The District Court of Appeal of Florida, First District, recently denied a property owner's effort to appeal the trial court's order limiting the property owner's extensive discovery requests to a mortgagee relating to standing and satisfaction of mortgage.
In so ruling, the Appellate Court concluded that the trial court's order limiting discovery did not effectively eviscerate the property owner's affirmative defenses.
A copy of the opinion is available at: Link to Opinion
A property owner ("Property Owner") propounded broad discovery requests related to the defenses that the mortgagee lacked standing to foreclose; and that all mortgages on the property had been satisfied before Property Owner acquired the property.
Property Owner requested all documents in the entire chain of assignments since origination of the subject loan. The trial court granted discovery of documents evidencing the mortgagee's acquisition of the subject note.
Property Owner also requested internal bank documents relating to the recorded satisfactions of the subject mortgage. The mortgagee objected on privacy grounds to producing the internal documents, and the trial court granted limited discovery of "correspondence, payments and documentation" regarding the satisfactions.
Property Owner filed a petition for writ of certiorari before the District Court of Appeal of Florida, First District.
As you may recall, certiorari is appropriate only "when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). The requirement of material, irreparable harm is jurisdictional, and a court must dismiss the petition if it is not met. See Bd. Of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-44 (Fla. 2012).
The Appellate Court noted that it has "adhered to the view that orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm." Boyd v. Pheo, Inc., 665 So. 2d 294, 295 (Fla. 1st DCA 1995). For denial of discovery to constitute material, irreparable harm, the denial must "effectively eviscerate[] a party's claim, defense, or counterclaim." Giacalone v. Hellen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009).
Next, the Appellate Court considered Property Owner's requested standing discovery. The Appellate Court noted that the trial court granted discovery of documents evidencing the mortgagee's acquisition of the subject note. Because standing to foreclose required only proof that the foreclosing party held the note when it filed the action, proof of prior assignments was unnecessary. See Keifert v. Nationstar Mortg. LLC, 153 So. 3d 351, 352-53 (Fla. 1st DCA 2014).
Although the Appellate Court noted that some of the other documents Property Owner requested could be relevant to the standing defense, the lack of these additional documents did not effectively eviscerate the standing defense because standing is based on the possession of the note and not the chain of ownership.
Next, the Appellate Court considered Property Owner's proposed discovery as to a possible satisfaction of the mortgage. The Appellate Court noted that the mortgagee had objected on privacy grounds to producing internal documents and therefore could not use such documents against Property Owner. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 947-48 (Fla. 2002). However, the trial court granted discovery of "correspondence payments and documentation" regarding the satisfactions. Thus, although some of the other documents Property Owner requested could be relevant to the satisfaction defense, the lack of the internal memoranda did not effectively eviscerate the defense of satisfaction.
Accordingly, the Appellate Court concluded that Property Owner failed to demonstrate material harm not remedial on appeal, and dismissed Property Owner's Petition for Writ of Certiorari for lack of jurisdiction.
Ralph T. Wutscher
Maurice Wutscher LLP
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