Can I Enforce "Failure To Prosecute" in Florida?

**DJTurnip** · 09-20-2007, 02:20 PM

I live in Florida.

I have received a Default Final Judgment in Small Claims from a Credit Card company. Back in 2005 (July) I received a summons and immediately contacted the Plaintiff attorney. I told him if he could validate the debt, I would make arrangments to pay in $50 a month increments.

He told me I didn't have to worry about going to court because we were working this out. He said he'd send the validation papers and the contract in the mail.

I waited and waited and never got anything. I even called him back several times and he didn't return my calls. I assumed they couldn't validate the debt and went on with my life (I know, stupid stupid stupid).

So, last week I got a Default Judgment (over two years later).

Researching Fl law for Small Claims Court, I found something that peaked my interest. It says a case can be automatically dismissed if the Plaintiff's attorney allows a case to sit "inactive" for a period of six months or longer.

Here is a quote of the law: RULE 7.110. DISMISSAL OF ACTIONS

(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court, or otherwise for a period of 6 months shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after 30 days' notice to the parties, unless a stipulation staying the action has been filed with the court, or a stay order has been filed, or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

They claim I was subserved (to my son, who denies this) in October of '06. They can not read to me the "description" of my son or the person who was served. At one point, the lady at the Plaintiff attorney's office was attempting to read it to me, and said all she could make out was that it looked like the Process Server said my "son" was a girl.

Anyway, I didn't receive a summons.

I pulled up the court files online (didn't know I could do that before), and apparently there was a pre-trial hearing in Feb of 07.

On Feb 28th the judge put a note on the file saying the Plaintiff needed to file a Motion For Default on the case.

The Plaintiff didn't file this motion until 9/8/07, which is past the six month limit and it looks like I can file a motion to dismiss the judgment based on the "Failure to Prosecute in a timely manner" law stated above.

I also plan to file for Dismissal based on improper service. How can they serve teenagers? I know its legal, but still. I never saw a summons, and it well could have been one of my sons friends who doesn't live here. It wasn't signed.

My main concern though is interpreting the law for "Failure to Prosecute in a timely manner"....six months went by w/the case inactive.

Also, it gives me ten days from the date the Judgment was signed which was 9/11/07 (great date, eh?). Does that include weekends or does anyone know?

I appreciate any help I can get. Thank you.

**aaron** · 09-20-2007, 05:55 PM

You stated up front that you did receive a summons, then about half-way down that you did not. Are you stating that two separate cases were filed?

There has been action on the case within the past six months, so you shouldn't expect that you are going to get the case dismissed post-default.

You stated initially that you received a summons. You later say that "teenagers" were served. Which is it? And were the "teenagers" adults?

**DJTurnip** · 09-20-2007, 08:00 PM

I received a summons in July of 2005. At that point I contacted the Plaintiff's attorney and told them if they could validate the debt, I would agree to make payments.

I received no reply, even though the Plaintiff's attorney said he would send the validation w/the contract. That was never sent. I contacted the Plaintiff's attorney several times over the next three weeks or so, and never got a call back.

In October of '06 (way over a year later), they claim my son was served.

He says he wasn't.

I'm just gonna put the actual court docket here so you can see it. Notice from Feb. 26 of 2007 to Sept 9th of 2007, a period of over six months went by before the Plaintiff's attorney sent a Motion for Default. This is the six month period I'm speaking of based on the law I quoted for Failure to Prosecute in Florida Small Claims court.

I assumed the debt was invalid back in July of '05 because I never received validation or anything from the Plaintiff's attorney.

This is the first I've heard of this debt in over two years.

Read over the court docket and let me know what you think. It's incredible to me that this has gone for over two years w/out my knowledge. Thank you.

Case Type: SMALL CLAIMS MONETARY Case status: CLOSED
Filing Date: 7/11/2005 Status Date: 9/12/2007

Parties to this Case

Party Type Party Name Attorney Code Address
PLAINTIFF CAPITAL ONE BANK 800 DOUGLAS ROAD
SUITE 450
CORAL GABLES , FL 33134
PLAINTIFF CAPITAL ONE BANK 55 WESTON ROAD SUITE 300
FORT LAUDERDALE , FL 33326
PLAINTIFF CAPITAL ONE BANK 7296 TEMPLE ST
KEYSTONE HEIGHTS , FL 32656
DEFENDANT ROBERTS DONNA PRO SE 2040 WELLS ROAD 4F
ORANGE PARK , FL 32073

Register of Actions *** Note: to view the docket images, you must download
and install Adobe Acrobat Reader available here

Event Date Seq # Event Comment Docket Image
7/11/2005 1 AS:CMPLT $500 < $2500
7/11/2005 2 MOTION/APPOINT PROCESS SERVER
7/11/2005 3 SUMMONS/NTA ISSUED RETURNED TO PROCESS SERVER PRETRIAL DATE 8-3-05
DC
7/11/2005 4 STATEMENT OF CLAIM
7/14/2005 1 ORDER APPOINT/PROCESS SERVER
7/28/2005 1 EXECUTED SUMMONS/RTD SERVED DONNA ROBERTS ON 7/25/05
MH
8/3/2005 1 MISCELLANEOUS
12/27/2005 1 ALIAS SUMMONS ISSUED SENT TO JJL PROCESS FOR
PRETRIAL DATE 2-8-06
DC
3/27/2006 1 AFFIDAVIT AS TO COSTS
3/27/2006 2 AF/REASONABLE ATTRY'S FEES
3/27/2006 3 AF/PROOF OF INDEBTEDNESS
3/27/2006 4 AFFIDAVIT OF NON-MILITARY
4/5/2006 1 MISC/COUNTY/ACTION ONLY PER JUDGE-THERE IS NO PROOF OF SERVICE IN THE FILE FOR THE
FEBRUARY PRETRIAL
DC
8/14/2006 1 NOTICE OF HEARING 9/29/06 @ 9:45 AM; MH
8/15/2006 1 MOTION/APPEAR TELEPHONICALLY ALLOWING PLAINTIFF TO APPEAR BY PHONE; SET FOR 9-29-06 @
9:45; RY
8/15/2006 2 ORDER AUTH TELEPHONIC HEARING SET FOR 9-29-06 @ 9:45; RY
8/15/2006 3 NOTICE OF HEARING SET FOR 9-29-06 @ 9:45; MOTION FOR DEFAULT; RY
11/7/2006 1 MOTION/APPOINT PROCESS SERVER
11/7/2006 2 ALIAS SUMMONS ISSUED HANDED BACK TO PROCESS SERVER; PRETRIAL 12/6/06 @ 8:30 AM;
MH
11/15/2006 1 ORDER APPOINT/PROCESS SERVER
11/28/2006 1 EXECUTED SUMMONS/RTD AS TO DONNA ROBERTS, SUB SERVED 11/20/06; COURT 12-6-06
@ 8:30; RY
12/6/2006 1 DOCKET SHEET
2/22/2007 1 AFFIDAVIT AS TO COSTS
2/22/2007 2 AFFIDAVIT OF NON-MILITARY
2/22/2007 3 AFFIDAVIT OF INTEREST & COSTS
2/22/2007 4 AF/REASONABLE ATTRY'S FEES
2/22/2007 5 AF/PROOF OF INDEBTEDNESS
2/26/2007 1 MISC/COUNTY/ACTION ONLY PER JUDGE'S OFFICE: NEED MOTION FOR DEFAULT & DEFAULT; MH
9/7/2007 1 MOTION FOR DEFAULT/DEFAULT
9/12/2007 1 FINAL JUDGMENT/RECORDED
9/12/2007 2 DISPOSED BY DEFAULT

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**DJTurnip** · 09-20-2007, 08:11 PM

I'm sorry....to answer your original question, this IS the same case. I just didn't realize it until after I'd received the Final Judgment. Court dockets posted above should explain everything. Thanks again!