Archive for June 1st, 2012

Failure to Post Non-Resident Cost Bond Prompts Dismissal

One of the technical (but totally legitimate) defenses that foreclosure defense attorneys love to raise is the plaintiff’s failure to post a non-resident cost bond.  Personally, I love this defense because it’s so easy to assert, yet the upside is huge – an outright dismissal of a lawsuit, regardless of whether that lawsuit otherwise had merit.  Today, I received a great Order from a judge on this issue, so this seemed like a good opportunity to discuss this “defense.”

Under Fla. Stat. 57.011, if a plaintiff initiates a lawsuit but is not a resident of Florida, it is required to post a $100 bond with the clerk.  The intent of the statute is to ensure that a defendant who prevails in the lawsuit can collect costs from the plaintiff in the event the defendant prevails on the merits.  As a practical matter, though, the intent of the statute doesn’t really matter – the statute is a legitimate way for homeowners to try to get a case dismissed.

Here’s how it works.  If a non-resident plaintiff fails to post the cost bond, then the defendant can give the plaintiff 20 days notice of its failure.  If the plaintiff still fails to post the bond, the defendant can move for dismissal.  Once the hearing on that motion arrives, if the plaintiff still hasn’t posted the bond, then the court can (and should) dismiss the case.  See Fla. Stat. 57.011.

I’ve made this argument many times, and sometimes the judge has agreed, dismissing the case where the plaintiff failed to post the bond.  Sometimes, though, I’ve had judges “grant” the motion but give the plaintiff another 10 or 20 days – after the hearing – to post the bond.  Respectfully, I find that terribly frustrating.  Fla. Stat. 57.011 does not say that the plaintiff should be given another chance to post the bond.  Once the defendant gives the plaintiff notice and moves for dismissal, then the court should, if the bond hasn’t been posted, dismiss the case.

My frustration that the statute is not always strictly enforced is likely why I enjoyed this Order from Judge Bruce Boyer.

The facts in that case transpired just the way I described above.  The plaintiff was a non-resident, yet it failed to post the cost bond.  I gave it notice of that failure, but it still didn’t post the bond.  So I moved to dismiss and set it for hearing.  When the hearing arrived and the plaintiff still hadn’t posted the bond, Judge Boyer dismissed the case.  The judge didn’t dismiss with leave to amend and didn’t give the plaintiff another chance to post the bond – he did what Fla. Stat. 57.011 says and dismissed the case.

The plaintiff didn’t like it, so it moved to vacate that Order.  Motion denied.  Then it moved for clarification, and that motion prompted Judge Boyer to draft this Order.

Do you think the Plaintiff will get the hint this time?  I sure think it’s clear – when a plaintiff fails to post a non-resident cost bond, the case should be dismissed, and there are no second chances.

Mark Stopa

Posted in Main | 16 Comments »