Due to lack of activity on the record for 10 months, the court entered notice and proposed order of dismissal for lack of prosecution. The notice stated the case will stand dismissed, if there continues to be no record activity and nothing is filed prior to the lack of prosecution hearing, which was set in approximately 80 days.
Nothing was filed, and the bank didn’t show up for hearing. The Court entered an order of dismissal for lack of prosecution.
The bank filed motion to vacate the order, stating that it did not receive the notice and proposed order of dismissal. The bank attached an affidavit of the mail clerk. The bank argued that dismissal is too severe a punishment for failure to attend a hearing when such nonattendance is not a result of a willful or intentional disregard of the court’s order.
The court rejected all these arguments and denied the motion.
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You wouldn’t believe it, but this foreclosure started back in 1998. One year later the original lender filed for bankruptcy, and the loan was sold to another company. In 2001 the new company substituted the original plaintiff, but in 2002 the case was dismissed for lack of prosecution.
A few months later a second foreclosure complaint was filed. The homeowner raised the affirmative defense that the claim is barred by the statute of limitations. After that there was no activity for 13 months, and the court issued order to show cause why the case should not be dismissed for lack of prosecution. 82 days later and 3 days before the scheduled hearing plaintiff filed a response that no notice was received and filed a motion for final summary judgment. Motion to dismiss for lack of prosecution was denied upon representation of counsel that the case could not be re-filed because of the statute of limitations.
Despite the affidavit with the patently incorrect numbers, motion for summary judgment was granted, and the homeowner appealed. The Third District quoted Florida Rule of Civil Procedure 1.420(e), which mandates dismissal for no record activity for 10 months, reversed and remanded the case with instructions to dismiss for lack of prosecution.
See Spencer v. EMC Mortgage Corporation (Fla. 3rd DCA August 29, 2012).
After 14 years staying in the home rent-free, the homeowner finally got her home totally free and clear. Good job, EMC.
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