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Roger
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26916
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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BOA filed & recorded foreclosure, never served client. 4 months

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BOA filed & recorded foreclosure, never served client. 4 months later BOA canceled it. 8 mo later BOA hired outside firm to file again and it was recorded and they canceled it, client never served. Are these cancellations done with no judification?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question.

It's not true that if a bank dismisses a foreclosure that it cannot file it again. The lender can foreclose on the property anytime the loan is in default. The foreclosure can't be for the same default, but every month that the loan is in default creates a new cause of action.

As for the justification for cancelling the foreclosures, that's a question for the lender. However, it's likely that the lender either had an agreement with the borrower to catch the loan up or some other reason that justified - - at least to the bank - - stopping the proceeding.
Customer: replied 1 year ago.

Are we speaking about Florida law? We are the clients, we were told by our local attorney that if it was filed and dismissed, it was done with no judification. Our attorneys found where it was recorded and dismissed but have not acted on it. Are we being misinformed by our attorneys? the 5 year date of no payments made and no collection is 6/2/13. Is the 5 year statute of limitations enforceable at this point?

Expert:  Roger replied 1 year ago.
Yes, I was referring to Florida law. BUT, I didn't know that almost 5 years had passed from the date of the last payment. If the 5 years is up on 6/2/13, then the lender should not be able to sue if they don't file a foreclosure by that date.

Under Florida law, there is a 5 year statute of limitations on a promissory note. Thus, when 5 years have passed, the the lender should be barred from collecting. HOWEVER, the lender can file a foreclosure up to that date, even after a previous case has been dismissed voluntarily by the lender.
Customer: replied 1 year ago.

Was the 5 year statute start date affected by the 2 foreclosures filed and dismissed? BOA transferred the servicing to NationStar in October 2012. NationStar threatened to file foreclosure immediately but never did. You/we know they are aware of the 5 year statute of limitation. We feel they have not filed because they can't due to the last 2 dismissals with no judifcation.


 


Again, are we are being misinformed by our attorney about the no judification on foreclosure dismissals?

Expert:  Roger replied 1 year ago.
No, the other foreclosure filings should affect the statute of limitations because it runs from the date of the default by the borrower - - when the first payment was missed.

As long as the previous foreclosures were voluntarily dismissed, then the lender could foreclose again as long as it is within the statute of limitations.

However, IF the case was dismissed by a court order, and if the order of dismissal says that the dismissal is "with prejudice", then another case can't be filed. However, orders of dismissals aren't generally issued by a court unless a trial occurs, evidence is presented, etc.
Customer: replied 1 year ago.

In your first sentence you said "should affect the statute of limitations", did you mean"'no, it 'doesn't' affect the start time of the statue of limitations?"


 


The foreclosures were dismissed on a voluntary dismissal, no court order, no reason for canceling, are you saying there is no Florida law on no judification for these foreclosure cancellations?

Expert:  Roger replied 1 year ago.
Yes, it the sentence says "should not". Sorry for the inconvenience.

The term "no judification" is not a legal term. You may have misunderstood your attorney - - they may have said no adjudication occurred or something like that. However, if a case is voluntarily dismissed, then it's as if the case has never been filed -- so there's no prejudice to the lender for dismissing the case without action.
Customer: replied 1 year ago.

Sorry, we're layman! I don't know if she said no judification or no adjudication but she said (my attorney) if they filed it and pulled it they (BOA) could not file again. What does 'no adjudication' mean? Doesn't this pull a red flag that the bank would not file in 5 years? Because before 6/2/08 they filed foreclosure every 3 months if payments weren't made.

Expert:  Roger replied 1 year ago.
No adjudication means that the case was dismissed without a decision/judgment from the court - - no adjudication occurred.

The fact that the lender foreclosed every three months should be proof to you that there's nothing to prevent foreclosure after foreclosure from being voluntarily dismissed and then re-filed again. As long as the statute of limitations have not run out, and as long as the case has not been dismissed with prejudice, the case can be refiled without penalty.
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26916
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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