Third District Court of Appeal

State of Florida 

Opinion filed November 24, 2021.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D21-1300, 3D21-1304, 3D21-1311, & 3D21-1320

Lower Tribunal No. 18-37059

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Carrington Mortgage Services, LLC, et al.,

Petitioners,

vs.

Julie Nicolas, et al.,

Respondents.

Cases of Original Jurisdiction – Prohibition.

Akerman LLP, and Nancy M. Wallace (Tallahassee); Akerman LLP, 

and William P. Heller (Fort Lauderdale); Akerman LLP, and Eric M. Levine 

(West Palm Beach), for petitioner Nathaniel Callahan; Bradley Arant Boult 

Cummings LLP, and Lauren G. Raines and Sara D. Accardi (Tampa); 

Bradley Arant Boult Cummings LLP, and Marc James Ayers and Stephen C. 

Parsley (Birmingham, AL), for petitioner Carrington Mortgage Services, LLC; 

Polsinelli PC, and Brendan I. Herbert and Henry H. Bolz IV, for petitioner The 

Bank of New York Mellon; Liebler, Gonzalez & Portuondo, and Adam J. 

Wick, for petitioner Bank of America, N.A.
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Jacobs Legal, PLLC, and Bruce Jacobs; Wasson & Associates, 

Chartered, and Roy D. Wasson, for respondent Julie Nicolas.

Before EMAS, LOGUE and LOBREE, JJ. 

LOGUE, J.

INTRODUCTION

This proceeding, which began as a straightforward mortgage 

foreclosure—the borrower had stopped making payments on a negotiable 

note indorsed in blank—has somehow transformed into an ever-escalating 

battle that no longer resembles its original form. 

After a contested final summary judgment was entered and no appeal 

taken, the Respondent borrower, Julie Nicolas, moved to set aside the 

judgment for fraud under Rule 1.540 of the Florida Rules of Civil Procedure. 

During the evidentiary hearing on that motion, the parties presented 

conflicting testimony regarding the identity of the current loan servicer.

Without concluding the hearing, or even resolving that narrow factual 

dispute, the trial court signed the borrower’s proposed order to show cause, 

charging each of the Petitioners with perjury. The order set an arraignment 

date and advised Petitioners that the penalties under consideration included 

“jail, adjudication, [and] probation.”
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Petitioners, which include the Trustee for the foreclosing trust (The 

Bank of New York Mellon), a non-party loan servicer (Carrington Mortgage 

Services, LLC), a second non-party loan servicer (Bank of America), and the 

non-party attorney for the Trustee (Nathaniel Callahan), each seek a writ 

from this court prohibiting the trial court from proceeding on an order to show 

cause why each Petitioner should not be held in indirect criminal contempt. 

In addition to significant due process infirmities, Petitioners contend 

that an unresolved factual dispute of the nature involved here cannot form 

the basis of criminal contempt. For the reasons that follow, we grant their 

petitions and issue the writ.

BACKGROUND

On October 11, 2006, Julie Nicolas borrowed $202,500 from Popular 

Mortgage Corporation and signed a note and mortgage. By January 1, 2016, 

Nicolas had stopped making payments. In the meantime, the loan had been 

transferred several times and ultimately made part of a package of loans 

securitized for sale to investors. On November 1, 2018, the Bank of New 

York Mellon, as Trustee for the Trust that became the owner of the loan 

during the securitization process, filed the instant foreclosure action. 

The operative complaint alleged the Trust was “entitled to enforce the 

Promissory Note as the owner and holder, pursuant to Section 673.3011, 
4

Florida Statutes.” The note contained an indorsement in blank. In her 

answer, Nicolas denied this allegation and raised the affirmative defense that 

the Trust lacked standing. On October 29, 2020, the trial court entered a final 

summary judgment of foreclosure. Nicolas did not appeal that final judgment. 

The trial court took custody of, and canceled, the original note.

More than six months after entry of the final judgment of foreclosure, 

and one day before the foreclosure sale was scheduled to take place, 

Nicolas filed a motion under Rule 1.540 of the Florida Rules of Civil 

Procedure to set aside the judgment.1 In the post-judgment motion, Nicolas 

sought to revive her pre-judgment claim that the Trustee lacked standing by 

framing the Trustee’s claim of standing as fraudulent.

At a May 10, 2021 hearing, Nicolas offered the testimony of Bernard 

Jay Patterson as an expert “Certified Fraud Examiner.” Patterson testified 

that the current loan servicer was Petitioner Bank of America. At a May 24, 

2021 continuation of the hearing, however, an employee of Petitioner 

Carrington Mortgage Services, LLC, Bryan Heifner, testified that Carrington 

took over as the loan servicer in 2017. Petitioner Callahan was counsel for 

the Trustee during these hearings.

1 The sale took place the following day, and the property was purchased by 

a third-party bidder.
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Four days later, on Friday, May 28, 2021 while the hearing was 

suspended for thirty days to permit further discovery, Nicolas filed a motion 

for an order to show cause why the four Petitioners—Trustee (Bank of New 

York Mellon), Bank of America, Carrington, and Callahan—should not be 

held in criminal contempt for perjury for asserting that Carrington took over 

as loan servicer. The foundation for Nicolas’ motion was an affidavit by 

Patterson, the witness who had testified at the May 10, 2021 hearing.

In his affidavit, Patterson bolstered his prior testimony by relating that 

he had obtained “additional documentation.” His prior opinion was now 

further “supported” by (1) his review of a report concerning the Trustee 

issued by “Moody’s, the ratings agency for this trust,” which Patterson 

averred showed Bank of America still serving as the loan servicer; (2) his 

exchange of emails with an employee at Moody’s in which the employee 

agreed with Patterson on this point (Patterson attached the emails to his 

affidavit); and (3) his analysis of a 2011 settlement agreement between the 

foreclosing Trustee bank and a third party that referred to Bank of America 

as the loan servicer. Patterson reasoned that if Carrington had taken over as 

loan servicer, Moody’s would have known of the change.

On the same day that Patterson’s supplemental affidavit was filed, 

Bank of America filed an affidavit in support of its own separate motion for 
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protective order. The affidavit was executed by an officer of Bank of America, 

attesting to Bank of America’s transfer of the servicing rights to Carrington 

and attaching an October 2, 2017 agreement signed by officials from Bank 

of America and Carrington confirming the transfer. The affidavit reads:

Effective October 2, 2017, BANA2 sold all mortgage 

servicing rights, master or otherwise, for the Note and 

Mortgage to Carrington Mortgage Services, LLC. A true 

and correct copy of the Transfer Confirmation dated 

October 2, 2017, between BANA and Carrington 

Mortgage Services, LLC, is attached hereto as Exhibit “F”.

Nevertheless, on Wednesday, June 2, 2021, two business days after 

Nicolas filed her motion for order to show cause, and without directing any 

response from Petitioners or holding a hearing, the trial court granted 

Nicolas’ motion and signed an order to show cause that had been prepared 

by Nicolas’ counsel. The order required the Petitioners to show cause why 

they “should not be held in indirect criminal contempt” and “sanctioned under 

the Court’s inherent contempt powers for fraud on the Court.”

The order states the four Petitioners “offered perjured testimony to the 

court during an evidentiary hearing on Defendant’s Motion to Vacate 

Judgment Due to Fraud.” It does not identify the author, date, or content of

the charged perjury. Attached to it, however, was Patterson’s affidavit which, 

2 BANA is an acronym for Bank of America, N.A.
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while not indicating the author or date of the perjured testimony and while 

using the passive voice, states “[d]uring the evidentiary hearing, it was 

asserted that Bank of America was not the Master Servicer for this trust.” 

The order set an arraignment date before “the Honorable Judge 

Beatrice Butchko.” The order further advised Petitioners that the sanctions 

being considered by the trial court include “jail, adjudication, [and] probation.” 

It offered Petitioners an opportunity to plead guilty and to present evidence 

of “mitigating circumstances prior to any sentencing.” Lastly, the order 

warned Petitioners that, if they do not plead guilty, “the case shall be 

promptly set for trial.”

Each of the four Petitioners filed a separate petition, which this court 

consolidated on its own motion. 

JURISDICTION

This Court is “mindful that prohibition is an extraordinary remedy that 

should be employed cautiously, in narrow circumstances, and in emergency 

situations.” Hudson v. Marin, 259 So. 3d 148, 166 (Fla. 3d DCA 2018) (citing 

English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977)). Nevertheless, this 

Court and other courts have held that prohibition will lie to prevent a 

contempt proceeding from going forward in the “rare cases in which the 

underlying indirect criminal contempt charge is invalid.” Id. at 159 
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(“[P]rohibition can be invoked when the very basis of the contempt charge is 

an invalid one and the proceeding is in violation of the requirements 

of due process.”).

These rare cases involve situations “when a party is about to be cited 

for contempt on the basis of acts which could not constitute contempt of 

court.” Tsokos v. Sunset Cove Invs., Inc., 936 So. 2d 667, 667–68 (Fla. 2d 

DCA 2006); see, e.g., Aurora Bank v. Cimbler, 166 So. 3d 921, 927 n.5 (Fla. 

3d DCA 2015) (issuing writ to prohibit proceedings seeking sanctions 

because “[r]efusing to comply with a nonparty mediator’s discovery requests 

directed at privileged information is not contemptuous conduct”); Eubanks v. 

Agner, 636 So. 2d 596, 597 (Fla. 1st DCA 1994) (“[P]rohibition will lie ‘when 

a party is about to be cited for contempt on the basis of acts which could not 

constitute contempt of court.’” quoting State ex rel. Gillham v. Phillips, 193 

So. 2d 26, 29 (Fla. 2d DCA 1966)).

ANALYSIS

The Petitioners raise a host of challenges to the order to show cause, 

including whether the order comports with due process, is improperly based 

on hearsay, arises from an unauthorized Rule 1.540 motion, and involves a 

factual dispute that is not material. While some of these issues may indeed 

have merit, we focus on the collective argument, made by all Petitioners, that 
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a routine dispute over a factual issue like this one, based on the type of 

conflicting testimony present in the record before the trial court, fails to 

provide a valid basis for criminal contempt.

As Petitioners accurately point out, the order to show cause does not 

identify the author, date, or content of the charged perjury. It clumps 

Petitioners together without indicating the particular action by each that could 

give rise to liability for contempt. Nevertheless, reading the order, the 

supporting affidavit, and the underlying motion together, it would appear the 

charged perjury consisted of the testimony of Bryan Heifner, as it was 

Heifner who testified that Carrington, not Bank of America, was the current 

servicer. While we thus proceed on the assumption that this is the conduct 

upon which the order to show cause is premised, we note with some curiosity 

that Heifner is not included in the group charged with perjury. 

Because the trial court issued the order to show cause before the 

evidentiary hearing was completed, the record stands as follows: on one 

hand, Respondent Nicolas has submitted the testimony of Patterson as an 

expert that the current loan servicer is Bank of America. Nicolas has 

supported her position with the additional affidavit of Patterson. On the other 

hand, Petitioners have submitted the testimony of Heifner, an employee of 

Carrington, that the current loan servicer is Carrington. Petitioners have 
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supported this position with the affidavit of the Bank of America official and 

an authenticated copy of the signed confirmation reflecting Bank of 

America’s transfer of its loan servicer rights to Carrington in 2017.

For the trial court to escalate this narrow factual dispute to a charge of 

perjury threatening “jail, adjudication, [and] probation” was a gross error. It 

was exacerbated by the inclusion of the Trustee’s lawyer as a defendantcontemnor in these circumstances. It is not a crime for a lawyer to present 

his or her client’s side of a case. The extraordinary action by the trial court 

threatens a chilling effect on practitioners that reverberates beyond the 

boundaries of the instant case. 

The profound nature of the trial court’s error was clearly explained by 

Judge (later Justice) Harry Lee Anstead in the case of Emanuel v. State, 601 

So. 2d 1273 (Fla. 4th DCA 1992). In Emanuel, the Fourth District reversed a 

trial court that held a defendant in direct criminal contempt for testifying that 

he had not consented to a search. Writing for the majority, then Judge 

Anstead explained:

When acting as the fact-finder at an evidentiary 

hearing, it is the court’s responsibility to judge the 

credibility of the witnesses and resolve factual disputes. 

This is the essence of the fact finder’s duty in a trial. This 

responsibility should rarely be mixed with the authority to 

find a party in contempt for false testimony. Were it 

otherwise, virtually every evidentiary hearing would give 

rise to numerous direct contempts against the witnesses 
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for the losing side, and the orderly resolution of matters 

by evidentiary hearing would be seriously disrupted. 

Under [State ex rel. Luban v.] Coleman, [189 So. 713 (Fla. 

1939)], contempt should be reserved only for the most 

blatant cases in which the perjury is virtually undisputed.

Id. at 1275 (emphasis added). While a judge serving as factfinder is properly 

discharging her role in evaluating conflicting evidence and the credibility of 

witnesses, a judge purporting to do the same in a contempt proceeding for 

perjury based on her determination of credibility falls “short of the strict 

standard of certainty required” to exercise the awesome power of criminal 

contempt for perjury. Id. at 1276. “That is why, in the ordinary situation where 

perjury is suspected, a state prosecution for perjury is the preferred 

alternative.” Id. at 1275.

As explained in Emanuel, it is doubtful whether a factual dispute should 

ever give rise to a criminal contempt hearing for perjury: it is certainly clear 

that it should not under these facts. Based on the record before us, it can be 

said beyond peradventure that there can be no finding of criminal contempt 

on the part of Petitioners simply because they are maintaining that Bank of 

America transferred the servicing rights to Carrington. We have previously 

issued writs of prohibition to prevent similar escalation of civil proceedings 

into criminal contempt prosecutions of opposing lawyers as a litigation tactic. 

Hudson, 259 So. 3d at 162 (issuing a writ of prohibition where a 
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“matter morphed from a civil contempt proceeding seeking sanctions based 

on violation of a simple discovery order into a criminal contempt proceeding 

centered on then unsubstantiated claims”). 

Petitioners also request this Court, upon remand, to direct that the 

cause be reassigned to another judge, in essence asking this Court to 

disqualify the trial judge from further proceedings in this case.3 “The test for 

determining the legal sufficiency of a motion for disqualification is whether 

the facts alleged would cause a reasonably prudent person to fear that he or 

she could not get a fair and impartial trial.” Shir L. Grp., P.A. v. Carnevale, 

314 So. 3d 523, 524–25 (Fla. 3d DCA 2020). We have already held that 

“[t]he judge’s commentary concerning the credibility of the petitioner . . . , 

before the completion of the petitioner’s direct examination or presentation 

of any witnesses in support of her case, is sufficient to create in a reasonably 

3 We have previously directed, on our own motion, that proceedings on 

remand be reassigned to another judge. See, e.g., Green v. State, 84 So. 3d 

1169 (Fla. 3d DCA 2012); Mirutil v. State, 30 So. 3d 588 (Fla. 3d DCA 2010); 

see also Betty v. State, 233 So. 3d 1149 (Fla. 4th DCA 2017); Schwartzberg 

v. State, 215 So. 3d 611 (Fla. 4th DCA 2017); Hampton v. State, 178 So. 3d 

921 (Fla. 5th DCA 2015). While these decisions may have arisen in other 

contexts, the underlying rationale for such directions on remand is equally 

applicable in the present context: “the appearance of prejudgment must be 

avoided,” Betty, 233 So. 3d at 1153, and the need “to preclude any 

perception on [Petitioner’s] part that the [proceeding] may not be conducted 

in a completely fair and impartial manner.” Mirutil, 30 So. 3d at 591 (quoting 

Berry v. State, 458 So. 2d 1155, 1156 (Fla. 1st DCA 1984)). 
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prudent person a well-founded fear that she would not receive a fair hearing 

before this judge.” S.S. v. Dep’t of Children & Families, 298 So. 3d 1184, 

1185 (Fla. 3d DCA 2020) (citing Brown v. St. George Island, Ltd., 561 So. 

2d 253, 257 n.7 (Fla. 1990)). 

What is true for a judge’s comments is even more true for a judge’s 

actions in issuing an order to show cause. Here, although the evidentiary 

hearing on the issue was not complete, the trial judge issued an order to 

show cause why, among other things, the Petitioners should not be subject 

to “jail, adjudication, [and] probation” because Petitioners asserted that Bank 

of America was not the Master Servicer for this Trust and that Carrington 

Mortgage Services is in fact the Master Servicer. This action would cause a 

reasonably prudent lawyer or litigant to conclude that: (1) the judge had 

already decided Bank of America was the loan servicer; (2) any evidence 

offered by the Petitioners was false; and (3) the only remaining issue was 

whether Petitioners acted with criminal intent in offering this evidence. No 

other interpretation explains why the trial judge entered an order to show 

cause before the very factual issue in dispute (i.e., who was the servicer 

during the relevant time periods) had been resolved by the judge as 

factfinder. 
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In addition, the issuance of the order to show cause based on a charge 

of perjury would obviously cause a reasonably prudent lawyer and litigant to 

believe that the judge feels they have committed perjury and was therefore 

not inclined to believe them. Brown, 561 So. 2d at 257 (“[A] statement by the 

judge that he feels a party has lied in a case generally indicates a bias 

against the party.”); see also Carnevale, 314 So. 3d at 524–25.

Accordingly, we issue the writ, quash the order to show cause under 

review, prohibit the trial court from proceeding further with the prosecution 

for contempt therein, and remand for further proceedings before another 

judge consistent with this opinion.

Petitions granted; writ issued, and order quashed.