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Filing # 24173805 E-Filed 02/25/2015 10:36:23 AM
UI CAUCE Un ta ress
CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA.
CASE No. 2012 CA 003918
BANK OF AMERICA, N.A., SUCCESSOR BY
MERGER TO BAC HOME LOANS
SERVICING, LP FKA COUNTRY WIDE
HOME LOANS SERVICING LP,
Plaintiff,
VS.
JOHN C. ADKINS, et.al.,
Defendants.
/
PLAINTIFF’S VERIFIED MOTION TO VACATE ORDER OF DISMISSAL
COMES NOW the Plaintiff, BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME
LOANS SERVICING, LP FKA COUNTRY WIDE HOME LOANS SERVICING LP, by and through the undersigned
counsel and pursuant to Rule 1.540(b)(1), Florida Rules of Civil Procedure, and hereby moves this Honorable Court to
vacate its Order of Dismissal for Lack of Prosecution dated June 25, 2014, and in support thereof states as follows:
1. On or about November 7, 2012, the Plaintiff filed its Lis Pendens and Complaint in the instant action.
2. The loan which is subject to the action is, and has been since the date set forth in the Plaintiff's
Complaint, delinquent.
3. On April 24, 2014, the Court entered its Notice of Lack of Prosecution.
4. A review of Plaintiffs counsel’s file, indicates receipt of the Notice of Lack of Prosecution on or about
April 28, 2014.
5. However, Plaintiff's counsel asserts that at the time of receipt of the Notice of Lack of Prosecution, its
office encountered a change in staff, which included the attomey assigned to the instant action at the time
of receipt of the Notice of Lack of Prosecution.
6. Attorney, Shannon Jones, Esq. was subsequently assigned to handle the instant matter, but was not
informed of the Notice of Lack of Prosecution.
7. It is standard practice of the mailroom at Plaintiff's firm to stamp incoming mail with a “Received” stamp
bearing the case number.
8. In this case the Order dismissing the action was saved to the file without the above mentioned “received”
stamp.
*#* FILED: LAKE COUNTY, FL NEIL KELLY, CLERK. ***9. Upon discovering the dismissal, Attorney Shannon Jones, Esq. began the process of preparing a Motion
to Vacate.
10. Thus, Plaintiff's counsel, through inadvertence, mistake, and excusable neglect, failed to comply with the
Honorable Court’s Notice of Lack of Prosecution.
11. Asa result, the Court entered its Order of Dismissal on or about June 25, 2014.
12. Plaintiff now seeks relief from the Court’s Order of Dismissal for Lack of Prosecution dated June 25,
2014.
13. Plaintiff asserts that under Fla. Rule Civ. 1.540(b)(1), the court may relieve a party or a party's legal
representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect.
14. Plaintiff submits that its failure in adhering to the Court’s Notice of Lack of Prosecution was excusable
neglect. Florida case law is extremely liberal in determining that excusable neglect exists. The Florida
Courts have considered numerous acts and omissions to constitute excusable neglect. See Kelly v.
Bankunited, 2013 WL 3014149 (Fla. 4" DCA 2013)(secretarial scheduling error deemed excusable
neglect); Hialeah, Inc. V. Adams, 566 So.2d 350 (Fla. 3d DCA 1990)(summons and complaint which
were inadvertently mishandled by clerical staff deemed excusable neglect); Cinkat Transportation, Inc. V.
Maryland Casualty Company, 596 So.2d 746 (Fla. 3d DCA 1992)(inadvertent misfiling and
misplacement of summons and complaint constituted excusable neglect sufficient to set aside default
judgment); Associated Medical Institutions, Inc. v. Imperatory, 3338 So.2d 74 (Fla. 3d. DCA
1976}(excusable neglect found where secretary misfiled summons and complaint).
15. In Somero v. Hendry General Hospital, 467 So.2d 1103, 1006 (Fla. 4th D.C.A. 1985) the court ruled,
“[w]e therefore, conclude that, where inaction results from clerical or secretarial error, reasonable
misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then
upon timely application accompanied by a reasonable and credible explanation the matter should be
permitted to be heard on the merits. It is a gross abuse of discretion for the trial court to rule otherwise.”
16. Furthermore, in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994), the Florida Supreme Court, recognized
that, “Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those
aggravating circumstances in which a lesser sanction would not achieve a just result.” In furthering this
point, the court in Kozel provided guidance for trial courts in determining when dismissal is proper, in18.
19,
20.
21.
22.
23.
weighing the following factors: (1) whether the attorney’s disobedience was willful, deliberate, or
contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has been previously
sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the
delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
(5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay
created significant problems of judicial administration.
. In addressing each factor in turn, Plaintiff's counsel asserts that its disobedience was not willful,
deliberate, or contumacious, and asserts that its failure to adhere to the Court’s Notice of Lack of
Prosecution was due solely to inadvertence, mistake and excusable neglect incidental to its change in
staff.
With regards to the second factor provided for in Kozel, Plaintiff submits to the Court that it has not been
previously sanctioned, as this is the first Order of Dismissal for Lack of Prosecution issued in the above-
styled cause of action.
With regards to the third factor provided for in Kozel, Plaintiff's counsel submits to the Court that its
client was not involved in the disobedience herein.
With regards to the fourth factor provided for in Kozel, Plaintiff asserts that the delay did not prejudice
the opposing party by means of undue expense, loss of evidence, or any other fashion, as there is a lack of
evidence indicating such.
With regards to the fifth factor provided for in Kozel, Plaintiffs counsel asserts that its failure in
complying with the Court’s Notice of Lack of Prosecution was through inadvertence, mistake and
excusable neglect, and that Plaintiff's counsel is now ready to proceed with the prosecution of this matter.
With regards to the sixth factor provided for in Kozel, Plaintiff asserts that there is no evidence indicating
that its inadvertent failure in complying with the Court’s Notice of Lack of Prosecution created significant
problems of judicial administration.
However, Plaintiff further asserts that the granting of this Motion is in the best interest of all parties, and
in the best interest of judicial economy. Specifically, additional filing fees, title costs, and attorney’s fees
would be incurred in the event the dismissal is not vacated and an identical action is re-filed. The filing of
a new action would cause an unnecessary expenditure of time by the Court, the Clerk, and the
undersigned attorney.24. Going forward. the undersigned counsel will. in good faith, make every effort to move this case towards
judgment.
25. The relief requested herein will not be prejudicial to the Defendants
WHEREFORE, Plaintiff respectfully requests this Honorable Court vacate its Order of Dismissal dated June 25,
2014.
Under penalties of perjury. 1 declare that | have read the foregoing: that I have personal knowledge of the facts set
forth in this Verified Motion to Vacate Order of Dismissal and that the facts set forth herein are true and accurate.
mene
ai Zep \) FEN MOY
Sworn to me and subscribed before me, this 7day of tet / - 2015. by Shannon Jones, Esq., who took
an oath and is personally known to me.
Ly
SY i
RYAN NEIL CHAE
tary Public. State of Florida
My Commission Expires:
(Notary Seal)
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this __ , Léb, LAWS a true and correct copy of the foregoing has been
furnished to the parties listed below.
JOHN C. ADKINS
32213 CHIPPEWA AVE
DELAND, FL 32720
MARY E. ADKINS
32213 CHIPPEWA AVE
DELAND, FL 32720
BQG2K, Mo/2oe GREENSPOON MARDER. P.A.
TRADE CENTRE SOUTH. SUITE 700
100 WEST CYPRESS CREEK ROAD
FORT LAUDERDALE, FL 33309
Telephone: (954) 343 6273
Hearing Line: (888) 491-1120
Facsimile: (954) 343 6982
Email 1: adi.reinstein@gmlaw.com
di.reinstemn(@ gmlaw.com
Email 2: gmforeclosure@gmlaw.com
* 7
Adi M. Reinstein, Esq.
Florida Bar No. 41992
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Filing # 24173805 E-Filed 02/25/2015 10:36:23 AM UI CAUCE Un ta ress CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA. CASE No. 2012 CA 003918 BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRY WIDE HOME LOANS SERVICING LP, Plaintiff, VS. JOHN C. ADKINS, et.al., Defendants. / PLAINTIFF’S VERIFIED MOTION TO VACATE ORDER OF DISMISSAL COMES NOW the Plaintiff, BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRY WIDE HOME LOANS SERVICING LP, by and through the undersigned counsel and pursuant to Rule 1.540(b)(1), Florida Rules of Civil Procedure, and hereby moves this Honorable Court to vacate its Order of Dismissal for Lack of Prosecution dated June 25, 2014, and in support thereof states as follows: 1. On or about November 7, 2012, the Plaintiff filed its Lis Pendens and Complaint in the instant action. 2. The loan which is subject to the action is, and has been since the date set forth in the Plaintiff's Complaint, delinquent. 3. On April 24, 2014, the Court entered its Notice of Lack of Prosecution. 4. A review of Plaintiffs counsel’s file, indicates receipt of the Notice of Lack of Prosecution on or about April 28, 2014. 5. However, Plaintiff's counsel asserts that at the time of receipt of the Notice of Lack of Prosecution, its office encountered a change in staff, which included the attomey assigned to the instant action at the time of receipt of the Notice of Lack of Prosecution. 6. Attorney, Shannon Jones, Esq. was subsequently assigned to handle the instant matter, but was not informed of the Notice of Lack of Prosecution. 7. It is standard practice of the mailroom at Plaintiff's firm to stamp incoming mail with a “Received” stamp bearing the case number. 8. In this case the Order dismissing the action was saved to the file without the above mentioned “received” stamp. *#* FILED: LAKE COUNTY, FL NEIL KELLY, CLERK. ***9. Upon discovering the dismissal, Attorney Shannon Jones, Esq. began the process of preparing a Motion to Vacate. 10. Thus, Plaintiff's counsel, through inadvertence, mistake, and excusable neglect, failed to comply with the Honorable Court’s Notice of Lack of Prosecution. 11. Asa result, the Court entered its Order of Dismissal on or about June 25, 2014. 12. Plaintiff now seeks relief from the Court’s Order of Dismissal for Lack of Prosecution dated June 25, 2014. 13. Plaintiff asserts that under Fla. Rule Civ. 1.540(b)(1), the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. 14. Plaintiff submits that its failure in adhering to the Court’s Notice of Lack of Prosecution was excusable neglect. Florida case law is extremely liberal in determining that excusable neglect exists. The Florida Courts have considered numerous acts and omissions to constitute excusable neglect. See Kelly v. Bankunited, 2013 WL 3014149 (Fla. 4" DCA 2013)(secretarial scheduling error deemed excusable neglect); Hialeah, Inc. V. Adams, 566 So.2d 350 (Fla. 3d DCA 1990)(summons and complaint which were inadvertently mishandled by clerical staff deemed excusable neglect); Cinkat Transportation, Inc. V. Maryland Casualty Company, 596 So.2d 746 (Fla. 3d DCA 1992)(inadvertent misfiling and misplacement of summons and complaint constituted excusable neglect sufficient to set aside default judgment); Associated Medical Institutions, Inc. v. Imperatory, 3338 So.2d 74 (Fla. 3d. DCA 1976}(excusable neglect found where secretary misfiled summons and complaint). 15. In Somero v. Hendry General Hospital, 467 So.2d 1103, 1006 (Fla. 4th D.C.A. 1985) the court ruled, “[w]e therefore, conclude that, where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits. It is a gross abuse of discretion for the trial court to rule otherwise.” 16. Furthermore, in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994), the Florida Supreme Court, recognized that, “Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would not achieve a just result.” In furthering this point, the court in Kozel provided guidance for trial courts in determining when dismissal is proper, in18. 19, 20. 21. 22. 23. weighing the following factors: (1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay created significant problems of judicial administration. . In addressing each factor in turn, Plaintiff's counsel asserts that its disobedience was not willful, deliberate, or contumacious, and asserts that its failure to adhere to the Court’s Notice of Lack of Prosecution was due solely to inadvertence, mistake and excusable neglect incidental to its change in staff. With regards to the second factor provided for in Kozel, Plaintiff submits to the Court that it has not been previously sanctioned, as this is the first Order of Dismissal for Lack of Prosecution issued in the above- styled cause of action. With regards to the third factor provided for in Kozel, Plaintiff's counsel submits to the Court that its client was not involved in the disobedience herein. With regards to the fourth factor provided for in Kozel, Plaintiff asserts that the delay did not prejudice the opposing party by means of undue expense, loss of evidence, or any other fashion, as there is a lack of evidence indicating such. With regards to the fifth factor provided for in Kozel, Plaintiffs counsel asserts that its failure in complying with the Court’s Notice of Lack of Prosecution was through inadvertence, mistake and excusable neglect, and that Plaintiff's counsel is now ready to proceed with the prosecution of this matter. With regards to the sixth factor provided for in Kozel, Plaintiff asserts that there is no evidence indicating that its inadvertent failure in complying with the Court’s Notice of Lack of Prosecution created significant problems of judicial administration. However, Plaintiff further asserts that the granting of this Motion is in the best interest of all parties, and in the best interest of judicial economy. Specifically, additional filing fees, title costs, and attorney’s fees would be incurred in the event the dismissal is not vacated and an identical action is re-filed. The filing of a new action would cause an unnecessary expenditure of time by the Court, the Clerk, and the undersigned attorney.24. Going forward. the undersigned counsel will. in good faith, make every effort to move this case towards judgment. 25. The relief requested herein will not be prejudicial to the Defendants WHEREFORE, Plaintiff respectfully requests this Honorable Court vacate its Order of Dismissal dated June 25, 2014. Under penalties of perjury. 1 declare that | have read the foregoing: that I have personal knowledge of the facts set forth in this Verified Motion to Vacate Order of Dismissal and that the facts set forth herein are true and accurate. mene ai Zep \) FEN MOY Sworn to me and subscribed before me, this 7day of tet / - 2015. by Shannon Jones, Esq., who took an oath and is personally known to me. Ly SY i RYAN NEIL CHAE tary Public. State of Florida My Commission Expires: (Notary Seal) CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this __ , Léb, LAWS a true and correct copy of the foregoing has been furnished to the parties listed below. JOHN C. ADKINS 32213 CHIPPEWA AVE DELAND, FL 32720 MARY E. ADKINS 32213 CHIPPEWA AVE DELAND, FL 32720 BQG2K, Mo/2oe GREENSPOON MARDER. P.A. TRADE CENTRE SOUTH. SUITE 700 100 WEST CYPRESS CREEK ROAD FORT LAUDERDALE, FL 33309 Telephone: (954) 343 6273 Hearing Line: (888) 491-1120 Facsimile: (954) 343 6982 Email 1: adi.reinstein@gmlaw.com di.reinstemn(@ gmlaw.com Email 2: gmforeclosure@gmlaw.com * 7 Adi M. Reinstein, Esq. Florida Bar No. 41992