In a foreclosure case, a motion to dismiss may be a tool to combat against foreclosure depending on a homeowner's situation. When a homeowner facing foreclosure comes to our office, we analyze each homeowner's unique situation to determine whether this is a potential tool to combat a foreclosure action. However, an attorney's options may be severely limited if a homeowner has "waived" certain defenses by filing a "pro-se" answer and not asserting all of their potential defenses, as discussed in Part I. This is why it is extremely important for a homeowner facing foreclosure to contact an experienced foreclosure defense attorney, such as our firm, immediately upon receiving a foreclosure summons and complaint.
A motion to dismiss a foreclosure case may be filed instead of the answer, or may be filed after the answer has already been filed. However, if the answer is filed first, only those defenses that are put into the answer may then be used in a motion to dismiss. Again, it is extremely critical that a homeowner raise any and all possible defenses so that they are not waived. Generally, even if the homeowner wins a motion to dismiss a foreclosure case, the bank may re-file the foreclosure action, though there may be very limited circumstances where this may not be the case if the bank cannot produce certain documents. However, filing and winning such a motion may send a message to the bank that this homeowner is not backing down and will fight to save his or her home.