Calon v. Bank of America Corporation et al

Filing 90

ORDER - BANA's Motion to Dismiss is GRANTED IN PART and DENIED IN PART 51 ; Plaintiff's Motions to Compel 60 and 69 are DENIED for failure to comply with Local Rule 37.1; Plaintiff's Motion to Compel Defendant to Honor the Terms of Contract 63 is DENIED; Plaintiff's Motion for an Extension of Time 62 is DENIED AS MOOT; BANA's Motion for Extension of Time 74 is GRANTED; Plaintiff's Motion for Protective Order 66 and Motion to Stay Taking of Deposition 68 are DENIED; BANA's Motion to Extend Scheduling Order Deadlines 65 is DENIED AS MOOT; BANA's Motion for Extension of Time to File Reply Suggestions 83 is GRANTED. The parties shall submit a joint proposed revised Scheduling and Tri al Order on or before June 1, 2016. Signed on 5/17/16 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 5/17/2016 - Copy of Order mailed via first class and certified mail to John Calon at 13851 W. 63rd St., #255, Shawnee, KS 66216 (Rct No. 7015 0640 0000 9979 5088)(Anderson, Christy).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOHN CALON,
Plaintiff,
vs.
BANK OF AMERICA, ET AL.,
Defendants.

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No. 14-00913-CV-W-FJG

ORDER
Currently pending before the Court is Bank of America N.A. (“BANA’s”) Motion to
Dismiss (Doc. # 51); plaintiff’s Motions to Compel (Docs. # 60, 63, 69); plaintiff’s Motion
for an Extension of Time (Doc. # 62); BANA’s Motion for Extension of Time (Doc. # 65);
plaintiff’s Motion for Protective Order (Doc. # 66); plaintiff’s Motion to Stay Taking of
Deposition (Doc. # 68); BANA’s Motion for Extension of Time to File Response (Doc. #
74) and BANA’s Motion for Extension of Time to File Reply Suggestions (Doc. # 83).
I.

Factual Background

On December 9, 2014, plaintiff filed his initial complaint asserting five causes of
action against Bank of America Corporation (“BAC”), Bank of America Corporation, N.A.
(“BANA”) and Brian Monynihan (Bank of America’s CEO). On June 29, 2015, the Court
granted in part and denied in part BANA’s Motion to Dismiss1. The Court directed
plaintiff to file a First Amended Complaint on or before July 15, 2015. When plaintiff did
not file his Amended Complaint on or before July 15, 2015, the Court issued an Order to

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The court granted the motion to dismiss as to Brian Monynihan. The Court also
granted the motion to dismiss as to defendant BAC, but allowed plaintiff an opportunity
to replead any allegations he had which relate to BAC directly.

Show Cause Order on July 22, 2015, directing plaintiff to show cause as to why the
matter should not be dismissed due to failure to comply with the Court’s earlier order.
In the First Amended Complaint, plaintiff was directed to list in separate counts the
claims he was asserting against the various defendants. On July 24, 2015, plaintiff filed
a forty-two page, three-hundred thirty-five paragraph First Amended Complaint in which
he asserts twenty counts against BANA.
II.

Motion to Dismiss

A. Res Judicata Defense
As noted above, when plaintiff missed the deadline for filing the Amended
Complaint, the Court issued an Order to Show Cause directing plaintiff to explain why
the deadline had not been met. On August 5, 2015, plaintiff responded to the Court’s
Order to Show Cause stating that he had not timely responded earlier due to health
issues. Additionally, in his response, plaintiff states that in his Amended Complaint, he
“uses essentially the same form, format and information that was used in Hall v. Bank of
America, because of its identical nature to Plaintiff’s predicament with regard to lender
force insurance. Plaintiff then used the same format, for the other items, (defendants
default on the convertible option, theft of funds, breach of contract, etc.).” (Plaintiff’s
Reply to Court Order, p. 2). Plaintiff continues that “[w]hat remains of Plaintiff[’s] action
is identical to what happened to certain class members in Hall v. Bank of America,
which was accepted by the federal Court and later settled by Bank of America to avoid
trial. The only real difference is that Plaintiff changed the Class nature and identification
of the Hall class action to that of an individual’s private action. Plaintiff as an individual is
entitled to same protections, access and judgments of the federal court that are afforded

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to, the class members in Hall v. Bank of America.” Id. at p. 2.
In their Motion to Dismiss, defendants state that plaintiff’s First Amended
Complaint should be dismissed under the doctrine of res judicata because most of his
claims were recently settled in a nationwide class action lawsuit. Additionally, they
argue that the remaining claims should be dismissed because plaintiff fails to state any
claim upon which relief can be granted or satisfy basic pleading standards with regard
to the remaining claims. Defendants state that the controlling class action lawsuit, Hall
v. Bank of America, No. 1:12-CV-22700, was filed in the Southern District of Florida on
July 24, 2012 and BANA was a named defendant in the suit. This suit focused on
lender force-placed insurance policies and the related servicing of mortgage loans. A
nationwide class was certified and approved and a settlement agreement was entered
into between the class and BANA. The settlement agreement was filed with that Court
and granted final approval on December 17, 2014. Defendants state that each of
plaintiff’s claims based on forced place insurance is barred by the doctrine of res
judicata and should be dismissed.
In opposition, plaintiff states that he only became aware of Hall, several weeks
before he first mentioned it in his Reply to Defendant’s Motion to Dismiss in May 2015.
He states that he was never notified by mail or any other form of media concerning what
rights he may have had in regard to the Hall action. Plaintiff states that BANA never
turned his name or other information over to the United States District Court for the
Southern District of Florida and he never received any notice from that Court. In reply,
BANA states that under Fed.R.Civ.P. 23(c)(2)(b), a class action court “must direct to
class members the best notice practicable under the circumstances.” BANA states that

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the Court in Hall expressly approved the methods of notice and ruled that those
methods “constitute[d] the most effective and practicable notice” and “compl[ied] fully
with the requirements of Fed.R.Civ.P. 23.” BANA notes that in Hall, class members
were mailed notice, notice of the settlement was published in USA Today, notice was
published on a specially created internet website regarding the class action, and a tollfree telephone system was created, with the ability to speak to a live settlement
representative. BANA states that even if plaintiff did not receive notice, this is irrelevant
because Rule 23 requires only the best notice practicable and that can be something
“less than actual notice.”
In Long v. Nationstar Mortgage LLC, No. 2:15-CV-01202, 2016 WL 1229107
(S.D.W.Va. Mar. 28, 2016), the Court noted:
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; it
typically ‘does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses. . . .It follows that a motion to dismiss
generally cannot reach the merits of an affirmative defense like res
judicata. . . .Still, the defense of res judicata or release may be raised on a
Rule 12(b)(6) motion to dismiss if the “facts sufficient to rule on [the]
affirmative defense are alleged in the complaint.” . . .In “the[se] relatively
rare circumstances[,] . . .all facts necessary to the affirmative defense
[must] clearly appear on the face of the complaint.” . . .Moreover, in ruling
on a motion to dismiss, a court is not limited to the factual allegations in
the complaint but “may take judicial notice of facts from a prior judicial
proceeding when the res judicata defense raises no disputed issue of
fact.”
Id. at * 3 (internal citations and quotations omitted).
In Long, the Court concluded that it could not decide at the motion to dismiss
stage whether the defense of res judicata applied in that case. The Court stated:
Nationstar has provided no evidence that the settlement notice – that is,
the notice to Plaintiff specifically – meets due process requirements.
Nationstar has submitted no evidence that Plaintiff’s name and address
were included on the mailing lists of absent class members; nor has it
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supplied facts proving that the notice intended for Plaintiff was mailed to
his residence. See Vargas v. Capital One Fin. Advisors, 559 Fed.Appx.
22, 27 (2d Cir. 2014)(notice is adequate where evidence demonstrates
that it was mailed to the correct address and not returned to the sender as
undeliverable). The prospect of delving into this disputed factual matter
only further persuades the Court that the issue of the preclusive effect of
the Triplett [class action] settlement is not suitable for resolution at the
motion to dismiss stage.
Id. at *6. Additionally, in another similar case, the Court also found that it was incorrect
to make a decision on claim preclusion at the motion to dismiss stage. In Brown v.
Wells Fargo Bank, N.A., 869 F.Supp.2d 51 (D.D.C. June 22, 2012), the defendants
argued that a class settlement agreement and order was binding on plaintiff and
precluded two counts of the complaint. The Court found that it could not make this
determination on a motion to dismiss motion. The Court noted:
[t]he Bank has furnished no facts demonstrating that Brown was mailed
the Wachovia settlement notice nor has it submitted a copy of the USA
Today publication. Indeed, it proffers no actual evidence in support of its
claim that notice to Brown met Rule 23 and due process requirements.
Instead, Wells Fargo asks the Court to infer that because Brown is a class
member and because the Wachovia court found that class members
received notice by direct mail, notice to her was sufficient. The Court
declines to make such an inference. The Wachovia court made a
summary finding as to over 516,000 class members. In re Wachovia
Corp., 2011 WL 1877630, at *3. Whether Brown was on the notice mailing
list is unclear. Because the Bank has the burden to prove this affirmative
defense, . . .the mere citation of the Wachovia settlement and suggestion
that the Court should infer sufficient notice as to Brown is not sufficient.
Id. at 65.
Similarly, in the instant case, the Court is not able to make a determination on the
applicability of the res judicata defense at this stage of the proceedings. Accordingly,
the Court hereby DENIES BANA’s Motion to Dismiss on the basis of res judicata.
B. Remaining Claims
1. Truth in Lending Act Claims (Counts X and XIX)
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BANA states that the Truth in Lending Act applies to “businesses and individuals
when the following four criteria are met: (1) credit is offered or extended to consumers;
(2) the offering or extension of credit is done regularly; (3) the credit is subject to a
finance charge or is payable by a written agreement in more than 4 installments; and (4)
the credit is primarily for personal, family or household purposes.” BANA states that
plaintiff’s Counts X and XIX should be dismissed because plaintiff failed to allege that
BANA regularly engages in the offering or extension of credit. BANA also alleges that
plaintiff fails to allege that BANA ever extended credit to him or failed to disclose the
required information at that time. Finally, BANA states that even if plaintiff had properly
alleged a TILA claim the statute has a one year statute of limitations. Because plaintiff’s
original loan was originated in 2008, BANA alleges that the statute of limitations has run
on his claim.
In Count X plaintiff alleges that Bank of America is a “creditor” under TILA
because they claimed they owned the plaintiff’s mortgage and changed the terms of the
mortgage to create a new mortgage obligation. Plaintiff alleges that BANA violated 12
C.F.R.§ 226.17( c) when it reneged on the “e Easy Rate Reduction Plan” convertible
option to plaintiff’s mortgage obligations and failed to provide new disclosures and failed
at all times to disclose the amount and nature of the interest over charges. (First
Amended Complaint, ¶246). In his Statement of the Claim, plaintiff alleges that he first
notified Countrywide by phone that he was going to exercise his rights under the “e
Easy Rate Interest Rate Reduction Plan” on December 17, 2007. Plaintiff states that he
sent Countrywide a letter to this effect on December 18, 2007. (First Amended
Complaint, ¶¶ 21,24). Plaintiff further alleges in his Complaint that on August 8, 2008,

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BANA nullified plaintiff’s contractual rights under the “e Easy Rate Interest Rate
Reduction Plan.” He also states that on August 11, 2008, he sent BANA a letter to
formally request arbitration and BANA refused. On August 8, 2008, plaintiff alleges
BANA told plaintiff that they no longer had to honor the “e Easy Rate Interest Rate
Reduction Plan.” (First Amended Complaint, ¶¶ 29-32).
In Count XIX, plaintiff alleges that BANA violated 15 U.S.C.§ 1639g when it
refused to provide plaintiff a true and accurate pay off amount for his mortgage loan. In
his Complaint, plaintiff alleges that “Bank of America has since October 1st of 2014 . . .
refused to provide Plaintiff with a true and correct Payoff Statement.” (First Amended
Complaint, ¶ 97). Plaintiff filed his initial Complaint on October 20, 2014. Thus, this
claim would be within the statute of limitations period.
“A claim brought under TILA for rescission has a three-year statute of limitations,
while a damages claim under TILA has a one-year statute of limitations. 15 U.S.C. §
1635(f); 15 U.S.C. 1640(e).” White v. CTX Mortgage, LLC., No. 13-0335-CV-W-DGK,
2013 WL 5592979, *3 (W.D.Mo. Oct. 10, 2013). In the instant case, the actions which
plaintiff complains of in Count X occurred at the latest in August 2008. Thus, the statute
of limitations for a rescission claim would have run in August 2011 and the statute on a
damages claim would have run in 2009. However, the actions of which plaintiff
complains of in Count XIX – Refusal to Provide a Payoff Statement, occurred at the
latest in October 2014. Thus, this claim would not be time barred. Accordingly, the
Court finds that plaintiff has failed to state a claim for a violation of the Truth in Lending
Act under Count X and will GRANTS BANA’s Motion to Dismiss Count X of plaintiff’s
First Amended Complaint. However, because the statute of limitations did not expire on

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plaintiff’s claim that BANA failed to provide him with a payoff statement, the Court
DENIES BANA’s Motion to Dismiss Count XIX.
2. Breach of Contract Claims (Counts XI and XIV)
Plaintiff alleges that he obtained an equity loan through Countrywide Home Loans
on November 29, 2000 in the amount of $20,001.00. Plaintiff also alleges in his
Complaint that his mortgage included a convertible option, called the “e Easy Rate
Interest Rate Reduction Plan.” Plaintiff alleges that on January 15, 2008, BANA took
over Countrywide. Plaintiff alleges that on August 8, 2008, BANA nullified his
contractual rights under the “e Easy Rate Interest Rate Reduction Plan.” (First
Amended Complaint, ¶¶ 15-29). In Count XI, plaintiff alleges that he has a mortgage
serviced by BANA and that it is written on uniform mortage forms and contains
provisions regarding force-place insurance. Plaintiff also alleges that his mortgage
came with the “e Easy Rate Interest Rate Reduction Plan.” Plaintiff claims that BANA
breached his mortgage contract by failing to honor the terms of this convertible option
and charging him interest beyond what was allowed under the “e Easy Rate Interest
Rate Reduction Plan.” Plaintiff claims that he has suffered damages as a result of these
breaches of contract. (First Amended Complaint, ¶¶255-261). In Count XIV, plaintiff
alleges that his mortgage came with an early payoff clause. Plaintiff alleges that BANA
breached the mortgage contract by not honoring the terms of the early payoff clause
and forcing him to pay additional interest on the loan. (First Amended Complaint ¶¶ 278284).
BANA argues that these two counts of the Amended Complaint should be
dismissed because plaintiff has failed to allege the existence of a contract between

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himself and BANA and also because an examination of the Note reveals no clause or
provision related to an “e Easy Rate Interest Rate Reduction Plan.” However, the
Court disagrees. Plaintiff alleged in his Amended Complaint that BANA took over
Countrywide and that they assumed the mortgage loans which Countrywide had issued.
BANA argues that the breach of contract claim should be dismissed because the note
does not mention or refer to an “Easy Rate Interest Rate Reduction Plan.” However,
the Note was not attached to the First Amended Complaint and BANA did not attach the
Note as an exhibit to its Motion To Dismiss, so the Court is unable to make a
determination of whether the Note included or incorporated the rate reduction plan.
Accordingly, the Court finds that plaintiff has adequately stated a claim for Breach of
Contract. The Court therefore DENIES BANA’s Motion to Dismiss Counts XI (Breach
of Contract) and Count XIV (Breach of Contract).
3. Breach of Implied Covenant of Good Faith and Fair Dealing (Count XII)
BANA states that this claim should be dismissed because plaintiff does not allege
any element of breach of contract. However, as discussed above, the Court finds that
plaintiff has alleged the basic elements of a breach of contract action. Therefore, the
Court DENIES BANA’s Motion to Dismiss Count XII (Breach of Implied Covenant of
Good Faith & Fair Dealing).
4. Unjust Enrichment Claim (Count XIII)
BANA states that the unjust enrichment claim should be dismissed for failure to
state a sufficient factual basis for his claim. BANA states that plaintiff fails to allege
what interest rate he was supposedly charged and what the allegedly inflated rate was
or when the unjust change occurred.

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The factual details regarding this claim are contained in factual explanation of the
claim. Plaintiff alleges that the “e Easy Rate Interest Rate Reduction Plan” would have
lowered his interest rate from 7.625% to 5.25%. Plaintiff states that he notified
Countrywide in a letter on December 18, 2007, that he was going to exercise his rights
under this convertible option. On February 3, 2008, plaintiff alleges that BANA began
to give him the “run around” on the status of his “e Easy Rate Interest Rate Reduction
Plan.” On August 8, 2008, BANA informed plaintiff that they no longer had to honor the
Easy Rate Interest Rate Reduction Plan and have since refused to honor this part of the
loan agreement. (First Amended Complaint, ¶¶ 21-32). The Court finds that the First
Amended Complaint contains sufficient factual details in order to state a claim for unjust
enrichment. Accordingly, the Court hereby DENIES BANA’S Motion to Dismiss Count
XIII – Unjust Enrichment.
5. Violation of 18 U.S.C. §1014 - (Count XV)
Plaintiff alleges in Count XV that his mortgage was a consumer credit plan
secured by his principal dwelling and was subject to the requirements of 18 U.S.C.§
1014. Pursuant to this statute, plaintiff alleges that BANA was required to accurately
and fully disclose the value of his property. Plaintiff alleges that BANA violated the
statute when it valued his home at two plus times the actual value for the purpose of
obtaining insurance. BANA states that Count XV should be dismissed because 18
U.S.C.§1014, is a federal criminal statute that requires borrowers to be truthful when
applying for a loan and does not create a civil cause of action against a financial
institution. The Court agrees and finds that there is no civil cause of action for a violation
of this statute. See Schneider v. Bank of America, No. 2:11-CV-2953LKKDADPS, 2012

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WL 761975, *8 (E.D.Cal. Mar. 6, 2012) citing Milgrom v. Burstein, 374 F.Supp.2d
523,528-29 (E.D.Ky. 2005). Accordingly, the Court hereby GRANTS BANA’s Motion to
Dismiss Count XV – Violation of 18 U.S.C.§ 1014.
6. Extortion Claim - (Count XVI)
Plaintiff alleges that BANA violated 18 U.S.C.§ 875 when it threatened to
foreclose on plaintiff’s house and forced plaintiff to pay for insurance from QBE. Plaintiff
claims that he has been injured and has suffered a monetary loss arising from BANA’s
violations of this statute. However, as discussed above, 18 U.S.C.§ 875 is a federal
criminal statute and there is no private right of action provided for in this statute. See
Archer v. City of Taft, No. 1:12-CV-00261-AWI-JLT, 2012 WL 1458136, *6 (E.D.Cal.
Apr. 26, 2012)(“[T]hese statutes are federal criminal statutes that do not provide for a
private civil right of action.”). Accordingly, the Court hereby GRANTS BANA’s Motion to
Dismiss Count XVI – Violations of 18 U.S.C. § 875 – Interstate Communications.
7. Fair Debt Collection Practices Act - (Count XVIII)
BANA states that Count XVIII should be dismissed because plaintiff has failed to
plead the requisite elements for a violation of the statute. BANA states that plaintiff fails
to allege that BANA was a debt collector, as defined by the statute, he failed to identify
what provisions of the act were violated and also fails to allege that the debt being
collected was a consumer debt. In the First Amended Complaint, plaintiff alleges that
BANA violated the FDCPA when as a debt collector, it “engaged in conduct to which,
the natural consequence of was to harass, oppress, or abuse Plaintiff in connection with
the collection of a debt. Bank of America falsely claimed that Plaintiff had made late
payments on the principle and interest on his mortgage. Bank of America used threats

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and other criminal means to harm the reputation of Plaintiff. Bank of America collectors
used obscene or profane language and other language, of which the natural
consequence of which is to abuse Plaintiff. Bank of America repeatedly used a
telephone to ring or engaging the Plaintiff in telephone conversation repeatedly and
continuously with intent to annoy, abuse, or harass Plaintiff.” (First Amended Complaint,
¶¶ 306-310).
To state a claim for a violation of the FDCPA, a plaintiff must plead that
he is a consumer and that the defendant is a debt collector within the
meaning of the statute; that there was an attempt to collect a debt; and
that the defendant violated, by act or omission, a provision of the FDCPA.
Mayhall v. Berman & Rabin, P.A., No. 4;13-CV-175-AGF, 2014 WL
340215, at *4 (E.D.Mo. Jan. 30, 2014).
Young v. Green Tree Servicing, LLC, No. 4:15-CV-1331 (CEJ), 2016 WL 1464619, *3
(E.D.Mo. Apr. 14, 2016). In Young, the Court explained, “the FDCPA’s definition of
‘debt collector’ excludes ‘any person collecting or attempting to collect any debt owed or
due or asserted to be owed or due another to the extent such activity . . .(iii) concerns a
debt which was not in default at the time it was obtained by such person.’ 15 U.S.C. §
1692a(6)(F).” Id. In McClenahan v. Equifax Information Services LLC, No. 14507(DWF/FLN), 2016 WL 554819 (D.Minn. Feb.11, 2016), the Court noted that in light
of the exception contained in §1692a(6)(F), “courts have repeatedly recognized that a
person who obtained the debt at issue when the debt was not in default cannot be liable
as a debt collector under the FDCPA.” Id. at *3. In the instant case, plaintiff alleges that
his loan is not in default and he has never made a late payment. (First Amended
Complaint ¶¶ 18, 113). Thus, the Court finds that because plaintiff’s loan was not in
default at the time that BANA obtained the loan, BANA does not meet the definition of a
“debt collector” under the terms of the statute. Accordingly, the Court hereby GRANTS
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BANA’s Motion to Dismiss Count XVIII – Fair Debt Collection Practices Act.
8. Discrimination Claim - (Count XX)
BANA states that plaintiff’s discrimination claim under Count XX should be
dismissed because plaintiff simply makes general assertions without providing any
factual support. BANA states that plaintiff makes generalized allegations such as the
fact that “white Judeo-Christian customers had their loans discounted, and as a result of
Bank of America’s racial, religious, origin and disability discrimination, Plaintiff was
denied these same discounts and the benefits of them.” (First Amended Complaint, ¶
135). Additionally, plaintiff states that BANA subjected him to “suffer the indignity of
racial epithets in his dealings with defendants.” (First Amended Complaint, ¶ 136).
Plaintiff provides only generalized allegations of when he alleges he was subjected to
improper comments. Plaintiff alleged that since 2011, on occasion, BANA employees,
the manager and tellers located at the Vivion Road Branch in Kansas City, Missouri
referred to plaintiff as “chief.” (First Amended Complaint, ¶ 137). Additionally, plaintiff
states that on August 8, 2011, a male employee in a phone call, referred to plaintiff as a
“dumbass Mexican.” (First Amended Complaint, ¶ 138). In his Discrimination Count
XX, plaintiff asserts that he is “subject to the protections of the Americans with
Disabilities Act, 42 U.S.C. 1210 et seq. prohibits discrimination against person with
disabilities in the provision of good and services, including credit services, the Equal
Credit Opportunity Act (“ECOA”), 15 U.S.C. §1691 et seq. and the Fair Housing Act , 42
U.S.C. § 3601 et seq., the two statutes that specifically prohibit discrimination in
lending.” (First Amended Complaint, ¶ 320). Plaintiff alleges that “Bank of America
violated . . .all of the above, specifically, Bank of America in it’s treatment of Plaintiff,

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and refusal to provide the same treatment as it does full white people.” (First Amended
Complaint, ¶321). Plaintiff alleges that “Bank of America specifically, . . .targeted
Plaintiff because of his national origin and his last name is Spanish, and illegal[ly]
profiled him as a target for foreclosure, and denied him benefits and services, that it
regularly gave white American born customers.” (First Amended Complaint, ¶ 322).
The Court finds that in Count XX, plaintiff has attempted to assert that he suffered
discrimination and that this discrimination violated three separate statutes. However,
plaintiff has made no effort to describe with any kind of specificity what conduct he
alleges he was subjected to and how this conduct violated the specific statutes at issue.
Each of the statutes which plaintiff cites have separate elements. If plaintiff wishes to
allege violations of these statutes, he must plead these claims as separate causes of
action and provide specific details as to how the defendant’s actions violated the
provisions of the statutes. Accordingly, the Court will GRANT BANA’s Motion to
Dismiss Count XX, but will allow plaintiff an opportunity to replead these allegations as
separate counts.
III.

Plaintiff’s Motions to Compel

Plaintiff has also filed three motions to compel. In two of the motions, plaintiff states
that BANA is refusing to properly and fully answer plaintiff’s interrogatories and requests
for production of documents.
A Scheduling and Trial Order was entered in this case on June 23, 2015. The Order
stated in part: “The Court will not entertain any discovery motion absent full compliance
with Local Rule 37.1. Any discovery motion filed without complying with Local Rule 37.1
will be denied.” Local Rule 37.1 states:

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37.1 DISCOVERY MOTIONS
(a) Except when authorized by an order of the Court, the Court will not entertain
any discovery motions, until the following requirements have been satisfied:
1. Counsel for the moving party has in good faith conferred or attempted to
confer by telephone or in person with opposing counsel concerning the
matter prior to the filing of the motion. Merely writing a demand letter is not
sufficient. Counsel for the moving party shall certify compliance with this
rule in any discovery motion. See Rule 26(c), Federal Rules of Civil
Procedure and Crown Center Redevelopment Corp. v. Westinghouse
Elec., 82 F.R.D. 108 (W.D.Mo.1979); and
2. If the issues remain unresolved after the attorneys have conferred in
person or by telephone, counsel shall arrange with the Court for an
immediate telephone conference with the judge and opposing counsel. No
written discovery motion shall be filed until this telephone
conference has been held.
The Scheduling and Trial Order states that in the event a teleconference is
needed, counsel should email their request to chambers. The request should include a
typed description of the discovery dispute and not exceed more than two pages. The
teleconferences are designed to handle one or two issues that do not require
authoritative briefing. If there are questions regarding whether the issues are
appropriate for a teleconference, counsel are instructed to contact chambers.
In the instant case, plaintiff gives no indication that he has conferred or attempted
to confer with counsel for BANA regarding either of the motions to compel. BANA
states in opposition that plaintiff made no effort to comply with Local Rule 37.1 prior to
filing the motions. Accordingly, the Court hereby DENIES plaintiff’s Motions to Compel
for failure to comply with the Scheduling and Trial Order and Local Rule 37.1 (Docs. #
60, 69).
Plaintiff filed another motion titled “Motion to Compel Defendant to Honor the
Terms of Contract.” Although this pleading is titled as a motion to compel, it essentially
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asks the Court for the same relief requested in plaintiff’s Amended Complaint. The only
distinction is that in the Motion to Compel, plaintiff is asking for the appointment of a
third party trustee to take over plaintiff’s mortgage account and requesting that BANA
turn over all funds collected from plaintiff since October 1, 2014 to the trustee, so they
may properly account for plaintiff’s funds. BANA argues that plaintiff’s Motion to
Compel is more like a Motion for Judgment on the Pleadings and such a motion is
premature at this stage of the litigation as the pleadings have not yet closed. In the
Motion, plaintiff states that he is seeking the protection and enforcement of his rights as
guaranteed under the terms of the Note and Deed of Trust and also as guaranteed
under the terms of Countrywide’s eEasy Rate Reduction Plan. Plaintiff makes
reference in his motion to Suggestions that he filed in Support of his Motion to Compel,
but the Court was unable to locate any such pleading. Therefore, because the Motion is
seeking essentially the same relief as requested in the Complaint and because there
was no explanation as to why plaintiff is entitled at this time to such relief, the Court
hereby DENIES plaintiff’s Motion to Compel Defendant to Honor Terms of Contract
(Doc. # 63).
IV.

Motion for Protective Order Limiting Scope of the Deposition,
Motion to Stay Taking of Deposition, Motions for Extension of Time

Plaintiff has filed a Motion for Extension of Time to complete production of
documents, Bank of America has filed a Motion to Extend Scheduling Order deadlines
and also filed a Motion for Extension of Time to respond to plaintiff’s motion for
protective order limiting the scope of discovery and motion to stay taking of deposition.
The Court GRANTS BANA’s Motion for Extension of Time to respond to plaintiff’s
Motion for Protective Order Limiting the Scope of Discovery and Motion to Stay Taking
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of Deposition of John Calon (Doc. # 74). BANA requested a five day extension of time
to respond to these motions and the Court finds that the responses were timely filed.
Now that the Court has ruled on BANA’s Motion to Dismiss, the Court directs the parties
to meet and confer regarding what discovery issues remain. The parties shall also
discuss and propose dates for a revised Scheduling and Trial Order. The parties shall
submit a joint proposed revised Scheduling and Trial Order on or before June 1, 2016.
BANA’s Motion to Extend Scheduling Order Deadlines is hereby DENIED as MOOT
(Doc. # 65).
V. Motion for a Protective Order
In his Motion for Protective Order limiting the Scope of Deposition, plaintiff requests
that the Court impose several conditions upon the taking of his deposition including: 1)
relocating the place for the deposition; 2) limiting the questions which defendants can
ask; 3) preventing videotaping; 4) appointment of a court monitor; 5) allowing plaintiff to
refuse to answer questions; 6) limiting those who can attend the deposition; 7) providing
questions in advance and 8) limiting the questioning to only two hours at a time.
Plaintiff has also filed a motion requesting that the Court stay the taking of his
deposition until twenty days after the Court has ruled on his Motions to Compel. The
Court notes that the rules relating to discovery and the taking of depositions are outlined
in the Federal Rules of Civil Procedure, in the Local Rules for the Western District of
Missouri and also in the Scheduling and Trial Order. Plaintiff is encouraged to review
these rules for guidelines on what can be expected with regard to the taking of his
deposition. Plaintiff has failed to provide any justification or reasons why the Court
should impose any restrictions on the taking of his deposition. Accordingly, the Court

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hereby DENIES plaintiff’s Motion for a Protective Order Limiting the Scope of Deposition
(Doc. # 66) and DENIES AS MOOT Plaintiff’s Motion to Stay the Taking of Deposition
(Doc. # 68).
VI.

CONCLUSION

Accordingly, BANA’s Motion to Dismiss is hereby GRANTED IN PART and
DENIED IN PART (Doc. # 51); Plaintiff’s Motions to Compel (Docs. # 60, 69) are hereby
DENIED for failure to comply with Local Rule 37.1; Plaintiff’s Motion to Compel
Defendant to Honor the Terms of Contract (Doc. # 63) is hereby DENIED; Plaintiff’s
Motion for an Extension of Time (Doc. # 62) is hereby DENIED AS MOOT; BANA’s
Motion for Extension of Time (Doc. # 74) is hereby GRANTED; Plaintiff’s Motion for
Protective Order (Doc. # 66) and Motion to Stay Taking of Deposition (Doc. # 68) are
hereby DENIED; BANA’s Motion to Extend Scheduling Order Deadlines (Doc. # 65) is
hereby DENIED AS MOOT; BANA’s Motion for Extension of Time to File Reply
Suggestions (Doc. # 83) is GRANTED. The parties shall submit a joint proposed revised
Scheduling and Trial Order on or before June 1, 2016.

Date: May 17, 2016
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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