Dyck O’neal Lawsuit – they failed to read notices included in Motions and Notices, their case got dismissed!
Another good day! If you have read my blog recently, you’ll know that there is no greater day for me as attorney than to call a client and let them know that a Judge has dismissed their case. What is even rarer about these situations is when that dismissal of the lawsuit was obtained, the Plaintiff misses its deadlines to file a notice of rehearing or appeal, and as a result of their inaction, acknowledges it cannot refile because the statute of limitations has passed on its claim. This is exactly what happened, in a Dyck O’neal lawsuit, late last year and has now finally come to a conclusion for the time being. If you are currently facing a lawsuit by Dyck O’Neal and want to know if all defenses in your case are brought on your behalf, call my office today.
In this Dyck O’Neal Lawsuit, the defense that I used that was successful in obtaining dismissal has been around in Florida for over a century (but has now sadly been repealed by the legislature effective July 1, 2016), and requires only minimal efforts for a Plaintiff to overcome. A dismissal on cases using this defense is extremely rare and is partly due to both attorney inaction and a court system that is overloaded by the filing of deficiency lawsuits and wants to quickly resolve cases. But alleging the defense wasn’t the hard part. Having it be successful was. This is because Judges throughout the state have differing opinions on the proper remedy for this defense. However, the most difficult part was knowing what to file after obtaining the court order dismissing Dyck O’neal’s lawsuit without prejudice (meaning they could technically refile) was the more difficult aspect of keeping Dyck O’neal’s lawsuit dismissed.
How is a final order not final?
Thanks to a principal at law (really, it’s what gives innocent individuals a right to be found innocent in a court of law in criminal court and what gives home owners the right to challenge foreclosure lawsuits in Florida) called Due Process, this is not as counterintuitive as you may think. Generally, any individual in a lawsuit gets two things: (1) Notice and (2) a Hearing. This is equally true post-judgment where Dyck O’neal had an opportunity to ask for a rehearing. They did, but made a very big mistake. They didn’t file their request correctly and waiting until after their time to do so had expired. Put bluntly, the court had no authority on a legal level to grant their relief. Dyck O’neal withdrew their motion, and in doing so, furthered the issue that was created after their dismissal. Facing a motion for rehearing and you are concerned it’s not being defended properly – shoot me an e-mail!
Again, an extremely rare result – but an awesome day and one of the reasons I became an attorney – the idea that consumers throughout the state are now being sued for deficiencies years after the bank foreclosed on their property is troubling to me.