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Elizabeth Spencer vs EMC Mortgage Corporation FLA Third District Failure to Prosecute 8-29-2012

Elizabeth Spencer vs EMC Mortgage Corporation FLA Third District Failure to Prosecute 8-29-2012

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Published by chunga85
SCHWARTZ, Senior Judge:

"As someone – probably either St. Thomas More or George Costanza – must have said, the law is the law."
SCHWARTZ, Senior Judge:

"As someone – probably either St. Thomas More or George Costanza – must have said, the law is the law."

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Published by: chunga85 on Oct 19, 2012
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11/01/2012

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Third District Court of Appeal
State of Florida, July Term, A.D. 2012
Opinion filed August 29, 2012.Not final until disposition of timely filed motion for rehearing.________________No. 3D11-136Lower Tribunal No. 02-30022________________
Elizabeth Spencer,
Appellant,vs.
EMC Mortgage Corporation,
Appellee.An Appeal from the Circuit Court for Miami-Dade County, Israel Reyes,Judge.Carlton Fields and Nancy C. Ciampa and Jeffrey Michael Cohen, forappellant.Greenberg Traurig and Michele L. Stocker (Fort Lauderdale), Kimberly S.Mello and Thomas A. Burns (Tampa), for appellee.Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.SALTER, J.
 
 2Elizabeth Spencer appeals a final summary judgment of foreclosure enteredagainst her in December 2010 based on defaults in payment which are alleged tohave begun in July 1997, over thirteen years earlier. We reverse and remand thecase with directions to enter a judgment dismissing the foreclosure case based onthe lender’s failure to prosecute it, among other procedural and substantivedeficiencies.
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 BackgroundMs. Spencer obtained a residential mortgage loan for $75,600 from UnitedCompanies Lending Corporation in August 1993. The contract interest rate was13.5% per annum. The loan was to be amortized over fifteen years in levelmonthly payments, with the last payment due September 1, 2008.United Companies commenced a first foreclosure proceeding against Ms.Spencer in early 1998. In March 1999, however, United Companies filed apetition under Chapter 11 of the United States Bankruptcy Code. In September2000, the bankruptcy court approved the sale of a number of mortgage loans,including the mortgage loan to Ms. Spencer, to EMC Mortgage Corporation, theappellee here. In 2001, EMC was substituted for United Companies as theforeclosing plaintiff against Ms. Spencer, but that lawsuit was dismissed for lack of prosecution in November 2002. The file in that initial foreclosure action was later
1
The parties agreed to stay a foreclosure sale until this appeal could be completed.
 
 3destroyed by the Miami-Dade circuit court clerk’s office in accordance with itsnormal procedure.Later in November 2002, EMC filed a second foreclosure complaint againstMs. Spencer and various other defendants, alleging that Ms. Spencer failed tomake regular monthly payments, “the loan being due for July 1, 1997.In herresponsive pleading, Ms. Spencer raised a number of affirmative defenses,including an allegation that the complaint was barred by the statute of limitations.After a substitution of counsel for EMC and various motions, the case languishedfor thirteen months. The trial court issued a notice of lack of prosecution (order toshow cause why the case should not be dismissed), docketed on March 5, 2009,and it scheduled a hearing for the matter for May 29, 2009. There was no recordactivity in the case during the sixty-day period following the notice of lack of prosecution.On May 26, 2009, eighty-two days after the notice of lack of prosecutionand only three days before the scheduled hearing, EMC filed an unsworn responseto the order to show cause and a motion for final summary judgment. At thehearing on the lack of prosecution, EMC’s counsel advised the court that the orderto show cause had been sent to the offices of prior counsel—not EMC’s successorcounsel—and that he had only learned of the notice two weeks earlier by checkingthe docket. The trial court denied the motion to dismiss for lack of prosecution

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