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PaulR
Has anyone heard of this before?  I'm being told by someone that, in Florida, once the lender has voluntarily dismissed twice against you in foreclosure actions, I can get this dismissed WITH prejudice, to prevent them from forever trying to take a third bite at the apple?
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Paul - We have talked.   I would like to know more about the exact timing of the first voluntary dismissal.

With regard to the two voluntary dismissal rule, a second voluntary dismissal by notice has the effect of a voluntary dismissal with prejudice.

Go to a lawyer and borrow for two minutes, or go to the pubic or law libarry and get your hands on a copy of "Trawick's Florida Practice & Procedure". Read section 21:3 and 21:4. 

If there is a photo copier there copy the 3 to 4 relevant pages, with LARGE magnification. Might as well copy 21:2 through 21:4 inclusive. 

If you wish to discuss it you can call me on the phone.  Just note: (a) Last sentence in first paragraph of 21:4 "The adverse party's right to costs and fees is not eliminated." 

This means get your motion for costs and fees in ON time and correctly presented.  To be safe, count the time from the date of service shown at the end of the 'Notice of Voluntary Dismissal', not the date it was docketed.

James


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PaulR
Hi James,

Re:  the timing of the first voluntary dismissal.  The court sent out their lack-of-prosecution notice at the 10-month mark, giving the plaintiff their 60 days to poop or get off the pot.  At the end of 60 days, the judge then did an administrative dismissal for lack-of-prosecution under 1.420(e). 

However, in an apparent last-ditch effort to keep their future rights to bring the action alive, the plaintiff's attorney -- David J. Stern -- did file a Notice of Voluntary Dismissal, without prejudice, even going so far as to call themselves "the prevailing party" in it.  They did this basically on the 365th day, and it was notarized mere hours AFTER the judge's administrative dismissal was notarized, and it was recorded 5 days after the Judge's order.

I would think that the Judge's order takes precedence, but:

a.  BOTH motions are recorded in the official County records;

b.  Plaintiff's new attorneys (who picked up my case after David Stern quit all of his) may not even know that the judge's administrative dismissal exists.  I think I could use their first attorney's VD and then their recent, new attorney's VD (I am going to the Courthouse tomorrow to get certified copies of each one, just to have) as at least a credible threat of "don't come after me for an attempted third bite at the apple," but I'm wondering if I shouldn't hire an attorney to do something more proactive, like filing for a Motion to Dismiss, WITH prejudice, using the two VDs as evidence of adjudication on the merits?

Paul

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Moose
Paul, this is not legal advice, but I would think a "Motion to Strike" their non-timely filing should be considered. You would submit the motion with an accompanying order that would strike their motion from record and dismiss the case with prejudice.

Just a thought.

Moose


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PaulR
Moose,

Which order would I move to strike?  It was their FIRST voluntary dismissal that wasn't timely; isn't it this recent one, the second one, that I would want to get re-opened, and dismissed with prejudice, since it's the second voluntary dismissal?

Paul

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