Archive for June 10th, 2011

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

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