Motion to Dismiss

• Pages: 117-140

Motion to Dismiss

Chapter 16

117

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, 1is too vague and unclear for a defendant

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. F LA. R. C IV.P. 1.110(b).

118 CHAPTER 16

to form an appropriate response, or if a fact exists that renders the

plaintiff’sclaims null and void. Another issue to look for is whether

the bank has previously filed a foreclosure action regarding the sub-

ject 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 variety of

reasons; for example, the bank may have realized that it accepted

payments from the homeowner after sending the demand letter,

thereby destroying a condition precedent to foreclosure and necessi-

tating a redemand. There is usually a limit on how many times the

bank can voluntarily dismiss and refile its foreclosure before the ac-

tion is deemed to be dismissed with prejudice. In the absence of a

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

mence his suit as often as he chooses, subject only to payment of the

cost.”2However, the Federal Rules of Civil Procedure and counter-

part state rules generally provide that “if the plaintiff previously dis-

missed any federal- or state-court action based on or including the

same claim, a notice of dismissal operates as an adjudication on the

merits.”3In other words, the bank generally cannot refile a foreclo-

sure 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. F ED. R. CIV.P. 41(a)(1)(B); see also F LA. R. C IV.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.