I seem to recall hearing from the clerk that each summons issued by the clerk has a limited " life time " by which the Plaintiff's process server has to successfully serve the summons . Also , just wanted to understand further that if 120 days goes by and the summons / complaint was never served and there's no " order " granting a time extension . . is that a basis to file a Motion to Dismiss later on account of no Order ever being sought or entered by the court allowing the additional time . Also , just wanted to be clear that after 5 years goes buy the Plaintiff cant simply file a new " action " that indeed they have lost their ability to sue ( for in this case a written agreement / 3rd mortgage ) . Thanks
Procedurally, you are correct in what you recall, though your particular facts may be different. Yes, a plaintiff has 120 days from the date of filing the complaint to serve the defendant(s). Instead of filing a motion to dismiss, however, it may be preferable to file a motion to quash service of process - this depends on whether the case continued despite not having served the defendant(s). Finally, yes, in Florida, there is a five-year statute of limitations on enforcing written agreements. You should consider having a local attorney review the court file in your case as well as your particular case facts.
Mr. Vicary is licensed to practice law in Florida. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Vicary strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
3 lawyers agree
i agree with other counsel. Plaintiff has 120 days in FLA to serve defendant with the summons and complaint, and then must either get an extension from the court, dismiss without prejudice and then re-file and try and serve again? If the plaintiff can show they have tried to serve and defendant is evading, they can substitute serve.
Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.
Personal Injury Lawyer
In Florida, in state court, 120 days without court order is right. Process can be quashed and the Complaint dismissed otherwise. Five year statute of limitations. But it runs from every missed payment. So, it is just the payments more delinquent than 5 years that are unenforceable. This assumes that Florida Statute of Limitations controls, and it may not, even if the case is filed here.
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