Filing a Motion to Dismiss a Foreclosure
How to challenge the legal sufficiency of the foreclosure complaint and seek dismissal
Overview
A Motion to Dismiss challenges the legal sufficiency of the plaintiff's foreclosure complaint — arguing that even if all the plaintiff's allegations were true, the complaint fails to state a valid claim. Motions to dismiss are filed instead of (or in addition to) an Answer. If granted, the foreclosure case is dismissed, though the plaintiff may be given leave to amend and re-file. If the plaintiff cannot cure the defect, the dismissal is with prejudice. Common grounds for dismissal include: lack of standing (the plaintiff hasn't adequately alleged ownership of the note and mortgage), failure to comply with statutory pre-foreclosure requirements (mediation notice, notice of default, face-to-face meeting), expiration of the statute of limitations, and failure to join an indispensable party.
When to Use This Procedure
File a Motion to Dismiss within the time allowed for responding to the complaint (typically 20-30 days from service). A Motion to Dismiss may be filed instead of or before an Answer. If the motion is denied, you can then file an Answer. Some defenses are waived if not raised in a pre-answer motion to dismiss.
Step-by-Step Guide
Identify the legal grounds for dismissal
Review the complaint for: (a) Does the plaintiff allege facts showing it owns/holds your loan? (b) Does the complaint allege compliance with all statutory pre-foreclosure requirements? (c) Was the complaint filed within the statute of limitations? (d) Are all necessary parties joined? Missing or conclusory allegations on these essential elements are grounds for dismissal.
Research the legal standard
The legal standard is that the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. You must show that even under this generous standard, the complaint fails to state a claim. Research the specific pleading requirements for foreclosure complaints in your state.
Draft the motion and memorandum of law
The motion itself is simple (1-2 pages stating the relief sought). The memorandum of law (typically 10-15 pages) is where you argue why the complaint is legally insufficient, citing the specific pleading deficiencies and supporting case law. Attach any relevant exhibits (e.g., documents showing the statute of limitations has expired).
Include a proposed order
Attach a proposed order for the judge to sign if the motion is granted. It should state: 'The plaintiff's Complaint is hereby dismissed. Plaintiff is granted [20/30] days to file an Amended Complaint.' If seeking dismissal with prejudice, state that instead.
File and serve within the deadline
File the motion with the Clerk of Court and serve on opposing counsel before the deadline for responding to the complaint. If the deadline passes without a response (Answer or motion), the plaintiff can seek default.
Important Deadlines
- •Must be filed within the time for responding to the complaint (20-30 days from service)
- •If motion is denied, you typically have 10-14 days to file your Answer (check local rules)
- •Some defenses are waived if not raised in a pre-answer motion to dismiss
Common Mistakes
- ✕Confusing a Motion to Dismiss with an Answer: a motion to dismiss challenges legal sufficiency; an Answer responds to factual allegations
- ✕Attaching evidence outside the complaint: in most states, a motion to dismiss is decided on the face of the complaint — extrinsic evidence is not considered
- ✕Not filing an Answer if the motion is denied: if your motion to dismiss is denied, you must file an Answer or face default
- ✕Raising facts rather than legal sufficiency: the court must accept the complaint's factual allegations as true for purposes of the motion
How Professional Law Assist Helps
Professional Law Assist evaluates foreclosure complaints for pleading deficiencies and drafts Motions to Dismiss where appropriate. Many foreclosure complaints — particularly those filed by large servicers using volume practices — contain fatal pleading defects. Our experience with the specific pleading requirements in each state allows us to identify and exploit these defects effectively.
Get Your Free Case Review →Frequently Asked Questions
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