WRIT OF PROHIBITION AGAINST MIAMI-DADE | Key Points

1. Bank of New York Mellon (the Bank), Bank of America (BANA), Carrington Mortgage Services (Carrington), and the Bank’s attorney (Callahan) all petitioned the Third DCA for relief from an order to show cause issued by Judge Butchko (Miami Dade County circuit judge) in what the Third DCA described as “a straightforward mortgage foreclosure case.” Carrington Mortgage Services, LLC v. Nicolas, 3D21-1300, 2021 WL 5499732, at *1 (Fla. 3d DCA Nov. 24, 2021). Based on conflicting testimony from two witnesses, one for the borrower (Nicolas) and one for the Bank, Judge Butchko issued a show cause order against the Petitioners for alleged fraud upon the court suggesting the bank’s witness perjured himself.

2. The Petitioners sought a writ from the Third DCA prohibiting Judge Butchko from proceeding with the contempt hearing and quashing the show cause order. The Petitioners also requested the Third DCA reassign the matter to another judge upon remand. Acknowledging that prohibition was an extraordinary remedy, the Third DCA explained it was warranted here where Judge Butchko committed “gross error” by escalating a “narrow factual dispute” over the correct servicer to a “charge of perjury…”

3. The Court also agreed with the Petitioners that recusal of Judge Butchko was justified based on her comments which questioned the credibility of the bank’s witnesses and her “actions in issuing an order to show cause.”[i] The Court explained, based on this record, “reasonably prudent” lawyers and litigators could properly surmise they would not receive a fair hearing before Judge Butchko. The Court issued the writ of prohibition, quashed the order to show cause, prohibited Judge Butchko from presiding over future proceedings in the matter, and remanded the case for assignment before another judge.

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[i] Nicolas, at *4-5.