Across the State of Florida, foreclosure cases are filed and then for a variety of reasons, those cases are not actively pursued by the Plaintiff or the attorneys that filed the case.   There are any number of reasons why a Plaintiff may choose not to pursue a case, or not be able to pursue a case, like when a pesky borrower or defense attorney or judge asks the Plaintiff to produce some shred of evidence that they have the right to file the lawsuit in the first place or the parties may have reached a settlement and agreed not to proceed with the case.

Whatever the case may be, our courts need a mechanism to ensure these “stale” cases don’t go just languishing around with nobody doing anything.   That mechanism is a nifty little rule called Florida Rule of Civil Procedure, Rule 1.070.   Now anytime you want to check out a Rule of Civil Procedure for Florida Courts, don’t mess around with a book,check out the Florida Rules of Civil Procedure Online. It’s a nifty site because it has not only the Rules, but cases and Orders both from appellate and circuit courts. So back our issue with Rule 1.070…copied from our nifty new site is the text of the rule:

Florida Rules of Civil Procedure
1.070 Process

(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall 1)direct that service be effected within a specified time or shall 2)dismiss the action without prejudice or 3)drop that defendant as a party; (emphasis added) provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

So if a Plaintiff chooses not to pursue a case,the court sends out a letter to the Plaintiff and says, “Hey Plaintiff, if you don’t do something here, we’re going to dismiss your case.”   All the Plaintiff needs to do is file something, any old something, to prevent the court from dismissing the case. If the   Plaintiff doesn’t file something, the Rule provides the court with three options….as indicated above.

Attached here is a Motion where I describe clearly the three options that are available to the court and the case law that supports each option.   Give the motion a read, and the cases to understand how the rule works in why.

Dropping Defendants, a Bad Decision for Courts To Make

Now in a foreclosure case, the third option, dropping the defendant as a party, is a dangerous business because the court risks making a determination that no tenants exist when tenants might in fact be living in the property.   If the tenants are dropped and the home is sold in foreclosure, their only notice the tenant might get would be the Writ of Possession posted on the door or the lender kicking down the door and throwing their property out on the street.   This might not be such a risk were it not for the widespread phenomena of “Sewer Service” or other improper conduct on the part of lenders and their attorneys, but given the widespread knowledge of this practice, the proper option for the court to select, (and the option that is clearly indicated on those Orders when the rule is invoked) is to Order that the case is dismissed.

No harm, no foul, no risk of irreparable harm to innocent tenants, no violation of their fundamental rights as is the case when the lender and their jack booted thugs kicks down the tenants door and says, “Sorry you paid your rent to your landlord, but he didn’t pay his mortgage and now you’re out on the street.”