BMO Bank v. Bluff (CA1 5/3/12)

Can you be held it contempt for saying that you’re going to violate a court order?

A homeowner got a TRO stopping  a trustee’s sale because of defects in the notice. BMO re-noticed the sale. The homeowner argued this violated the TRO; the trial court agreed and awarded him attorney’s fees. BMO took this special action.

The Court of Appeals grants relief. The terms of the TRO blocked the sale of the home. Re-doing the notice wasn’t a sale.

BMO’s attorney had taken the position, until the trial court made clear that he was wrong, that under the new notice he would go ahead with a sale despite the TRO. The Court of Appeals agrees that he was wrong. But Arizona does not recognize “anticipatory contempt.” Intent can change and holding someone in contempt before he’s actually committed it violates the equitable principle of using the least necessary power.

The opinion is only eight pages long, which for this judge is little more than a tweet, but she does get in six footnotes [edited; the original said eight footnotes, sorry about that).

(link to opinion)