I was served with a Lis Pendens in May of 2009 by my mortgage holder. I also had a Ch 7 bankruptcy discharged in 8/2011. A motion to lift stay from the bankruptcy was granted to the attorney representing the mortgage holder in Dec. 2011. No further action has taken place until 2/27/12 when I received the Notice of Lack of Prosecution from the County Court. What are the odds that my case will be dismissed, since it dates back to 2009? Also, if the foreclosure is not dismissed, what are the next steps and how soon would eviction occur (Pasco County, FL)?
Thank you for your assistance.
Upon the filing of Notice of Lack of Prosecution the Plaintiff's ( Lender's) attorney will have 60 days to create record activity. If there is no record activity the Court will dismiss the case unless the bank's lawyer makes "showing of good cause" why the case should not be dismissed. If a motion to lift stay was granted by the bankruptcy Court, did the bank;s lawyer file the order from the bankruptcy court lifting the stay with the Pasco Circuit court where your foreclosure is pending. Filing such order would create record activity. Your case will only be dismissed if the banks lawyer drops the ball. If the bank's lawyer moved for relief from the stay this past December it looks like the other side is not completely asleep at wheel. I would put the odds of your case being dismissed at 1 in 4.
If your case is not dismissed you should consider hiring counsel. The fact that you filed Chapter 7 does not limit your rights to fight the foreclosure. The plaintiff still has to prove its case. Many foreclosure lawyers offer a free consultation. The banks case may have serious flaws that will only be found by an experienced foreclosure litigator.
I'm not a Florida attorney, but I would suggest going to court on the next scheduled court date and request that the judge dismiss the case for want to prosecution. You may have a good chance of getting it dismissed if the bank's attorney fails to show up. However, even in the event that the foreclosure is dismissed for want of prosecution the bank may refile a new case, or seek to vacate the dismissal.
The information in this answer is not intended as legal advice nor do I intend to create an attorney-client relationship with any reader simply by answering this question or contributing as a member of AVVO.
Any time a civil case has no action, the court will send out what we affectionately call "a goose order". When this happens the Plaintiff has 60 days to show the court that the case is moving forward.
There are many cases that just sit there with no one taking any action. Most of the time the lender changed attorneys and the loan was sold. Someone forgets to tell the new attorney that there was an open foreclosure.
I was able to get such a case dismissed with prejudice. Normally, if dismiss, it is dismissed without prejudice. They then can refile.
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