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I am Plaintiff in an action against my lender/servicer, etc for 1) Wrongful Foreclosure, 2) Cancellation of Foreclosure Documents. 3) Preliminary Injunction/TRO to stay sale of the property.
My atty failed to appear @ ex parte re Bond so Injunction/TRO was dissolved by order of Court.
Def filed Demurrer re 1 & 2 above. Naturally, my atty failed to file opposition to Demurrer(seperate subject!). Hearing re Demurrer set for week of 7/18/11.
Meanwhile, I've successfully negotiated a mod of my loan directly with the bank. Accordingly, I don't see the need to pursue action or defend Demurrer and would like dismiss W/out Prejudice, maintaining my options in case mod doesn't work out.
Am I at risk for fees/costs upon dismissal? Does Def have any say re my dismissal w/out Prej?Taking the scenario one step further.... Since the foreclosure proceeding at hand will be cancelled by statute (coming up on 1 yr from NOD), or, upon my first payment of the mod (due early August), if I were to dismiss with prejudice either now or after the 1 yr statute has passed, would Def be able to make a motion for costs? Also, if I were to dismiss without prejudice now, and change that to with prejudice after the 1 yr statute on the NOD passes, would Def be able to recover costs? Lastly, since this foreclosure proceeding will have been cancelled, will I have the option in the future (eg: a year from now) to refile a new Wrongful Foreclosure proceeding if for some reason it becomes necessary?