If you sue someone in Florida but then stop pursuing your case for a year, the court can clear its case load by dismissing your suit for "failure to prosecute." Across Florida, courts are starting to clear their overwhelmed dockets by dismissing foreclosure cases the banks have failed to prosecute. In one division of one of Florida's 20 judicial districts, perhaps as many as 2,700 cases have been set for dismissal in one week.

When Allison Albert of the Jacksonville area Legal Aid went to foreclosure court in Duval County, part of the Fourth Judicial Circuit, on Tuesday, hundreds of "failure to prosecute" cases were on the docket. While waiting for her client's case to be called, she heard the court's staff talking about how the court had sent out notices, scheduling hearings for about 2,700 foreclosure actions -- and noting that if the bank didn't take action within 60 days of the notice, the case could be dismissed at the hearing for failure to prosecute. All of the cases were scheduled to be heard over the next eight court days.

Resetting the Legal Clock


Of course, not all those cases will be dismissed. After the notice went out, some banks responded by voluntarily dismissing the cases. But others took some action, like filing papers -- which is what happened in Albert's 2006 foreclosure case. Filing papers resets the legal clock, and on Tuesday morning four attorneys were present -- representing the banks and appearing in multiple cases; presumably to have the clocks on their cases reset, as well.

"I've never seen a case dismissed for failure to prosecute," says Todd Allen, an attorney practicing in Lee and Collier Counties. "So I wouldn't put too much faith in that 2,700 number. In my experience judges are very deferential to the banks, so if the banks' attorneys show and say that they intend to proceed -- even if they haven't filed any papers in the 60-day window after notice -- the judges will just let them continue the case."

The Reasons Behind the Delays

Regardless of how many of the 2,700 cases are ultimately dismissed for failure to prosecute, the point is the banks are still sitting on thousands of cases, and not moving them forward. As Lee Haworth, Chief Judge for the 12th Judicial District, noted, "the plaintiffs still largely control the process."

So why aren't these cases going forward? One reason is the foreclosure moratoriums that were put in place following the robo-signing scandal last year -- some of which have since been lifted; another is the banks' documents are a mess from robo-signing and the like; a third is the mass shifting of cases away from the Stern law firm and the delays that come as other firms get up to speed. But whatever the reason, filing cases and then not prosecuting them is a big waste of judicial resources. Voluntarily dismissing the cases after several months on the docket is only a little better, particularly if the court had to spend that time and money sending notices out to all parties involved, and telling the plaintiffs to take action or face dismissal.

Massive Case Backlog

As of December 31, Florida's courts had a backlog of some 350,000 foreclosure cases. Amazingly, that's down from 462,000 on July 1. But much of the reduction is from dismissals, and those are cases that surely will come back.

"I think they should start charging an upfront fee for the eventual failure to prosecute," says April Charney, an attorney with Jacksonville Legal Aid. "There needs to be some absorption of the cost burden these cases put on the courts."

Florida courts need to do something, surely -- and the banks shouldn't be coming to court unless they're actually ready to proceed.

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Allison Lux Nuovo

Sara, your comment is a joke. What about the hard working people that bought their house and now it's worth half what we paid. This attitude is what is getting us all in trouble. I never respond to these types of postings, however, your comment truly angered me! That is the poor attitude so many have. And why are so many thinking the government is going to save them. Like the government is a savior.

May 01 2011 at 8:52 AM Report abuse rate up rate down Reply
scottee

the more our government does for us, the harder they make it for us. they need to put the dollar back on the gold standard and let the free market determine interest rates, gold prices and stock prices. they need to stop with the stimulus, stop with the printing and diluting of our dollar, stop with the tax incentives, stop social engineering via the tax code, just stop trying to do everything for everybody while sending us the bill!

March 04 2011 at 11:56 AM Report abuse rate up rate down Reply
mdunnjr

Hopefully when the banks come back they will be able to follow through and take the homes away from deadbeats--deadbeats that continue milking the system. A system that all responsible people are forced to support.

hopefully this country finds it's morality before it is too late.

We have become a society of entitlement--finger pointing whinners.

A lot of that has to do with how the lawyers have used the system for their own wealth but yet it's the legal community that continues to point out everyone elses greed and faults.

We tax reform--tort reform and term limits!

March 04 2011 at 9:54 AM Report abuse +1 rate up rate down Reply
1 reply to mdunnjr's comment
jkennedy806

Okay your so very very smart, jr? I have a note, it's a Fannie Mae, the name on the note is not the same name that claims they now owe my note, thru the magic of MERS (less filing fees for my local government and school district) the note was never transferred down at the old courthouse in the recorder of deeds. So who do I great OZ pay my monthly payment too??
And what happens when I do pay, will money be lost?? cause it's put in some trust somewhere? cause in reality how can you take someone's money in trust if you don't have the ability to credit and debit the account under the ACcounting Standards Board. I have a neighbor who was flipped and guess what the banksters (and there are two) can't find 24 months of her payments?
So where 's the money??? HUH oh great one, answer me that?? where is the NOTEs and where is the money?? Why is it that homeowners now have to hire an attorney to work out what the banksters were suppose to work out when they got bailed out with our TAX MONEY???

March 04 2011 at 10:48 AM Report abuse rate up rate down Reply
jkennedy806

Banks are so pregnant with foreclosures right now. Can't unload them, the title search companies won't touch them, for fear of clouded titles, and if a title searcher signs off, and their is a problem, it's the title searchers job, not the banksters, and not the bankster goon's attorneys. I made a complaint to Tom Miller, State AG for Iowa who is spearheading the investigation on bank foreclosures, and I heard from his office yesterday. They reviewed my complaint with Wells Fargo, (don't be mislead Warren Buffet owns 23% of this company) and has asked WF for a response, as well as, asking WF to respond the PA State ATTorney general as well. I too will get a response from these bankster goons.
In addtion, the local court sent me a letter telling me that my Motion for Responsive Pleading was dismissed as requested by Wells Fargo. Tells you the local court systems as still at the mercy of the federal bankster goons.

March 04 2011 at 9:32 AM Report abuse rate up rate down Reply
3 replies to jkennedy806's comment
saraliz0408

I think if the banks cannt get there heads out there ass on foreclosers .i think the people should get the property free of charge.because you know if your late on your payment there on the phone wanting there money the next day.

March 03 2011 at 9:57 PM Report abuse -1 rate up rate down Reply
4 replies to saraliz0408's comment
fmirabelli

Banks will only stop pursuing a foreclosure case when they cannot produce an actual note and mortgage to prove ownership of the debt as securitized. Property owners have to pursue the case in court to demand a chain of debit transfer; not eith MERS, but actual notorized notes and mortgages with correct dates and financial transfer information. When a debit is not securitized, then the bank can only demand payment as if the debit were a loan similar to a credit card / line of credit. This foreclosure mess can take 5 or more years to even begin to establish what entity owns the debt on a property in question.

March 03 2011 at 6:14 PM Report abuse +3 rate up rate down Reply
1 reply to fmirabelli's comment
foreclosurelawz

I agree, but unfortunately, there is also a lot of fraud on the part of banks or their law firms too, where notes and assignments are forged and submitted to the court anyway. It's really on the homeowner to fight the foreclosure with a good defense and make the bank follow the rules.

March 04 2011 at 12:51 PM Report abuse rate up rate down Reply