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Question about Dismissal with Prejudice

West Sacramento, CA |

I have a wrongful foreclosure cause of action against GMAC. GMAC filed for bankruptcy. So my attorney filed a lawsuit against Aurora (part of his strategy). Aurora filed an answer to the complaint and denied any liability, stating that GMAC was a separate entity, and Aurora had nothing to do with the lawsuit. I settled with Aurora for a nominal nuisance value, and the lawsuit was dismissed with prejudice. OCWEN now owns the note. Can I file a lawsuit against OCWEN for wrongful foreclosure? or am I SOL because of the dismissal with prejudice?

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Attorney answers 1


SO you dismissed the lawsuit against GMAC with prejudice based on the settlement with Aurora - correct? You never amended the complaint to add Aurora either? If you never named OCWEN in the lawsuit then you are not SOL - UNLESS, your agreement with Aurora include all successors and assigns which is very common. You need to read the settlement document very carefully and also the basis of the settlement. If you have a different cause of action against OCWEN or an additional cause of action than you had against GMAC or Aurora then you can refile. Always read the documents and then research the state law - those are the keys to your answer.

Arash Arjang

Arash Arjang


The lawsuit never named GMAC as a defendant. It was solely against Aurora, and Aurora never had anything to do with the servicing of the loan.

Marcia Sue Wertenberger

Marcia Sue Wertenberger


Ok - this question was rather confusing. The wrongful foreclosure action would be against whomever actually foreclosed. You write as if the property has not been foreclosed as of yet as you say the "Note" was transferred not the property. SO if GMAC foreclosed then they are the party you sue. Regardless of the BK filing you can proceed with the suit to establish a claim against the BK estate if you have not missed any of the statute of limitations for filing a creditor claim. If you only sued a party (Aurora) who purchased the property after it was foreclosed upon - then you can proceed with your wrongful foreclosure against any party unnamed in the original complaint. What I am saying however is that you need to read all of the transfer documents from GMAC to Aurora and Aurora to OWEN to see if there is any language that would eliminate your claim. From what it sounds like though you can proceed against GMAC and the action against Aurora and dismissal with prejudice would not affect that action. As Aurora was not the party that actually foreclosed they could not be held liable for an wrongful foreclosure thus the dismissal with prejuidice. Hope this is clearer. >

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