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Foster v. Bank of America N.A.

Florida Court of Appeals, Third District

March 29, 2017

Michael Foster, etc., Petitioner,
v.
Bank of America, N.A., et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

         A Writ of Certiorari to the Circuit Court for Miami-Dade County Lower Tribunal No. 16-19802, Eric William Hendon, Judge.

          Dunn Law, P.A., and Alexis S. Read and Michael P. Dunn, for petitioner.

          Liebler, Gonzalez & Portuondo, and Andrew L. Portuondo, for respondent Bank of America, N.A..

          Before SALTER, FERNANDEZ and SCALES, JJ.

          SCALES, J.

         Petitioner and plaintiff below, Michael Foster, as trustee of the Theodore and Beatrice Foster Irrevocable Intervivos Insurance Trust ("Foster"), seeks certiorari review of an October 28, 2016 trial court order denying Foster's motion to compel Bank of America ("BOA"), Respondent and defendant below, to produce certain bank records related to an allegedly stolen check. Because the bank records that are sought are highly probative and plainly relevant to Foster's allegations, we grant the petition and quash the challenged discovery order.

         I. Facts

         In March of 2016, Foster's insurance company issued a check made payable to Foster in the amount of $123, 038.64. The check was mailed to property owned by Foster, but rented to, and occupied by, defendants Benjamin J. Borsani and Rajmonda Bycmeti. Foster alleges that Borsani and Bycmeti intercepted the check, caused the check to be endorsed by Borsani and Bycmeti's company (co-defendant Bed Cloud, LLC), and deposited the check into a BOA account owned by Bed Cloud.

         In August of 2016, Foster filed a multi-count complaint against Borsani, Bycmeti, Bed Cloud, and BOA. In addition to asserting counts for civil theft and conversion, Foster's complaint seeks to impose a constructive trust on assets of the defendants which are traceable from the alleged theft. Additionally, Foster asserts a negligence claim against BOA alleging that BOA improperly negotiated the check. Foster's complaint attaches a copy of the check as an exhibit. While "Theodore & Beatrice Foster Irrev Life Ins Trust" is identified as the check's sole payee, the back of the check contains Bed Cloud's single, stamped endorsement, referencing an account at BOA.

         After the Bank was served with Foster's complaint, Foster served a request for production on BOA that sought: (i) all surveillance footage and digital images relating to or depicting the deposit of the check; (ii) all transactions related to the check; and (iii) all unprivileged communications between BOA and anyone else related to the check.

         BOA filed an objection to Foster's production request, citing section 655.059(1)(e) of the Florida Statutes, which requires a financial institution to keep all of its books and records confidential unless otherwise compelled by a court of competent jurisdiction. Foster responded to BOA's objection by filing a motion to compel. Foster's motion to compel argues, among other things, that the records sought - related to the allegedly stolen and wrongfully endorsed check - are highly probative and relevant to the issues in the case as framed by Foster's complaint.

         The trial court conducted a hearing on the discovery issue, [1] and entered the challenged order. The trial court's order required BOA to produce the information sought in Request No. 1 (i.e., the surveillance footage and digital images relating to the check), but denied Foster's motion as it related to Request Nos. 2 and 3. The trial court's order states that Foster "has not made an adequate showing of necessity which outweighs the countervailing interests of [BOA] in maintaining the confidentiality of the documents and information sought by [Foster] . . . ."

         Foster seeks certiorari relief from this order. We grant Foster's petition and ...


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