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Dismissal for Lack of Prosecution

We all know that banks often prosecute foreclosure cases at a slow pace, particularly when competent foreclosure defense lawyers are defending them.  But you might not have known that the bank’s failure to advance a case towards judgment can constitute grounds to dismiss the case altogether.  Florida Rule of Civil Procedure 1.420(e) provides:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

What does this mean in layman’s terms?  It’s simpler than it sounds.  If it’s been 10 months or more without any filings in a case, i.e. if a review of the docket shows that nothing at all has been filed in the past 10 months, then a defense can file/serve a Notice of Intent to Dismiss.  If there is nothing filed in the 60 days thereafter, a defendant can file a motion to dismiss for lack of prosecution.  At that point, to defeat the motion, a plaintiff must show “good cause” why the case should remain pending, and that’s a pretty high standard. 

This doesn’t come up terribly often because it’s so easy to avoid dismissal under the rule.  For instance, any filing at all in the 10 month period re-starts the clock at zero.  And if the plaintiff pushes the case to judgment in the 60-day period, it’s the same thing – the clock re-starts at zero.  However, I’ve had success employing this rule in recent weeks because sometimes, quite frankly, the banks are so dilatory and so lax in their prosecution of foreclosure cases that they don’t do anything for a 12-month period. 

Yes, the dismissal is “without prejudice,” meaning the bank can file a new lawsuit.  However, it’s certainly not a bad thing to force the bank to start a case all over again.  After all, if they are so lax that they let the case languish for a year, who knows if/when they’ll care enough to pay a new filing fee and file a new case.

Mark Stopa

www.stayinmyhome.com

Posted in Main | 36 Comments »

36 Responses to Dismissal for Lack of Prosecution

  1. Pingback: Dismissal for Lack of Prosecution | Foreclosure News Online

  2. Darren Willis says:

    Mr. Stopa:

    I’m a 3L at Florida Coastal School of Law and attempting to answer a question for an indigent client dealing with a foreclosure. It has come to my attention that a filing that does not move the case forward (e.g. change of counsel filing) will not reset the clock under the 10 month rule FRCP 1.420(e). I was curious if this was your understanding as well. If this is a legally correct position – do you have any case law that would support this position. I have combed through Florida Law Weekly and have yet to locate any supporting case law.

    Regards,

    • Mark Stopa Mark Stopa says:

      Darren,

      A recent FL SUP CT case makes it clear that any piece of paper filed in the court file re-sets the clock for lack of prosecution, even something like a notice of vacation or change of counsel.
      I’m 100% certain on this.
      Trust me, I wish it weren’t so.

      Mark

  3. Jeff Knowles says:

    Hi Mr. Stopa, hope you are doing fine. If home foreclosure case was filed over 3 years ago, June 2008, and we never were served with the foreclosure suit, can service be issued now? Date of lawsuit file is June 2008 and 120 days has passed for service of process.

    Thank you.

    Jeff

    • Mark Stopa Mark Stopa says:

      Jeff,
      Even though there is a rule about 120 days, courts are exceedingly flexible with it. That said, June of 2008 until now is an exceptionally long time to have not been served.
      Assuming this isn’t a situation where the bank tried to serve you and was unsuccessful (e.g. the bank thought it served you but you moved to quash and the judge granted the motion), then I’d be hardpressed to think any judge will allow service more than three years later.
      I’d want to know more about the facts before I said anything else.

      Mark

  4. Mitchell says:

    I made my last house payment in Feb. 2009. BOA served me in 8/09, and I figured I’d be moving soon. Silly me! The case was just (for the third time) “dismissed for lack of prosecution.”

    I understand that doesn’t mean much other than they will have to do something to reinstate it, but my question is… what heck are they waiting on to boot me out? And why? Is BOA not foreclosing on homes that are occupied? Are they inept? Insane? Forgetful? WHAT? 31 months they’ve been “eating” this. I just don’t get it – do you?

    • Mark Stopa Mark Stopa says:

      Mitchell,
      There are many reasons for this, but the point is clear – you don’t have to leave your home just because you’ve been sued for foreclosure.
      Keep fighting. As you’ve seen, you never know how this might turn out.

      Mark

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  6. Jeff Gofro says:

    Hello Mr. Stopa,

    Happy to have found your blog. Two quick questions if you have a minute: 1.) Am I correct in assuming that the homeowner typically does not make any mortgage payments during the foreclosure process? 2.) Can the homeowner remain in the home and continue to miss mortgage payments indefinitely once the foreclosure suit has been dismissed for LOP?

    Many thanks,

  7. kathy says:

    Foreclosure process on my house started April 2008. Not too long after that My father passed away. He was the only one who signed the note. My mother and I were on the deed with Right of survivorship. She filed bankruptcy after his death and a stay was in force until the closing of the bankruptcy, then reinstated. Then my mother passed. I am now 100% owner of the property, but to clarify…I was not on the note. Here we are March 2012 and there had been no action on the case since the end of 2009. In April 2011 the dismissal for lack of prosecution was issued. I have a hard time understanding how messed up they could be to not answer the 60 day notice. Then in October 2011 an administrative closing of the case by the court took place. The lender has been paying my taxes since the first year of default. They actually paid my taxes after the administrative dismissal that occurred 6 months after the actual dismissal was signed by the judge. I just wonder how do I stay under the radar with them still paying my taxes. The tax office has to send them the bill if they request it. They always do. I have been out of the house since December 2007 and would like to move back in. what advise can you give me and have they ever just forgotten about anybody for like 10 years or so. Note**** David Stern office in South Florida had my case initially, I heard his cases were a mess.

    • Mark Stopa Mark Stopa says:

      Kathy,

      Was your case “dismissed,” or “closed”?
      There is a HUGE difference.
      If the case is “dismissed,” then the bank must initiate an entirely new lawsuit to procure a foreclosure.
      If the case was “closed,” then the bank can pick up with the existing lawsuit at any point.
      Huge difference.
      Check the Order that was entered – does it say the case was “dismissed” or “closed”?

      FWIW, there is no such thing as an “administrative closing.” There is recent case law from the Fourth DCA about this.
      Courts are supposed to “dismiss” a case under 1.420(e) if there is no activity, not “close” it.

      Mark

  8. Mike says:

    My wife and I own raw land we bought to build on. Bought foreclosure insead and tried to sell property. 3 year balloon for loan came due July of 2010. Tried to convince lender to extend terms of loan since it was impossible to refinance due to market value vs. loan value. Lender would not work with us at all. Best they would do was take 50% of loan in lump sum and amortize the rest. We didn’t have the lump sum ($55,000) and they would not work with is in any other way, even though we have good cashflow. Went into foreclosure. Defaulted in April 2011 and just got notice that final hearing is set for next week. I noticed a typo in regard to the total amount due (over $100,000 typo) and emailed the lender’s attorney. She just informed me that the typo doesn’t matter because the bank decided to Dismiss the case and that I would be receiving a notice of dismissal. Does this make any sense to you? Why would they go through all this just to dismiss it a week before the hearing? We haven’t contested it at all. Ever heard of this before on vacant land?

    • Mark Stopa Mark Stopa says:

      Mike,

      I see foreclosure cases get dismissed all of the time. I like to think it’s often because I’ve done a good job defending and scared away the bank and/or its lawyers, but many times, we never know for sure.
      Just take it for what it is – good news.

      Mark

  9. alberto mena says:

    Hi Mr. Stopa, I have a question: i had final summary judgement on oct 25, 2011, but for medical reasons i was not able to attend, I was in the hospital since oct 22, 2011, due a hearth procedure, so i sent a note to the clerk and the plaintiff’s lawyer explaining my situation. i was released oct 28., the next days i moved to the clerk to chech the updates of my foreclosure case, and i found that the judge signed the decision over the final summary judgement hearing, without, regardless that the hearing never took place, so he left some black spaces like the one that shows the time that have to leave. until know I still in my house. I made a copy of those papers, is that a judge ethic violation? and what can i do?

    • Mark Stopa Mark Stopa says:

      Alberto,

      Get me copies of the paperwork so I can see them. Or at least call for a consult.
      You might be able to move for rehearing or ask to vacate the judgment

      Mark

  10. Lynn Moore says:

    In 2009 my mother passed and left me her home…we could not keep up the payment, due to my husband being out of work due to an accident..we offered to make lower payments back then, but the bank said not to…we have been in Lost Migigation for two and a half years. I have been to court twice, once it was frozen, due to David Stern and second time it was Dissmissed without prejudice. Now, Im not hearing anything from the bank at all…three weeks ago they said they had no paper work to speak to me about this! Im their only contact and the only one who they have been communicating with…living under the stress of not knowing when or what is going to happen is certainly stressful…do you know what kind of time line Im looking at? Can the bank just come in an evict? Im executor of the estate and have had two rooms in my home packed up for two years,,,should I unpack or keep packing? What a mess!

    • Mark Stopa Mark Stopa says:

      Lynn,
      If I’m understanding your situation correctly, I think you’re doing just fine! There is no lawsuit pending, so there is no imminent risk of foreclosure whatsoever.
      I’d sit tight, not do anything to change the status quo, and see if/when the bank ever wakes up and files suit. Unless and until that happens, keep saving your money and improving your financial situation.

      Mark

  11. Rosie says:

    Hello – My husband passed away in 10/2007 we both signed the refi note prior to his death to our homestead house, with an interest only mortgage because that was all I could afford at the time, we knew he was dying from ALS, and I needed to lower my payments to afford to stay in the house with our three children. Since then my hours at work have been cut, and cannot afford the now ballooned payments. The bank started foreclosure in Sept 2010; however nothing since July 2011 has happened. I am thinking of filing a Notice of Lack of Prosecution, as I want to stay in my home, and hopefully try to modify the loan (although I heard it is nearly impossible to do). I do not have counsel yet in fear that if they file a Notice of Appearance, it will get the bank moving…so what say you…will my attempt to file the Notice of Prosecution, pro se, defeat my chances of staying in the house as long as possible? What is your hourly rates for this type of case.

    Thank you kindly!

  12. April says:

    My house has been in foreclosure since 2009 and now it is in the process of being dismissed although I left the home when I was first served, what are my rights since I am still the owner of the home can I move back in since case was dismissed for lack of prosecution

    • Mark Stopa Mark Stopa says:

      April,

      Presuming you live in Florida (as I’m not in a position to talk about the laws in other states), and you’re still on title, then yes – you certainly can move back in.
      In fact, you never had to leave in the first place.

      Mark

  13. James Savery says:

    In August 2010 I closed on a short sale. I have all the closing documents. I just received a notice of lack of prosecution and notice of hearing on court’s own motion. Until I received these notices I wasn’t aware that there was a case pending. It has been nearly 2 years since the short sale closed. Why would I not receive some notice before now? Even though the bank closed on the short sale are they continue to pursue foreclosure activity?

    • Mark Stopa Mark Stopa says:

      James,

      The situation you describe happens all of the time. I often see homeowners “settle” via a short sale or loan mod, yet a foreclosure case proceeds anyway.
      For me, the most important part of any such settlement is making sure the foreclosure lawsuit is dismissed. It sounds like that will happen in your case given the lack of prosecution. Might I suggest you show up to the scheduled hearing and tell the court that you did a short sale 2 years ago (yet the case has still been pending for 2-plus years)? Judges need to know that sort of stuff is happening (and most that I know won’t like being made to do more work because the banks don’t dismiss cases that settled).

      Mark

  14. Renee M. says:

    Mr. Stopa. I have been reading your blog and find that of all of the “internet” research I have done, you seem to be the most knowledgable regarding foreclosure lawsuits.

    A foreclosure lawsuit was filed against us in 2009. In 2010, the Judge ordered a non-jury trial. I appeared, however, the bank’s atty. did not. The next day in the mail I received a dismissal of the case with prejudice.

    We do not live in the home but the house has always been maintained and taken care of. Sometime within the last year, the bank had it’s restoration company come in and board up the house, changed the locks, removed some of our belongings and never notified us. What recourse, if anything, do we have?

    • Mark Stopa Mark Stopa says:

      Renee,

      I’d take pictures, document exactly what happened in as much detail as possible, change the locks back, and move back in.
      Keep your receipts.
      You could file a civil suit, but, frankly, if you’re significantly behind on your mortgage but aren’t being sued, then I’d do nothing. At some point, perhaps you can sue to quiet title.
      Call me to discuss further. 888-450-1549.

      Mark

  15. Samuel Agpalo says:

    On 4/23/08 a foreeclosure lawsuit was filed by the Bank of New york on my house “complaint to foreclose mortgage and to enforce lost loan documents” by the law office of David Stern. I didi not contest nor respond at all to the lawsuit.

    On March 18, 2011 I received an order of dismissal and it reads “It is ordered that this action is dismissed for lack of prosecution. The clerk of the Court is ordered to close this case. Done and ordered on this 18th day of March, 2010″

    I checked on line the docket and entries were made:

    3/18/11 Order of Dismissal ( Order of Dismissal papers that I received was dated 3/18/2010 (although I think it was typo that should read 2011)

    03/21/11 Notice of appearance of co counsel on behalf of the Bank of New york as trustee for the certificate holders CWALT, INC Alternative Loan Trust 2007-12 Mortgage pass-through certificates series 2007-12 (MZ)
    05/10/2011 NOTICE OF LACK OF PROSECUTION/COURTS’ MOTION TO DISMISS/NOTICE OF HEARING (REC) (nc)

    Then no more entries after above date

    In Sept. 2012 BOA started sending me loan modification packets monthly and have been calling me weekly to modify the loan. When I asked why they were pursuing me, the loan officer said that the foreclosure lawsuit expired and that the bank was ordered to modify my loan.

    My questions are:
    1. Was the foreclosure dismissed or closed? Was it dismissed (closed? what is the difference?) as of March 18, 2011? Why are there entries on the docket on 3/21/11 and 5/10/11 and yet BOA said the foreclosure expired?

    2. If the foreclosure lawsuit was dismissed 3/18/11 a s I believe it is. Do I sit and just wait?

    3. What is the chance that BOA (the fourth bank claiming they own the mortgage note and considering the 3rd bank, Bank of New York’s, foreclosure suit to enforce lost document was dismissed) file another foreclosure lawsuit?

    4. If BOA file a foreclosure lawsuit I will fight it. How much would it cost me to retain you as counsel and what should be our defense. Summary judgment or another dismissal? What is the difference?
    5. If BOA does not file another foreclosure lawsuit in 5 years from the dismissal what do I do?

    Thanks

    • Mark Stopa Mark Stopa says:

      Samuel, I’d really need to see the actual Order to answer these questions. The result can vary from one extreme to another based on one or two words.
      If you’d like to provide, I will take a look.

      Mark

  16. J. Enrique says:

    My parents past away and their home was in foreclosure. The foreclousre was filed in 2010. The attorney who handled the estate told us (my sister and I) that we should leave the foreclosure to continue its course. The remaining of my parents’ estate was distribute to us and in July of this year we received a discharge order from the court and releasing us from the estate representation. As of today, my parents house is still in foreclosure with Bank of America. Do you think, it was a good advise from the estate attorney to leave the foreclosure to follow its course? and why do you thing it is taking so long to close.

    Thanks

    • Mark Stopa Mark Stopa says:

      That was bad advice, Mr. Enrique. You could have made use of that house over the past two years.
      As you see, these lawsuits take time.

      It’s hard to say for sure without knowing the status of the case (or the state where the house is located), but it seems to me like you should defend so as to not keep compounding the original mistake.

      Mark

  17. Jason Ruiz says:

    I stopped making payments in March 2009.
    BofA filed foreclosure case in October 2009 with admission of missing promissory note.
    We defended due to lack of promissory note.

    There has not been any action since then.

    My question is does the 5 year statute of limitations start on March 2009 or October 2009?

    And if I wait to file motion for dismissal for lack of prosecution next year March 2014.

    Then they could refile but they wouldn’t be able to recover payment.

    Is that true?

  18. Daniel Lewis says:

    Mr. Stopa,

    I read your blog with hope and see of all the atty. advise given on the internet yours feels the most comfortable to understand. Heres what I have.

    We stopped paying our mortgage in Jan. 2009 on advise from BOA to qualify for a modification that we didnt qualify for unless we were late on payment. Several months of non payment and we were than told we dont qualify. Needless to say we were unhappy and have not paid since as we just couldnt afford what they were asking. A summons was issued in 7/2009 for foreclosure action. We resoponded promptly. We than went to a Mediation were we hired a local atty(We wont be using him again) and BOA sent a rep all the way from Cali to Fl for just us(seemed a waste of money). We came to an agreement of a new montly payment and after the rep left we never heard from them for several months. When they called us we were told we were behind on our mortgage and they were going to foreclose. Of course we mentioned the mediation but they had no knowledge or record of such an action or agreement for that matter. Anyway fast foward to 9/23/2011 when we recieve:09/23/2011 : NTC OF LACK OF PROS & HEARING:DECEMBER 2, 2011 @ 8:30AM SLW
    When we arrived we were amazed at how full the court room was with people and lawyers alike there for foreclosure cases. When it was my turn the bank didnt show and the Judge after hearing my story was very angry to say the least at the Banks behavour and mentioned this to other lawyers that had attended on behalf of the BOA for other clients. This is what is now found on clerk of courts web site:12/12/2011 : DISMISSED LACK OF PROSECUTION:(O/R 3347 PG 2130) ORIG DOC FILED IN CASE # 09-CA-002809 but under the case statement section its listed as :Case Status CLOSED Status Date 12/12/2011
    So is this Dismissed or closed?
    Fast forward again to 3/2013 when I recieve a letter from BOA stating they lost our promissary note and a week later a letter from them thanking me for my business and that my mortgage was sold to Nation Star. At this point I am so confused. My question
    1) If BOA lost the noteand admitted it than how can they sell it to Nationstar?
    2) Nationstar is sending me letters everyweek telling me I have a new person to speak with there…The names change everyweek. Should I call them?
    3) The late fees and past due are more than the homes value at this point and Nationstar has only requested once since taking over this ghost note for all the late charges and than the monthly mortgage. Since I assume they bought this for pennies on the dollar cant they or do they offer a negotiated price? Or it is what it is now pay or move?
    Sorry for the song and dance but I felt it was all relevant. Thank you in advance for your advise.

    • Mark Stopa Mark Stopa says:

      Without reading the Order, I can’t say for sure if it was merely dismissed or closed.
      But given what you’ve said, I strongly suspect it was dismissed.
      Obviously good news.
      That means the bank will have to file a whole new lawsuit, starting again from the beginning.

      It’s hard to give legal advice in this forum, but I’d think you should wait until someone sues you again.
      Meanwhile, save your money so that, if someone sues and you can talk about a mod, you actually have money to pay down.
      The conversation won’t go far if you don’t have money to pay down after going so long without paying.

      Mark

  19. Lanny Zeigel says:

    What happens if the bank does meet the high standard of showing “good cause”? Does it proceed to “Referral to Foreclosure Mediation”? If so, what options do you have at that point to have it dismissed?

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