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Rosenwater v. Deutsche Bank National Trust Co.

Florida Court of Appeals, Fourth District

June 21, 2017

BRUCE S. ROSENWATER, Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE SOUNDVIEW HOME LOAN TRUST 2007-NS1 ASSET- ACKED CERTIFICATES, SERIES 2007-NS1, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; William L. Roby, Judge; L.T. Case No. 562015CA001784.

          Bruce S. Rosenwater of Bruce S. Rosenwater & Associates, P.A., West Palm Beach, for appellant.

          Charles P. Gufford of McCalla Raymer Liebert Pierce, LLC, Orlando, for appellee.

          May, J.

         Florida Rule of Criminal Procedure 3.840(e) dictates a reversal in this case.

         An attorney appeals a contempt order that arose during a foreclosure action. He argues the contempt order should be reversed because the trial judge should have disqualified himself from the hearing on the order to show cause, and in any event erred in finding him in contempt. We agree that under the facts of this case, the trial judge was required to disqualify himself. This requires us to reverse and remand the contempt order for a new hearing before another judge, rendering the sufficiency of the evidence and process arguments moot.

         The bank filed a foreclosure complaint against the borrower. At an initial case management conference, the bank informed the trial judge that it intended to amend its complaint. The trial judge issued an order scheduling a second case management conference. The order stated:

SHOULD YOU FAIL TO PERSONALLY ATTEND THE CASE MANAGEMENT CONFERENCE, YOUR FAILURE TO ATTEND COULD RESULT IN A DISMISSAL, DEFAULT, STRIKING THE ABSENT PARTIES' PLEADINGS AND/OR OTHER APPROPRIATE SANCTIONS.

         The bank amended its complaint, and the borrower moved to dismiss. At the second case management conference, defense counsel failed to appear. The trial judge denied the motion to dismiss and scheduled a third case management conference.

         During that conference, the trial judge called defense counsel on speaker phone and was "initially met with some resistance from his office staff." The receptionist told the judge that defense counsel was on a phone call. The trial judge advised that he needed to speak directly with him.

         The judge was put on hold. An associate attorney then came on the line stating that "his office did not feel the need to attend the CMC because Defendant and [the bank's] counsel had worked out an agreed order on the pending Motion to Dismiss." The trial judge informed the associate that compliance with court orders is required and that he still needed to discuss the basis for noncompliance with defense counsel. The trial judge was then placed on hold again.

         When defense counsel came on the line, he informed the trial judge he did not believe he was required to attend because:

1. He had worked out an agreement on the defendant's pending Motion to Dismiss with [the bank]'s counsel and that [the bank]'s counsel was ...

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