Fla. R. Civ P 1.420(a)(1)(b) | FORECLOSURE FRAUD | by DinSFLA

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FL 4th DCA APPEALS COURT: “ATTORNEY FEES AWARDED” VALCARCEL v. CHASE BANK

FL 4th DCA APPEALS COURT: “ATTORNEY FEES AWARDED” VALCARCEL v. CHASE BANK


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2010

CARMEN VALCARCEL and VICTOR VALCARCEL,
Appellants,
v.
CHASE BANK USA NA,
Appellee.

No. 4D10-379

[November 24, 2010]

TOWBIN SINGER, MICHELE, Associate Judge.

EXCERPTS:

The trial court granted the Valcarcels’ motion to dismiss as a sanction against Chase for sending a letter regarding the Valcarcels’ mortgage directly to the Valcarcels, rather than the Valcarcels’ lawyer. This mailing was a violation of rule 1.080(b), which requires service to be made upon a party’s attorney when he is represented by counsel.

Florida Rule of Civil Procedure 1.420(b) provides in pertinent part: “(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.” Rule 1.420(d) provides: “(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”

The trial court erred in denying the Valcarcels’ motion for attorney’s fees and costs based upon its finding that the order was not a judgment. Although the dismissal order was not an adjudication on the merits, the Valcarcels can nonetheless be considered the prevailing party. They are entitled to an award of attorney’s fees because the action against them was dismissed. We, therefore, reverse and remand to the trial court to determine the amount of attorney’s fees that should be awarded to the Valcarcels for both the trial and appellate proceedings.

Reversed and Remanded.

Valcarcel v Chase

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FORECLOSURE MILLS: SHAPIRO & FISHMAN V. LAW OFFICES OF DAVID J. STERN

FORECLOSURE MILLS: SHAPIRO & FISHMAN V. LAW OFFICES OF DAVID J. STERN


For those who may not know both David J. Stern and Cheryl Samons both were former employees of Shapiro & Fishman prior to Mr. Stern and Mrs. Samons departing from Shapiro & Fishman…“thats all“. <grin>————————–>

180 PAGES!

PROTECTIVE ORDER? Lender Processing Services? Specialized Loan Servicing? American Home Mortgage Servicing? DEPOS? SUBPOENAS?

DISMISSAL WITH PREJUDICE!

Florida Rules of Civil Procedure
1.420 Dismissal of Actions

(a) Voluntary Dismissal.

(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court

(B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

Many thanks to Foreclosure Hamlet for the documents.

[ipaper docId=37371454 access_key=key-29uonso5cgxbeb5hi39g height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in Barry S. Fishman, conspiracy, dismissed, foreclosure, foreclosure mills, foreclosures, investigation, Law Offices Of David J. Stern P.A., lawsuit, mortgage, note, shapiro & fishman pa, STOP FORECLOSURE FRAUD, tew cardenasComments (3)


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