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In Aurora Loan Services, LLC v. Ramirez, 38 Fla. L. Weekly D1919b (Fla. 3d DCA September 11, 2013), the 3d DCA reversed the lower court's award of $17,800 in attorney's fees as a sanction for a discovery violation in a mortgage foreclosure case. The 3d DCA's decision was based on the trial court's failure to include findings in its order mandated by the Florida Supreme Court in Kozel and because the record evidence did not support a conclusion that the discovery violation was willful and deliberate as required by Florida law.

Specifically, the Florida Supreme Court in Kozel delineated six factors which a trial court must consider in determining the type of sanction that should be imposed for attorney misconduct. The Florida Supreme Court held that the court must assess:

  1. whether the attorney's disobedience was willful, deliberate or contumacious, rather than an act of neglect or inexperience;

  2. whether the attorney has been previously sanctioned;

  3. whether the client was personally involved in the act of disobedience;

  4. whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;

  5. whether the attorney offered reasonable justification for noncompliance; and

  6. whether the delay created significant problems of judicial administration.

The 3d DCA reversed and remanded the case to the trial court with directions to vacate the award of attorney's fees.

 

 

This summary was prepared by Christine Zharova of our firm.


Christine Zharova

 

 

38 Fla. L. Weekly D1919b

 

Attorney's fees -- Error to award attorney's fees as sanction for discovery violation without required findings -- Record does not support conclusion that discovery violation was willful and deliberate

AURORA LOAN SERVICES, LLC, Appellant, vs. MARIE RAMIREZ, et al., Appellees. 3rd District. Case No. 3D12-2217. L.T. Case No. 08-39816. Opinion filed September 11, 2013. An Appeal from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Counsel: Elizabeth R. Wellborn, PA and Audrey Dixon and Aaron Clemens, for appellant. Frank L. Hollander; Scott J. Levine; Maurice Hinton, for appellees.

(Before SHEPHERD, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.)

(SCHWARTZ, Senior Judge.) The award of $17,800 in attorney's fees as a sanction for a discovery violation in this mortgage foreclosure case is reversed because the order does not contain the findings mandated by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), and the record does not support a conclusion that the discovery violation was a willful and deliberate one as required by law. See Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, 569 So. 2d 1271 (Fla. 1990).1 Accordingly, the order is reversed and remanded with directions to vacate the award of attorney's fees.

Reversed and remanded.
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1. In light of this ruling, we do not reach any other issue on appeal.







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