Compelling Borrowers To Produce Personal Financial Information To Facilitate Foreclosure Mediation No Longer Permitted

By: Suzanne Barto Hill


The 2nd DCA granted a writ of certiorari and quashed an interlocutory order requiring borrowers to produce private financial records for court-ordered mediation in Morejon v. F&M Real Estate, Inc.  The order compelled production of the documents pursuant to the 13th Judicial Circuit's Uniform Order of Referral to Foreclosure Mediation which requires that the borrower provide a completed financial disclosure form and any additional documentation requested by the plaintiff at least 30 days prior to the scheduled mediation.  The court held that the documents ordered to be produced were not relevant to the litigation, and did not appear to be matters that would be subject to discovery.  Court acknowledged the need for special procedures and creative methods to resolve foreclosures, which the court also acknowledged it did not wish to discourage.  However, the court was swayed by the fact that the borrowers were compelled to produce documents that were otherwise not discoverable under the rules of civil procedure, could not refuse to attend mediation and could be sanctioned for failing to produce the documents. Morejon v. F&M Real Estate, Inc., et. al., 40 Fla. L. Weekly D823a (Fla. 2n DCA April 8, 2015).
Importance of the decision:  It will be interesting to see what impact this decision will have on the efficacy of foreclosure mediations.  Unless a borrower voluntarily agrees to produce financial documents in advance of a mediation to allow a lender to evaluate possible mortgage options or options to foreclosure, court-ordered foreclosure mediations may become futile.