White et al v. Wells Fargo Home Mortgage Inc

Brief/Memorandum in Support

N.D. Tex.April 11, 2017

Unopposed Motion to Extend Time to File Response to Plaintiff’s Motion to Dismiss, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SHANE WHITE AND SHENNA NELSON, Plaintiffs, vs. WELLS FARGO HOME MORTGAGE, INC., a division of WELLS FARGO BANK, N.A. d/b/a AMERICA'S SERVICING COMPANY, Defendant. § § § § § § § § § § § § § Case No. 3:16-CV-00828-B PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION TO COMPEL DISCOVERY Respectfully submitted, BASINGER LEGGETT CLEMONS BOWLING SHORE CRANDALL, PLLC By: /s/ J. David Caldwell, Jr. J. David Caldwell, Jr. Texas Bar No. 24100595 5700 Granite Parkway, Ste. 950 Plano, Texas 75024 214-473-8686 (Phone) 214-473-8685 (Facsimile) dcaldwell@bltexaslaw.com ATTORNEY FOR PLAINTIFFS SHANE WHITE AND SHENNA WHITE Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 1 of 9 PageID 279 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) i TABLE OF CONTENTS I. INTRODUCTION ..................................................................................... 1 II. FACTUAL BACKGROUND ...................................................................... 1 III. ARGUMENT AND AUTHORITIES ............................................................ 4 IV. CONCLUSION ........................................................................................ 5 Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 2 of 9 PageID 280 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) ii TABLE OF AUTHORITIES FEDERAL CASES PAGE(S) Vogt v. Emerson Elec. Co., 805 F. Supp. 506, 513 (M.D. Tenn. 1992) ......... 5 FEDERAL RULES Fed.R.Civ.P. 37(a)(3)(B)(iv) .......................................................................3, 4 Fed.R.Civ.P. 37(a)(5)(A) ............................................................................3, 5 Fed.R.Civ.P. 26(b) .......................................................................................... 4 Fed.R.Civ.P. 37 ............................................................................................... 5 Fed.R.Civ.P. 12(b)(6) ..................................................................................... 5 Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 3 of 9 PageID 281 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) 1 Plaintiffs Shane White and Shenna Nelson file this Brief in Support of their Motion to Compel Discovery [Doc 33], and would respectfully show the Court as follows: I INTRODUCTION The Court should enter an order compelling Defendant Wells Fargo Bank, N.A., to produce Plaintiffs’ requested documents and things and awarding Plaintiffs their reasonable and necessary attorney’s fees and costs for having to bring this matter before the Court. II FACTUAL BACKGROUND Plaintiffs filed this lawsuit complaining about conduct of Defendant which deprived them of their acquired rights in the real property located at 200 Cynsico Street, Waxahachie, Ellis County, Texas (“the Property”) and complaining about misrepresentations made by agents and/or employees of Defendant which persuaded Plaintiffs to pay money to avoid foreclosure on the Property in exchange for transferring the existing mortgage indebtedness against the Property into Plaintiffs’ names. During the time of Plaintiffs’ payments to Wells Fargo Bank, N.A., Plaintiffs expended considerable funds in renovating the Property. Defendant failed to make good on its representations and promises to transfer the existing mortgage into Plaintiffs’ names and the Property was foreclosed upon in August 2014. Plaintiffs filed suit in state district court and Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 4 of 9 PageID 282 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) 2 Defendant moved for removal to this honorable Court based upon diversity jurisdiction. The Parties have conducted discovery and the discovery is ongoing. Early in the litigation, on April 26, 2016, Plaintiffs requested Defendant to produce the following specific and narrowly tailored categories of documents and things for inspection: A. Request for Production No. 2 - Any and all documents showing all payments made on and charges made to the Loan. B. Request for Production No. 3 - Any and all records and documents related to the Loan and the Property maintained by Christopher Tulson, Defendant’s Home Preservation Specialist, from January 2012 through August 31, 2014. C. Request for Production No. 4 - Any and all records and documents related to the Loan and the Property from January 2012 through August 31, 2014. D. Request for Production No.5 - Copies of all notices of foreclosure and notices of sale regarding the Property sent by Defendant or Defendant’s agent from January 2012 through August 31, 2014. E. Request for Production No.6 - Any and all documents regarding the foreclosure of the Property on or about August 5, 2014. F. Request for Production No.7 - Copies of the recorded phone calls, including, but not limited to calls taken by customer service representatives or mortgage specialists, regarding the Loan and/or the Property, during the period of January 1, 2012 through January 1, 2014. On June 29, 2016, Defendant served its Objections and Responses to Plaintiffs’ discovery requests. With respect to its responses to Plaintiffs’ Requests for Production Nos. 2, 3, 4, 5, 6, and 7, Defendant responded identically as follows: Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 5 of 9 PageID 283 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) 3 A. Response to Nos 2, 3, 4, 5, and 6 - “Defendant additionally objects to this request for production because it seeks information that is private and confidential. This request seeks to invade the privacy rights of the borrower. Plaintiffs are not parties to the loan account and therefore have no right to the loan account information. Defendant will not produce documents in response to Request No. [2, 3, 4, 5, and 6].” B. Response to No. 7 - “Defendant additionally objects to this request for production to the extent it seeks information that is private and confidential. This request seeks to invade the privacy rights of the borrower. Plaintiffs are not parties to the loan account and therefore have no right to the loan account information. Defendant will not produce documents in response to Request No. 7, except that to the extent that recordings were made and retained of telephone calls between an employee of Defendant and either Plaintiff White or Plaintiff Nelson regarding the subject loan or the property at issue, Defendant will produce such recordings.” Plaintiffs’ counsel and Defendant’s counsel held a conference to discuss the objections of Defendant and its refusal to produce relevant documents based on alleged privacy concerns. Plaintiffs’ counsel reported that a financial record authorization would be forthcoming which would eliminate Defendant’s privacy concerns. On March 22, 2017, Plaintiffs delivered to Defendant a signed and notarized financial record authorization and release. To date, Defendant has not produced the requested documents or things. Plaintiffs’ seek an order compelling production of the requested materials by a date certain, as authorized by Fed.R.Civ.P. 37(a)(3)(B)(iv). Plaintiffs also seek recovery of their costs for having to seek Court intervention in this discovery matter, as authorized by Fed.R.Civ.P. 37(a)(5)(A). Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 6 of 9 PageID 284 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) 4 III ARGUMENT AND AUTHORITIES A party is authorized to discover “any nonprivileged matter that is relevant to any party’s claim or defense” or information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b). Plaintiffs have sought discovery from Defendant. Defendant has resisted. This resistance has been happening for months. Plaintiffs’ counsel and Defendant’s counsel discussed the existence of audio recordings in September, 2016. Defendant admitted having possession of recordings of telephone conversations with Defendant’s customer service representatives. However, Defendant claims none exist with Plaintiffs. Defendant’s position was the since the Plaintiffs were not a party to the loan or telephone recordings, then Plaintiffs were not entitled to access through discovery. In a good faith attempt to address and eliminate Defendant’s objections to producing the Loan and Property related dockets under the claim of confidential information, Plaintiffs delivered to Defendant a signed financial record authorization and release on March 22, 2017. Defendant has still not supplemented or produced the requested financial records regarding the Loan or the Property. Plaintiffs simply want a complete copy of the Loan file, Loan ledger and audio recordings within the requested time. Fed.R.Civ.P. 37(a)(3)(B)(iv) authorizes a party to seek an order compelling production of the requested discovery materials. The proper remedy for Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 7 of 9 PageID 285 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) 5 uncooperative behavior during discovery is to move for judicial sanctions under Federal Rules of Civil Procedure, Rule 37. Vogt v. Emerson Elec. Co., 805 F. Supp. 506, 513 (M.D. Tenn. 1992). Plaintiffs seek an order compelling production of the requested loan file and documents and the audio recordings made by Defendant related to this case. Plaintiffs also seek recovery of reasonable attorney’s fees for having to present this motion, as authorized by Fed.R.Civ.P. 37(a)(5)(A). Defendant seeks to have Plaintiffs’ lawsuit dismissed with a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6). [Doc 27]. However, Defendant should not be permitted to withhold discovery in its possession which could demonstrate the viability of all or part of Plaintiffs claims set forth in Plaintiffs’ First Amended Complaint [Doc 25]. This is unreasonable conduct by Defendant, and Plaintiffs argue that the Court would reward Defendant’s conduct if the requested discovery documents are not ordered produced. IV. CONCLUSION Plaintiffs are entitled to the documents requested that Defendant has not produced, and Plaintiffs should be awarded their reasonable and necessary attorney’s fees for having to bring this motion before the Court. Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 8 of 9 PageID 286 Plaintiffs’ Brief in Support of Motion to Compel Compliance of Discovery Request, White et al. v. America’s Servicing Company, CASE NO. 3:16-CV-00828-B, U.S.D.C. Northern District of Texas (Dallas Division) 6 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that a true and correct copy of the foregoing Brief in Support of Plaintiff’s Motion to Compel Discovery is being served on all counsel of record in this case through the ECF system, in accordance with FRCP 5(a)(1)(D) and LR 5.1(d), on this 11 th day of April, 2017. /s/ J. David Caldwell, Jr. J. David Caldwell, Jr. Case 3:16-cv-00828-B Document 34 Filed 04/11/17 Page 9 of 9 PageID 287