The heart of foreclosure defense lies in arcane procedures that occur within the context of discovery during litigation in court. The premise is that neither the foreclosure attorney nor any identified claimant can or will answer questions about the core issues of any foreclosure case —- the existence, ownership and right to administer, collect or enforce then alleged debt.
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Efforts to hold lawyers responsible for filing cases without standing and without an identifiable claim or claimant have been notoriously unsuccessful but not completely unsuccessful. Some lawyers have been fiend as much as $100,000. But generally they are protected by a very broad application of the doctrine of litigation immunity. But getting the court to apply sanctions against the lawyer is not the goal. If the homeowner wants to defeat the foreclosure the sanctions must be applied against the purported client.
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These are my notes regarding sanctions that rise to “severe” levels, which is what you want if you want to successfully challenge the foreclosure. These notes are from some cases that directly address the issue.
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The available evidence of their willful and contumacious conduct is far more direct and damning than previously contemplated,”
See id. “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983).
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“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) … While sanctions are within a trial court’s discretion, it is also well established that dismissing an action for failure to comply with orders compelling discovery is ‘the most severe of all sanctions which should be employed only in extreme circumstances.’ Mercer, 443 So.2d at 946. In Mercer, this Court held that ‘[a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions , as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.’ ” Ham, 891 So.2d at 495 (citing Mercer, 443 So.2d at 946).
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Before a court may dismiss a cause as a sanction , it must first consider the six factors delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal. Buroz–Henriquez v. De Buroz, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009) (citing Alvarado v. Snow White & The Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009)). The Florida Supreme Court explained that “[t]he dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.” Ham, 891 So.2d at 495. These express findings are required to guarantee that the lower court “consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” Id. at 496. There are no required “magic words,” but
the court must find “ ‘that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.’ ” Id. (quoting Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990)).
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Where counsel is “involved in the conduct to be sanctioned, a Kozel analysis is required before dismissal is used as a sanction .” Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006). Pursuant to Kozel, the trial court must consider the following:
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“1) whether the attorney’s disobedience was willful , deliberate, or contumacious , rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence , or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” Ham, 891 So.2d at 496 (quoting Kozel, 629 So.2d at 818). After considering these factors, if there is a less-severe sanction available than dismissal with prejudice, the court should use it. Id. (citing Kozel, 629 So.2d at 818).
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If the malfeasance can be addressed adequately through the use of a contempt citation or a lesser degree of punishment on counsel, the action should not be dismissed. Ham, 891 So.2d at 498. Further, if there is no prejudice to the other party, dismissal is too extreme a sanction . Id. at 499. The lower court must “strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to the action.” Id. Ultimately, the lower court’s “failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Id. at 500.
Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 426-27 (Fla. Dist. Ct. App. 2011)
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