Motion to Dismiss Foreclosure

INTRODUCTION

1. Defendant [YOUR NAME] respectfully moves this Court to dismiss Plaintiff's Complaint with prejudice pursuant to [Rule 12(b)(1), (6)] of the [State/Federal] Rules of Civil Procedure for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, lack of standing, and fraud.

2. Plaintiff's Complaint is fatally defective as it is based on a void debt for which no consideration was provided, brought by a party lacking standing to foreclose, and founded on fraudulent representations about the nature of the underlying transaction.

STATEMENT OF FACTS

3. On or about [LOAN DATE], Defendant executed a promissory note with [ORIGINAL LENDER] for $[LOAN AMOUNT].

4. Plaintiff [CURRENT PLAINTIFF] now claims to have the right to foreclose, but has failed to establish:

• Ownership of the promissory note
• Valid assignment of the mortgage/deed of trust
• Standing to enforce the obligation
• That any consideration was provided for the note

5. The debt has been disputed by Defendant through:

• Notice of Disputed Debt dated [DATE]
• Qualified Written Request dated [DATE]
• Notice of Lack of Consideration dated [DATE]

6. Despite these disputes and requests for validation, Plaintiff has proceeded with foreclosure without proving:

• They are the real party in interest
• They have possession of the original note
• The chain of title is intact
• Any money was actually lent

MEMORANDUM OF LAW

A. Plaintiff Cannot Prove Ownership of the Note

7. To have standing to foreclose, Plaintiff must prove it owns and holds the promissory note. See Carpenter v. Longan, 83 U.S. 271 (1872) ("the note and mortgage are inseparable").

8. Plaintiff has failed to:

• Attach the original promissory note to the Complaint
• Allege possession of the original note
• Provide a complete chain of endorsements
• Prove the note was properly transferred

B. The Chain of Title is Broken

9. The Complaint fails to establish an unbroken chain of title from the original lender to Plaintiff. Missing or defective assignments void Plaintiff's claim.

10. If the loan was securitized, Plaintiff must prove:

• The loan was properly transferred to the trust
• Transfer occurred before the closing date
• All PSA requirements were met
• The trust has standing to foreclose

C. MERS Lacks Authority

11. If MERS is involved, it cannot transfer the promissory note as it is merely a registration system, not a holder of the note. MERS has no standing to assign what it does not possess.

A. No Valid Debt Exists - Lack of Consideration

12. A fundamental element of any foreclosure action is the existence of a valid debt. Here, no valid debt exists because no consideration was provided for Defendant's promissory note.

13. Banks do not lend depositors' money or their own assets. They create bookkeeping entries using the borrower's promissory note. The Federal Reserve's "Modern Money Mechanics" and Bank of England's publications confirm banks create money when making loans.

14. Defendant's promissory note was the source of the funds, not a promise to repay a loan. The note constituted payment in full in our debt-based monetary system where Federal Reserve Notes are themselves debt obligations (12 U.S.C. § 411).

B. Failure to Allege Required Elements

15. To state a claim for foreclosure, Plaintiff must allege:

• Execution of a valid note and mortgage
• Default under the terms
• Compliance with all conditions precedent
• Amount owed with specificity
• Right to enforce the obligation

16. The Complaint fails to properly allege these elements, instead relying on conclusory statements without factual support.

C. Violation of Conditions Precedent

17. Plaintiff has failed to comply with conditions precedent including:

• Providing required notices under the mortgage
• Offering loss mitigation as required by law
• Validating the debt as requested
• Proving ownership before accelerating

18. Under FDCPA § 809(b), collection activity must cease on disputed debts until validated. Defendant has formally disputed this debt and Plaintiff has failed to validate it.

19. Foreclosing on a genuinely disputed debt violates due process. Defendant has raised substantial questions about:

• The validity of the debt
• Plaintiff's standing
• Lack of consideration
• Fraudulent inducement

20. Plaintiff comes to this Court with unclean hands, having engaged in:

• Fraudulent creation of assignments
• Robo-signing of documents
• False claims of ownership
• Violation of federal criminal statutes
• Deceptive practices in loan origination

21. One who seeks equity must do equity. Plaintiff's fraudulent conduct bars equitable relief of foreclosure.

22. Allowing foreclosure without requiring Plaintiff to prove ownership, standing, and validity of the debt violates Defendant's constitutional right to due process under the Fifth and Fourteenth Amendments.

23. Defendant has a protected property interest that cannot be taken without due process of law, including the right to challenge the validity of the alleged debt and Plaintiff's authority to enforce it.

REQUEST FOR JUDICIAL NOTICE

24. Defendant requests this Court take judicial notice of:

• Federal Reserve publication "Modern Money Mechanics"
• Bank of England "Money Creation in the Modern Economy"
• 12 U.S.C. § 411 (Federal Reserve Notes as obligations)
• Public records showing assignments were executed after this suit was filed
• MERS Terms and Conditions stating it holds no beneficial interest

CONCLUSION

25. For the foregoing reasons, Plaintiff's Complaint should be dismissed with prejudice as:

• Plaintiff lacks standing to bring this action
• No valid debt exists due to lack of consideration
• The Complaint fails to state a claim
• Plaintiff has unclean hands
• The debt is disputed and unvalidated
• Due process violations bar foreclosure

26. Dismissal should be WITH PREJUDICE as the defects are not curable. Plaintiff cannot manufacture standing, create consideration that never existed, or cure fraudulent conduct.

27. WHEREFORE, Defendant respectfully requests that this Court:

1. Dismiss Plaintiff's Complaint with prejudice;
2. Award Defendant costs and attorney's fees;
3. Grant such other relief as the Court deems just and proper.

REQUEST FOR ORAL ARGUMENT

Defendant respectfully requests oral argument on this Motion as the issues raised are complex and fundamental to the administration of justice in foreclosure proceedings.

CERTIFICATE OF SERVICE

I hereby certify that on [DATE], I served a true and correct copy of the foregoing Motion to Dismiss on:

[PLAINTIFF'S ATTORNEY NAME]
[LAW FIRM]
[ADDRESS]
[CITY, STATE ZIP]

By: [ ] U.S. Mail [ ] Hand Delivery [ ] Email (if agreed) [ ] Court E-Filing System

[YOUR NAME]