Bolin et al v. HSBC Mortgage Services Inc. et al

Filing 151

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion for Judicial Notice of Adjudicative Facts (ECF No. 107 ) is GRANTED in part. The Court takes judicial notice of the quit claim deed filed in the Jefferson County Recorder of D eeds office on December 21, 2017. (ECF No. 107-1). IT IS FURTHER ORDERED that Plaintiffs' First Motion to Compel Discovery of Documents from Defendant HSBC Mortgage Services, Inc. (ECF No. 122 ) is DENIED. IT IS FINALLY ORDERED that the trial setting for April 1, 2019 is VACATED and will be reset, if necessary, after the Court rules on the pending motions for summary judgment. Signed by District Judge Ronnie L. White on 2/25/2019. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KIMBERLY BOLIN, et al.,
Plaintiffs,
v.

HSBC MORTGAGE SERVICES INC.,
et al.,
Defendants.

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No. 4:17CV1903 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Kimberly Bolin and Donald Bolin's ("Plaintiffs")
Motion for Judicial Notice of Adjudicative Facts (ECF No. 107) and First Motion to Compel
Discovery of Documents from Defendant HSBC Mortgage Services, Inc. ("HSBC") (ECF No.
122). The motions are fully briefed and ready for disposition.
BACKGROUND
The facts concerning this case initiated with a mortgage obtained by Plaintiffs for the
property at 5019 Meadow Drive, Imperial, Jefferson County, Missouri. On March 5, 2018 the
Court issued a Memorandum and Order (ECF No. 100) and accompanying Order of Partial
Dismissal (ECF No. 101) dismissing many of Plaintiffs' claims and dismissing several originally
named defendants. The only remaining defendants are Martin Leigh PC and HSBC.
After the Court ruled on the motions to dismiss, the case was referred to meditation.
(ECF No. 103) The parties participated in a mediation conference on April 19, 2018, at which
they did not achieve a settlement. (ECF No. 111) Shortly after the mediation, Plaintiffs filed a
Motion for Judicial Notice of Adjudicative Facts. (ECF No. 107) The motion seeks judicial

notice of facts related to a subsequent quit claim deed on the subject property recorded by
HSBC.
After the mediation proved unsuccessful, Plaintiffs filed a Request for a Scheduling
Hearing. (ECF No. 108) The Court denied the request and ordered the parties to meet and
confer regarding the schedule in this case and submit a joint proposed amended scheduling plan
for the Court to review. (ECF No. 109) The parties submitted a Joint Proposed Amended
Scheduling Plan (ECF No. 113), and the Court issued an Amended Case Management Order
("CMO") (ECF No. 114). The CMO mandated the parties complete all discovery in this case no
later than July 16, 2018. (Id. at sec. I.3(f)) On June 11, 2018, the Court temporarily stayed the
case due to Kimberly Bolin's medical issues. (ECF No. 119) After the stay was lifted, the
parties submitted an Amended Joint Proposed Scheduling Plan in which they requested to delay
the discovery deadline to September 14, 2018. (ECF No. 120) The Court issued a Second
Amended Case Management Order ("Second CMO"), which included the parties' agreed
discovery deadline. (ECF No. 121)
On September 25, 2018, Plaintiffs filed their First Motion to Compel Discovery of
Documents from Defendant HSBC. (ECF No. 122) HSBC filed a Memorandum in Opposition,
arguing the motion is untimely because Plaintiffs' underlying document request was not severed
with enough time for it to respond. (ECF No. 124) It further argues Plaintiffs fail to meet their
burden for the Court to compel the requested discovery. (Id.)
Both motions have been fully briefed.

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DISCUSSION
I. Motion for judicial notice
"Judicial notice of a fact is only to be taken when that fact is not subject to reasonable
dispute." Lustgraaf v. Behrens, 619 F.3d 867, 885 (8th Cir. 2010). Under Federal Rule of
Evidence 201 (b ), the Court may only take judicial notice of a fact if it "(1) is generally known
within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned."
Plaintiffs request the Court take judicial notice of a quit claim deed in the Jefferson
County Recorder of Deeds office on December 21, 2017 that transferred HSBC's interest in the
subject property to Wilmington Savings Fund Society. (ECF No. 107-1 ). Plaintiffs state they
learned of the quit claim deed the afternoon before the parties participated in mediation on April
19, 2018. They further suggest the mediation was "skewed" because they had initially believed
ownership of the subject property could be part of the negotiation. In addition to the quit claim
deed itself, Plaintiffs request the Court take judicial notice of a press release that purports to
relate the quit claim deed to defendant Martin Leigh PC, the facts contained in the press release,
as well as the timing of HSBC' s fling and its "failure to inform Plaintiffs of said transfer before
ADR commenced." (ECF No. 107, at 2)
HSBC opposes the Court taking judicial notice of the quit claim deed. First, it refutes
Plaintiffs' allegation related to Martin Leigh PC. Second, HBSC argues the quit claim deed is
irrelevant to the remaining claims in this case. It cites to the procedural history related to the
subject property and maintains that as the rightful possessor of the property it was permitted to
deed it to whomever it chose. 1 While maintaining its argument as to the relevancy of the quit

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HSBC also suggests Plaintiffs violated this district's Local Rule 6.04, which provides: "Alternative dispute
resolution proceedings are private and confidential. ... All written and oral communications made

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claim deed, HSBC essentially concedes the Court may take judicial notice of the deed itself but
not the surrounding facts as they are subject to reasonable dispute.
The Court can properly take judicial notice of the quit claim deed, including the date on
which it was filed, because it is a public record. See Levy v. Ohl, 477 F.3d 988 (8th Cir. 2007)
(district court may take judicial notice of public state records); Stutzka v. McCarville, 420 F.3d
757, 760 n.2 (8th Cir. 2005) (courts "may take judicial notice of judicial opinions and public
records."). The Court, however, declines to take judicial notice of the other information as it is
subject to reasonable dispute.2
II. Motion to compel
The scope of discovery for actions filed in federal court is set forth in Federal Rule of
Civil Procedure 26. That rule provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(l). "The rule vests the district court with discretion to limit discovery if it
determines, inter alia, the burden or expense of the proposed discovery outweighs its likely
benefit." Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (citing Fed.
R. Civ. P. 26(b)(l)).

or disclosed to the neutral are confidential and may not be disclosed by the neutral, any party, or other participant,
unless the parties otherwise agree in writing." Plaintiffs counter that, while they disclosed their perspective leading
up to the mediation and reflection afterwards, they did not disclose any information or documentation created for
use during the mediation.
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Plaintiffs concede this point in their Reply memorandum. (ECF No. 112, at 6)

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Plaintiffs served their First Set of Requests for Production on March 12, 2018.
According to HSBC, the parties agreed for HSBC to respond prior to mediation. HSBC
produced approximately 1,400 pages of responsive documents, but also submitted Objections
and Responses on May 18 in which it argued certain requests were irrelevant and/or not
proportional to the needs of this case. (ECF No. 124-1) After the unsuccessful mediation
session and the Court-ordered stay, the parties agreed to a new discovery deadline of September
14. Plaintiffs served a Second Set of Requests for Production on August 17. HSBC responded
on September 17; however, Plaintiffs still complained that it failed to provide all responsive
documents. After subsequent communications between the parties failed to yield an agreement,
Plaintiffs filed this Motion to Compel Discovery on September 25. (ECF No. 122)
HSBC first objects to the motion as untimely. Federal Rule of Civil Procedure 34
provides the mechanism by which a party may seek to request discovery within the scope of Rule
26. Once a request has been served, "[t]he party to whom the request is directed must respond in
writing within 30 days after being served .... A shorter or longer time may be stipulated to
under Rule 29 or be ordered by the court." Fed. R. Civ. P. 34(b)(2)(A). Because Plaintiffs
served their Second Set of Requests for Production on August 17, HSBC argues the request was
untimely because it did not have 30 days to respond before the September 14 discovery deadline.
HSBC cites a recent case from this district to support its contention that, "[i]n order to be
timely, a discovery request should be served far enough in advance of the applicable discovery
deadline that the responsive party's response is due before the deadline." See Luer v. Cty. of St.
Louis, MO, No. 4:17-CV-767NAB, 2018 WL 2734986, at *2 (E.D. Mo. June 7, 2018). The

court in Luer held that a request to inspect the plaintiffs home was untimely as it was filed six
days before the discovery deadline. Id. According to the court, "The timing of Defendants'

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inspection notice foreclosed Plaintiffs' opportunity to have thirty days prior to the close of
discovery in which to respond." Id. "To read Rule 34 as allowing the party serving a notice of
inspection to unilaterally shorten the time for requiring the party receiving the notice to respond
... would render the foregoing sections of Rule 34 mere surplusage." Id. (quoting Mallak v.
Aitkin Cty., No. 13-cv-2119 (DWF/LIB), 2016 WL 8607391, *6, (D. Minn. June 30, 2016)).
Plaintiffs contend the language in Rule 34(b)(2)(A) does not require a discovery request
be made with enough time so the responding party has 30 days to respond before any applicable
discovery completion deadline. Rather, they suggest it merely requires the responding party to
respond within 30 days. (ECF No. 127, at 2) They further argue Luer is distinguishable from
this case because the requesting party in Luer served its notice of inspection just six days prior to
the discovery deadline, whereas Plaintiffs served their Second Set of Requests for Production 28
days prior to the discovery deadline. The Court need not determine whether the principal
suggested in Luer is strictly applicable given the timeline of events here because the motion to
compel should be denied on other grounds.
HSBC also argues Plaintiffs' Second Request for Production was duplicative.
Comparing the first and second requests for production, 29 of the 35 requests in Plaintiffs'
Second Request for Production were verbatim repeats ofrequests in Plaintiffs' First Request for
Production. Plaintiffs' motion specifically seeks to compel responsive production to the
following two requests:
15. Produce all copies of each separate loan modification agreement for the loans
in question.
25. Produce a detailed chain of title between Intervale Mortgage Corp. to HSBC
including copies of all consideration given and received with dates when transfers
and consideration occurred.

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(ECF No. 123, at 3) Request No. 25 in the Second Request for Production (ECF No. 124-2, at
17) is an exact repeat of Request No. 35 in the First Request for Production (ECF No. 124-1, at
20). While Request No. 15 in the Second Request for Production is not a precise repeat of any
request in the First Request for Production, HSBC argues the material sought to be produced was
encompassed by Request No. 1 of the First Request for Production that sought, among other
things, "Loan documents such as ... modifications." (ECF No. 124-1, at 4)
Plaintiffs themselves describe their second request as including "re-requests" of
documents that HSBC did not produce previously in response to their first request. (ECF No.
122, at 2) HSBC argues Plaintiffs could have filed a motion to compel long before the discovery
deadline if they believed HSBC's objections to the First Request for Production were
insufficient. Rather, they chose to serve a "re-request" consisting of almost the exact same
language 28 days before the discovery deadline.
Further, HSBC argues the requested documents are neither relevant to the remaining
claims nor proportional to the needs of this case. As to Request No. 15, HSBC asserts it has
already produced the documents that could be located after a reasonable search, including letters
explaining the temporary loan modifications that were extended during HSBC's servicing of
Plaintiffs' loans. These letters explicitly stated that each temporary modification was subject to
"[a]ll obligations, rights and remedies set out in the Note and Security Instrument[.]" (ECF No.
124-3) Accordingly, HSBC argues the letters do not suggest the existence of separate, executed
loan modification agreements. The Court agrees.
As to Request No. 25, HSBC argues the request for documentation concerning "all
consideration given and received with dates when transfers and consideration occurred" does not
relate to the issue whether HSBC owned the notes and was, therefore, entitled to enforce the

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deeds of trust. Further, HSBC contends the relevant information is approximately 14 years old
and would create a burden on HSBC that outweighs the possible benefit to Plaintiffs. The Court
agrees with HSBC and, in light of the protracted nature of this case, denies Plaintiffs' motion to
compel.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Motion for Judicial Notice of Adjudicative

Facts (ECF No. 107) is GRANTED in part. The Court takes judicial notice of the quit claim
deed filed in the Jefferson County Recorder of Deeds office on December 21, 2017. (ECF No.
107-1).
IT IS FURTHER ORDERED that Plaintiffs' First Motion to Compel Discovery of

Documents from Defendant HSBC Mortgage Services, Inc. (ECF No. 122) is DENIED.
IT IS FINALLY ORDERED that the trial setting for April 1, 2019 is VA CATED and

will be reset, if necessary, after the Court rules on the pending motions for summary judgment.
Dated

thi~ay of February, 2019.

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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