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The Orlando Foreclosure Attorney
Orlando, Florida 32801
Foreclosure Attorney Michael Stites
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Foreclosure Education Area
When it comes to the world of Florida foreclosures, it is not unheard of for a bank to file a foreclosure complaint and then just sit around and do absolutely nothing about it. What do we mean by this? Well recently we had a client come to our office and he informed us that he recently became aware of a foreclosure lawsuit against him when he started receiving dozens of business cards from local attorneys. Now this scenario in and of itself is not terribly unique but the interesting part was that he had never been served and had never even received so much as a phone call or a single piece of mail form the bank informing him of the aforementioned foreclosure that had been filed against him. Our initial worry was that the bank had failed to serve him personally as required by statute but had improperly served him by "constructive" service and subsequently got a default against him, which they're infamous for doing. However, after we delved into the matter a little closer, it was clear that the bank had done none of the above. In fact, all the bank had done was file the Complaint and then sat back and took no further action. The case had simply sat idly for five months and service had not even been attempted. At this very moment our ears perked up because of a very basic but rarely implemented rule of law.
Florida Rule of Civil Procedure 1.070(j) states:
“a complaint must be served upon the defendant within 120 days after the complaint is filed. If it is not served within this time frame, a motion to dismiss is appropriate and the case is dismissed without prejudice.”
Source: http://www.floridabar.org/TFB/TFBResources.nsf/0/10C69DF6FF15185085256B29004BF823/$FILE/Civil.pdf
(Scroll down to page 17 for source)
Thus, in an effort to promote judicial efficiency, the rules preclude big bank Plaintiff's from clogging our court system with lawsuits and subsequently failing to prosecute them. If this occurs ,as it did in the situation with our client, defense counsel may file a Motion to Dismiss and move for the case to be thrown out, as we did. However, because there is a long standing principle of liberality in having foreclosure cases determined on the merits, the Courts allow the Plaintiff a saving clause to show "Good Cause" why the complaint was not served within the 120-
If you have recently become aware of a foreclosure against you or someone you know and proper service has not been perfected, there is a chance you may be able to have the case dismissed due to Plaintiff's failure to properly serve you within the time allowed by the law. It is for this reason that you must hire an experienced attorney who is familiar with the nuances of the law that way you ensure that you have the best possible chance of defeating the bank and ultimately keeping your home.
Created by Attorney Michael Stites & contributing editor Jared Speck