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On July 31, 2013, the 3d DCA in JPMorgan Chase Bank v. Sarmiento, 38 Fla. L. Weekly D165a (Fla. 3d DCA July 31, 2013), reversed a trial court's dismissal of a bank's mortgage foreclosure suit. The trial court had dismissed the bank's suit for failure to prosecute even though the bank had timely filed multiple pleadings after receiving the court's notice of failure to prosecute.

Chase filed a mortgage foreclosure suit in October 2009. On June 1, 2011, the trial court sent Chase a notice of failure to prosecute. Chase responded to the notice by filing a motion to amend plaintiff's name and change case style. The trial court properly issued an order finding good cause why the action should continue.

On June 14, 2012, the trial court sent Chase a second notice of its failure to prosecute. In response, Chase timely filed a motion for summary judgment, a notice of filing original loan document and three amended affidavits in support of the motion for summary judgment. Notwithstanding, the trial court dismissed the foreclosure suit for failure to prosecute.

The 3d DCA reversed the trial court's order and cited Florida Rule of Civil Procedure 1.420(e), which allows a trial court to dismiss an action when, on the face of the record, no activity has "occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice." The Florida Supreme Court has held that "any filing of record is sufficient to preclude dismissal." Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011).

Because Chase had timely filed multiple pleadings with the trial court after receiving the second notice of failure to prosecute, it was improper for the trial court to dismiss the proceeding.



This summary was prepared by Sean Crocker of our firm.


Sean Crocker

 

 

38 Fla. L. Weekly D1656a

 

Civil procedure -- Dismissal -- Failure to prosecute -- Error to dismiss complaint for failure to prosecute where record activity occurred within sixty days of when plaintiff received notice of failure to prosecute

JPMORGAN CHASE BANK, etc., Appellant, vs. IVELISYS SARMIENTO, et al., Appellees. 3rd District. Case No. 3D12-2766. L.T. Case No. 09-74855. Opinion filed July 31, 2013. An Appeal from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Counsel: Shapiro, Fishman & Gaché, LLP (Boca Raton), Ileen J. Cantor and Ronald M. Gaché, for appellant. Ivelisys Sarmiento, in proper person; Alberto N. Moris for appellee, Kendall Lake Towers Condominium Association, Inc.

(Before WELLS, SUAREZ and FERNANDEZ, JJ.)

(FERNANDEZ, Judge.) JPMorgan Chase Bank, etc., appeals the trial court's order of dismissal for failure to prosecute. We reverse and remand for further proceedings because record activity occurred within sixty days of when Chase received notice of failure to prosecute.

In October of 2009, Chase filed the underlying mortgage foreclosure suit. By May of 2010, the case had stalled, and on June 1, 2011, the trial court sent Chase notice of failure to prosecute. Chase thereafter filed a Motion to Amend Plaintiff's Name and Change Case Style, and the court issued an order finding good cause why the action should remain pending.

On June 14, 2012, the trial court sent Chase a second notice for failure to prosecute. Chase then filed a motion for summary judgment, a notice of filing an original loan document, and three amended affidavits in support of summary judgment.

We conclude that there was record activity sufficient to preclude dismissal for failure to prosecute. Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss an action where "it appears on the face of the record that no activity . . . has occurred for a period of 10 months . . . ." Fla. R. Civ. P. 1.420(e). After giving proper notice, the court may dismiss the action "[i]f no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice . . . ." Id. The Florida Supreme Court has taken a "bright line interpretation of rule 1.420(e), under which any filing of record is sufficient to preclude dismissal . . . ." Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011) (emphasis added).

The record reflects that Chase timely filed multiple filings with the trial court after it received the June 14, 2012, notice for failure to prosecute.1 Such record activity is sufficient to preclude dismissal. See Chemrock, 71 So. 2d at 792; Nalley v. Rotstein, 109 So. 3d 894 (Fla. 5th DCA 2013); Miami-Dade Cnty. v. Walker, 948 So. 2d 68 (Fla. 3d DCA 2007). Therefore, the dismissal order is reversed and remanded for further proceedings.

Reversed and remanded for further proceedings.

__________________

1. When the trial court dismissed the case, it also struck Chase's filing of the original note, asserting that it was in violation of an administrative order which instructed plaintiffs not to file an original note. The Eleventh Judicial Circuit Administrative Memorandum 12-E provides that the law firm who files an original note would be responsible to its client and to the borrower for any subsequent loss or inability to locate the note. The memorandum, however, does not state that filings, including an original note, will be stricken. Thus, it was error for the trial court to strike Chase's filing and dismiss the action. Cf. U.S. Bank Nat'l Ass'n v. Cowell, 86 So. 3d 1214 (Fla. 3d DCA 2012).






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