Dismissal of Florida Foreclosures Cases for Lack of Prosecution No Longer as Easy

A Florida appellate court recently reversed a decision to dismiss a foreclosure action involving Deutsche Bank for lack of prosecution under Florida Rule of Civil Procedure 1.420.

Miami foreclosure defense attorneys are not surprised, given the Florida Supreme Court’s 2006 re-examination of the term “record activity” in the case of Wilson v. Salamon. That is, the court narrowed the definition of what it means for a case to be inactive.

This issue comes up a lot in foreclosure cases in Florida, simply because there are so many of them. It is possible to successfully have a foreclosure case dismissed on lack of prosecution grounds, but it’s not necessarily easy.

In the most recent case, Deutsche Bank Nat’l Trust Co. v. Mark Christian Gombert, as Co-Trustee, the trial court had dismissed a foreclosure complaint on the grounds that there lacked any record activity for a full year as of December 2012.

The bank appealed to the Florida First District Court of Appeals, asserting that it had moved to amend a complaint in November 2012. The trial court granted this motion on the same date it was filed. The appellate court determined that the motion to amend should be considered sufficient to avoid dismissal for failure to prosecute under state law. As such, the final order for dismissal was reverse and the case remanded.

The statute that governs these actions, Florida Rule of Civil Procedure 1.420, holds that a defendant can request dismissal of a case in which there has been no activity by filing of pleadings, order of the court or otherwise for 12 months and there hasn’t been an order staying the action and there isn’t any record activity within two months immediately following that notice. The action also can be dismissed by the court by its own motion or by motion of any interested party.

The Florida Bar referred not long ago to this as one of those “gotcha” motions, though it’s understandable that those facing foreclosure action want to move on with their lives. Waiting out a pending foreclosure can put a lot of personal decisions on hold.

Prior to the Wilson ruling, the courts generally held that “record activity” had to be some sort of action that actively moved the case forward. However, it was largely open to interpretation.

With the Wilson case, the Florida Supreme Court firmly established that the term “record activity” means exactly what it says. That is, record activity could be any activity in a case. The court held that if a review of the face of the record reflects no activity in the past year, the action should be dismissed unless the plaintiff can show good cause why the action should remain pending.

However, the court found, if there is any record of activity, including filings of pleadings, orders of the court or anything else, the action shouldn’t be dismissed.

That ruling essentially tossed the requirement of the courts to examine the type of “record activity” occurring in cases.

Of course, inactivity by the bank’s legal team isn’t a foreclosure defense strategy on which you want your attorneys to solely rely, but it is one of which you should be aware – and avail yourself of if it is at all possible.