Pacheco v. Homecomings Financial, LLC et al

Filing 93

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 86 defendant MortgageIT, Inc.'s motion to compel production of documents. Hearing set for 12/15/2009, 10:00 AM is vacated. (hrllc2, COURT STAFF) (Filed on 12/9/2009)

1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CARLOS PACHECO, v. Plaintiff, No. C08-03002 JF (HRL) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MORTGAGEIT, INC.'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS / [Re: Docket No. 86] *E-FILED 12-09-2009*

United States District Court

11
For the Northern District of California

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HOMECOMINGS FINANCIAL, LLC and MORTGAGEIT, INC., Defendants.

Plaintiff Carlos Pacheco sues for alleged violations of federal truth-in-lending laws in connection with the refinance of his home mortgage loan. In essence, he seeks rescission, as well as declaratory relief quieting title in his favor. Defendant MortgageIT, Inc. ("MortgageIT") moves to compel the production of documents. Plaintiff opposes the motion. The matter is deemed appropriate for disposition without oral argument, and the December 15, 2009 hearing is vacated. See CIV. L.R. 7-1(b). Upon consideration of the moving and responding papers, the motion is granted in part and denied in part as follows: Requests 25-28 and 31 seek documents pertaining to plaintiff's refinance, his payments on the loan, and allegations asserted in his First Amended Complaint. Plaintiff agreed to produce all non-privileged responsive documents, but now advises that he has none. MortgageIT's motion as to these requests is granted as follows: Within ten days from the date of this order, plaintiff shall serve (a) updated discovery responses to these requests and

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(b) a declaration attesting under penalty of perjury that after conducting a diligent inquiry and reasonable search, he has no non-privileged, responsive documents in his possession, custody, or control. Requests 29 and 30 seek documents reflecting plaintiff's use of cashed-out loan proceeds. The motion as to these requests is denied. MortgageIT has not demonstrated that the requested information is relevant or reasonably calculated to lead to the discovery of admissible evidence. FED. R. CIV. P. 26(b)(1). Requests 32-35 seek documents relating to plaintiff's financial condition (e.g. bank statements, credit card statements, and documents reflecting his income and assets). In view of plaintiff's claim seeking rescission, there is no dispute that his ability to tender loan proceeds is at issue. See 15 U.S.C. § 1635(b). Plaintiff concedes that he will have to refinance in order to tender. MortgageIT says that these documents are relevant to evaluate plaintiff's ability obtain refinancing in order to make that tender. Inasmuch as MortgageIT disclaims any interest in the subject loan or the underlying security, however, it is not apparent that the requested information is relevant or reasonably calculated to lead to the discovery of admissible evidence as to MortgageIT. Nevertheless, the operative pleading asserts a claim for rescission as to MortgageIT, and plaintiff has not managed to convince that discovery as to his ability to tender should be entirely deferred. Accordingly, MortgageIT's motion is granted in part as follows: Within ten days from the date of this order, plaintiff shall produce (a) his credit report or authorize the release of his credit report to MortgageIT (to the extent he has not already done so per the parties' prior agreement); (b) the current statement from banks at which he has accounts; and (c) his most recent pay stub. MortgageIT's motion as to these requests is otherwise denied. SO ORDERED. Dated: December 9, 2009 HOWARD R. LLOYD

United States District Court

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For the Northern District of California

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UNITED STATES MAGISTRATE JUDGE

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5:08-cv-03002-JF Notice has been electronically mailed to: Daniel Joseph Mulligan [e-mail], [e-mail] Karen A. Braje [e-mail] Kristine Huajean Chen [e-mail], [e-mail] Lorenzo Emilio Gasparetti [e-mail] Pamela Dawn Simmons [e-mail] Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court

11
For the Northern District of California

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