Wednesday, May 2, 2012

3d DCA Watch -- Move Those Foreclosure Cases, or Else Something Short of Dismissal Without Prejudice Could Happen!


Do you really want to get a bank's attention when they slow-boat a foreclosure action and leave it dangling in the court system for years?

Then for heaven's sake don't dismiss without prejudice, that's too harsh a sanction:
The ultimate sanction is not called for in this particular case. U.S. Bank filed only one deficient packet in this matter. Lesser sanctions, such as the rejection notice prescribed by the administrative memorandum, would have sufficed.
But the only reason it's the ultimate sanction is because the statute of limitations has run as a result of the bank's own dilatory conduct, no?

Judge Salter, in concurrence, notes that the bank waited three years to file its foreclosure action, and then another two to file an sj motion.  There was also an incorrect "affidavit of indebtedness" and the sj motion failed to mention a prior recorded equitable lien, and a prior order from 2009 that directed that the property be sold.

On top of all that, the case was almost dismissed for lack of prosecution back in 2008, and when permitted to proceed the trial judge ordered the bank to "aggressively move" the action.

Judge Salter then writes:
Florida Rule of Judicial Administration 2.250(a)(1)(B) establishes a “presumptively reasonable” time period for completion of a non-jury civil case as 12 months from filing to final disposition. The circuit judges in this district work hard to comply with that objective (and regularly do better), but active, focused efforts by institutional lenders and their attorneys are also required.
This will surely send a message to the bank and its counsel, no doubt! 

(But is it the right one?)


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