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Fifth District Court Holds Bank Entitled to Designate Corporate Representative for Deposition

Posted By USFN, Wednesday, July 17, 2019
Updated: Tuesday, July 16, 2019

Roy Diaz
SHD Legal Group, PA
USFN Member (FL)

In May, the Fifth District Court of Appeal granted certiorari relief to US Bank, quashing a circuit court’s order compelling the bank to produce a specific person for an out-of-state deposition in a residential foreclosure action (U.S. Bank Nat'l Ass'n as Tr. for Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Arm Tr., Mortgage Pass-Through Certificates, Series 2006-2 v. Williamson). In Williamson, the bank-initiated foreclosure proceedings against the Williamsons by filing a verified complaint. Five years into the litigation, the bank filed an amended complaint which “was verified by Nicholas Raab, an employee of Bank's loan servicer…”

The borrowers sought to depose Mr. Raab and moved to have him “treated as the Bank’s ‘corporate officer’” under Fla. R. Civ. P. 1.310(b)(6), but the bank objected. The requested designation as corporate officer was significant for two reasons:

  • First, if Mr. Raab was designated as US Bank’s corporate representative, the bank would be required to produce Mr. Raab for deposition in Orange County, Florida, where the bank filed the foreclosure action. Mr. Raab lived and worked in Colorado.

  • Second, if deemed US Bank’s corporate representative, Mr. Raab would be required to testify regardless of his familiarity with the specifics of the Williamsons’ loan or US Bank’s records, policies, and procedures. Notwithstanding the clear language of rule 1.310((b)(6) which gives the bank authority to designate its own corporate representative, the circuit court granted the Williamsons’ motion to compel. The bank sought certiorari relief from the Fifth District Court of Appeal.

Certiorari relief is rarely sought and even more rarely granted. Appellate courts seldomly grant certiorari relief because it pertains only to non-final orders which can be incorporated into a plenary appeal of a final order. Review of non-final orders can lead to piecemeal litigation which the courts understandably seek to avoid. Notwithstanding, if a party can demonstrate the lower court departed “from the essential requirements of the law” and that said departure will result in “material injury…throughout the remainder of the proceedings below” the Court may grant certiorari relief. The District Court of Appeal concluded the order compelling Mr. Raab to appear for deposition in Florida as the bank’s designated corporate representative constituted such a departure.

The District Court of Appeal pointed out that Mr. Raab was not a party to the litigation and was not employed by US Bank but rather the bank’s loan servicer, “a separate corporate entity.”  Although the bank would be required to produce its corporate representative for deposition in Florida under rule 1.310(b)(6), the borrowers were not permitted to unilaterally designate Mr. Raab as the bank’s corporate representative.  The Court explained that only the bank had the authority to designate who would testify at the deposition on the corporation’s behalf. The Court granted certiorari, quashed the order compelling Mr. Raab to appear for the deposition in Florida and the order was final on May 26, 2019.

This ruling is appropriate and consistent with the way the servicing industry operates. Considering the number of servicing staff that touch loans being serviced, it would be untenable to allow an opposing party to select who should testify as the corporate witness. The law simply does not support such a position.

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