Opinion
No. CV 08 5016789
January 28, 2009
MEMORANDUM OF DECISION RE (#111) PLAINTIFF'S OBJECTION TO DISCOVERY REQUEST
The plaintiff, Indymac Bank F.S.B., has objected to a number of interrogatories and requests for production filed by the defendants, Khadim Khan and Muhammad Khan, dated July 1, 2008.
The parties were unable to resolve the issues and appeared before this court and the objections were argued. The court reserved decision as to the propriety of the objections.
Having considered the argument of counsel and the applicable Practice Rules and case law, the court makes the following findings and orders.
Of the total of 19 objections to request for answers to interrogatories, 12 objections were made for essentially the same reason. The plaintiff argues that the information sought in each of those interrogatories is "ambiguous," "vague," "not specifically tailored to any aspect of the pending litigation," and/or "outside the scope of discovery under 13-2."
With both parties agreeing that they were all of the same general basis, the court indicated that they would each be considered individually, however the result for one objection would be the result for each and every one of them.
The plaintiff argues that by each of those interrogatories the defendants seek "to dredge the history of the loan" in order to "conjure a defense or a possible claim to the plaintiff's action," or they seek to "ransack" information of the plaintiff for the same reason.
More specifically, the plaintiff argues that they seek information designed to determine what the plaintiff's loan practices and standards are and to discover what steps, if any, the plaintiff took to safeguard or protect the defendants' interests regarding the obligations the defendants assumed when they borrowed the funds.
The defendants, through their counsel, made it clear to the court that most, if not all, of those particular interrogatories seek information which might disclose bad acts or inequities in the plaintiff's loan procedures — not only in regard to them, but as to the many other borrowers of "subprime" loans which have caused an epidemic of defaults and foreclosures across this country. They include questions regarding, among other things, the plaintiff's risk management policies, underwriting criteria, income verification methods and the debt-to-income ratio utilized by the plaintiff in making the loan to the defendants.
In support of its objection to those interrogatories, the plaintiff cited the case of Peyton v. Werhane, 126 Conn. 382 (1940), in which our Supreme Court held, "The right to a discovery, however, does not extend to all material facts but only to those which pertain to a part's cause of action or defense."
Being even more specific in its objection to the information sought in those several interrogatories, the plaintiff argued that in loan transactions such as in this case, neither the lender or the borrower has a duty to look after each other's interest. The plaintiff cited Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11 (1999). That case involve an appeal from the trial court order granting the plaintiff's motion for summary judgment of several special defenses filed by the defendant. Those special defenses included allegations that the plaintiff's claims should be denied because of either a breach of fiduciary relationship or because of a breach of the covenant of good faith and fair dealing owed by the plaintiff to the defendant.
In Southbridge, the Appellate Court held, "The trial court, nonetheless, granted the motion for summary judgment because Garofalo admitted that he defaulted on the notes and his defenses failed to `attack the making, validity, or enforcement of the note or mortgage.' We conclude that the trial court properly rendered summary judgment." Southbridge, supra, p. 15.
Generally there exists no fiduciary relationship merely by virtue of a borrower lender relationship between a bank and its customer. North Central Kansas Production Credit Ass'n. v. Hansen, 240 Kans 671, 674-75 (1987).
A lender has the right to further its own interest in a mortgage transaction and is not under a duty to represent the customer's interest. Cooper v. Burby, Superior Court, judicial district of Hartford-New Britain, Docket No. 387563 (April 29, 1992) [6 Conn. L. Rptr. 749].
In deciding the plaintiff's motion for summary judgment in Southbridge, the court ruled that neither of those equitable claims was established by the evidence and that even if such claims could be established, they fail to attack the making, validity or enforcement of the note or mortgage. Southbridge, supra.
In the instant case, the court finds that none of the information sought in those particular interrogatories, for the record — numbers 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 — is designed to lead to the discovery of admissible evidence, as provided in P.B. § 13-2, as to the making, validity or enforcement of the note or mortgage. For that reason, the plaintiff's objection to each of those interrogatories is hereby sustained.
As to Interrogatories 2, 3, 4 and 7, counsel for the plaintiff disclosed that the plaintiff was the originator, owner and holder of the note, dispensing with the need for discussion of those interrogatories, therefore there is no need to rule on those objections.
As to Interrogatories 5 and 6, counsel for the plaintiff indicated that there was compliance when the notice of default and intent to foreclose was certified to defendants' counsel and will be sent again if necessary, therefore there is no need to rule on those objections.
The plaintiff agreed to provide copies of the documents sought in the request for production within a reasonable time.