Third District Court of Appeal in Miami. (Photo: J. Albert Diaz/ALM)

Two South Florida attorneys who had been accused of indirect criminal contempt will no longer have to address these charges in a trial court.

In an Aug. 15 order, the Third District Court of Appeal granted a writ of prohibition to Tromberg Law Group attorneys Yacenda Hudson and Amina McNeil.

Click here to read the ruling

Hudson and McNeil were facing criminal charges stemming from issues that arose while representing mortgage lender Ditech Financial LLC in a civil foreclosure case.

Judge Pedro Echarte. Photo: CandaceWest.com

The central issue at hand was whether the attorneys had violated a discovery order by Miami-Dade Circuit Judge Pedro Echarte Jr. during the underlying case. The judge had ordered Ditech, represented by McNeil, to produce training manuals illustrating the company's process of  ensuring that each loan transferred between servicers accurately reflected the homeowner's balance and whether that borrower had paid off the mortgage or not.

The company did not provide the documents in a timely manner, causing Echarte to grow frustrated with Ditech and McNeil. Hudson had not previously been involved with the case but had accompanied McNeil to a controversial midnight deposition in July 2017. Ditech was supposed to have presented the materials at that meeting. It did not.

Loan Servicer's Attorneys Face Criminal Contempt Arraignment in Miami

Several contentious hearings ensued over the submission of Ditech's training documents into evidence. When they were ultimately submitted in November 2017, it was discovered that their contents did not address Ditech's accuracy-checking process, despite testimonial claiming that they did.

Echarte, now incensed, entered an order to show cause, proposed by opposing counsel Bruce Jacobs, managing partner at Jacobs Legal. The order showed the judge contemplating holding McNeil, Hudson and Ditech in indirect criminal contempt for failing to produce training materials detailing Ditech's accuracy checking process.

But the appellate court reversed. In its ruling overturning the show cause order, the judicial panel not only wrote that Hudson and McNeil could not be held responsible for their client's failure to produce the material requested, but that there was no precedent showing that their actions constituted a criminal act.

“At most, Ditech violated the June 29, 2017 Calendar Call Order by failing to produce the Power Point presentation at the cancelled, midnight deposition,” the ruling reads. “The respondents have not cited, nor have we found, any cases holding a party's attorney in indirect criminal contempt for the party's violation of a discovery order under circumstances such as are present here.”

 

'Never a Good Idea'

The appeals court found the charges against McNeil and Hudson represented an undue escalation of the initial foreclosure case.

“Indeed, what began as a routine mortgage foreclosure action based on the borrower's alleged default of a September 2010 loan modification agreement has seemingly devolved into a heated dispute over the legitimacy of Ditech's loan boarding process based on Ditech's alleged violation of a simple discovery order to produce training material upon which Ditech argues it will not even rely at trial,” read the unanimous and unsigned opinion by Third DCA Chief Judge Leslie B. Rothenberg and Judges Richard J. Suarez and Edwin A. Scales III. “The petitioners find themselves caught in the middle of this dispute, facing indirect criminal contempt sanctions — and even jail time— despite there being no evidence that the petitioners are at all responsible for violating the discovery order.”

Zena X. Duncan, of the Law Office of Zena X. Duncan. Courtesy photo

Zena X. Duncan of the Law Office of Zena X. Duncan in Miami represented Hudson in the case, and says she feels vindicated by the court's ruling.

“Good always prevails over malintent. The Third District's opinion corroborates everything I have been arguing from the first day of this fiasco,” Duncan told the Daily Business Review. “It expressly demonstrates that my client never did anything wrong and was unfairly dragged into attorney Bruce Jacobs' personal vendetta against banks without any regard for damages to the innocent along the way.”

“Jacobs unfairly tarnished my client's stellar professional reputation and caused her undue stress and emotional turmoil,” Duncan said. “I am elated that the appellate court has saw fit to do what the lower court failed to and my client can begin to rebuild her outstanding reputation in the legal community.”

McNeil was represented by David Weinstein, partner at Miami-based firm Hinshaw & Culbertson. Weinstein expressed a similar sentiment when asked about the outcome of the case.

“Unfortunately prior to this ruling a lot was written about what had happened in the lower court that painted a very… unpleasant picture of both Mr. McNeil and Ms. Hudson that was not true and has caused them a lot of damage to their reputation,” Weinstein said. “It was a situation where one set of circumstances led to another, and the full and complete picture was never really painted at any stage of the proceedings until it got up to the Third District Court of Appeals.”

Bruce Jacobs, with Jacobs Keeley. Photo: J. Albert Diaz/ALM

When reached for comment Jacobs expressed more concern with Ditech's conduct than that of McNeil and Hudson.

“This was always about Ditech training its witnesses to commit perjury in foreclosures,” Jacobs said. “The Third DCA never mentioned this outrageous fact once in its 35-page opinion. Judge Echarte ordered production of manuals to verify whether Ditech's boarding process audits prior servicer's records. Ditech defied his order for months. Never a good idea.”

Jacobs added that Echarte acted “on his own motion” which, under Florida Rules of Criminal Procedure 3.840, allows a judge to start criminal contempt proceedings without need for sworn evidence. He said, “The Third DCA reversed Judge Echarte without mentioning anything about this systemic perjury problem.”

 

Read the Third DCA's ruling here: