When a lender files a foreclosure lawsuit, they must also continue to take action on it. If they fail to file papers or take any other action for one year, the court will dismiss the case. In some cases, the lender wishes to dismiss the case. They may have found an issue with the complaint and want to correct it before the issue is exposed. Or, they may not be prepared to proceed as quickly as the court. So, no matter the reason for the dismissal, can a lender refile after a foreclosure case is dismissed?
Whether or not a lender can refile after a foreclosure is dismissed largely depends on how the case was dismissed. If the case is dismissed without prejudice, as it was in the Anthony case, usually the lender can refile in the future. When this happens, the lender can make the necessary changes and refile the amended complaint.
However, they are not required to do this. The lender can also refile the complaint exactly as it was originally, without making any changes at all. Dismissals with prejudice are a bit more complicated. Dismissals with prejudice are considered final. This means the case cannot be refiled. The Florida Supreme Court ruled in that in a foreclosure proceeding, each time a homeowner defaults on their mortgage, the lender has a new right to sue. Under this ruling, a lender can refile a foreclosure lawsuit again, as long as the date of default is different than what was in the original complaint.
But this is different with foreclosures. In , the Florida Supreme Court ruled that in a foreclosure proceeding, each time you default on your obligation under the note and mortgage, the mortgage holder has a new right to sue you. If your foreclosure case is dismissed with prejudice for a procedural or technical matter, it is likely that it can be refiled as long as the mortgage holder sues using a different default date.
In Florida, the statute of limitations on a mortgage foreclosure is five years from the date of default. Because each missed payment can be a new default under the current state of the law in Florida, the action would not be barred by the Florida statute of limitations unless more than five years has passed using the default date that the mortgage holder is relying on in the complaint.
Your mortgage holder must pay your costs associated with the dismissed case, before the case can be refiled. If the mortgage holder fails to do this, the new filing is not permitted, and you can move to dismiss it.
If your mortgage holder can't comply with the procedural requirements for foreclosure, it's possible that it won't be able to refile the case. However, some procedures allow the mortgage holder to request additional relief from the court to correct defects in the mortgage holder's documents. Adding these additional requests makes the case more complicated, requires more proof, and might give you more opportunities to defend the action , but a new case might still be possible.
Some of the more common actions mortgage holders take to correct defects in their foreclosure cases include asking the court to:. If you need help defending against a foreclosure, it's a good idea to seek the advice of local lawyer to explore all possible alternatives that might be available in your particular situation.
And if you want to learn about possible ways to avoid a foreclosure, like with a loan modification, short sale, or deed in lieu of foreclosure, consider also talking to a HUD-approved housing counselor. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service.
Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. And some states limit the number of times a mortgage lender can file a foreclosure case, even if the judge decides to dismiss it without prejudice. If you voluntary foreclose, you waive the right to receive any profit from the sale. Like all other content on the site, this does not constitute legal advice and is for general information purposes only.
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