Motion to Dismiss Foreclosure Action

Motion to Dismiss Foreclosure Action

IN THE COURT OF (Name of County)

STATE OF (Name of State)

(Name of Plaintiff) PLAINTIFF

VS. CAUSE NO.

(Name of Defendant) DEFENDANT

Motion to Dismiss Foreclosure Action

Comes now (Name of Defendant), Defendant, in the above-captioned cause, who, by and through his attorney moves the Court to dismiss Plaintiff’s , with prejudice, on the following grounds:

(Possible Grounds)

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1. The Complaint fails to state a claim against Defendant on which relief can be granted. Neither the original mortgage nor the note with proof of assignment are attached to the Complaint. Simply filing a copy of the original note and mortgage is not sufficient; Plaintiff must produce evidence that it is the original owner or assignee of the original note and mortgage. Plaintiff has not shown that it is the real party in interest.

2. The prosecution of a foreclosure action must be made by the owner and holder of the mortgage and the note. Plaintiff is not entitled to maintain this action in which it seeks to foreclose on a mortgage which Plaintiff has not adequately pled that it owns.

3. Plaintiff (Name of Plaintiff) alleges that it owns and holds the subject note and mortgage pursuant to an assignment. There is no exhibit attached to Plaintiff’s Complaint support this allegation.

4. Plaintiff’s pleadings fail to contain sufficient facts to establish whom the actual Plaintiff is, its relationship to Defendant and to the claim for foreclosure of the subject mortgage. The record fails to sufficiently identify whom the correct plaintiff is and therefore fails to allege facts sufficient to determine the standing of Plaintiff.

5. Pursuant to the Complaint fails to state a claim on which relief may be granted against Defendant. Plaintiff has not shown that it was the actual purchaser of the note and mortgage, and, therefore, lack standing to sue for foreclosure. The Note referred to in Plaintiff’s complaint was issued by (Name of original Mortgagor) to (Name of original Mortgagee) and not the Plaintiff. In order to recover on a promissory note, the Plaintiff must prove:

A. The existence of the note in question;

B. That the party sued signed the note;

C. That the Plaintiff is the owner or holder of the note in due course; and

D. That a certain balance is due and owing on the note.

6. Plaintiff’s allegations in its Complaint fails to adequately plead that it is the owner or holder of the note. There is no evidence of an assignment from the real party in interest to the Plaintiff. Plaintiff has not produced an assignment, nor is there any evidence in Plaintiff’s Complaint of an assignment recorded in the public records.

7. The Plaintiff fails to establish in any of its pleadings that it owned or held the mortgage or the note at the commencement of this action. Because there is no proof that the Plaintiff ever held the note or mortgage or took possession of the note or mortgage, Plaintiff has no claim or right to prosecute the foreclosure.

8. Plaintiff also failed to properly allege the chain of title from the original lender to the foreclosing Plaintiff as required by law. There is no proof that a proper chain of assignments took place and that the lien positions were properly perfected. Plaintiff merely alleges in its Complaint that owns and holds the subject note and mortgage pursuant to an assignment. Plaintiff has not sufficiently alleged that it is the real party in interest and therefore has not shown that it is authorized to bring this action.

Since Plaintiff’s pleadings fail to contain sufficient facts to establish whom the actual plaintiff is and its relationship to Defendant and how Plaintiff has a claim for foreclosure of the subject mortgage, Defendant respectfully moves the Court to dismiss Plaintiff’s Complaint with prejudice.

Respectfully submitted,

Certificate of Service

This is to certify that I, (Name of Attorney), attorney for Defendant (Name of Defendant), have this date served a true and correct copy of the above and foregoing Motion by U.S. Mail, postage fully prepaid, to the following counsel of record for the Plaintiff:

(Name of Attorney)

(Post Office Box No. or Street Address)

(City, State, Zip Code)

This the day of , 20.

Respectfully Submitted,

Notice of Motion to Dismiss Foreclosure Action

You are notified that on (date), at (time), or as soon thereafter as counsel can be heard, in Courtroom of the Court for County, (State), at the (County) Courthouse at , Defendant (Name of Defendant), by and through his attorney, will bring on for hearing his Motion for the reasons stated in the above Motion.