As long as the
motion to dismiss is pending, the homeowner need not file an Answer, and
without an Answer in place, the case isn’t “at issue” under Fla.R.Civ.P. 1.440
and can’t be set for trial. Hence, a motion to dismiss prevents a trial
from being set.
On April 22,
2013, Florida’s First District Court of Appeal issued a written opinion in
Wells Fargo Bank, N.A. v. Bokatka, Case No. 1D11-3356 (Fla. 1st DCA
2013). The lower court dismissed the foreclosure suit with prejudice and the First
District reversed that ruling.
The Court stated: In this case, we do
not fault the trial judge for dismissing the bank’s initial complaint, which
facially created a contradiction between who the bank alleged was the owner of
the note (the bank) and whom the attached note and mortgage identified as the
owner (Option One). The parties’ attempts to
interject or examine materials outside the pleadings, dismissal without
prejudice was appropriate simply to allow the bank an opportunity to amend its
initial complaint to address this discrepancy and to fortify its allegations
and attachments.
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