A great case to reference in your “Motion To Dismiss” when a foreclosure suit is filed against your estate even if you aren’t in Florida.
Unfortunately, many plaintiffs and, yes, judges, see motions to dismiss purely as a stall. You see, so long as the motion to dismiss is pending, the homeowner need not file an Answer, and without an Answer in place, the case isn’t “at issue” under Fla.R.Civ.P. 1.440 and can’t be set for trial. Hence, a motion to dismiss prevents a trial from being set.
Those pesky motions to dismiss. We need to get rid of those. There are trials to set and dockets to clear!
I’m glad the good judges in Hillsborough and Pinellas don’t share this mindset, as it has annoyed and frustrated me for a long time. Unfortunately, there has been little opportunity to do anything about it, either, as there is virtually no case law from Florida’s appellate courts on the circumstances in which a motion to dismiss in a foreclosure case should be granted. The problem is procedural. You see, when a motion to dismiss is denied, that ruling cannot be appealed until the end of the case. But once the case reaches its end, the homeowner isn’t concerned with appealing whether the foreclosure plaintiff stated a cause of action as much as whether the plaintiff was entitled to foreclosure. So if/when the appeal is ultimately brought, nobody talks about whether the plaintiff stated a cause of action, but whether foreclosure was permitted. As a result, case law on the circumstances in which a motion to dismiss is warranted in a foreclosure case is virtually non-existent.
That changed a bit recently, and I think it should change the way motions to dismiss are viewed throughout Florida.
On April 22, 2013, Florida’s First District Court of Appeal issued a written opinion in Wells Fargo Bank, N.A. v. Bokatka, Case No. 1D11-3356 (Fla. 1st DCA 2013). At first blush, the opinion seems unfavorable to homeowners, as the lower court dismissed the foreclosure suit with prejudice and the First District reversed that ruling. Dismissal with prejudice was wrong. Ugh.
If you look closer, however, the court made it clear that the motion to dismiss was properly granted, it just shouldn’t have been granted with prejudice. Take a look at this language from the opinion: (read more>> STAY IN YOUR HOME)