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The Bank of New York Mellon v. Figueroa

Florida Court of Appeals, Third District

December 18, 2019

The Bank of New York Mellon, etc., Petitioner,
v.
Carlos Figueroa, et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          Writs 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 petitioner.

          Jacobs Legal, PLLC, and Bruce Jacobs; Wasson & Associates, Chartered, and Roy D. Wasson, for respondents.

          Before FERNANDEZ, LOGUE and SCALES, JJ.

          FERNANDEZ, J.

         In case 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.[1] 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.

         Both 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 subsequent payments.

         BNYM 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.

         On 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 affirmative defenses.

         On 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.

         Thereafter, 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.

         On 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.

         Thereafter, 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

         "The 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. ...


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