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3d DCA Watch -- Blue Meanie Fishing Expedition Edition

Hi kids! I'm jazzed up today, and not just because it's that sacred of days when the Resplendently Robed Ones do their thang, as the youngsters say.

Speaking of death panels, I know I've had more than a few down at the 3d, but I'm much too demure and professional to name names so you all will have to employ your vivid imaginations on that one.

And no hints, kids, such as whether any of them rhyme with quarts or leopard.

So let's dig right in and see what the bestest judicial coffee-swillers in the world have been up to:

Bonilla v. Yale Mortgage:

Judge Hubbart!

He's such a nice man and good judge, I can't believe he wouldn't give a continuance to an attorney working pro bono through the Put Something Back program who had just been retained on a mortgage foreclosure:

At the hearing on the motion for summary judgment, Bonilla was not
present, and had not yet filed an answer. However, an attorney appeared at the
hearing and informally requested a continuance. The attorney explained that on
the previous day, he received a referral package to represent Bonilla through the
Put Something Back Pro Bono Project, and because he had not been able to
communicate with Bonilla, he could not file a notice of appearance on her behalf.
The trial court denied the attorney?s request for a continuance, and entered a final
summary judgment of foreclosure in favor of Yale Mortgage. The final judgment
reflects that the trial court adopted the figures set forth in Mr. Kahn?s affidavit,
including the interest due on the Note, which equals an annual rate of 18%, plus a
7% ?prepayment penalty.?

Thereafter, Bonilla retained the attorney who was present at the summary
judgment hearing, and the attorney filed a motion for rehearing on Bonilla?s
behalf. The motion for rehearing raised numerous issues, including whether the
interest charged by Yale Mortgage was usurious. Specifically, Bonilla argued that
the 7% ?prepayment penalty? must be characterized as interest upon default, and
therefore, when added to the interest charged in the final judgment, which equals
18% annually, the total annual interest charged by Yale Mortgage is usurious, as it
exceeds the 18% permitted by law. See § 687.02(1), Fla. Stat. (2008) (providing
that ?[a]ll contracts for the payment of interest upon any loan . . . or upon any
obligation whatever, at a higher rate of interest than the equivalent of 18 percent
per annum simple interest are hereby declared usurious?); § 687.071, Fla. Stat.
(2008) (pertaining to criminal usury). Bonilla requested that the trial court grant
her motion for rehearing, vacate the order granting summary judgment, and allow
her to respond to the complaint on the merits. The trial court denied Bonilla?s
motion for rehearing. Bonilla?s appeal followed.

Oy -- now that is stone-cold.

Good thing Judge Rothenberg set him straight, basically concluding he did the wrong thing and maybe should try again.

Darn you all to hail, Put Something Back -- now this foreclosure is back on the docket!

BDO Seidman v. Banco Espirito:

Anyone remember that little half-billion-dollar judgment?

Steve Thomas sure does.

That's why he moved for post-judgment discovery under section 45.045(3) even though BDO already posted a $50 million bond pursuant to section 45.045.

Judge Schlesinger denied the discovery request, reasoning that post-judgment discovery in aid of execution was barred by the statute and the 3d's prior opinion in this case.

Wrong, says the 3d -- you can still conduct discovery to see whether assets are being diverted or dissipated, though you shouldn't confuse that in any way with discovery in aid of execution, which is still stayed by virtue of the bond.

Make sense?

BTW, footnote 3 indicates that the requested discovery may well have been an "unfettered fishing expedition through an appellant's records."

This makes me think that the trial court probably would have considered the request as proper under 45.045(3) if it had been more narrow and properly-tailored to the diversion and dissipation issue.

Oh well, what do I know?

Full post as published by South Florida Lawyers on August 12, 2009 (boomark / email).