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    Property Law Legal Research Blog

    Andrea Stokes

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    CIVIL PROCEDURE: Effect of Dismissal Without Prejudice in Mortgage Foreclosure Suits

    Posted by Andrea Stokes on Mon, Jun 12, 2017 @ 10:06 AM

    Andrea Stokes, Senior Attorney, Florida Legal Research Group

              Whether there exists a limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context, has been a source of some confusion. Florida Rule of Civil Procedure 1.420, addressing involuntary dismissals, provides that

    [u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

    Fla. R. Civ. P. 1.420(b). To ensure that an involuntary dismissal does not operate as an adjudication on the merits, Rule 1.420(b) requires that the order of dismissal expressly state that the dismissal is without prejudiceSee id. R. 1.420 cmt. ("Dismissals except a voluntary one constitute an adjudication on the merits unless the court provides otherwise." (emphasis added))  So it is the odd occasion indeed where a trial court involuntarily dismisses without prejudice a second or third time after a motion or sua sponte under Rule 1.420(b). The question may then arise whether a plaintiff can continue to take "bites at the apple" after a dismissal or whether the number of bites is limited. 

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    Topics: civil procedure, mortgage foreclosure, dismissal without prejudice, statute of limitations

    CIVIL PROCEDURE: Effect of Dismissals Without Prejudice in Mortgage Foreclosure Suits

    Posted by Andrea Stokes on Tue, Jul 12, 2016 @ 16:07 PM

    Andrea Stokes, Senior Attorney, National Legal Research Group

         Most practitioners are aware of the potential problems and limitations associated with the use of voluntary dismissal without prejudice. Less well known, perhaps, is the limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context. Florida Rule of Civil Procedure 1.420(b), addressing involuntary dismissals, provides that

    [u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

    Fla. R. Civ. P. 1.420(b).

         So it is the odd occasion, indeed, where a trial court involuntarily dismisses without prejudice a second or third time after a motion or sua sponte order under Rule 1.420(b). The question may then arise whether a plaintiff can continue to take "bites at the apple" or if there exists a limitation on those bites. And when viewed in the context of a mortgage foreclosure, this question becomes even more vexing.

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    Topics: mortgage foreclosure, civil procedure, Andrea Stokes, dismissal without prejudice, limitations period expired

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