GOPMAN v. WASHINGTON MUTUAL BANK (2004)

District Court of Appeal of Florida,Fourth District.

Miles J. GOPMAN, as attorney of record for: Theresa Bertram and Beresford Bertram, her husband; Missionwood Miramar Condominium Association, Inc.; Lilouti Mansaram; Unknown Parties in Possession # 1; Unknown Parties in Possession # 2; if Living, and all Unknown Parties Claiming by, Through, Under and Against the above Named Defendant(S) who are not known to be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or other Claimants, Appellant, v. WASHINGTON MUTUAL BANK, F.A. Successor in Interest to Homeside Lending, Inc., f/k/a Bancboston Mortgage Corporation, f/k/a Stockton, Whatley, Davin and Company, Appellee.

No. 4D03-3726.

Decided: November 10, 2004

Miles J. Gopman, Miami, pro se. Susan C. Minor of Shapiro & Fishman, L.L.P., Aventura, for appellee.

In this foreclosure action instituted by appellee, Washington Mutual Bank, the Bertrams filed motions to dismiss the foreclosure action for alleged violations of stays in effect under the Fair Debt Collection Practices Act and the Bankruptcy Act. Appellee responded to the motions and also filed a motion for sanctions for the failure of the Bertrams' attorney, Miles J. Gopman, appellant herein, to give appellee notice of the bankruptcy. In its motion, appellee asserted that it should be awarded attorney's fees as a sanction.

At the hearing on the motion for sanctions, the trial court found appellant in contempt. It entered an order granting appellee's motion for sanctions and ordering appellant to be incarcerated for five days due to in-court misconduct.

We have examined the transcript of the hearing and found nothing in the record to support the trial court's finding of any misconduct on the part of appellant. Furthermore, incarceration as a sanction on such a motion is not authorized.

The incarceration in the instant case could only be imposed based upon a finding of direct criminal contempt. There is no evidence in the record to support such a finding. Furthermore, the trial court deprived appellant of due process in that it did not follow the procedures outlined in Florida Rule of Criminal Procedure 3.830. The trial court did not inform appellant of the accusation against him, ask whether he had any cause to show why he should not be held in contempt or permit him to present evidence excusing or mitigating the circumstances. We hereby reverse the trial court's order granting sanctions and finding appellant in contempt.

REVERSED.

HAZOURI, J.

STEVENSON and GROSS, JJ., concur.

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