It Takes Two for the Foreclosure to be Through


Abusing the voluntary dismissal one too many times cost the foreclosure case for the lender who acquired the loan that had been previously sold at least twice.

The Fourth District Court of Appeal took into consideration the number of times there was a connection between the loan and a voluntary dismissal rather than the number of dismissals per plaintiff to overturn the foreclosure, leaving the homeowner attorneys to celebrate. The appellate invoked the two-dismissal rule under Florida Rule of Civil Procedure 1.420(a)(1). They allow one voluntarily dismissal but not two.

The initial foreclosure came from Flagstar. They dismissed the suit and sold it to DKR Mortgage who began filing for foreclosure but later dismissed it. Finally, MIA Real Holdings bought the loan and started its own foreclosure but then voluntarily dismissed the suit. The defendant’s attorney argued that the same note got dismissal twice in prior cases. However, Palm Beach Circuit Judge Catherine Brunson ruled in favor of the plaintiff. The defendant’s attorney challenged that decision and won. Fourth DCA Judge Robert Gross wrote in a unanimous decision with Judges Martha Warner and Spencer Levine concurring.

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