Failure to Amend = Dismissal With Prejudice
I’ve said many times that if you defend your foreclosure case then you never know what good may come of it. Today, I saw another example of that.
I filed a Motion to Dismiss early in 2011. It was pretty standard. The motion was granted, and the judge’s Order gave the plaintiff 20 days to amend. That was over two months ago and the plaintiff never amended. So I got creative. I wrote this letter to the judge, enclosing this Renewed Motion to Dismiss.
As the motion reflects, I asked that the judge enter an Order dismissing the case with prejudice unless the plaintiff amended within a certain number of days. In response, the judge did exactly what I asked – he entered this Order saying the case was dismissed with prejudice unless the Plaintiff filed an Amended Complaint within 10 days.
Last week, the 10 days passed and the plaintiff did nothing. Hence, this case has been dismissed with prejudice.
Reasonable lawyers, and even reasonable judges, can disagree about what “with prejudice” means in the context of mortgage foreclosure cases. However, it is clear this case is over, and the homeowner, at worst, has an argument that the plaintiff is barred from re-filing a new lawsuit.
Note that there wasn’t anything terribly special about what I did here. I didn’t prove the bank committed fraud. I didn’t prove any nefarious acts. I simply defended the case and utilized the rules of procedure to my advantage. Consider this another illustration of why you should defend your foreclosure case!