It Takes Two for the Foreclosure to be Through
Written by Emil Fleysher | March 10, 2016 | Foreclosure
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 amount of times a voluntary dismissal had been tied to the loan rather than the number of dismissals per plaintiff to overturn the foreclosure, leaving the homeowner attorney’s to celebrate. The two-dismissal rule under Florida Rule of Civil Procedure 1.420(a)(1) was invoked by the appellate, which allows one voluntarily dismissal but not two.
The initial foreclosure came from Flagstar who dismissed the suit, and sold it to DKR Mortgage who began filing for foreclosure but later dismissed it. Finally the loan was sold to MIA Real Holdings who started its own foreclosure but then voluntarily dismissed the suit. The defendant’s attorney argued that the same note was dismissed 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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