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Back From The Dead

Banks all too often steamroll our judicial system. They say one thing and then do another, and if that doesn’t work they try again. This is perhaps most frustrating when the Bank has voluntarily dismissed their case and then later tries, after all seems dead and buried, to give their case new life by vacating the dismissal.

It is well accepted that the effect of a plaintiff's voluntary dismissal under rule 1.420(a) (1) is jurisdictional. Pino v. Bank of New York, 121 So. 3d 23, 32 (Fla. 2013). Simply put, a voluntary dismissal serves to “terminate the litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits, and to preclude revival of the original action.” Id.; See also Randle–Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978) (holding that voluntary dismissals taken pursuant to rule 1.420 are acts of finality that deprive the trial court of jurisdiction over the dismissed case).“If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding. The policy reasons for this consequence support its apparent rigidity.” Pino v. Bank of New York, 121 So.3d 23, 32 (Fla. 2013). A narrow exception to the application of rule 1.420, and the divestiture of the Court’s jurisdiction following a Plaintiff’s voluntary dismissal permits either litigant an opportunity to seek relief from a voluntary dismissal, only where the voluntary dismissal being challenged under rule 1.540(b) and where the litigant is subjected to some adverse impact from which he or she must be relieved. (Emphasis added) Pino v. Bank of New York, 121 So. 3d 23, 35 (Fla. 2013). “Mistakes which result from oversight, neglect or accident are subject to correction under rule 1.540(b) (1). “ Commonwealth Land Title Ins. Co. v. Freeman, 884 So. 2d 164, 167 (Fla. 2d DCA 2004). However, this rule is “not intended to relieve a party from its own tactical mistakes. “ See Florida High Sch., Activities, Inc. v. Latimer, 750 So. 2d 762, 763 (Fla. 3d DCA 2000) (quoting State Farm Mut. Auto. Ins. Co. v. Isom, 681 So.2d 1170, 1172 (Fla. 5th DCA 1996) (holding “rule 1.540 does not provide relief for judgmental mistakes nor tactical errors of counsel nor from mistakes of law. This rule merely provides relief from judgments based on mistakes which result from oversight, neglect or accident.”). (Emphasis added).

A Bank’s mistake is not simply a mistake because they label it as one. Depending on the circumstance, you may be able to prove that the alleged mistake is really a fraud perpetrated by a blundering Plaintiff’s counsel, and that which is dead should remain so, indefinitely.

Categories: Wrongful Foreclosure
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