CitiMortgage, Inc. v. Chicago Bancorp, Inc. et al

Filing 225

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motions for sanctions filed by Defendants The Federal Savings Bank, National Bancorp Holdings, Inc., Stephen Calk, and John Calk are DENIED. (Doc. Nos. 140 & 175 ). Signed by District Judge Audrey G. Fleissig on 01/22/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CITIMORTGAGE, INC.,
Plaintiff,
v.
CHICAGO BANCORP, INC., et al.,
Defendants.

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Case No. 4:14CV01278 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motions (Doc. Nos. 140 & 175) of
Defendants The Federal Savings Bank (“FSB”), National Bancorp Holdings, Inc.
(“NBH”), Stephen Calk, and John Calk (collectively, the “FSB Defendants”) for
sanctions against Plaintiff CitiMortgage, Inc. (“CMI”) for allegedly failing to comply
with the Court’s November 4, 2015 discovery Order (the “Order”). For the following
reasons, the motions shall be denied.
The Order denied the FSB Defendants’ motion to compel discovery from CMI
except in two narrow respects. First, in light of the FSB Defendants’ complaint that
CMI’s interrogatory responses were signed only by counsel and were not verified, the
Court directed CMI to amend its interrogatory responses so that they complied with
Federal Rules of Civil Procedure 33(b)(3) and (5). Second, with respect to two
interrogatories—Interrogatories 16 and 17—for which CMI elected to produce business
records in lieu of responding but did not specify the records in sufficient detail to enable

the FSB Defendants to locate and identify the necessary information, the Court directed
CMI to supplement their responses to comply with Federal Rule of Civil Procedure 33(d).
Interrogatories 16 and 17 sought information regarding when CMI first learned of the
defects in the loans at issue in this case.
CMI thereafter produced amended interrogatory responses, verified under oath by
counsel, whom CMI asserts answered all interrogatories (to the extent to which they were
not objected and except Interrogatories 16 and 17) as its agent. With respect to
Interrogatories 16 and 17, CMI supplemented its responses with a table directing the FSB
Defendants to the specific documents communicating repurchase demands from Fannie
Mae or Freddie Mac, to whom CMI resold the loans at issue. CMI asserts that these
documents provide an accurate response to Interrogatories 16 and 17 because CMI did
not learn of the alleged loan defects until it received the repurchase demands from Fannie
and Freddie. The supplemented answers were made by an officer of CMI, and were
signed and verified by that officer. The FSB Defendants state that CMI’s amended and
supplemented responses still do not comply with the Order.
Rule 33(b)(1)(B) provides that if the responding party is a “public or private
corporation, a partnership, an association, or a government agency,” the interrogatory
must be answered by “any officer or agent, who must furnish the information available to
the party.” Fed. R. Civ. P. 33(b)(1)(B). Thus, CMI could elect its attorney, as its agent,
to answer the interrogatories directed to it. See Wilson v. Volkswagen of Am., Inc., 561
F.2d 494, 508 (4th Cir. 1977) (holding that the language of Rule 33(b)(1)(B) “has been
uniformly construed to authorize answers by an attorney for the party”); 8B Charles Alan
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Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2172
(3d ed. 2010) (“Because the rule authorizes either an officer or agent to answer, it clearly
allows answers by an attorney.”). However, Rules 33(b)(3) and (5) provide that the
person who makes the answers must answer the interrogatories in writing, signed and
under oath. Fed. R. Civ. P. 33(b)(3), (5). This is the respect in which the Court found
CMI’s prior interrogatory responses deficient, because as the Order noted, CMI answered
the interrogatories (rather than objecting) to at least a limited extent and yet failed to do
so under oath. Now, CMI has amended its interrogatory responses so that they are signed
under oath by counsel, whom CMI asserts answered the interrogatories as its agent. The
Order required no more.
With respect to Interrogatories 16 and 17, CMI supplemented its responses with
the information required by Rule 33(d). Specifically, CMI provided a table specifying
the responsive records with sufficient detail to enable the FSB Defendants to locate and
identify them. These supplemented answers were made by an officer of CMI, and were
signed and verified by that officer. Again, the Order required no more.
Accordingly,
IT IS HEREBY ORDERED that the motions for sanctions filed by Defendants
The Federal Savings Bank, National Bancorp Holdings, Inc., Stephen Calk, and John
Calk are DENIED. (Doc. Nos. 140 & 175).

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of January, 2016.
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