Elizabeth Spencer, Appellant, vs. EMC Mortgage Corporation, Appellee.
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
97 So. 3d 257; 37 Fla. L. Weekly D 2068
August 29, 2012, Opinion Filed
JUDGES: Before SALTER and FERNANDEZ , JJ., and SCHWARTZ, Senior Judge. FERNANDEZ ., J., concurs.
OPINION BY: SALTER
[*258] SALTER , J.
Elizabeth Spencer appeals a final summary judgment of foreclosure entered against her in December 2010 based on defaults in payment which are alleged to have begun in July 1997, over thirteen years earlier. We reverse and remand the case with directions to enter a judgment dismissing the foreclosure case based on the lender’s failure to prosecute it, among other procedural and substantive deficiencies.1
1 The parties agreed to stay a foreclosure sale until this appeal could be completed.
Ms. Spencer obtained a residential mortgage loan for $75,600 from United Companies Lending Corporation in August 1993. The contract interest rate was 13.5% per annum. The loan was to be amortized over fifteen years in level monthly payments, with the last payment due September 1, 2008.
United Companies [**2] commenced a first foreclosure proceeding against Ms. Spencer in early 1998. In March 1999, however, United Companies filed a petition under Chapter 11 of the United States Bankruptcy Code. In September 2000, the bankruptcy court approved the sale of a number of mortgage loans, including the mortgage loan to Ms. Spencer, to EMC Mortgage Corporation, the appellee here. In 2001, EMC was substituted for United Companies as the foreclosing 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 destroyed by the Miami-Dade circuit court clerk’s office in accordance with its normal procedure.
Later in November 2002, EMC filed a second foreclosure complaint against Ms. Spencer and various other defendants, alleging that Ms. Spencer failed to make regular monthly payments, “the loan being due for July 1, 1997.” In her responsive 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 languished for thirteen months. The trial court issued [**3] a notice of lack of prosecution (order to show 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 record activity in the case during the sixty-day period following the notice of lack of prosecution.
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