Yacenda Hudson & Amina Mcneil, & Ditech Fin. LLC v. Marin
| Decision Date | 15 August 2018 |
| Docket Number | No. 3D17-2754,No. 3D17-2755,3D17-2754,3D17-2755 |
| Parties | Yacenda Hudson and Amina McNeil, and Ditech Financial LLC f/k/a Green Tree Servicing, LLC, Petitioners, v. Wilson Marin and Paola Sibon, Respondents. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
Original Jurisdiction Proceedings - Prohibition/Certiorari
Tromberg Law Group, P.A., and Jason Joseph (Boca Raton); Law Office of Zena X. Duncan, P.A., and Zena X. Duncan; White & Case LLP, and Raoul G. Cantero and Zachary B. Dickens; Hinshaw & Culbertson LLP, and Maureen G. Pearcy and David S. Weinstein, for petitioners.
Jacobs Legal, PLLC, and Bruce Jacobs, for respondents.
Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
In these consolidated prohibition proceedings, petitioners Yacinda Hudson and Amina McNeil, both attorneys, each seek a writ prohibiting the trial court from conducting any further proceedings related to a November 20, 2017 trial court order directing petitioners to show cause why they should not be held in indirect criminal contempt of court for violation of a discovery order. This challenged order also appoints the respondents' counsel, attorney Bruce Jacobs, to prosecute the indirect criminal contempt proceedings on behalf of the trial court. After we consolidated the two petitions, this Court permitted the plaintiff below, Ditech Financial LLC ("Ditech"), to submit a brief in support of the two petitioners, both of whom are employed by a law firm representing Ditech in a foreclosure case against the respondents. Because, under the facts and circumstances of this case, (i) the acts cited in the show cause order do not constitute indirect criminal contempt of court so as to impose a threatened jail sentence against the petitioners, and (ii) attorney Jacobs cannot serve as the special prosecutor because he is a material witness to the underlying acts providing the basis for the lower court's show cause order, we grant the consolidated petition for writ of prohibition and issue the writ.1
On September 4, 2015, Ditech filed a foreclosure action against the respondents, defendants below, Wilson Marin and Paola Sibon.2 According to Ditech's verified complaint, Marin defaulted by failing to make his August 2014 mortgage payment. Attached to the verified complaint is a September 2010 loan modification agreement between Marin, as borrower, and Green Tree Servicing LLC (now known as Ditech), as lender. The September 2010 loan modification agreement changed many of the original loan terms, brought the original loan current from a prior default, extended the original loan's maturity date, waived late charges and lowered the monthly payment.
In their Answer, the respondents declared that the mortgage, note and September 2010 loan modification agreement spoke for themselves, but denied all allegations with respect thereto. The respondents also raised numerous affirmative defenses, none of which appear to be specifically directed toward the September 2010 loan modification agreement.
In February 2017, the law firm of Gladstone Law Group, P.A. filed a notice of appearance as Ditech's new counsel. The notice, which was signed by attorney Marie Fox, did not designate any particular attorney from Gladstone Law Group, P.A. as Ditech's attorney of record. Nevertheless, the record confirms thatpetitioner McNeil represented Ditech on behalf of Gladstone Law Group, P.A. in this matter at all times material to this case.
During discovery, on May 26, 2017, the respondents served a Notice of Taking Deposition Duces Tecum on Ditech. Therein, the respondents requested that "plaintiff's trial witness" produce the following documents for inspection:
This notice set the deposition for June 28, 2017.
On June 16, 2017, Ditech filed a motion for a protective order. In its motion, Ditech argued that all of the document requests were "irrelevant to any of the issues framed by the pleadings," stating that Ditech had standing and that the underlying loan was in default. Ditech further noted that it had already produced numerous documents to the respondents, including the September 2010 loan modification agreement between Marin and GreenTree/Ditech. As to therespondents' request for production of training manuals, Ditech specifically objected that "such request seeks to discover information which is not relevant to the subject matter of this action in that it is outside the scope of the instant lawsuit, and is not reasonably calculated to lead to the discovery of admissible evidence." Ditech's motion for protective order was set for hearing on June 27, 2017, but apparently was not heard that day.
On June 28, 2017, before Ditech's motion for a protective order was heard, the respondents' attorney, Bruce Jacobs, took the deposition of Ditech's witness, Christopher Ogden. Attorney McNeil defended the deposition. Although the loan had been modified and that modification was ratified by Marin, the defendant below, attorney Jacobs directed Ogden to answer questions about: (i) Ditech's loan boarding process between the original servicer of the instant note and mortgage (Bank United FCS) and Ditech, when Ditech began servicing the loan in April 2009; and (ii) a power point presentation that Ogden had reviewed on Ditech's loan boarding process. When the deposition became contentious over what attorney Jacobs felt were evasive answers by witness Ogden, attorney Jacobs announced, "I'm going to suspend this deposition, and I'm going to go to court and ask the judge to do something about this."
The next day, June 29, 2017, the matter of the suspended deposition and Ditech's related motion for a protective order were heard by Judge Pedro Echarte,Jr. during calendar call. There is no transcript of the hearing. The trial court, though, entered a written order denying Ditech's motion for a protective order ("the June 29, 2017 Calendar Call Order"),3 which states in its entirety:
Plaintiff's motion for protective order is Denied. Plaintiff's trial witness shall bring any and all training manuals and documents requested in Defendants' notice of taking deposition duces tecum. The parties shall mutually coordinate the continuation of the deposition of Plaintiff's trial witness prior to trial. Trial shall be July 28th at 10:00 am. If the parties cannot agree on a deposition time and day it shall be on Sunday, July 23, 2017 at midnight.
Over the ensuing three weeks, attorneys Jacobs and McNeil were unable to reach a mutually agreed upon time and date for the continuation of witness Ogden's deposition. While the attorneys agreed upon Friday, July 21, 2017, as the deposition date, they could not agree upon a time of day due to scheduling issues.
In the meantime, on Wednesday, July 19, 2017, prior to the continuation of Ogden's deposition, Ditech filed "Plaintiff's Motion to Seal and Bar Dissemination of Confidential Material" ("Ditech's Seal Motion"). Therein, Ditech argued that its training manuals were privileged work product not subject to disclosure, but that it was "willing to make these materials available for inspection and as the basis of the scope of the deposition of its trial witness" if the trial court entered an order sealing and barring dissemination of the training manuals to the public. After Ditech's motion came before the trial court for an ex parte hearing on Friday,July 21, 2017, the lower court entered an order stating that the motion was not an emergency, that the motion could not be considered ex parte, and that the motion should be scheduled for a hearing.
Consistent with the scheduling dictates of the June 29, 2017 Calendar Call Order, on Sunday, July 23, 2017, at midnight, attorney McNeil and witness Ogden appeared at attorney Jacobs's office for the continued deposition of Ogden. Petitioner Yacenda Hudson, another attorney from the Gladstone Law Group, P.A., was also in attendance. The record reflects that, up to this point, attorney Hudson had no involvement in this case. Given the midnight hour and location of Ogden's continued deposition, attorney Hudson accompanied attorney McNeil ostensibly out of safety concerns for Ms. McNeil.
While witness Ogden brought to the deposition the power point presentation that had been discussed during the suspended deposition so that he could be questioned about it, attorney McNeil advised that Ditech would not turn the presentation over to attorney Jacobs unless attorney Jacobs agreed not to disseminate it to the public until such time as the trial court had the opportunity to rule on Ditech's Seal Motion. Attorney Jacbos refused the request and cancelled the midnight deposition.4
The next day, on July 24, 2017, the respondents filed their "Motion for Order to Show Cause why Plaintiff Should not be Sanctioned for Violating the Court's Order on Calendar Call, Fla. R. Civ. P. 1.380, and Fla. R. Jud. Admin. 2.420" ("Show Cause Motion"), which was prepared by attorney Jacobs. The Show Cause Motion was not sworn. Therein, the respondents moved for civil sanctions against Ditech for: (i) Ditech's failure to turn over the power point presentation at the cancelled, midnight deposition; and (ii) Ditech's filing Ditech's Seal Motion that the respondents characterized as a facially insufficient motion to seal the record. As...
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