Effect of Dismissal Without Prejudice in Mortgage Foreclosure Suits

Real Estate LawCases that are dismissed “with prejudice” are permanently dismissed.  A case that is dismissed “without prejudice” is merely temporarily dismissed. A temporary dismissal means that the plaintiff is allowed to re-file charges, alter the claim, or bring the case to another court. There is sometimes confusion about whether there is a limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context. This is where advice from a real estate lawyer in Ashburn, VA, is essential.


Virginia Rule of Civil Procedure 1.420(b) requires that the order of dismissal expressly state that the dismissal is without prejudice in order to ensure that an involuntary dismissal does not then operate as an adjudication on the merits. There are rare occasions where a trial court involuntarily dismisses without prejudice a second or third time after a motion. Later, the question can arise as to whether a plaintiff can continue to take “kicks at the can” after dismissal or whether the number of “kicks” is limited.


A real estate lawyer would advise you that the only question is whether the refiled mortgage foreclosure is based on the same underlying defaults as the one dismissed was. If that’s the case, and the five-year limitations period has run out, then it makes no difference if the dismissal was with or without prejudice as the complainant is at the end of its road.  If not, even if the limitations period has gone by, the new action will not be precluded regardless of the number or type of prior dismissals.