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Lender may often refile after dismissal of foreclosure case

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Many defendants in foreclosure cases believe that once their case is dismissed, they are out of the woods completely. Under Florida law, that notion is oftentimes far from the truth. In many cases, lenders will have the option to refile, which is why it’s important to have an experienced Miami foreclosure attorney by your side throughout your entire case.

Reasons your case may be dismissed

Dismissal of foreclosure cases often happens in the early stages of the process, and can occur for a multitude of reasons:

Technical defects – When the lender fails to attach the proper documents, include the necessary parties or set out the correct allegations

Failure to comply with court orders – When the mortgage holder fails to comply with a court order, such as filing an amended complaint or responding to discovery requests

Voluntary dismissals – When the mortgage holder requests to stop  the foreclosure case for reasons of its own

Failure to prosecute – When  the mortgage holder fails to file any of the necessary paperwork or take any action for one year

Difference between dismissals without prejudice and dismissals with prejudice

A case that was dismissed without prejudice can almost always be refiled by the lender. If the dismissal was due to a complaint defect, the mortgage holder will be afforded the opportunity to fix the misstep and continue onward. More importantly, such cases that were dismissed without prejudice can be refiled exactly as they were before.

On the other hand, a case that was dismissed with prejudice is more complicated. Usually, these cases cannot be refiled at all. Pertaining to foreclosures, however, this law is not black and white.

The Florida Supreme Court ruled in 2004 that each time a person defaults on their note and mortgage, the mortgage holder’s statute of limitation to sue resets. If a foreclosure case was dismissed with prejudice for a procedural or technical reason, it can often be refiled if the lender sues under a default date different than that of the previously dismissed case.

If you’re dealing with foreclosure and want to learn more about your rights, Graham Legal can help. We invite you to set up an initial consultation to speak with an experienced Miami foreclosure attorney and determine the best course of action in your specific situation.

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