What Aggressive Discovery Looks Like and What Eventually Happens to Stonewalling Servicers and Banks

If you persist you will most likely get an order compelling answers to interrogatories, production of documents and an award for attorney fees.

After that when your opposition still doesn’t respond you have the right to seek sanctions and that includes striking the pleadings of your opposition or the court announcing that the homeowner is entitled to the presumption or at least inference that the claimant lacks ownership, authority or both.

But since hardly anyone persists, the banks continue to stonewall. Despite the fact that the foreclosure is a hoax, they win because homeowners either give up or don’t pay a lawyer enough money to really litigate the case for them. They want the result without paying for it. Our system doesn’t work that way.

So here is an example of litigating with ooomph.


Plaintiffs served written discovery on the Defendants on July 8, 2019; on September 5th, Defendants responded to the requests with a production that Plaintiffs describe as “completely deficient.” (Dkt. No. 40, Declaration of Christina L. Henry (“Henry Decl.”), 3-5.) Following the production, Plaintiffs sent a letter summarizing the numerous defects in the discovery responses and requesting a discovery conference. (Id., 6.) The Parties held a discovery conference on October 16 and Defendants served amended responses several weeks later, on October 7. (Id., Ex. C.) Plaintiffs indexed these documents and determined that large numbers were duplicative and Defendants’ production remained deficient. (Dkt. No. 39 at 5.)
Plaintiffs then drafted a Request for a Joint Submission to the Court pursuant to Local Rule 37, seeking assistance in resolving disputes over the outstanding discovery. (Id., Ex. C.) Defendants’ attorney declined to use the joint submission but claimed that the document provided him with “additional information” that clarified the alleged discovery deficiencies and asked for Plaintiffs’ counsel to “work with him” to resolve the discovery dispute. (Id., 18.)
The Plaintiffs held another discovery conference on November 21, 2019 and Defendants agreed to supplement production with additional documents totaling 1,000 pages, voice recordings of four phone calls made by the Plaintiffs to Nationstar, a full life of loan history, and communications that had not been previously produced, all before November 28. (Id., 20-21.) The Defendants produced the 1,000 pages but none of the other material. (Id.  22, 25.) Defendants did not communicate with Plaintiffs regarding the additional items, submit a privilege log, or seek a protective order. (Id.)
On January 11, 2020 the Plaintiffs filed the present Motion to Compel, seeking complete responses to a dozen Interrogatories and Requests for Production. (Dkt. No. 39.) Several weeks later, Defendants produced additional documents, a privilege log, and supplemental discovery responses. (Id. at 2; Dkt. No. 50, Declaration of Taylor T. Haywood (“Haywood Decl.”), 3-7.) Defendants did not, however, produce documents responsive to Request for Production No. 17; Plaintiffs continue to seek these documents as well as their attorneys’ fees and costs incurred in bringing this Motion. (See Dkt. No. 49 at 5; Dkt. No. 52.)
Motion to Compel
*2 Plaintiffs contend they are entitled to documents responsive to Request for Production No. 17, which seeks:
[A]ll loan modification guidelines in effect for US Bank at the time the Grandes were participating in the FFA mediation from August 17, 2016 and through April 16, 2018 in regards to Promissory Note which is secured by a Deed of Trust lien on the PROPERTY that is the subject of this litigation.
(Henry Decl., Ex. A at 16.) Defendants resist producing the guidelines, arguing that the documents (1) are not relevant, and (2) are confidential, proprietary, and trade secrets. (Dkt. No. 49 at 5.) The Court finds these objections unpersuasive.


First, the requested documents are relevant under the broad civil discovery standard, which allows litigants to “obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). A request for discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action.” Ragge v. MCA/Universal Studios, Inc., 165 F.R.D. 601, 604 (C.D. Cal. 1995). Here, Plaintiffs contend that documents responsive to this request provide “information about the policies, processes, and procedures Defendants used to make various decisions regarding the Grandes’ loan modification application.” (Dkt. No. 39 at 10.) Where Plaintiffs allege that Defendants’ evasive, shifting explanations for denying their loan modification were bad faith attempts to avoid their obligations, comparing Defendants’ policies to their behavior is relevant to Plaintiffs’ claims. (See Compl. at 32-34, 38-41, 54.)


Second, Defendants have not demonstrated that the policies are confidential, proprietary, or trade secrets. (Dkt. No. 49 at 5.) “In the federal judicial system trial and pretrial proceedings are ordinarily to be conducted in public.” Olympic Ref. Co. v. Carter, 332 F.2d 260, 264 (9th Cir. 1964). As an exception to the general rule of public access to pretrial litigation discovery, a party may move for a court order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including…requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G).


Here, Defendants have not moved for a protective order or listed the documents on a privilege log. (Dkt. No. 52 at 4.) Nor have they explained how these policies are trade secrets that give them a competitive advantage over competitors. (Id.) “If the court were to issue a protective order based upon such a generalized showing, the general principle of open access that underlies the judicial system would be eviscerated.” Braack v. Home Depot U.S.A., Inc., 2007 WL 2156371, at *4 (W.D. Wash. Jul. 23, 2007); see also Noble v. Wells Fargo Bank, N.A., No. 114CV01963DADEPG, 2017 WL 531883, at *6 (E.D. Cal. Feb. 8, 2017) (denying motion for a protective order where the bank failed to explain with particularity why its eviction procedures were trade secrets that gave it a competitive advantage over competitors).


II. Request for Attorneys’ Fees
The Court also finds that attorneys’ fees are warranted. Under Federal Rule of Civil Procedure 37(a)(5), the Court must award reasonable expenses associated with a motion to compel discovery, including attorneys’ fees, if the moving party prevails on the motion. Exceptions to this rule apply if: (i) the movant filed the motion before attempting in good faith to obtain the discovery without court action; (ii) the opposing party’s failure to comply was substantially justified; or (iii) other circumstances make an award of expenses unjust. Id.


Here, Plaintiffs brought this Motion after several good faith attempts to obtain the requested discovery, (Henry Decl., 6, 20-21; id., Ex. C), and nothing before the Court suggests that Defendants’ delay was justified or that an award of expenses would be unjust. To the contrary, Defendants’ substantial delay in responding to the discovery requests has delayed the trial in this matter (see Dkt. No. 55) and necessitated the present Motion (Dkt. No. 39 at 6-7). Therefore, Plaintiffs request for attorneys’ fees is GRANTED.



6 Responses

  1. @ANON – try using your real name. I know by your writing style who you are – scammer!

  2. My thoughts to all exactly! Getting a judge to actually look at what is produced is key. There are no such judges in Baltimore County. We found out the hard way after getting scammed by a neighbor who said he could “help” and just took $4,000 from us that started us down a five year rabbit hole and left us with a depleted 401k and shredded dignity. The only bidder who had wanted the house since the day we started to flounder in 2009 is now living in MY HOUSE on MY ANCESTRAL WATERFRONT PROPERTY!

    If you are in Baltimore County walk away folks. You will get no justice.

  3. First — we must all stay together during this difficult time.

    Discovery is very difficult. Over my long journey of litigation, discovery was constantly held in abeyance — and we were sent off to mediation. Nothing discovered there. Then decisions came down despite our pleading to enforce discovery. The limited discovery we got was worthless — except for a couple of documents that stood out to me. I pursued, and discovered more on my own. Look for any detail — even if it looks like it does not matter.

    Back now in more discovery (complicated), Problem is — the claimed represented party did NOT respond – someone else did. That makes depositions difficult. However, the (non-party) made one mistake with what they gave this go around — there was so much redacted – but this one mistake is glaring.

    And, that is — the “servicer” had our files — long before servicing was ever transferred to them. Years before. Go figure.

    Whoops –sometimes they make mistakes — have to be ready to grab it.

    Stay safe.

  4. North Carolina the same. They could present soiled toilet paper and the judge would allow it. Just saying…

  5. Charles, have to agree with you. Judge threw out my motion to compel discovery. Opp. counsel gave me a CD with nothing but krap on it.

  6. Counter point:

    We persisted in one case… merely moving to compel statutorily compliant responses to document production. The judge sanctioned US after a worthless document dump of 3500 pages of useless, duplicated, upside down, backwards, unreadable and some blank pages on a CD, the judge parroted the lawyers representation that “the entire file has been produced” evidently a sufficient lie for the worthless judge. We seemed to constantly run into the often spewed B.S. something like “discovery is supposed to be used as a tool not a weapon”… the only tool we saw was the judge and lying lawyer buddies.

    Rare is it that a judge will enforce it… we haven’t seen it yet.

    So far, seems good faith goes at best, only selectively one way, at least in California.

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