Sample Motion to Dismiss

Illegally inadequate utility allowances mean that tenants have been overpaying rent for the entire period that the allowance has been improperly set. In many jurisdictions, evictions for nonpayment of rent must be predicated upon a notice setting forth the amount of rent due. If the amount is incorrect as a result of the tenant’s overpayments due to inadequate utility allowances, advocates can challenge the amount due via an affirmative defense or motion to dismiss. This sample motion to dismiss alleges that the eviction notice demands rent in excess of the amount due because the defendant failed to properly adjust its utility allowances.