NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JORGE I. MOREJON and RAMONA L. )
MOREJON, )
)
Petitioners, )
)
v. ) Case No. 2D14-2531
)
F & M REAL ESTATE, INC.; UNITED )
STATES OF AMERICA DEPARTMENT )
OF TREASURY; and CITIBANK )
(SOUTH DAKOTA), N.A., )
)
Respondents. )
)
Opinion filed April 8, 2015.
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Christine K.
Vogel, Senior Acting Circuit Judge.
David D. Sharpe of The Law Office of Dario
Diaz, P.A., Tampa, for Petitioners.
Anthony G. Woodward, Land O'Lakes, for
Respondent F & M Real Estate, Inc.
No appearance for remaining Respondents.
ALTENBERND, Judge.
Jorge I. Morejon and Ramona L. Morejon, who are the defendant
homeowners in a residential mortgage foreclosure action, seek a writ of certiorari to
quash an interlocutory order that requires them to produce certain private financial
records for use in a court-ordered mediation proceeding. The records do not appear to
have been matters that would have been subject to discovery in the foreclosure
proceeding at the time they were ordered to be produced in the mandated mediation.
The information might be useful to the parties in negotiating a refinancing or some form
of workout, but it might also be useful to the lender, who holds a second mortgage, in
deciding whether and how it could collect on a deficiency judgment. If the homeowner
would rather have the mediation reach impasse than disclose this information, the trial
court has no authority to compel the production of these documents at this stage in the
proceedings. The order departs from the essential requirements of the law and results
in a type of injury that cannot be remedied on direct appeal. Accordingly, we grant
relief. See Ryan v. Landsource Holding Co., LLC, 127 So. 3d 764 (Fla. 2d DCA 2013).
I. THE PROCEEDINGS IN THE TRIAL COURT
F & M Real Estate, Inc. ("F&M"), filed the underlying lawsuit on May 31,
2013. In its complaint, F&M alleged, in essence, that the Morejons executed and
delivered a promissory note payable to F&M and a second mortgage securing that
indebtedness in June 2006. F&M further alleged that those obligations were
subsequently modified and that the Morejons were in default of their obligations.
In December 2013, before the Morejons had even filed an answer or
affirmative defenses, the trial court sua sponte entered a "Uniform Order of Referral to
Foreclosure Mediation (Effective June 17, 2013)" (the "uniform referral order"). As
explained in more detail later in this opinion, as part of the mediation, in mid-January
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2014, the Morejons received a standardized "Plaintiff's Certification Form" that required
them to produce the following items that had been requested by F&M:
1. 2010, 2011 and 2012 Tax Returns
2. All Deeds for property owned
3. Last 3 months of bank statements
4. Last 4 Paystubs
On February 5, 2014, the Morejons filed a "Motion for Relief from Mediation Order
and/or Motion for Protective Order," in which they objected to the production of most of
the financial records they were required to produce in conjunction with the mediation
proceeding. In an order filed May 1, 2014, the circuit court denied the Morejons' motion
and ordered them to produce all of the items requested by F&M as well as "proof of
income, proof of residency, utility bills, Dodd-Frank Certification, 4506-T Form" (the
"production order"). The Morejons seek certiorari review of the May 2014 production
order.
II. A BRIEF DESCRIPTION OF THE ADMINISTRATIVE ORDERS AND FORMS
USED IN RESIDENTIAL MORTGAGE FORECLOSURE CASES
IN THE THIRTEENTH JUDICIAL CIRCUIT
Because this case does not involve normal discovery under the Florida
Rules of Civil Procedure but, instead, involves a rather unusual method of compelled
information sharing within court-mandated mediation, we believe a little background into
the program may be useful. The history of mediation in residential foreclosure cases in
the Thirteenth Judicial Circuit was explained by then Chief Judge Manuel Menendez,
Jr., in administrative order number S-2012-038, in which he stated:
In December 2009, the Florida Supreme Court
determined that mediation programs for homestead
residential mortgage foreclosure actions should be
mandatory throughout the state and directed the creation of
a Residential Mortgage Foreclosure Mediation Program in
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each circuit. Thereafter, the Hillsborough County Bar
Foundation was selected as Program Manager for the
Residential Mortgage Foreclosure Mediation Program
("RMFM Program") in the Thirteenth Judicial Circuit. In
December 2011, the Florida Supreme Court terminated the
statewide managed mediation program effective December
19, 2011 but provided that cases already referred to and
pending in a Residential Mortgage Foreclosure Mediation
Program on or before December 19, 2011 will remain in the
program through the completion of mediation. Additionally,
the Court authorized chief judges "to do everything
necessary to promote the prompt and efficient administration
of justice."
Upon the termination of the statewide
managed mediation program, the . . . chief judge [of the
Thirteenth Judicial Circuit] suspended the automatic referral
of all newly filed mortgage foreclosure cases involving a
homestead residence to the Residential Mortgage
Foreclosure Mediation Program until further order of the
Court. The suspension of automatic referrals was necessary
in determining the appropriate measures to manage pending
and new residential mortgage foreclosure cases, including
referral of cases to mediation on a case-by-case basis in
accordance with section 44.102, Florida Statutes, and
Florida Rule of Civil Procedure 1.700(a).
Foreclosure Procedures, Admin. Order No. S-2012-038 (Fla. 13th Cir. Ct. June 29,
2012) (eff. July 1, 2012, through Sept. 30, 2012) (internal footnotes omitted). In that
same administrative order, the Thirteenth Judicial Circuit Residential Mortgage
Foreclosure Mediation Program, which had been created under the statewide mandated
managed mediation program, was terminated as of July 1, 2012, except for cases filed
on or before December 19, 2011. Id.
By administrative order, beginning July 1, 2012, and continuing at least
through the time this case was referred to mediation, whether to refer a residential
mortgage foreclosure case to mediation in the Thirteenth Judicial Circuit was to be
decided on a case-by-case basis. See Foreclosure Procedures, Admin. Order No. S-
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2013-080 (Fla. 13th Cir. Ct. Dec. 18, 2013) (eff. Jan. 1, 2014) (superseding
administrative order number S-2012-053); Foreclosure Procedures, Admin. Order No.
S-2012-053 (Fla. 13th Cir. Ct. Sept. 27, 2012) (eff. Oct. 1, 2012) (superseding two
administrative orders, including administrative order number S-2012-038); Foreclosure
Procedures, Admin. Order No. S-2012-038 (Fla. 13th Cir. Ct. June 29, 2012) (eff. July 1,
2012). Although the program has changed in many respects, these administrative
orders all provide for the referral of these types of cases to mediation on a case-by-case
basis. Additionally, they all designate the Hillsborough County Bar Foundation as the
circuit's mediation provider in residential mortgage foreclosure cases.1
The mediation referral procedures set forth in the order in effect at the
time this case was referred to mediation provide, in pertinent part:
i. After service of the complaint, either party
may request in writing to the presiding judge that such case
be referred to mediation. Upon receipt of a request for
mediation, the presiding judge will evaluate and determine,
on a case by case basis, whether the case should be
referred to mediation in accordance with section 44.102,
Florida Statutes and Florida Rule of Civil Procedure
1.700(a).
ii. The presiding judge may sua sponte
evaluate and determine, on a case-by-case basis, whether a
case should be referred to mediation in accordance with
section 44.102, Florida Statutes and Florida Rule of Civil
Procedure 1.700(a).
iii. If the presiding judge determines that a
case should be referred to mediation, the judge will enter a
"Uniform Order of Referral to Foreclosure Mediation." A
copy of the Uniform Order of Referral to Foreclosure
Mediation may be found on the Thirteenth Judicial Circuit's
webpage at www.fljud13.org/forms.aspx. Parties wishing to
1
Although the Hillsborough County Bar Foundation is designated as the
provider for the circuit, the parties are allowed some flexibility in selecting a different
mediation service. Here, the case was referred for mediation to the Hillsborough
County Bar Foundation Residential Mortgage Foreclosure Mediation Program.
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utilize mediation services other than those provided through
the Hillsborough County Bar Foundation must follow the
procedures set out in the Uniform Order of Referral to
Foreclosure Mediation. Only Supreme Court certified circuit
civil mediators who are specially trained in mortgage
foreclosure cases may be designated to provide mediation
services in the Thirteenth Judicial Circuit.
Foreclosure Procedures, Admin. Order No. S-2012-053 (Fla. 13th Cir. Ct. Sept. 27,
2012) (eff. Oct. 1, 2012) (emphasis added). The mediation referral procedures set forth
in the administrative order in effect at the time the trial court entered the production
order, see Foreclosure Procedures, Admin. Order No. S-2013-080 (Fla. 13th Cir. Ct.
Dec. 18, 2013) (eff. Jan. 1, 2014) (superseding administrative order number S-2012-
053), are essentially the same as the above-quoted procedures set forth in
administrative order number S-2012-053.
The uniform referral order sets forth a number of requirements, including
the following:
3. At least 30 days prior to a scheduled
mediation conference the borrower must provide to the
RMFM Program a completed Borrower's Financial
Disclosure for Mediation Form and any additional
documentation that was requested by the plaintiff in its
Plaintiff's Certification Form. If the borrower is seeking an
alternative workout option such as a short sale or deed in
lieu of foreclosure, the borrower must also provide a
completed Borrower's Financial Disclosure for Mediation—
Short Sale Form or Borrower's Financial Disclosure for
Mediation—Deed in Lieu of Foreclosure Form, or both, as
applicable. A Borrower's Financial Disclosure for
Mediation—Short Sale Form and Borrower's Financial
Disclosure for Mediation—Deed in Lieu of Foreclosure Form
may be accessed on the RMFM Program's website at
www.hillsbarfoundation.com and on the Thirteenth Judicial
Circuit's webpage at www.fljud13.org/Forms.aspx.
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(Emphasis added.) Thus, as described earlier, F&M made its request for information in
a "Plaintiff's Certification Form," rather than as a normal request for production.
The uniform referral order entered in this case does not allow the
Morejons to refuse to participate in mediation or to decline to produce documents if they
do not want a workout option. Moreover, they can be sanctioned for failure to obey the
order that is challenged in this proceeding.
III. THE ORDER DEPARTS FROM THE ESSENTIAL REQUIREMENTS
OF THE LAW
We are well aware of the large number of foreclosure cases pending in the
circuit courts of the Second District. The need for special procedures and creative
methods to resolve these cases is not something we wish to discourage. If
homeowners wish to stay in their homes under modified mortgages or avoid possible
deficiency judgments, cooperating with disclosure during mediation may often be a very
prudent choice on their part. But in this case, the Morejons were compelled to produce
recent financial information that was not relevant to F&M's complaint or designed to lead
to evidence in that case. Even if we examine the Morejons' answer, which was filed
later, we are unconvinced that this information could be discovered under the normal
rules of discovery. The parties have not presented this court with any legal authority
that would warrant this intrusion into the Morejons' current financial status at this stage
in the foreclosure proceeding.
We are not confident that the briefing before this court is sufficient to
determine whether special laws, regulations, or circumstances might justify the
compelled production of at least some of these items. We quash the order on review
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without prejudice to F&M's rights to seek normal discovery within the lawsuit or to
establish its right to obtain specific items identified in its certification form.
The petition for writ of certiorari is granted.
CASANUEVA and BLACK, JJ., Concur.
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