Fuchs et al v. Selene Finance, LP

Filing 107

ORDER granting in part and denying in part 72 Motion to Compel. Signed by Magistrate Judge Terence P. Kemp on 4/7/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mary Fuchs, et al.,

:

Plaintiffs,

:

v.

:
:

Selene Finance, LP,
Defendant.

Case No. 2:15-CV-895
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:
ORDER

This action was brought against Selene Finance, LP
(“Selene”) and raises claims relating to the handling of
Plantiffs’ mortgage loan.

The Government National Mortgage

Association was also a defendant but has been dismissed as a
party to this litigation. (Doc. 99). This matter is now before
the Court to consider the Plaintiffs’ motion to compel discovery
(Doc. 72).

The motion has been fully briefed and is now ripe for

decision. For the following reasons, the motion to compel will be
granted in part and denied in part, as set out below.
I.

Introduction

The discovery process in this case has been contentious, and
there are conflicting views between the parties as to how the
discovery process has reached this point and the best way in
which to rectify it. In an Order dated February 21, 2017, the
Court considered the instant motion to compel and for sanctions.
(Doc. 100). Rather than filing a response to the motion to
compel, Selene had moved for sanctions and to strike the motion
to compel for untimeliness. (Doc. 73). The Court denied both
parties’ requests for sanctions as well as Selene’s motion to
strike, finding that Plaintiffs’ motion to compel had been timely
filed.

The Court directed Selene to file a responsive brief.

Selene has now filed a response and Plaintiffs have replied.

Plaintiffs assert that “[t]hroughout the course of
discovery, Selene ignored requests for deposition dates for
almost two months, pushed the depositions back as close to the
discovery cutoff as possible, objected to areas of knowledge in
the Notice of Deposition in an attempt to limit discovery,
objected to requests for production inappropriately, failed to
produce repeatedly requested documents, waited until documents
were revealed in deposition to produce documents well within
discovery requests, and gave evasive responses to withhold
discovery production.

Selene still refused to produce the

lawfully requested discovery requested in this motion.” (Doc. 72
at 2).

The Plaintiffs wish to compel Selene to provide a number

of items, which they claim that Selene has been refusing to
provide or uncooperative in providing. Selene opposes the motion
to compel on various grounds, stating that it has either already
appropriately responded to Plaintiffs’ request or that it has
misplaced certain documents. It also urges denial of the motion
because both parties have filed motions for summary judgment,
which have been fully briefed.
Due to the time that has passed since the filing of
Plaintiffs’ motion to compel on October 3, 2016, some of these
issues appear to have been resolved.

The Court will consider the

motion to compel regarding each of the items at issue in turn.
1.

The original Note and Mortgage (to be delivered to
the office of Plaintiffs’ counsel)

In the course of discovery, Plaintiffs were provided with a
copy of the mortgage and note. In its responsive brief, Selene
provides another copy of the original, supported by an affidavit
of authenticity by their counsel, who scanned the document. (Doc.
104-2 ¶¶5-7). Plaintiffs assert that their physical inspection of
the original is essential for them to defend against Selene’s
counterclaim in foreclosure. Plaintiffs do not appear to be
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relying on a formal Rule 34 discovery request in support of their
claimed right to view the original document. Instead, they
provide a copy of notices of deposition which asked Selene to
bring the original mortgage and note to the deposition.

Selene

requested the original mortgage and note upon receipt of the
Plaintiffs’ later notice of deposition in September of 2016.

The

original, which had to be obtained from another of Selene’s
office, did not arrive in time for the deposition. On September
22, 2016, Selene notified Plaintiffs that the original was
available for inspection at Selene’s counsel’s offices anytime
during normal business hours. (Doc. 72-9, p. 2-3). Plaintiffs
argue that they should not have to absorb the time and expense of
traveling to counsel’s offices in Cleveland and request that
Selene send the originals to Plaintiffs’ counsel’s offices in
Dublin or, alternatively, to this Court.
Without a showing of undue hardship or prejudice, there is
no basis on which the Court can order Selene to produce the
original mortgage and note in the manner most convenient to
Plaintiffs. Plaintiffs are in possession of a copy of the
original documents, supported by an affidavit confirming their
authenticity. Selene has offered Plaintiffs the opportunity to
inspect the original at its offices since September of last year.
Selene has met its obligation under Rule 34 to make the original
mortgage and note available to Plaintiffs to “inspect” and to
“copy,” which is all that Rule 34(a)(1) requires.
2.

The “MSP Screenshot”

Plaintiffs have also moved to compel Selene to produce the
“MSP Screenshot,” which purportedly shows the location and date
of possession of the Plaintiffs’ note and mortgage. Selene has
since supplemented its discovery responses and provided
Plaintiffs with this item.

(Doc. 104-2, ¶15).

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3.

Selene’s Policies and Procedures and Servicing
Guidelines

Plaintiffs have requested Selene’s Policies, Procedures, and
Servicing Guidelines (“Policies”). Selene agreed to provide these
subject to a protective order due to the proprietary nature of
some of the information in them. Selene asserts that it sent a
draft protective order to Plaintiffs’ counsel as early as April
of 2016. (Doc. 72-9, p. 3). Due at least in part to a change in
Plaintiffs’ counsel, there seems to be disagreement and confusion
between the parties as to who should have drafted a protective
order or confidentiality agreement. Selene now argues that it
should not have to produce the Policies because discovery is
closed and the parties have filed and fully briefed motions for
summary judgment.
However, as the Court has previously ruled, Plaintiffs’
motion to compel was timely. They are entitled to the Policies,
which are clearly within the scope of permissible discovery under
Rule 26(b). The parties are directed to draft a protective order
or enter into a mutually acceptable confidentiality agreement,
and Selene will be directed to provide the Policies to Plaintiffs
subject to that Order or confidentiality agreement.
4.

Mortgage statements from July 2014-January 2015,
May 2015, and January 2016

Plaintiffs seek to compel Selene to produce mortgage
statements from July 2014-2015, May 2015, and January 2016. They
assert that these are important to their claims and to defend
Selene’s counterclaim in foreclosure. Selene states that it
cannot locate the identified statements, despite its diligent
efforts to locate them.

Selene also notes that it did not begin

servicing the Plaintiffs’ loan until August 1, 2014, during which
time Plaintiffs were involved in Chapter 13 bankruptcy
proceedings.

Thus, Selene asserts that it would not have sent

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monthly statements to the Plaintiffs until February 2015 (the
month following notification of the bankruptcy discharge). See 12
C.F.R. §1026.41(e)(5) (exempting servicers from the requirement
to send periodic statements “while the consumer is a debtor in
bankruptcy”). With respect to the statements from May 2015 and
January 2016, Selene asserts that it simply cannot find them.
Accepting as true Selene’s inability to locate the statements,
the Court can only compel a party to produce documents actually
in a its possession. See, e.g. In re Bankers Trust Co., 61 F.3d
465, 469 (6th Cir. 1995). Moreover, the mortgage statements
should have been received by the Plaintiffs in the normal course
of Selene’s servicing of their mortgage. Plaintiffs’ motion to
compel is denied as to the designated monthly statements.
5.

Selene’s “SARA System Records” and
version of its “Collection Notes”

an unredacted

SARA is Selene’s “electronic repository” that it uses to
maintain its business records, and the records it generates are
“official records”. (Doc. 104 at 16; Ex 1).

The parties are at

an impasse as to exactly what the “SARA records” entail, what
SARA records or collection notes are purportedly missing, and
appear unable even to work together to enter into a simple
mutually acceptable confidentiality agreement.

Plaintiffs seek

all “SARA System Records,” including unredacted “collection
notes” on their account records.

Selene asserts that the demand

for the SARA records stems “from a fundamental misunderstanding
about the nature of the documents [Plaintiffs] seek, as well as
the testimony [of] Selene’s corporate representative about the
documents Selene produced.” (Doc. 104 at 15).

It states that

SARA is simply a system for maintaining records, and Selene has
already provided a copy of all the applicable SARA records to
Plaintiffs. (Doc. 72-10; 72-3). Selene admits that certain

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collection notes were inadvertently redacted previously, but it
has now provided those to Plaintiffs.
Selene also provided Plaintiffs with an “updated privilege
log,” but states that certain information remains redacted as
protected by attorney-client privilege. (Doc. 104 at 16-17).
Plaintiffs argue that the documents presented to them are “highly
redacted and do not provide the necessary information...” (Doc.
106).

They argue that it is “suspicious and implausible” that

all the redacted material is privileged.
The attorney-client privilege, if not waived, protects
communication between counsel and clients relating to securing a
legal opinion or assistance in a legal proceeding.

Guy v. United

Healthcare Corp., 154 F.R.D. 172, 177 (S.D. Ohio 1993). The
privilege applies to natural persons as well as corporate
entities. Id.

Despite Plaintiffs’ speculation, the Court has no

reason to reject Selene’s assertions that the remaining redacted
notes are protected by attorney-client privilege.

Plaintiffs’

motion to compel is denied as to redacted material which Selene
states are privileged.
It is unclear, given the parties’ lack of mutual
understanding, whether there are any remaining non-privileged
SARA records. Plaintiffs state that they expressed willingness to
submit to a protective order or sign a confidentiality agreement
with respect to any confidential or proprietary documents, but
“Defendant never sent a confidentiality agreement to Plaintiffs
to look over and sign.” Id. To the extent that there are
remaining SARA records that Selene asserts are proprietary or
confidential, the parties are directed to reach agreement on the
terms of a protective order or enter into a mutually acceptable
confidentiality agreement and SARA is directed to provide the
remaining records, if any, to Plaintiffs.
IV.

Conclusion
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Plaintiffs’ motion to compel is denied as to the original
note and mortgage, the MSP Screenshot, and the designated
mortgage statements.

Plaintiffs’ motion is granted as to the

other matters discussed in this Order. The parties are directed
to make a good faith effort to reach agreement on the terms of a
protective order within seven days, and if they are unable to do
so, shall advise the Court, which will promptly enter such an
order.

Selene should provide the documents subject to that order

within seven days of the date of its entry.
V.

Motion for Reconsideration

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

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