All too often, borrowers lose their homes to foreclosure because they wait too long to defend themselves.
But a lender can also lose a foreclosure case by neglecting it.
Judges don’t like to have inactive cases sitting around on their dockets. They expect progress toward trial. If a case sits around too long with no activity, the court may just dismiss it for failure to prosecute, also known as a FWOP.
In Spencer v. EMC Mortgage Corp., a borrower had her foreclosure case dismissed not once, but twice, because of her lender’s failure to prosecute.
The borrower took out a $73,000, 15-year home mortgage in 1993. The lender originally filed a foreclosure case in 1998, but that case was eventually dismissed for lack of prosecution.
The lender filed a new foreclosure case against the borrower in November of 2002. She answered the lawsuit and raised some defenses. After some initial activity, the lender hired a new lawyer and the case went nowhere for 13 months.
The court then issued an order asking the lender’s lawyers to explain why the case should not be dismissed for lack of prosecution. In Florida, the court or a party may issue a notice of lack of prosecution if no activity has occurred in a case in 10 months and the case is not affected by a bankruptcy or some other type of stay. Once the notice goes out, if there is no activity for 60 days, the case may be dismissed for lack of prosecution.
In the Spencer case, the lender’s lawyers did nothing for 82 days. Then, three days before the hearing was scheduled, they filed a motion asking the court to decide the foreclosure case in their favor based only on written evidence. They claimed they never received the notice of lack of prosecution.
The trial court ruled in the lender’s favor. It didn’t dismiss the case because the lender’s attorney explained that the time limit had expired for filing a new foreclosure case. The court granted a foreclosure judgment, even though the lender’s lawyers didn’t submit a sworn statement and its court papers grossly overstated the amount Ms. Spencer owed.
The Florida Court of Appeal overturned this ruling and dismissed the case. It found that dismissal was justified because there was no activity in the case for more than 10 months, and there also was no activity during the 60 days after the notice went out. Although the lender’s lawyer claimed he didn’t receive the notice, records showed that he learned of the notice within a month after it was sent, and therefore had over a month to take some action in the case and prevent dismissal.
The result of this case, one of the judges noted, is that the borrower was able to remain in her home for over 15 years after defaulting on her mortgage.