final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County
Lower Tribunal No. 14-18881, Spencer Eig, Judge.
Liebler, Gonzalez & Portuondo, and Adam J. Wick, for
Legal, PLLC, and Bruce Jacobs; Wasson & Associates,
Chartered, and Roy D. Wasson, for respondents.
FERNANDEZ, LOGUE and SCALES, JJ.
number 3D18-2318, the Bank of New York Mellon
("BNYM") petitions this Court for a writ of
certiorari to review the trial court's October 17, 2018
order requiring BNYM to produce certain discovery in the
underlying residential mortgage foreclosure case filed by
BNYM against the respondents, Carlos and Adreina D. Figueroa
("the Figueroas"). In case number 3D18-1649, BNYM
petitions this Court for a writ of certiorari to review the
trial court's July 12, 2018 discovery order, which is
also related to BNYM's foreclosure case against the
Figueroas. We have jurisdiction pursuant to Florida
Rule of Appellate Procedure 9.030(b)(2)(A) and grant the
petition in case number 3D18-2318. In case number 3D18-1649,
we grant the petition in part and deny it in part.
petitions stem from the same underlying facts in the mortgage
foreclosure case before the trial court. On December 23,
2004, the Figueroas executed a promissory note for $462,
000.00 in favor of Countrywide Home Loans, Inc.
("Countrywide"). The Figueroas also executed a
mortgage in favor of Countrywide dated December 23, 2004, and
recorded on January 7, 2005, in Official Records Book 22982,
Page 1327, of the Public Records of Miami-Dade County,
Florida. The Figueroas defaulted on the note and mortgage by
failing to make the payment due on October 1, 2012, and all
then filed its Verified Complaint to Foreclose Mortgage on
July 18, 2014. The complaint attached as an exhibit a copy of
the note, indorsed in blank by David Spector, the managing
director of Countrywide. BNYM contends that it acquired
status as the holder of the note and mortgage before the
Verified Complaint was filed.
November 7, 2014, through their counsel, the Figueroas filed
their Answer, Affirmative Defenses, and Demand for Jury
Trial. Thereafter, they filed their Amended Counterclaims on
October 14, 2016, asserting causes of action against BNYM for
civil conspiracy to commit fraud and violation of
Florida's Racketeer Influenced and Corrupt Organizations
Act ("RICO"). On April 3, 2017, BNYM responded with
its Answer and Affirmative Defenses to the Figueroas'
Amended Counterclaims, denying the allegations and asserting
October 30, 2017, the Figueroas filed their Amended Request
for Production to Plaintiff Re: Specific Standing Evidence,
wherein they requested fourteen documents ("Request for
Production"). They also served their Notice of Taking
Videotaped Deposition Duces Tecum ("Notice of
Deposition") on November 7, 2017. The Request for
Production and the Notice of Deposition contain the same
fourteen requests for documents. The Notice of Deposition
contained eight additional requests. On April 20, 2018, BNYM
filed its Objections, Responses and Motion for Protective
Order regarding the Figueroas' discovery requests dated
October 30, 2017, and November 7, 2017. The trial court held
a hearing on July 12, 2018, on BNYM's motion for
protective order, after which the trial court overruled
BNYM's objections in part and ordered BNYM to produce the
requested documents within thirty days. BNYM then filed a
petition for writ of certiorari on August 13, 2018, in case
number 3D18-1649, regarding the trial court's July 12,
2018 discovery order.
on November 27, 2017, the Figueroas filed another Request for
Production to Plaintiff which contained seven requests for
documents concerning the "original notes identified in
Exhibits B and C." However, no exhibits were attached.
Then on December 8, 2017, the Figueroas filed an Amended
Request for Production to Plaintiff with the exhibits
attached. Exhibit B consisted of a chart containing the case
style, case number, and county for each of the eighteen cases
listed. The Figueroas were not parties in any of the cases.
Exhibit C referred to another case filed in the 11th Judicial
Circuit in Miami-Dade County, Florida, also to which the
Figueroas were not parties.
December 15, 2017, the Figueroas filed a Notice of Taking
Videotaped Deposition Duces Tecum, which consisted of the
same seven requests for documents they asked for in the
Amended Request for Production to Plaintiff, in addition to
five areas of inquiry for testimony. Four out of the five
areas of inquiry again directed to the loans also referenced
in Exhibits B and C (the "Notice of Deposition").
The other remaining area of inquiry referenced Exhibit A,
titled "Instructions" and did not mention any
"original notes". The seven document requests and
five areas of inquiry are identical to the requests in the
Figueroas' Amended Request for Production filed October
30, 2017, and Notice of Deposition on November 7, 2017.
However, the documentation and testimony the Figueroas were
requesting now related to loans and lawsuits to which the
Figueroas were not parties.
on January 12, 2018, BNYM filed its Objections, Response and
Motion for Protective Order as to Defendants' Discovery
Dated November 27, 2017, December 8, 2017, and December 15,
2017, to which the Figueroas did not respond. On October 17,
2018, at a hearing before the trial court, BNYM argued that
the discovery the Figueroas were requesting was
"irrelevant, overbroad, and confidential" because
it was directed to other loans and lawsuits not involving the
Figueroas. The day after this hearing, the trial court issued
its order overruling BNYM's objections and denying its
motion for protective order. BNYM now seeks certiorari review
of this October 17, 2018 discovery order, under appellate
case number 3D18-2318
standard of review on a petition for writ of certiorari is
whether the trial court departed from the essential
requirements of law." Baptist Hosp. ofMiami, Inc. v. Garcia, 994 So.2d 390, 393 (Fla. 3d
DCA 2008), cert. denied, 980 So.2d 488 (Fla. 2008).
To obtain a writ of certiorari, the petitioner must establish
that the discovery order was a departure from the essential
requirements of law resulting in a material injury that will
affect the remainder of the proceedings below and the injury
cannot be corrected on appeal. Allstate Ins. Co. ...