Motion to Dismiss

• Author: Rebecca A. Taylor
• Pages: 123-148

Motion to Dismiss

Chapter 16

123

The first responsive documents to a foreclosure complaint should

at least include a motion to dismiss, if you are filing other papers at

the same time. Although the court will usually not dismiss the ac-

tion with prejudice if granted, the ball is put back into the bank’s

court. It will usually have to meet a deadline in which to file its

amended complaint. If the bank does not meet it, other relief may

be available to the homeowner, which sometimes includes a dis-

missal with prejudice.

A motion to dismiss is an extremely important tool in your arse-

nal. To be effective, as with all of your defenses, you must be spe-

cific. If your motion to dismiss is granted, the bank will usually be

given leave to amend. However, if the bank has engaged in wrongful

conduct, violated a crucial rule of court, or deprived the homeowner

of a fundamental right, such as due process, the court may grant the

extraordinary relief of dismissal of the complaint with prejudice.

Grounds for a motion to dismiss exists if the complaint does not

set forth the required elements for its causes of action, is violative

of court rules and procedures,1 is too vague and unclear for a de-

1. Your local rules of court and civil procedure will govern the required

form of any complaint. Special rules have been formulated for foreclosure

actions in certain jurisdictions. For example, in Florida all foreclosure actions

against residential property must be verified. FLA. R. CIV. P. 1.110(b).

124 CHAPTER 16

fendant to form an appropriate response, or if a fact exists that ren-

ders the plaintiff’s claims null and void. Another issue to look for is

whether the bank has previously filed a foreclosure action regard-

ing the subject loan, and whether its action was dismissed. Perhaps

the court dismissed its lawsuit with prejudice, meaning that the bank

is never permitted to file foreclosure on this subject loan again. The

bank may also have voluntarily dismissed its own action for a vari-

ety of reasons; for example, the bank may have realized that it ac-

cepted payments from the homeowner after sending the demand

letter, thereby destroying a condition precedent to foreclosure and

necessitating a redemand. There is usually a limit on how many

times the bank can voluntarily dismiss and refile its foreclosure before

the action is deemed to be dismissed with prejudice. In the absence

of a statute or rule stating otherwise, a “plaintiff may dismiss and

recommence his suit as often as he chooses, subject only to pay-

ment of the cost.”2 However, the Federal Rules of Civil Procedure

and counterpart state rules generally provide that “if the plaintiff

previously dismissed any federal- or state-court action based on or

including the same claim, a notice of dismissal operates as an adju-

dication on the merits.”3 In other words, the bank generally cannot

refile a foreclosure action on the same loan transaction if it has

already filed two voluntary dismissals.

Dissecting a Foreclosure Complaint

A boilerplate foreclosure action may look something like this:4

1. IN THE CIRCUIT COURT OF THE 6TH JUDICIAL

2. CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA

3. GENERAL JURISDICTION DIVISION

4. CASE NO:

2. Poplarville Sawmill Co. v. L.F. Driver & Co., 88 S.E. 36 (1916).

3. FED. R. CIV. P. 41(a)(1)(B); see also FLA. R. CIV. P. 1.420(a)(1); Smith v.

Washington, 10 S.W.3d 877, 879–80 (Ark. 2000); Olynyk v. Scoles, 868 N.E.2d

254, 255–56 (Ohio 2007); Spokane County v. Specialty Auto and Truck Paint-

ing, Inc., 103 P.3d 792, 795 (Wash. 2004).

4. http://www.mortgage-investments.com/Real_estate_and_mortgage_

Forms/formpage/2_mortgage_foreclosure_complaint.htm.