201_ to (Name and Address of Attorney and Law Firm for the Bank)
Dated this ______th day of ______, 201_.
(Your Name(s) Here)
(Your Address and Phone Number)