vettegirl

Mortgage foreclosure "Dismissed w/o Prejudice"?

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Posted this in Mortgage Forum too, but looking for some legal insight and what my next step should be.

OK, HSBC filed a foreclosure suit in 3/2008. In 11/2008 I filed a motion to "produce the note", mainly just to be a PITA. Since then nothing. Every once in a while I pull up the case on the Clerk of Court website to see if anything is happening. Today I saw that on 9/8/10 that something was filed to "Dismiss w/o predjudice" against defendants 1,2,3 and 4, and a check was received by the court. Any clue what may be happening??? I'm in FL if that helps.

Thanks!

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If you nor any of the other defendants initiated the dismissal then what I think happened is that the court is looking to dismiss for lack of prosecution (no movement on the case). If that does/did happen, then the bank would have to start over from square one again.

Your being a PITA could actually have extended the time you stay in that house. However, the bank still has its lien and hence, you will have trouble selling the place.

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In 11/2008 I filed a motion to "produce the note", mainly just to be a PITA. Since then nothing. Every once in a while I pull up the case on the Clerk of Court website to see if anything is happening. Today I saw that on 9/8/10 that something was filed to "Dismiss w/o predjudice" Any clue what may be happening??? I'm in FL if that helps.

Yep auto dismiss for lack of prosecution most likely in FL - time is about right.

Did you have atty or go Pro Se on PETA 'produce the note'?

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Yep auto dismiss for lack of prosecution most likely in FL - time is about right.

Did you have atty or go Pro Se on PETA 'produce the note'?

I went Pro Se, used a template I found on this forum I believe. Is there anything I can do to make it harder for them to re-file? What I'm a little confused about is it looks as if someone wrote a check to file this motion?? Does this make sense? I have not received a copy of any filings in the mail.

09/08/2010 P001 FINAL DISPOSITION FORM

09/08/2010 D002 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

09/08/2010 D003 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

09/08/2010 D001 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

09/08/2010 D004 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

Edited by vettegirl
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I went Pro Se, used a template I found on this forum I believe. Is there anything I can do to make it harder for them to re-file? What I'm a little confused about is it looks as if someone wrote a check to file this motion?? Does this make sense? I have not received a copy of any filings in the mail.

09/08/2010 P001 FINAL DISPOSITION FORM

09/08/2010 D002 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No.

You can wait for delivery or go to the court for a copy of VDismiss w/o Prejudice. The check is most likely associated to payments and courts costs as the party who brought the action - some payments are deferred pending courts final judication.

Yes, I think they will re-file. Or the real party of interest will file.

Mortgage cases, as you already know can be a complicated legal matter and your affirmative defenses if not already exhausted will evaluate if can you can dismiss again. Don't think you can stop them from re-filing on a w/o Prej - I would however recommend a lawyer on these foreclosure matters - at minimum to review and advice.

They may well 'see' legal matters, contractual / note concerns and educated strategies not recognized or available to us.

Note; based on the courts docs, this was not auto dismissal but a voluntary dismiss from Plaintiff ;

"Specifically, Rule 41(a)(1)(A)(i) sets out that a Plaintiff may voluntarily dismiss its claims without prejudice and without a Court Order by notice at any time prior to the Defendants filing an Answer or moving for summary judgment"

The question is: Does a voluntary dismissal operate to conclude litigation for purposes of this cause of action - yes, but not over the suit.

" Florida courts have determined that a voluntary dismissal of an action without an order of the court operates to end the action and to divest the trial court of jurisdiction.[3] The rule applies to the dismissal of an "action" which denotes the entire controversy.[4] A voluntary dismissal ends an action without prejudice, meaning that the action may be refiled at any time within the applicable statute of limitations. Thus, while the court is deprived of its jurisdiction to enter further orders once a voluntary dismissal is taken, the plaintiff's cause of action remains viable until the appropriate statute of limitations has run and the plaintiff retains control over the continuation of the suit."

Edited by FL4answer58
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Thank you.

Is there any legal strategy that will put them in a better position for having dismissed this action?

Do you know what the statute of limitations is on foreclosures in FL? Last payment made was in Oct 2007.

Have you already asked and applied for the mortgage remodifcation?

Do you have record of that application and review - an asnwer from the mortgage co?

What was the outcome on the holder / verification of 'note' request?

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Have you already asked and applied for the mortgage remodifcation?

Do you have record of that application and review - an asnwer from the mortgage co?

What was the outcome on the holder / verification of 'note' request?

Applied for modification, denied (when house was purchased DH and I had 6 figure income, now "victims of economy" with new start-up business and not much verifiable income). I have letter of denial from mortgage company, and last few months they have been sending letters offering us $3000 to do short sale or deed in leiu.

The verification of note request was ignored, no request for hearing, no answer to us or to court, judge granted continuance at the time. This is first action on case except for HOA dismissing their claim 2/4/10 (again for one of my filings which judge said had no legal basis. They filed another suit to put a lien on the house, I filed a motion in that case stating they couldn't initiate another action while this case was open, judge said no legal basis, they dismissed claim in this suit and have not done anything in that suit since 6/2009. ???????).

09/08/2010 P001 FINAL DISPOSITION FORM

09/08/2010 D002 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

09/08/2010 D003 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

09/08/2010 D001 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

09/08/2010 D004 VOLUNTARY DISMISSAL OF CAUSE W/O PREJ W/CHECK No. 0014858

02/04/2010 P001 NOTICE OF VOLUNTARY DSMSL WITHOUT PREJUDICE-CROSSCLAIM ONLY

06/09/2009 **General** MOTION FOR PARTIAL JUDGMENT

12/03/2008 **General** ORDER ON MOTION FOR CONTINUANCE GRANTED 12-02-08 CEB

11/19/2008 D001 MOTION FOR CONTINUANCE

11/17/2008 D002 REQUEST FOR PRODUCTION OF DOCUMENT FILED BY XXXX XXXXXX

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The verification of note request was ignored, no request for hearing, no answer to us or to court, judge granted continuance at the time.

This is a classic 'show me the note' case and will only extend your case so far....until the courts have sufficient judicial procedure to follow or a case decision in the higher courts confirms. These are working their way through the courts as we speak and time may be limited one way or the other.

Are you upside down on loan and/or how much equity is in house?

Edited by FL4answer58
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This is a classic 'show me the note' case and will only extend your case so far....until the courts have sufficient judicial procedure to follow or a case decision in the higher courts confirms. These are working their way through the courts as we speak and time may be limited one way or the other.

Are you upside down on loan and/or how much equity is in house?

Probably $100k upside down - really not that interested in saving house, just trying to buy enough time to rebuild income to where we can afford more than a cardboard box to live in. :)

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Probably $100k upside down - really not that interested in saving house, just trying to buy enough time to rebuild income to where we can afford more than a cardboard box to live in. :)

Exactly, I understand and sympathize with your situation. Predatory lending institutions have some blame ---> keep your head up, and I honestly wish you and your family the best of luck.

You have some time ... I'd be guessing ....but, maybe 3-6 months depending on resources available at time of next filing.

Unfortunately many have been reduced to cardboard boxes in this economy..... our local police just evicted (with extreme force) a tent city of homeless and deprived souls from county lands. They scattered to the winds, beaten and lost without help or salvation - to search and start over again in the hopes of regaining that once idealized American dream.

But for the grace of god, there go I.

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Do you know what the statute of limitations is on foreclosures in FL? Last payment made was in Oct 2007.

See The Short And Tricky Statute Of Limitations Framework For Claims Under ILSA

http://webcache.googleusercontent.com/search?q=cache:RTSTF0jLEOwJ:ezinearticles.com/%3FThe-Short-And-Tricky-Statute-Of-Limitations-Framework-For-Claims-Under-ILSA%26id%3D930765+statute+of+limitations+foreclosure+florida&cd=1&hl=en&ct=clnk&gl=us

"Most, if not all, ILSA claims originate with respect to a written contract for the purchase and sale of real estate. Under Florida law, the statute of limitations for an action on an obligation under a contract is five years. See section 95.11(2)(B), Florida Statutes. And claims under the Florida state condo statute are governed by a four-year statute of limitations. See section 95.11(3)(f), Florida Statutes. "

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OK, this is strange. My husband just got a call from ACI, who said they "had our mortgage". Problem is they said the mortgage was with Ocwen, and quoted a mortgage amount we had with Ocwen but refinanced with HSBC in 2006. HSBC is the lender who filed for foreclosure and dismissed the case above.

There is no way HSBC could drop the case and let Ocwen sue, say is Ocwen still has their original note??? I have all paperwork from the HSBC refi. This is bizarre....

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call from ACI, who said they "had our mortgage".

Problem is they [ACI?] said the mortgage was with Ocwen,

and quoted a mortgage amount we had with Ocwen

but refinanced [Ocwen?] with HSBC in 2006.

HSBC is the lender who filed for foreclosure and dismissed the case above.

HSBC drop the case and let Ocwen sue,

Ocwen still has their original note???

I have all paperwork from the HSBC refi.

The issue: Ocwen has note but HSBC claims contract with you?

Are they[HSBC] saying its null and void and you are back with Ocwen?

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I have all paperwork from the HSBC refi.

The issue: Ocwen has note but HSBC claims contract with you?

Are they[HSBC] saying its null and void and you are back with Ocwen?

Not sure, husband hung up, told them they'd have to talk to me. I'm really curious now, I'll post more when they call again.

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I don't know if this will help your situation or not but it might be worth reading none the less...

just copy the info below and paste it in your browsers address bar...

xa.yimg.com/kq/groups/13550801/1120343653/name/0%20-%2037582201-Pocopanni-Order-Dismissing-With-Prejudice%2Epdf

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Sorry for barging in so late into the thread.

The case I'm in was somewhat simular.

Plantiff filed, couldn't serve me and dropped the case but tried to open it back up before (what he thought) was within SOL.

What is the SOL in your state? They might refile at that time.

I would prepare for that and next time ask for more stuff. You might even be able to use these docs in the trail?

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Update:

Finally got copies of the motion for dismissal. On the final disposition notice it says "Dismissed Pursuant to Settlement - Before Hearing". This is curious since nothing of this nature has been discussed. Also suit is being handled by David J. Stern, which I believe is one on the big three forclosure mills under investigation in FL.

No more calls from Ocwen. Did receive one voice mail from BOA, but hesitant to call back and start any kind of clock rolling since I am a good 3 years into attaining SOL. I am so incrediblly curious as to what is going on though.....

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Right now, nothing is going on because there is a moratorium on foreclosures because of bad paperwork which I think is the tip of the iceburg. Right now, you are in a limbo area until all the paperwork issues get figured out.

Look at my post in the articles forum regarding the MERS system to see what the issues underneath the radar really are.

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David Stern's office IS one of the offices being investigated for fraudulent documentation in the foreclosure actions here in Fl.

Right now you have a benefit due to timing because of this investigation. Use it to your benefit :) The average F/C action here, before this moratorium, was about 2 yrs in S Fl. There is no telling how long it will take now to complete the foreclosures after the moratorium is lifted.

In the meantime, have you considered a short sale of your property? You still get 'time' to recover your income during the sale as you still reside in the property until closing. The other benefit you get is the recovery time to your credit is a little quicker. If that does not matter to you, then ride out the foreclosure.

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In the meantime, have you considered a short sale of your property? You still get 'time' to recover your income during the sale as you still reside in the property until closing. The other benefit you get is the recovery time to your credit is a little quicker.

Denita: Could you give more details on 'shortsale' - have a few others asking and I don't know much about it.

How does this work - "get 'time' to recover your income during the sale as you still reside in the property until closing".

Two of the individuals have mortgage - not upside down - equity still there.

Mortgage is less then house would sell for at this time in this economy.

Short sale - is equity given to homeowner after note pay off?

They (each individual) have houses on market - no buyers at this time.

Houses passed 3 months no payment to mortgage.

Can they offer shortsale - stay in house - and pay off morgage?

Edited by FL4answer58
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A short sale is that the current market value is less than the outstanding mortgage(s) on the property. This is what most people think of as "upside down". The lender or lenders will review all the financial documentation of the seller and the purchase contract, along with the buyers ability to pay for the property (mortgage pre-approval or proof of funds to pay cash).

The sellers' lender then may 'accept' the short sale offer or reject the offer or counter offer. This is where the 'time' factor that I mentioned comes in from the previous posts. Many short sale negotiations take months for the seller's lender to process. Sometimes it is quick, I have completed short sales in as little as two weeks, but most are 3 months or so. Yes, the seller resides in the property until closing.

If the seller is in arrears in the mortgage but the sales price is enough to pay off the mortgage and pay off the cost to sell (real estate taxes, any liens and pro-rations, government transfer fees, title fees and real estate commissions) then the seller is not "short". It is just a traditional distress sale which is much quicker to complete. A homeowner that is in foreclosure and has their home up for sale is a distressed seller. The prices on distressed property are typically at the low end of the market range.

But, if the seller has had the property on the market for 3 months and there are no buyers, then the property is priced wrong for the market given its current condition. There are plenty of buyers, but not for overpriced properties. You and I are both in Fl. Florida is one of the states that has been hit extremely hard by the current market so the buyers are especially price sensitive. Have the seller's Realtor re-evaluate the price of the property.

If the seller has equity, then after the payoff of the mortgage(s) and any closing fees the balance of the equity goes right to the seller at closing just like a traditional sale.

I should caution you - if the seller has a lot of equity, the seller's lender may move much more quickly with the foreclosure process. The more equity the seller has, the quicker the lenders move to foreclose. Is the seller's mortgage with one of the servicers that are in moratorium right now? If so, that will help a little. You can pm me with details if you like.

Edited by Denita
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