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George and Cindy Anthony made headlines once again earlier this month when their foreclosure case was dismissed. According to the U.S. Bank National Association, the Anthonys owed approximately $130,000 on their mortgage and the lender started foreclosure proceedings in 2017. Now, though, that case will not move forward as the case has been dismissed without prejudice.
The case was interesting, as the Anthonys haven’t been in the news for a few years now. For those around Florida facing foreclosure, however, it was good to hear. Just because foreclosure proceedings have started, it doesn’t necessarily mean a person will lose their home. However, when a foreclosure case is dismissed, is the homeowner free and clear? Does the lender have a right to refile?
The Foreclosure Judicial Process in Florida
Florida is one of the few states in which in order to foreclose on a property, a lender must file a foreclosure lawsuit against the homeowner. The case is left to a judge to decide and, if they decide in favor of the lender, they will issue a judgment. This judgment will typically set the date for the property to be sold so the proceeds can help pay off the mortgage. In some instances, though, the case never gets to this point because the case is dismissed. When that happens, the property is safe unless the lender decides to refile.
Reasons a Foreclosure Case Can Be Dismissed
There are many reasons a court might decide to dismiss a foreclosure case. Most of the time, these cases are dismissed because the lender did not follow proper procedure, or did not properly write their complaint.
When a lender fails to attach the required documents or the documents conflict with the lender’s allegations in the complaint, these are considered technical defects. If a lender does not include the correct parties in the lawsuit or doesn’t properly outline their allegations in the complaint, these are also technical defects of a case.
Most of the time, when a case has technical defects, the court will allow the lender a certain amount of time to correct the defects. In these cases, the lender can correct the defects and then refile their claim. Sometimes, however, such as when a lot of time has passed since the lawsuit was originally filed, the court will simply dismiss the case. The court will also dismiss the case if the default is significant, or if there have been many changes made to the original complaint.
A court will also dismiss a foreclosure case if the lender doesn’t comply with court orders. Lenders may take too long to file an amended complaint, respond to discovery requests, or otherwise go against the court.
When a lender files a foreclosure lawsuit, they must also continue to take action on it. If they fail to file papers or take any other action for one year, the court will dismiss the case.
Not all cases are dismissed because the lender failed to do something or didn’t file their complaint properly. In some cases, the lender wishes to dismiss the case. They may have found an issue with the complaint and want to correct it before the issue is exposed. Or, they may not be prepared to proceed as quickly as the court.
So, no matter the reason for the dismissal, can a lender refile after a foreclosure case is dismissed?
Dismissals Without Prejudice and Dismissals With Prejudice
Whether or not a lender can refile after a foreclosure is dismissed largely depends on how the case was dismissed. If the case is dismissed without prejudice, as it was in the Anthony case, usually the lender can refile in the future. When this happens, the lender can make the necessary changes and refile the amended complaint. However, they are not required to do this. The lender can also refile the complaint exactly as it was originally, without making any changes at all.
Dismissals with prejudice are a bit more complicated. Dismissals with prejudice are considered final. This means the case cannot be refiled. Unfortunately, this doesn’t mean that homeowners will never face foreclosure again. The Florida Supreme Court ruled in 2004 that in a foreclosure proceeding, each time a homeowner defaults on their mortgage, the lender has a new right to sue. Under this ruling, a lender can refile a foreclosure lawsuit again, as long as the date of default is different than what was in the original complaint.
When Can Lenders Refile?
When a foreclosure lawsuit is dismissed, it’s always because the plaintiff, or the lender, made an error or didn’t comply somehow with the courts. In these instances, the lender must pay the court costs of the defendant or the homeowner. The law recognizes that homeowners in default on their mortgage are experiencing financial hardship and as such, they shouldn’t have to pay for expenses that were incurred due to the lender. As such, although lenders can refile a foreclosure lawsuit, they cannot do so until they have paid the court costs of the homeowner.
When Lenders Cannot Correct Defects
There are some instances in which lenders cannot correct defects. For example, a note may have been lost or destroyed, or the deed may have an incorrect legal description. The lender does not have the authority to correct these defects, which means they cannot refile the foreclosure lawsuit if it was dismissed due to the defect. However, they can ask the court to make the necessary corrections. If the court agrees to the request, the lender can then refile, if they have paid the homeowner’s court costs from the initial lawsuit.
Facing Foreclosure? Call Our Florida Foreclosure Defense Attorneys Today
Learning that a lender has started foreclosure proceedings is scary. It’s important though, that homeowners speak to a Fort Lauderdale foreclosure defense attorney who can help. At Loan Lawyers, we scour foreclosure lawsuits looking for defects that could help get a case dismissed. We also know the defenses to use in case yours proceeds, so you still have the best chance of keeping your home. If you’re facing foreclosure, call us today at (954) 523-HELP (4357) or contact us online for your free consultation.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 2,000 homes from foreclosure, eliminated more than $100,000,000 in mortgage principal and consumer debt, and have recovered over $10,000,000 on behalf of our clients due to bank, loan servicer, and debt collector violations. Contact us for a free consultation to see how we may be able to help you.