Miami foreclosure defense attorneys are not surprised, given the Florida Supreme Court’s 2006 re-examination of the term “record activity” in the case of Wilson v. Salamon. That is, the court narrowed the definition of what it means for a case to be inactive.

This issue comes up a lot in foreclosure cases in Florida, simply because there are so many of them. It is possible to successfully have a foreclosure case dismissed on lack of prosecution grounds, but it’s not necessarily easy.

In the most recent case, Deutsche Bank Nat’l Trust Co. v. Mark Christian Gombert, as Co-Trustee, the trial court had dismissed a foreclosure complaint on the grounds that there lacked any record activity for a full year as of December 2012.

The bank appealed to the Florida First District Court of Appeals, asserting that it had moved to amend a complaint in November 2012. The trial court granted this motion on the same date it was filed. The appellate court determined that the motion to amend should be considered sufficient to avoid dismissal for failure to prosecute under state law. As such, the final order for dismissal was reverse and the case remanded.

The statute that governs these actions, Florida Rule of Civil Procedure 1.420, holds that a defendant can request dismissal of a case in which there has been no activity by filing of pleadings, order of the court or otherwise for 12 months and there hasn’t been an order staying the action and there isn’t any record activity within two months immediately following that notice. The action also can be dismissed by the court by its own motion or by motion of any interested party.

The Florida Bar referred not long ago to this as one of those “gotcha” motions, though it’s understandable that those facing foreclosure action want to move on with their lives. Waiting out a pending foreclosure can put a lot of personal decisions on hold.

Prior to the Wilson ruling, the courts generally held that “record activity” had to be some sort of action that actively moved the case forward. However, it was largely open to interpretation.

With the Wilson case, the Florida Supreme Court firmly established that the term “record activity” means exactly what it says. That is, record activity could be any activity in a case. The court held that if a review of the face of the record reflects no activity in the past year, the action should be dismissed unless the plaintiff can show good cause why the action should remain pending.

However, the court found, if there is any record of activity, including filings of pleadings, orders of the court or anything else, the action shouldn’t be dismissed.

That ruling essentially tossed the requirement of the courts to examine the type of “record activity” occurring in cases.

Of course, inactivity by the bank’s legal team isn’t a foreclosure defense strategy on which you want your attorneys to solely rely, but it is one of which you should be aware – and avail yourself of if it is at all possible.

Banks that seek to foreclose on a property must give homeowners proper notice of default before initiating and concluding the foreclosure process.

In the recent case of Samaroo v. Wells Fargo Bank, the Fifth District Court of Appeal of Florida ruled that a bank failed to give a notice of default that complied with the mortgage contract.

Experienced Miami foreclosure lawyers know that an acceleration clause grants the lender the right to assert the entire loan balance is due immediately. The original schedule of payments is therefore accelerated. So for example, let’s say you have a 30-year loan at a fixed interest rate that structures your payments in such a way that allows for pay off in 30 years. Five years into the loan, you can’t keep up with the payments and default. The acceleration clause allows the lender to declare that your remaining mortgage balance, due previously over the course of the next 25 years, is suddenly due right away.

The reason this clause is important to lenders is that, without it, borrowers could cure a default and stop a foreclosure by simply paying the past due amount.

So most mortgage servicers have an acceleration clause – but they have to provide homeowners proper notice before they initiate it.

In the Samaroo case, the court found that the bank did not comply.

Initially, the trial court granted the bank’s motion for summary judgment foreclosure. However, the homeowners appealed this ruling with a host of defenses. The court rejected all but one: the failure to abide by the notice requirements as set forth in the mortgage contract.

According to the mortgage, the bank was required to issue an acceleration notice that would specify the default, the action required to cure the default, a specific date by which the default was to be cured and notice that failure to cure the default by that date would or could result in acceleration of the loan. The bank did not do this, the homeowners contended. The notice was also required to notify the borrower that they have the right to defend the foreclosure action.

Wells Fargo refuted the homeowners’ assertion by pointing to a default letter it submitted prior to the foreclosure action. But the Fifth Circuit panel determined that the letter was clearly not in compliance with the notice requirements spelled out in the contract.

Specifically, the letter did not inform the homeowners of their reinstatement rights following acceleration. Instead, it tells the borrowers that the bank’s acceptance of one or more payments for less than the amount required wasn’t sufficient to reinstate their loan or waive acceleration. The court ruled this statement doesn’t serve to notify borrowers have a right to reinstate after the acceleration.

The bank then argued it had substantially complied with the contractual notice requirements. However, the court rejected this argument. Instead, the court ruled, the bank had “simply failed” in its duty to submit proper notice. Therefore, the summary judgment in favor of the bank was reversed and the case was remanded back to the lower court.