“The Sanction of Dismissal is Warranted in this Case.

As shown in the discussion above, the BANK has filed many documents with the Court in complete disregard of the truth or falsity of their factual underpinnings. Under the Court’s general civil contempt powers, the Court is authorized and entitled to sanction the BANKS’s misconduct. As summarized by the Fifth District in Robinson v. Weiland, 988 So.2d 1110 (Fla. 5th DCA 2008):

Pretrial discovery is not intended as a game. Many trial judges throughout this state have bemoaned the tactics of the minority of lawyers and parties that abuse
the discovery process. See The Fla. Bar v. Miller, 863 So.2d 231 (Fla.2003) ordering one-year suspension of attorney who deliberately concealed his knowledge of client’s receipt of EEOC’s right-to-sue letter); The Fla. Bar v. Rood, 569 So.2d 750 (Fla.1990) (concealing expert’s memorandum and causing clients to sign false answers under oath warranted attorney’s one-year suspension); Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (affirming sanctions of striking
defendant’s answer and entering default judgment for discovery violations when defendant “knew what was going on” and had “total disregard for the consequences” of pending action); ….

As this court has stated:

The integrity of the civil litigation process depends on the truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct [fraudulent concealment of facts] must be discouraged in the strongest possible way. See also Channel Components, Inc. v. America II Electronics, Inc., 915 So.2d 1278 (Fla. 2d DCA 2005).

Trial courts have “the right and obligation to deter fraudulent claims from proceeding in court.” Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997). This is because “[o]ur courts have often recognized and enforced the principle that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve [its] ends.” Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1998). Where a party perpetrates a fraud on the court which permeates the entire proceedings, dismissal of the entire case is proper. Desimone v. Old Dominion Ins. Co., 740 So.2d 1233, 1234 (Fla. 4th DCA 1999).

Here, Plaintiff and Plaintiff’s counsel misled the Court about the real party in interest in the case; and 2) engaged in extensive discovery abuse to obstruct revelation of the
known falsities in the complaint – a “flagrant abuse of the judicial process” worthy of severe sanctions. See Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir. 2002). Dismissal for fraud is appropriate where “a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998).

The Court is also empowered to sanction counsel for its role in the litigation misconduct. The Court is entitled to expect Plaintiff counsel’s compliance with Section 57.105 Florida Statutes which prohibits parties and their attorneys from presenting claims that are not supported by the material facts. The Court may also expect counsel’scompliance with Rule 2.515(a) of the Rules of Judicial Administration, which provides that “[t]he signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other paper [and] that to the best of the attorney’s knowledge, information and belief there is good ground to support it…” Id. Additionally, the Court may expect that officers of the court comport themselves with the Rules Regulating the Florida Bar which prohibit a lawyer from asserting an issue without a factual basis. Rule 4-3.1 Meritorious Claims and Contentions. (Comment: “What is required of lawyers…is that they inform themselves about the facts of their clients’ cases…”).

In addition, the above-chronicled misconduct constitutes “unclean hands” on the part of the owner of the subject note and mortgage. “A foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable.” Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995).”



Full Deposition of Erica Johnson Seck