FORECLOSURE DEFENSEMotion to Dismiss Sample 1.doc
If you are in foreclosure, you can fight the case where it is (generally circuit court), or you can attempt to fight it in federal district court (under certain circumstances) or in bankruptcy court (which is also a federal court, but not a district court). Many bankruptcy courts around the country are beginning to turn the tide and are ruling against the banks. But in order for that to happen, you have to properly prepare your schedules to reflect that the mortgage loan is both unsecured and disputed. If you fail to do that you will not adequately challenge the debt. Most bankruptcy lawyers will not mark your papers in that manner as that will cause a large amount of work in the bankruptcy court. Bankruptcy courts move extremely fast and lawyers want to get paid for their work. If you are in bankruptcy, chances are good you won't have the funds to pay your bankruptcy lawyer to brief the issues and fight the bank in that court.
When you are sued for foreclosure, it is inappropriate to send a letter to the court. That is not a responsive document and will damage your case. There are a number of appropriate responses that may be available. A responsive document could be a motion to dismiss, a motion to strike, a motion to make the complaint more definite and certain, an Answer, etc. You should make as many legal and appropriate challenges prior to filing an Answer as possible. Here are three sample motions to dismiss. They each are a bit different. Sample 3 considers the defense of lack of capacity.