Wednesday, August 11, 2010

Petitions Seeking Removal Of Judge Presiding Over Foreclosure Division Denied

In Nudel v. Flagstar Bank, FSB (4D10-641) and Davis v. HSBC Bank USA (4D10-1842), which can be viewed HERE, the Fourth District denied petitions for writ of prohibition seeking to recuse the trial court judge.  The petitions were the seventh and eighth petitions filed by the same law firm seeking to recuse the same circuit court judge  The court stated:
As in the prior petitions and motions to disqualify filed by the firm, Ice attempts to pyramid a host of unrelated matters, which were not raised within the ten-day time limit of Florida Rule of Judicial Administration 2.330(e), to achieve its goal. The repetitive claims have been reviewed de novo on numerous occasions and rejected on the merits. None of these issues, alone or together, provide Ice’s clients with any objectively reasonable basis to fear that the judge is biased.
In addition to re-raising these issues, the Ice firm raised new arguments alleging that ex parte communication between opposing counsel and the judge requires disqualification....Based on these allegedly improper ex parte communications, Ice seeks to disqualify the judge from all of its cases. In all of its prior petitions, Ice has sought what amounts to firm-wide disqualification which would effectively exclude Ice from proceeding in the foreclosure division. Judge Sasser is presently the only judge presiding in the foreclosure division.
The court concluded:
Ex parte communications regarding purely administrative, nonsubstantive matters, such as scheduling, do not require disqualification....The ex parte communications in the present cases all involved purely administrative, non-substantive matters regarding the scheduling of motions, not the merits of the case. The judge, who had read and was familiar with Ice’s motions, did not exhibit any objectively reasonable basis for Ice’s clients to fear bias when she indicated that the motions did not require additional time.
As to the communications between the administrative personnel of the bank’s law firm and the JA, neither the ex parte communications, nor the alleged animosity that has developed between the JA and one of Ice’s employees, provides an objectively reasonable basis for Ice’s clients to fear that the judge will not be fair and impartial....As noted in Leone, scheduling of hearings is typically a matter delegated by judges to judicial assistants. This is particularly necessary in the foreclosure division which has an extraordinary backlog of cases. Judge Sasser cannot be expected to hold hearings regarding the length of upcoming hearings in order to settle insignificant disputes about whether a n additional five minutes is necessary for oral argument on a motion.
Ice’s repetitive attempts at disqualification in these cases appear designed, not to ensure that the proceedings against their clients are presided over by a neutral and fair tribunal, but to achieve a strategic advantage and/or frustrate the efficient function of the foreclosure division. As we suggested in Nassetta v. Kaplan, 557 So. 2d 919, 921 (Fla. 4th DCA 1990), this tactic is an improper use of the disqualification procedure.


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