JPMORGAN CHASE BANK, ETC., APPELLANT,
v.
IVELISYS SARMIENTO, ET. AL., APPELLEES
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JPMorgan Chase Bank appealed a trial court's dismissal of a mortgage foreclosure action for failure to prosecute. The Third District Court of Appeal reversed, holding that Chase's timely filings within 60 days of the notice of failure to prosecute were sufficient to preclude dismissal under Florida Rule of Civil Procedure 1.420(e).
The court held that Chase's timely record activity following the notice of failure to prosecute was sufficient to preclude dismissal. Under Florida's bright-line interpretation of Rule 1.420(e), any filing of record is sufficient to preclude dismissal, and Chase's multiple filings qualified as such record activity.
[1] Any filing of record is sufficient to preclude dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e).
[2] A trial court may not dismiss an action for failure to prosecute if record activity occurs within sixty days of the court's notice of failure to prosecute.
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Join FLexlaw to unlock all legal intelligence“The Florida Supreme Court has taken a "bright line interpretation of rule 1.420(e), under which any filing of record is sufficient to preclude dismissal...."”
Establishes the controlling standard for determining when dismissal for failure to prosecute is precluded
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Join FLexlaw to unlock all legal intelligenceChase filed a mortgage foreclosure suit in October 2009. The case stalled, and on June 1, 2011, the trial court issued a notice of failure to prosecut…
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JPMorgan Chase Bank, etc., appeals the trial court’s order of dismissal for failure to prosecute. We reverse and remand for further proceedings because record activity occurred within sixty days of when Chase received notice of failure to prosecute.
In October of 2009, Chase filed the underlying mortgage foreclosure suit. By May of 2010, the case had stalled, and on June 1, 2011, the trial court sent Chase notice of failure to prosecute. Chase thereafter filed a Motion to Amend Plaintiffs Name and Change Case Style, and the court issued an order finding good cause why the action should remain pending.
On June 14, 2012, the trial court sent Chase a second notice for failure to prosecute. Chase then filed a motion for summary judgment, a notice of filing an original loan document, and three amended affidavits in support of summary judgment.
We conclude that there was record activity sufficient to preclude dismissal for failure to prosecute. Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss an action where “it appears on the face of the record that no activity ... has occurred for a period of 10 months....” Fla. R. Civ. P. 1.420(e). After giving proper notice, the court may dismiss the action “[i]f no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days *317immediately following the service of such notice....” Id. The Florida Supreme Court has taken a “bright line interpretation of rule 1.420(e), under which any filing of record is sufficient to preclude dismissal....” Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla.2011) (emphasis added).
The record reflects that Chase timely filed multiple filings with the trial court after it received the June 14, 2012, notice for failure to prosecute.1 Such record activity is sufficient to preclude dismissal. See Chemrock, 71 So.3d at 792; Nalley v. Rotstein, 109 So.3d 894 (Fla. 5th DCA 2013); Miami-Dade Cnty. v. Walker, 948 So.2d 68 (Fla. 3d DCA 2007). Therefore, the dismissal order is reversed and remanded for further proceedings.
Reversed and remanded for further proceedings.
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Citator
Authorities Cited
- Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla. 2011)
- Miami-Dade Cnty. v. Javi Leo Maurice Walker, 948 So. 2d 68 (Fla. 3d DCA 2007)
- U.S. Bank Nat'l Ass'n v. Cowell, 86 So. 3d 1214 (Fla. 3d DCA 2012)
- Nalley v. Rotstein, 109 So. 3d 894 (Fla. 5th DCA 2013)
- Garcia v. Yasmin Garcia, 109 So. 3d 894 (Fla. 3d DCA 2013)