                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

CQB, 2010, LLC,                      NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Petitioner,                    DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-2313

THE BANK OF NEW YORK
MELLON F/K/A THE BANK OF
NEW YORK, AS TRUSTEE FOR
THE CERTIFICATE HOLDERS
OF THE CWABS 2005-1 TRUST
FUND, ASSET - BACK TO
CERTIFICATES, SERIES 2005-1,
MONICA D TURNER, LATHAM
TURNER, HOUSEHOLD
FINANCE CORPORATION III,
UNITED STATES OF AMERICA,
SPRINGBROOK OWNERS
ASSOCIATION, INC.,
UNKNOWN TENANT IN
POSSESSION AT NUMBER ONE
AND NUMBER TWO, AND ALL
OTHER UNKNOWN PARTIES,

      Respondent.

___________________________/

Opinion filed October 6, 2015.S

Petition for Writ of Certiorari.

Heather Degrave, of Walters, Levine, Klingensmith & Thomison, P.A., Tampa, for
Petitioner.

Mary Pascal Stella, Daniel Stein, and David Rosenberg, of Popkin & Rosaler, P.A.,
Deerfield Beach, for Respondent.
KELSEY, J.

         Petitioner, as the current owner of the property subject to the foreclosure action

below, seeks certiorari review of an order granting less than all of Petitioner’s

requested discovery. Petitioner’s very broad discovery requests related to the defenses

that Respondent lacked standing to foreclose; and that all mortgages on the property

had been satisfied before Petitioner acquired the property, as evidenced by a

satisfaction of mortgage recorded in the public records. Under the very high

jurisdictional threshold for certiorari review of orders denying discovery, we are

without jurisdiction and we must dismiss the petition.

         Even outside the context of orders denying discovery, 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. We must dismiss the petition if it is not met. Bd. of Trs. of Internal

Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla.

2012).

         In the narrower context of orders denying discovery, the already “extremely

rare” certiorari remedy becomes even rarer. See id. at 455 (quoting Martin-Johnson,

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Inc. v. Savage, 509 So. 2d 1097, 1098-99 (Fla. 1987)). This Court “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., 664 So. 2d 294, 295 (Fla. 1st DCA 1995); see also Goslin v. Preisser, 148 So. 3d

869, 870 (Fla. 1st DCA 2014) (“We do not have jurisdiction to review the order by

certiorari because the order merely denies a discovery request and any resulting harm

can be remedied on appeal.”).

       For a denial of discovery to constitute material, irreparable harm, thus conferring

certiorari jurisdiction, the denial must “effectively eviscerate[] a party’s claim, defense,

or counterclaim.” Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So. 3d 1232,

1234 (Fla. 2d DCA 2009). In that circumstance, there would be no adequate appellate

remedy because “there is no practical way to determine after judgment how the

requested discovery would have affected the outcome of the proceedings.” Id.

       Petitioner argues that its standing defense was eviscerated because the order

denied Petitioner’s broad requests for all documents in the entire chain of assignments

since origination of the subject loan. However, the trial court granted discovery of

documents evidencing the foreclosing bank’s acquisition of the subject note. Standing

to foreclose requires only proof that the foreclosing party held the note when it filed

the action. Proof of prior assignments is unnecessary. See §§ 673.3011(1),

673.2051(2), Fla. Stat. (2012); Keifert v. Nationstar Mortg. LLC, 153 So. 3d 351, 352-


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53 (Fla. 1st DCA 2014); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So. 3d 81, 85

(Fla. 5th DCA 2012) (“[I]ts standing is established because it is the note holder,

regardless of any recorded assignments.”). The order allows Petitioner to obtain

documentation of Respondent’s standing (or lack thereof). Some of the other

documents Petitioner requested may be relevant to the mortgage foreclosure action or

the standing defense. See Fla. R. Civ. P. 1.280(a). Nevertheless, lack of these

additional documents does not effectively eviscerate the standing defense, because

standing is based on current possession of the note and not the chain of ownership.

Thus, Petitioner has not demonstrated that certiorari jurisdiction exists with respect to

these additional documents.

      Petitioner also argues that its satisfaction of mortgage defense was eviscerated

because the order denied Petitioner’s broad requests for internal bank documents

related to recorded satisfactions of the subject mortgage. Respondent objected on

privacy grounds to producing these internal documents (and therefore cannot use such

documents against Petitioner). See Alterra Healthcare Corp. v. Estate of Shelley, 827

So. 2d 936, 947-48 (Fla. 2002) (Pariente, J., concurring) (emphasizing concern with

one party—having exclusive access to private, yet relevant, documents—utilizing those

documents while refusing, on privacy grounds, to provide documents in discovery).

However, the trial court granted discovery of “correspondence, payments and

documentation” regarding the satisfactions. Again, some of the other documents


                                           4
Petitioner requested may be relevant to the satisfaction defense. See Fla. R. Civ. P.

1.280(a). Nevertheless, lack of these internal memoranda does not effectively

eviscerate the defense of satisfaction, which would be established, if at all, by public

records and the discovery the trial court ordered Respondent to provide. Petitioner has

not demonstrated that certiorari jurisdiction exists with respect to these additional

documents relating to satisfaction.

      In sum, the jurisdictional threshold for certiorari review of orders denying

discovery requires petitioners to demonstrate evisceration of a claim or defense. We

have reviewed all of Petitioner’s discovery requests, Respondent’s objections, and the

partial grant of discovery in the order under review. Based on the legal elements of

Petitioner’s defenses, and the discovery the trial court granted, we cannot conclude that

Petitioner has demonstrated material harm not remediable on appeal.

      Accordingly, the petition is DISMISSED.

SWANSON, and OSTERHAUS, JJ., CONCUR.




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