Carrington Mortgage Services, LLC v. Nicolas
After a final foreclosure judgment, the borrower moved under Rule 1.540 to vacate for fraud; mid-evidentiary hearing, the trial court signed the borrower's proposed order to show cause charging the trustee bank, two non-party servicers, and the trustee's lawyer with indirect criminal contempt for perjury over a disputed fact (who the current loan servicer was), threatening jail, adjudication, and probation. The Third District granted prohibition, quashed the order, and held that an unresolved, ordinary factual dispute supported by conflicting evidence cannot support criminal contempt for perjury, which is reserved for blatant cases where perjury is virtually undisputed. The court also directed reassignment to a different judge because issuing the show-cause order before resolving the factual dispute would create a well-founded fear of bias.
Key facts
- Borrower Nicolas moved under Rule 1.540 to vacate a final foreclosure judgment against him, claiming fraud.
- During the evidentiary hearing on the motion, the trial court signed borrower's proposed order to show cause charging the trustee bank, two non-party servicers, and the trustee's lawyer with indirect criminal contempt for perjury based on conflicting testimony about the identity of the current loan servicer.
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Why it matters
This is a strong, citable authority for defending against escalation of civil litigation into criminal contempt/perjury prosecutions of parties, non-parties, and opposing counsel — a recurring tactic in contested… — full analysis with a trial
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