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HOA Florida trying to dismiss the banks case to forclose first.Lack of prosecution.

Miami, FL |

Will a motion to the bank from another co defendant keep the case from being dormant pursuant to rule 1.420e to prevent HOA from trying to dismiss case,yes or no?

Attorney Answers 3

  1. Yes, it's likely that the Court will consider a Motion to Dismiss to be record activity if that is in period of time set forth by the Court's Order. Moreover, that will most likely prevent the case from continuing to be in a "dormant" status as you put it.

    Please remember that although you may appear to be asking one question, there are several factors including the discretion of the judge in the matter. The "failure to prosecute" rule under 1.420 of the Fla. Rules Civil Procedure can arise at various stages and different judges administer this in various ways.

    It's really important to have a personal consultation with an attorney in this matter whom can examine your papers, the court's order at this stage, and if the motion to dismiss is properly docketed by the clerk.

    NOT LEGAL ADVICE--FOR EDUCATIONAL PURPOSES ONLY. We don't know the facts and this is not legal advice. Seek the advice of licensed property law attorneys immediately so they can secure your rights. Hiring an attorney is a serious and important decision. Please ensure that you take the time necessary to evaluate and interview more than one attorney to determine whom to hire.

  2. In order to understand the LOP procedure, one must know what a "pleading" is. While a motion to dismiss is not technically a "pleading" most judges would probably consider it record activity. If it is a motion to dismiss for lack of prosecution and there have been no pleadings filed for 10 months, and the clerk has sent out the proper notice, the case can be dismissed for lack of prosecution.

    R. Jason de Groot, Esq., 386-337-8239

  3. Yes. Recently theFlorida Supreme Court and several appellate courts in the state have come out with decisions that indicate a bright line rule as to what constitutes record activity. These cases are Nastasi (65 So.3d 121), Chemrock (71 So.3d 786) and Weston (66 So.3d 370). Basically any paper, motion, notice, pleading, or order constitutes record activitiy.

    With the recent change with Rule 1.420 concerning lack of prosecution and the recent case decisions it is next to impossible to have a case dismissed for lack of prosecution.

    This response is not intended to create, nor does it create an ongoing duty to respond to questions. This response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts set forth in the question. To the extent additional or different facts are presented, the response might change

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