IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI DADE COUNTY, FLORIDA CASE NO:

09-45939 [10] CHASE HOME FINANCE, Plaintiff, vs. LEIDY DIAZ AND JAVIER HERNANDEZ, Defendants. ___________________________________/ DEFENDANTS MOTION FOR REHEARING ON ORDER ON MOTION TO DISMISS FOR LACK OF PROSECUTION COMES NOW, the Defendant, by and through their undersigned attorney, seeking rehearing due to a mistake in the ruling as set out in this Courts Order dated June 13, 2011 wherein the Defendants Motion to Dismiss for Lack of Prosecution and this Courts own FWOP motion were denied pursuant to Fla.R.Civ.P. 1.540(b) and as grounds states: 1. Following ELEVEN months of no action in this matter, a FWOP notice was generated on March 26, 2011 this Court and set for hearing on June 13, 2011. 2. On April 26, 2011 Defendants filed a Motion to Dismiss for Failure to Prosecute and cross noticed same for hearing for June 13, 2011. 3. Defendants Motion to Dismiss was based on Fla.R.Civ.P. 1.420(e) which states in pertinent part: In all actions in which it appears on the face of the record that no activity by filing pleadings, order of court, or otherwise has occurred for a period of ten months the action shall be dismissed by the court on its own motion or

on the motion of any interested person unless a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. (emphasis added) 4. The Florida Supreme Court in Del Duca v. Anthony, 587 So.2d 1306, 1308-9 (Fla.1991), articulated the standard for determining whether a case is subject to dismissal for lack of prosecution. Specifically, the court explained that application of rule 1.420(e) is a two-step process: First, the defendant must show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed. 5. Del Duca, the Supreme Court of Florida adopted a test crafted by the Second District Court of Appeal, which allowed the trial court to dismiss a case for failure to prosecute in the event record activity was filed: (1) in bad faith, and (2) without intent to move the case to its conclusion. 6. Here it is undisputed that the Plaintiff did not provide in writing good cause why this action should remain pending. 7. The only motion filed after the court generated FWOP notice was the Defendants Motion to Dismiss. Irrefutably, a motion to dismiss is not intended to move the case forward and therefore does not constitute record activity for purposes of moving this case to its conclusion other than dismissal. 8. It is indisputable that there has been no record by the Plaintiff for 12 months. 9. Indeed, Plaintiff did not even appear for the hearing on the FWOP and

Motion to Dismiss. 10. Accordingly, the Courts Order dated June 13, 2011 finding good cause has no basis based on the record before this Court. 11. Without question, the Court is obliged to apply the controlling law and to maintain consistency with other judicial results to avoid confusion and problems with application of the law. Wherefore, Defendant requests the court forth with grant this motion for rehearing pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure, and for all relief to which defendants prove themselves entitled including dismissing Plaintiffs Complaint without prejudice for failure to prosecute.

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished to Law Offices of Marshall Watson, 1800 NW 49 Street, Ste: 120, Ft. Lauderdale, Fl 33309 by US Mail on June 22, 2011. SAVE MY HOME LAW GROUP Attorney for Defendant 3601 W. Commercial Blvd Suite 18 Ft. Lauderdale, FL 33309 By: ____________________________ Carol C. Asbury, Esquire Florida Bar: 393665