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Archive for November 12th, 2012

Procedural Fun on My Birthday

Tomorrow is my birthday, but foreclosure cases don’t stop for my birthday, so my work doesn’t, either.  Hence, though I have to go to court, I get a hearing on a fact-pattern I love.

I prevailed in obtaining an Order Granting Summary Judgment, a final order where the court dismissed the pending foreclosure case without prejudice.  The plaintiff moved for rehearing, making what may appear to be some half-way-decent arguments, centered around their contention that the hearing was cancelled, so they didn’t attend.

But here’s the fun part.  Established rules of procedure require that motions for rehearing such as this be filed within 10 days.  See Fla.R.Civ.P. 1.530.  Since Plaintiff did not do so, the court lacks jurisdiction to consider the motion, and it must be denied.  See Galvez v. Ramos, 941 So. 2d 475 (Fla. 3d DCA 2006) (“a motion for rehearing must be served within ten days after the date judgment was filed.  If not, the court lacks authority to grant rehearing. … Ramos was required to serve his Motion for Rehearing within the ten days afforded under Florida Rule of Civil Procedure 1.530(b).  He did not do this, and thus, the trial court lacked jurisdiction to entertain his motion.”); Fuller v. Fuller, 706 So. 2d 57 (Fla. 4th DCA 1998) (“Rule 1.530 provides that a motion for rehearing shall be served not later than 10 days after the date of filing of the judgment … Where a motion for rehearing was untimely, the trial court is without jurisdiction to grant it.”); Catsicas v. Catsicas, 669 So. 2d 1126 (Fla. 4th DCA 1996) (“Because the March motion for rehearing was untimely, the trial court was without jurisdiction to grant it.”).

Here, the plaintiff didn’t serve the motion within 10 days.  Hence, it should not matter whether the motion otherwise had merit – it has to be denied.

In case you hadn’t noticed, I love making arguments like this.  Applying the Florida Rules of Civil Procedure and rigidly enforcing them … this approach must be at the heart of any good foreclosure defense.

Mark Stopa

www.stayinmyhome.com

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