US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR WAMU MORTGAGE PASS THROUGH CERTIFICATES FOR WMALT SERIES 2007-OA7, PETITIONER,
v.
GLADYS RIVERA AND DENNIS RIVERA, RESPONDENTS
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The court held that discovery orders compelling production of privileged materials were improperly entered because the privileges were not waived and the motion to vacate lacked sufficient sworn proof.
Respondents moved to vacate a final judgment based on improper service and fraud by Petitioner's prior lawyers. The trial court entered discovery orde…
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Petitioner seeks a writ of certiorari to quash two discovery orders, entered on December 12, 2012 and January 9, 2013, respectively. Respondents had moved to vacate a final judgment on two grounds: improper service and fraud upon the court by the Petitioner’s prior lawyers.1 The requested discovery related to the claim of fraud and was intended to support Respondent’s argument that the case should be dismissed with prejudice. We grant the writ and quash the two orders for the following reasons.
First, the discovery orders on review pertain to the production of materials that are protected by the attorney-client and other privileges, and, contrary to Respondent’s arguments, these privileges have not been waived. Prieto v. Union Am. Ins. Co., 673 So.2d 521, 523 (Fla. 3d DCA 1996) (citing Smith v. Armour Pharm. Co., 838 F.Supp. 1573, 1576 (S.D.Fla.1993)) (holding that the waiver of the attorney-client privilege must be intentional).
Second, discovery conducted after a final judgment has been entered and pursuant to a motion to vacate will normally be permitted only if the motion is supported by sworn proof of the allegations contained therein. Rooney v. Wells Fargo Bank, N.A., 102 So.3d 734, 736 (Fla. 4th DCA 2012) (‘We do not think that discovery can commence on a motion for relief from judgment based upon unsworn allegations.”). Respondents here have failed to satisfy this burden. The requested discovery related to the claim of fraud, but only the allegations with respect to the insufficiency of the service were supported by sworn proof. We, therefore, grant the petition for writ of certiorari and quash the orders under review.
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Citator
Cited By
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U.S. Bank Nat'l Ass'n v. Rivera, 193 So. 3d 954 (Fla. 3d DCA 2016)…the Bank’s earlier-filed rule 1.540 motion to vacate the final judgment was granted. The following day, the Bank sought and subsequently was granted relief from, the previously entered discovery sanction orders. See U.S. Bank Nat’l Ass’n v. Rivera, 128 So. 3d 907 (Fla. 3d DCA 2013). Because the sanction orders, had been quashed in-part because the Riveras’ fraud claim was unsupported by any sworn-testimony, the Riveras filed an amended verified motion to vacate the final, judgment of foreclosure. Shortly the…
Authorities Cited
- Prieto v. Union Am. Ins. Co., 673 So. 2d 521 (Fla. 3d DCA 1996)
- Rooney v. Wells Fargo Bank, N.A., 102 So. 3d 734 (Fla. 4th DCA 2012)
- Smith v. Armour Pharm. Co., 838 F. Supp. 1573 (S.D. Fla. 1993)