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!

Mark Stopa

Posted in Main | 10 Comments »

10 Responses to Failure to Amend = Dismissal With Prejudice

  1. Carol Marie Wozniak says:

    What is the end result of this act. does the person get the house or get to leave the house?

    • Mark Stopa Mark Stopa says:

      It’s impossible to say for sure at this point, Carol – that’s why I worded the blog the way I did.

      That said, this person certainly has a far, far greater chance of keeping the house than the typical homeowner.
      To illustrate, when a case gets to this stage, that is when I will discuss “keeping the house” (free of the mortgage) with the homeowner as a viable possibility.

  2. Ms. Davis says:

    Our forclosure was dismissed without prejudice back in March 2011. Until now the servicing company has not refiled. Our mortgage was with Lehman Brothers serviced by Aurora Loan Services and David J Stern was the foreclosure mill attorney. I’ve been following your blog and will surely hire your office when Aurora Loan Services refile with their new attorney. Question: should we hire you now and file a motion to dismiss without prejudice? And perhaps own the house outright, eventually. We did not have a lawyer when our case was dismissed, the plaintiff was a “no show”

    • Mark Stopa Mark Stopa says:

      Ms. Davis,

      I understand why you’re asking this, but there’s nothing you can do now. If your case was dismissed without leave to amend back in March, then that case is over.
      The way to get dismissal with prejudice, like here, is if leave to amend is granted but the plaintiff never amends. Under that scenario, the case is still pending, and the court has the discretion to dismiss with prejudice. In your case, it’s already over, so the court has no such discretion.

      We look forward to helping you once the bank files suit again.

      • Jose Dyenzen says:

        Like Ms. Davis Aurora was a no Show at Foreclosure and the case was dismissed without prejudice. Stern was not there and has been replaced with new Aurora counsel who says it will be a long time before he can get to our file. The first mortgage on deed is listed as MERS. We borrowed no money from Aurora, they are specifically the servicing agent. The money was borrowed from Lehman Brothers who went bankrupt, sold the mortgages in securitized bundle, then went out of business. We do not know who owns our note, whoever bought the bundle of notes? In our dismissed foreclosure Stern filed for Aurora they didn’t know who was the note holder and requested the court name them note holder. Should we file a Quit Claim Deed and see if the note holder shows up?

        • Mark Stopa Mark Stopa says:

          Hard to answer this question without seeing some documents.
          Generally speaking, I think it’s best to sit quiet and see if the bank ever makes an effort to prove the case.
          Feel free to contact us for a free consult. 88-450-1549


  3. Zoila Santos says:

    I would like to know what will be the next step on my case? I went to court for an Order on Case Management Conference on March 9, 2011, for lack of activity on my case. The court gave 120 days to the Bank to proceed with the foreclosure and today July 17, 2011 nothing happen yet?

    I didn’t receive any documentation on my case. The court submitted at that time 03/09/2011 Order to Dismissing Case With Prejudice.

    Please help me with this answer?


    • Mark Stopa Mark Stopa says:

      I’d have to see some documents or get more specific information to answer this question.
      Please call us and we’ll see what we can do. 888-450-1549

  4. peter says:


    Have you defended or fought a case to prove the mortgage servicer, MERS or fannie and Freddie do not have standing or are not holding the wet signature Note or Deed?
    I may need you services with my home and chapter 7 bankruptcy. Thanks


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