What are the Defendant’s Defenses in a Foreclosure Cases?
A home represents the fulfillment of every person’s dream. The head of the family who worked so hard to maintain the house will definitely protect what he or she considers as a valued asset. He would not allow his home to be taken away from him because of loss of job, unstable economy or any other economic hardship.
For this reason, he would protect his valued asset to the best of his abilities. In this regard, the Rules of Civil Procedure provides for ample remedies to an individual who is facing a foreclosure lawsuit. It should be remembered that the court is an impartial tribunal where the parties are given the opportunity to state their case and adduce evidence.
In a foreclosure case, there are a number of strategies and defenses available to a litigant.
- Motion to Dismiss for Lack of Capacity. A Motion to Dismiss allows the defendant to ask for the court to dismiss the case. It is filed by a defendant after the receipt of the plaintiff’s complaint. One of the grounds in filing a Motion to Dismiss is when the plaintiff does not have the capacity to file the suit. For instance, a plaintiff that is a trust, a defunct bank or a bank that is not registered in the state of the defendant’s principal residence does not have capacity to file a suit. The defendant may also allege that the plaintiff failed to comply with the conditions precedent set forth under the contract before a foreclosure suit may be filed.
- Motion to Dismiss for Failure to Post Non-Residential Cost Bond. Plaintiff’s whose principal place of business if from another state are required to post a cost bond when they file foreclosure lawsuit. Defendant’s should check whether the Plaintiff has posted a non-residential cost bond. If they fail to post a bond, the defendant may file a Motion to Dismiss for Failure to Post a Non-Residential Cost Bond.
- Motion to Dismiss for Lack of Standing. In some foreclosure cases, the plaintiff may not be the original lender by virtue of the assignment of rights. In these situations, a Deed of Assignment is necessary before the plaintiff shall have a legal standing to sue. If there is no assignment or the assignment was done after the filing of the foreclosure complaint then the defendant may file a Motion to Dismiss for Lack of Standing.
- Affidavit Opposing Summary of Judgment. If the plaintiff files a Motion for Summary Judgment, the defendant should file an Affidavit Opposing Summary of Judgment. The Affidavit Opposing Summary of Judgment should be served no later than two (2) days before the scheduled hearing of the Summary of Judgment. The Affidavit should emphasize that the plaintiff lacks the right to foreclose and that he has valid affirmative defenses.
