               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




                                           -2-
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



                                           -3-
              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-




                                           -4-
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.


                                             -5-
                 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.




                                             -6-
(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




                                            -7-
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.




                                               -8-
