What is a Motion to Dismiss?

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Foreclosure is the legal process a mortgage lender uses to take possession of your home when you have missed mortgage payments. If you have been served with a foreclosure lawsuit in Ohio, you must act fast.

It’s important to meet with a foreclosure defense attorney who will know what defenses are available to you. They can review your case, explore with you the possible ways to save your home, and may even suggest filing with the court a motion to dismiss.

You risk losing your home if you do not respond to the initial complaint. Your answer, or your motion to dismiss, must list all the defenses you have to the foreclosure complaint. If you have not raised the defense in either of these documents, you lose your right to later raise the defense.

What is a Motion to Dismiss?

A motion to dismiss is just what it sounds like; a motion filed with the court asserting that the mortgage lender does not have a legal claim against you, so the complaint should be dismissed without going further with the litigation. The motion can be filed at any point during a legal process but is often filed at the beginning of the case instead of an answer.

If the court grants your motion, the lawsuit is over, either temporarily or permanently. For example, if the court grants your motion “without prejudice,” the lender can fix whatever was wrong with the complaint and refile it. If the motion is granted “with prejudice,” the case is over. The lender cannot refile it.

If the court denies the motion, your attorney will then be given time to file an answer to the lawsuit.

Grounds for a Motion to Dismiss

There are a few grounds for filing a motion to dismiss a foreclosure complaint. Some of them are:

  • Insufficient service of process. The complaint was not served in the manner required by law.
  • The lender has failed to produce the original signed note, so it has no standing to pursue litigation. Your attorney will review the documents and know if this is a valid defense for you.
  • Failure to state a claim upon which relief can be granted. This is a legal concept, and you need an attorney to pursue this for you. It essentially means that assuming all the facts in the complaint are true, there is no legal basis for the lawsuit.
  • The mortgage lender may have followed the law but breached a contract clause. If you can prove this, the case will be dismissed.
  • The lender may have violated federal laws. There are several federal laws that mortgage lenders must follow and if they have violated any of them, you may be entitled to have the case dismissed.

Your foreclosure lawyer will know if any of these defenses are available to you. There are no guarantees in the law, but if there is a chance for you to win your case with a motion to dismiss, you may save your home.

Contact the Cozmyk Law Offices for a Free Case Evaluation
At Cozmyk Law Offices, our attorneys specialize in fighting foreclosure and raising all available defenses. We are here to fight for you and help you save your home if at all possible. You must act fast. Contact us as soon as possible to schedule your free case evaluation. You may also call us at (877) 570-4440.

We will inform you of your rights, discuss your case, and help you decide what to do next. We serve all those in the state of Ohio.




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