Court May Not Strike Plaintiff’s Voluntary Dismissal Unless Plaintiff Obtained Affirmative Relief – PINO V. THE BANK OF NEW YORK

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In this contentious foreclosure case, the lender filed multiple complaints that allegedly attached an inauthentic mortgage and assignment.  After receiving a sanctions motion by defense counsel, the lender dismissed the action without prejudice.  The lender then filed a second lawsuit in which it submitted yet another purported assignment with a different date and signed by different a person.  Defense counsel then moved in the first case to strike the voluntary dismissal and request that the case be dismissed “with prejudice” as a sanction for an alleged fraud on the Court.  The trial court denied the motion and the Fourth District affirmed.  The Supreme Court accepted jurisdiction, and affirmed on the following basis:

 ”[W]hen a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct.  Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3). . . . In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice.”

Pino v. The Bank of New York, 38 Fla. L. Wkly S78a (Fla. Deb. 7, 2013)

Topics:  Affirmative Relief, Appeals, Foreclosure, Mortgages, Motion To Strike, Voluntary Dismissals

Published In: Civil Procedure Updates, Finance & Banking Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Trenam Kemker | Attorney Advertising

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