Mitchell et al v. Cenlar Capital Corporation et al

RESPONSE in Opposition re MOTION to Compel Discovery against MGC

S.D. Miss.October 25, 2017

4829-8109-5761 v3 2929771-000021 10/25/2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION PALAS MITCHELL AND JOHN MITCHELL PLAINTIFFS V. CIVIL ACTION NO. 3:16-cv-00814-TSL-RHW CENLAR CAPITAL CORPORATION d/b/a CENLAR FEDERAL SAVINGS d/b/a CENTRAL LOAN ADMINISTRATION & REPORTING and MGC MORTGAGE, INC. DEFENDANTS MGC MORTGAGE, INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL DISCOVERY Defendant, MGC Mortgage, Inc. (“MGC”) submits its Response in Opposition to Plaintiffs’ Motion to Compel Discovery (“Motion to Compel”) and states as follow: I. FACTUAL BACKGROUND Plaintiffs’ Complaint concerns the force-placement of property insurance coverage on Plaintiffs’ home pursuant to the deed of trust encumbering the property. See Compl. ¶¶6,9, ECF No. 1. While Plaintiffs have asserted their claims against both Defendants—Cenlar Capital Corporation (“Cenlar”) and MGC—it is clear that Plaintiffs do not understand the Defendants’ relationship with each other and to the subject mortgage loan. Plaintiffs erroneously assert in their Complaint that MGC owns the mortgage loan for Plaintiffs’ home through assignment. Id. ¶8. However, as MGC made plain in the discovery responses, MGC is the master servicer of the mortgage loan at issue and Cenlar is the loan’s sub-servicer. This basic lack of understanding has facilitated Plaintiffs’ confusion as to why MGC does not possess additional information or documents responsive to Plaintiffs’ discovery requests. Cenlar performs the day-to-day servicing on behalf of, and in the name of, MGC, pursuant to a private-label subservicing agreement. Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 1 of 7 -2- 4829-8109-5761 v3 2929771-000021 10/25/2017 MGC employees have access to Cenlar’s servicing system and Cenlar maintains the documents, as the sub-servicer for the mortgage loan. Had Plaintiffs communicated to MGC the specific discovery requests they felt were inadequate—before filing their Motion to Compel—MGC could have provided additional explanation regarding the parties’ connection to Plaintiffs’ mortgage loan and the information available to MGC, the master servicer of the mortgage loan. II. PROCEDURAL BACKGROUND Despite Plaintiffs’ contentions, verified responses to Plaintiffs’ discovery requests were served on September 11, 2017. See MGC’s Responses to Interrogatories and Requests for Production, Ex. A. On September 15, 2017, MGC produced 296 pages of documents to Plaintiffs. See E-mail from Brent Cole to Don Medley (Sept. 15, 2017), Ex. B. On September 19, 2017, Plaintiffs sent correspondence advising only that “I have pre-discovery disclosure with little to no information and discovery responses with little also.” See Letter from Don Medley to Frederick Salvo (Sept. 19, 2017), Ex. C. In a good faith effort to resolve Plaintiffs’ confusion, Defendants repeatedly attempted to have a phone conference with Plaintiffs to discuss MGC’s connection to Plaintiffs’ mortgage loan and the reason behind MGC’s lack of responsive information. See E-mails from Brent Cole to Don Medley (Sept. 25, 2017), Ex. D. After a conference proved elusive, Defendants advised Plaintiffs they would respond to the broad and general complaint in Plaintiffs’ September 19, 2017 correspondence. Id. Therefore, MGC again reviewed all of the documents in its possession related to Plaintiffs—that were also produced to Plaintiffs, again reviewed its discovery responses, and then advised Plaintiffs: MGC has produced documents in its possession responsive to Plaintiffs’ discovery requests. Documents responsive to Plaintiffs’ discovery requests, but not in MGC’s possession, were produced by Defendant CENLAR. At this time, MGC is unaware of any documents regarding the Mitchells’ mortgage loan that were not produced to Plaintiffs in this case. Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 2 of 7 -3- 4829-8109-5761 v3 2929771-000021 10/25/2017 Defendant MGC believes that its document production and written discovery responses are complete and accurate to the best of MGC’s current knowledge. If Plaintiffs require additional clarity as to any specific response provided by MGC, please identify the discovery request and response with particularity so that MGC may evaluate the request and determine if additional information is available for supplementation. See Letter from Brent Cole to Don Medley (Sept. 25, 2017), Ex. E. Despite MGC’s explanation and request to Plaintiffs to identify any specific response Plaintiffs believed were deficient, Plaintiffs provided no response and did not identify any discovery responses at issue until the filing of Plaintiffs’ Motion to Compel. See Pfs. Mot. to Compel ¶7 (identifying Interrogatories Responses Nos. 1, 2, 6, 7, and 8 as at issue), ECF No. 25. Additionally, Plaintiffs’ Motion to Compel also complains that “The Requests for Production resulted in no documents . . . .” Id. MGC produced nearly 300 pages of documents to Plaintiffs. See E-mail from Brent Cole to Don Medley (Sept. 15, 2017), Ex. B. Documents have not been withheld by MGC for any reason, including privilege. Notwithstanding Plaintiffs’ contentions in their Motion to Compel, Plaintiffs possess all documents related to their mortgage loan and its servicing, and have access to the same information as MGC. III. ARGUMENT Pursuant to Local Rule 37(a), “Before service of a discovery motion, counsel must confer in good faith to determine to what extent the issue in question can be resolved without court intervention.” L.U. Civ. R. 37(a). Despite Defendants’ request that Plaintiffs identify any discovery response that Plaintiffs believed were deficient, Plaintiffs did not confer in good faith and instead chose to present that specificity for the first time to the Court. However, despite Plaintiffs advising the Court, erroneously, that discovery “resulted in no documents” and Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 3 of 7 -4- 4829-8109-5761 v3 2929771-000021 10/25/2017 complaining of Defendants’ responses to Plaintiffs’ Interrogatory Nos. 1, 2, 6, 7, and 8, Plaintiffs’ Motion to Compel is completely without merit and should be denied. As to Defendants’ Responses to Interrogatory Nos. 1 and 2, Plaintiffs request that MGC identify all correspondence or communications relating to the subject property and all persons that may have knowledge related to this litigation. See MGC’s Discovery Responses at 1-2, Ex. A. As MGC does not perform the day-to-day servicing of the Plaintiffs’ mortgage loan, MGC’s information responsive to Plaintiffs’ requests solely relate to the assignment of Plaintiffs’ Deed of Trust—documented in MGC’s documents production—and the commencement of this litigation. Furthermore, all of the documents responsive to this request were produced by co- Defendant Cenlar. Accordingly, pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, MGC directed Plaintiffs to the documents produced by Defendant Cenlar which identified all communications with Plaintiffs and all persons that had any connection to the loan servicing. As to Defendants’ Responses to Interrogatory Nos. 6 and 7, Plaintiffs request that MGC “identify any intervening cause or third party or other entity responsible for the alleged damages” and “[p]rovide, identify and explain in detail the factual basis for [all of MGC’s affirmative defenses].” See MGC’s Discovery Responses at 3-4, Ex. A. MGC objected to these interrogatories as premature, advising that “MGC’s investigation of this matter is still ongoing.” Id. Until MGC is able to depose Plaintiffs—which Plaintiffs continue to refuse to provide their availability—MGC is unable to reach a complete understanding of Plaintiffs’ claims, complete its investigation into the alleged acts or omissions, or fully respond to Plaintiffs’ discovery requests. See MGC’s Motion to Compel Plaintiffs’ Deposition and Memo. in Support, ECF Nos. 27, 28. Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 4 of 7 -5- 4829-8109-5761 v3 2929771-000021 10/25/2017 Finally, as to Plaintiffs Interrogatory No. 8, Plaintiffs request that MGC identify “any previous or subsequent claims against [MGC] for improper place of forced placed insurance or improper cancellation of insurance, that have been levied against you in the past ten years . . . .” See MGC’s Discovery Responses at 4, Ex. A. This request is the epitome of an irrelevant, overbroad request that is not “proportional to the needs of the case”—if MGC even had such information—as the information requested has no relation to how Plaintiffs’ mortgage loan was serviced in this case. Fed. R. Civ. P. 26(b)(1). The servicing of other mortgage loans by MGC or others, including sub-servicers, has no bearing on the alleged acts or omissions of Defendants in this case related to Plaintiffs’ specific mortgage loan. Requiring MGC to expend incalculable time and effort to research whether such a claim was made over the past decade is unwarranted and Plaintiffs’ request is beyond the scope of the information contemplated by Rule 26. Therefore, as MGC previously advised Plaintiffs, MGC’s “document production and written discovery responses are complete and accurate,” and Plaintiffs’ Motion to Compel is without merit. See Letter from Brent Cole to Don Medley (Sept. 25, 2017), Ex. E. Should Plaintiffs’ require “clarity as to any specific response provided by MGC,” MGC is certainly willing to explain MGC’s involvement with Plaintiffs’ mortgage loan. Id. CONCLUSION For the reasons stated above, MGC respectfully requests that the Court deny Plaintiffs’ Motion to Compel Discovery as MGC has sufficiently responded to all requests posed by Plaintiffs in their First Set of Interrogatories and Requests for Production of Documents to MGC, including the interrogatories addressed above. MGC further requests that Plaintiffs be directed to confer in good faith for any further discovery disputes that may arise. THIS the 25th day of October, 2017. Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 5 of 7 -6- 4829-8109-5761 v3 2929771-000021 10/25/2017 Respectfully submitted, MGC MORTGAGE, INC. By Its Attorneys, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC BY: s/ Brent W. Cole BRENT W. COLE OF COUNSEL: Frederick Salvo III (MSB No.100419) Brent W. Cole (MSB No. 104205) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC One Eastover Center 100 Vision Drive, Suite 400 Jackson, Mississippi 39211 Telephone: (601) 351-2400 Facsimile: (601) 351-2424 fsalvo@bakerdonelson.com bcole@bakerdonelson.com Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 6 of 7 -7- 4829-8109-5761 v3 2929771-000021 10/25/2017 CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing pleading with the Court’s ECF system which forwarded a copy to the following counsel of record: Donald W. Medley MEDLEY LAW GROUP 902 West Pine Street Hattiesburg, MS 39401 Ryan Daugherty SIROTE & PERMUTT, PC P.O. Box 55727 Birmingham, AL 35255-5727 This the 25th day of October, 2017. s/ Brent W. Cole BRENT W. COLE Case 3:16-cv-00814-WHB-JCG Document 30 Filed 10/25/17 Page 7 of 7