Rose et al v. Bank of America NA et al

Filing 51

ORDER GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER; granting ECF No. 26 Defendant's Motion for Protective Order; denying ECF No. 46 Plaintiff's Motion to Continue Defendant's Motion for Summary Judgment. Signed by Judge Stanley A Bastian. (TR, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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9 GREGORY ROSE and CATHERINE

No. 2:16-cv-00122-SAB

10 ROSE, and the marital community
11 composed thereof,

ORDER GRANTING

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Plaintiffs,

DEFENDANT’S MOTION FOR

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v.

PROTECTIVE ORDER

14 BANK OF AMERICA, N.A., aka BANK
15 OF AMERICA CORPORATION, a North
16 Carolina Company; MTC FINANCIAL
17 INC. dba TRUSTEE CORPS., a
18 Washington licensed Corporation; and
19 EQUIFAX INFORMATION SERVICES,
20 LLC, a Georgia Limited Liability
21 Company,
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Defendants.

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Before the Court is Defendant’s Motion for Protective Order, ECF No. 26,

25 and Plaintiff’s Motion to Continue Defendant’s Motion for Summary Judgment
26 Pursuant to Fed. R. Civ. P. 56(d), ECF No. 46. Defendant MTC Financial Inc.
27 (“MTC”) seeks a protective order against certain discovery requests propounded
28 by Plaintiffs Gregory and Catherine Rose related to their claims under the
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 1

1 Washington Consumer Protection Act (“CPA”), RCW 19.86.010 et seq., and the
2 federal Fair Debt Collection Process Act (FDCPA), 15 U.S.C. § 1692 et seq. The
3 Court heard the motion without oral argument, and considered Plaintiff’s response,
4 ECF No. 33, and Defendant’s reply, ECF No. 34. For the reasons below, the Court
5 GRANTS the motion and orders that Defendant MTC Financial, Inc. be protected
6 from responding to certain discovery requests.
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Because of the time the Court took to rule on this motion, the Court will

8 allow Plaintiffs to respond to Defendant’s motion for summary judgment on an
9 extended schedule.
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FACTS
The case arises from the foreclosure of Plaintiffs’ former property, a parcel

13 of real estate in Deer Park, Washington. A foreclosure was initiated by Bank of
14 America (“BoA”) in mid-2009, which a state court enjoined. Plaintiffs and BoA
15 engaged in litigation over the foreclosure, which ended through a settlement
16 agreement reached in 2013 discharging Plaintiffs’ debt and granting possession
17 and full rights of the property to BoA. Plaintiffs allege that BoA subsequently
18 began harassing them in an attempt to collect the now-discharged debt through
19 letter and telephone, and that BoA failed to pay property taxes owed on the house.
20 Plaintiffs allege that BoA further violated the 2013 settlement by reporting the
21 account to credit agencies as “past due.”
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BoA appointed Defendant MTC as successor trustee in August 2015. BoA

23 soon referred the home to MTC for foreclosure action in July 2015, though MTC
24 alleges that it was unaware of any harassment regarding the debt.
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MTC sent various demand letters to Plaintiffs and initiated a non-judicial

26 foreclosure against Plaintiffs in February 2016, and later postponed the trustee sale
27 of the property when it received Plaintiffs’ complaint in this case. BoA and the
28 Plaintiffs reached a second settlement in 2016 after this case was filed. Plaintiffs
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 2

1 contend that MTC’s actions constitute violations of the CPA, FDCPA, the
2 Washington Collection Agency Act (“CAA”), RCW 19.16.100 et seq., the
3 Washington Deed of Trust Act (“DTA”), RCW 61.24.005 et seq., and the common
4 law tort of outrage.
As part of a discovery request, Plaintiffs seek copies of each Notice of

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6 Default, Notice of Foreclosure, Notice of Trustee’s Sale, and Notice of
7 Postponement of Trustee’s Sale that MTC has issued in Washington State in the
8 prior three years. Plaintiffs also ask MTC to describe in detail their reasoning for
9 postponing each trustee’s sale in the state, and request copies of all complaints
10 filed against MTC in state and federal courts and agencies over the past four years.
11 These requests form the substance of the instant discovery dispute.
Defendant contends producing these documents would not be proportional

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13 to the needs of the case, and that the documents have no legally relevant bearing
14 on Plaintiffs’ claims. Defendant provides an affidavit explaining that the
15 producing the requested documents would be burdensome. Plaintiffs argue that the
16 requested discovery is necessary because the statutes under which they bring their
17 claims require plaintiffs to present pattern and practice evidence, or evidence that
18 Defendant MTC treated other borrowers in a similar manner. In particular,
19 Plaintiffs state that the CPA and FDCPA require “pattern of conduct” discovery.
20 Plaintiffs also deny that producing the requested discovery would be unduly
21 burdensome.
The parties met and conferred on January 6, 2017, but were unable to

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23 resolve the dispute. This motion for a protective order followed.
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ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 3

DISCOVERY REQUESTS IN DISPUTE

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The Court lists below the discovery requests in dispute:

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3 A. Plaintiff’s First Set of Interrogatories and First Set of Requests for Production
4 of Documents Propounded to Defendant MTC Financial, Inc., ECF No. 28, Ex. B
5 at 18, Interrogatories:
Number 2: “Please state the number of Notices of Default Defendant issued

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7 in Washington State in the previous three years.”
Number 3: “Please state the number of Notices of Foreclosure Defendant

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9 issued in the state of Washington in the previous three years.”
Number 4: “Please state the number of Notices of Trustee’s Sales Defendant

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11 issued in the state of Washington in the previous three years.”
Number 5: “Please state the number of properties Defendant actually sold at

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13 Trustee’s Sale Defendant actually sold in the state of Washington in the previous
14 three years.”
Number 6: “Please state the number of Notices of Postponement of

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16 Trustee’s Sales Defendant issued in the state of Washington in the previous three
17 years.”
Number 7: “Please state in full detail Defendant’s reason(s) for postponing

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19 each Trustee’s Sale referenced in the preceding interrogatory.”
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21 B. Plaintiff’s First Set of Interrogatories and First Set of Requests for Production
22 of Documents Propounded to Defendant MTC Financial, Inc., ECF No. 28, Ex. B
23 at 18, Requests for Production:
Number 1: “Produce copies of each Notice of Default Defendant issued in

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25 the state of Washington in the previous three years.”
Number 2: “Produce copies of each Notice of Foreclosure Defendant issued

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27 in the state of Washington in the previous three years.”
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ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 4

Number 3: “Produce copies of each Notice of Trustee’s Sale Defendant

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2 issued in the state of Washington in the previous three years.”
Number 4: “Produce copies of each Notice of Postponement of Trustee’s

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4 Sale Defendant issued in the state of Washington in the previous three years.”
Number 6: “Produce copies of each complaint filed against Defendant with

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6 Washington’s Attorney General, within the last four years.”
Number 7: “Produce copies of each complaint filed against Defendant with

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8 Washington’s Department of Commerce, within the last four years.”
Number 8: “Produce copies of each complaint filed against Defendant with

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10 Washington’s Department of Licensing, within the last four years.”
Number 9: “Produce copies of each complaint filed against Defendant with

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12 a Washington State Court, within the last four years.”
Number 10: “Produce copies of each complaint filed against Defendant with

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14 a Federal Court within the State of Washington, within the last four years.”
Number 11: “Produce copies of each complaint filed against Defendant with

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16 the Federal Trade Commission, within the last four years.”
Number 12: “Produce copies of each complaint filed against Defendant with

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18 the Consumer Financial Protection Bureau, within the last four years.”
Number 13: “Produce copies of each complaint filed against Defendant with

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20 the Department of Justice, within the last four years.”
21 C. Documents requested as part of Plaintiff’s Notice of 30(b)(6) deposition, ECF
22 No. 28 Ex. F as listed in Exhibit B, nos. 2 through 5 and 7 through 14 (which
23 seeks copies of the above notices and complaints).
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ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 5

STANDARD

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Fed. R. Civ. P. 26(b)(1) sets the scope of permissible discovery as:

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[A]ny nonprivileged matter that is relevant to any party’s claim or

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defense and proportional to the needs of the case, considering the

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importance of the issues at stake in the action, the amount in

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controversy, the parties’ relative access to relevant information, the

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parties’ resources, the importance of the discovery in resolving the

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issues, and whether the burden or expense of the proposed discovery

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outweighs its likely benefit.

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12 Id. “District courts have broad discretion to manage discovery and to control the
13 course of litigation under Federal Rule of Civil Procedure 16.” Hunt v. Cnty. of
14 Orange, 672 F.3d 606, 616 (9th Cir. 2012). A court may issue a protective order
15 “to protect a party or person from annoyance, embarrassment, oppression, or
16 undue burden or expense.” Fed. R. Civ. P. 26(c); Reza v. Pearce, 806 F.3d 497,
17 508 (9th Cir. 2015).
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ANALYSIS
As a preliminary matter, the Court concludes that the disputed discovery

21 requests will be treated identically. Doing so is well within this Court’s broad
22 discretion. Hunt, 672 F.3d at 616. This is because all of the disputed requests
23 describe information that is not truly related to the case in question, in that all the
24 requests seek information on Defendant’s actions in regards to other foreclosures,
25 lawsuits, and enforcement actions. The question becomes, then, to what extent, if
26 any, are information, documents, and descriptions of actions taken in other
27 foreclosures and lawsuits discoverable in this case and under the statutory claims
28 asserted by Plaintiff? Rather than overwhelm the parties with pages and pages of
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 6

1 identical analysis, the Court discusses why this information en toto is not
2 discoverable under the statutes under discussion.
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4 A. Consumer Protection Act Claim.
The Washington State CPA law was enacted to allow the protection of the

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6 public from unfair or deceptive business practices. RCW 19.86.920. The
7 Washington State legislature specifically stated that the CPA should “complement
8 the body of federal law governing restraints of trade, unfair competition and
9 unfair, deceptive and fraudulent acts and practices in order to protect the public
10 and foster fair and honest competition.” Id. The law grants a private right of action
11 to plaintiffs for injunctive relief, damages (which may be trebled), attorneys’ fees,
12 and costs. RCW 19.86.090.
To prove a CPA claim, a plaintiff must show “(1) an unfair or deceptive act

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14 or practice that (2) occurs in trade or commerce, (3) impacts the public interest, (4)
15 and causes injury to the plaintiff in her business or property, and (5) the injury is
16 causally linked to the unfair or deceptive act.” Steele v. Extendicare Health Servs.,
17 Inc., 607 F. Supp. 2d 1226, 1230 (W.D. Wash. 2009) (citing Michael v. Mosquera18 Lacy, 165 Wn.2d 595, 602 (2009)).
This discovery dispute hinges on the third element, the existence of a public

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20 interest impact.1 Plaintiff argues that under the CPA, pattern evidence is required
21 as an essential element to prove public interest impact. Defendant argues that
22 pattern and practice evidence is not necessary under the statute to show public
23 interest impact, and that public interest impact is already shown in this case.
In RCW 19.86.093, the Washington legislature set forth three ways that a

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25 private plaintiff can prove the public interest factor of a CPA claim: (1) show that
26 the allegedly illegal conduct violates a statute incorporating the CPA; (2) show
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The discovery in dispute has no bearing on proving any of the other four elements of a CPA

28 claim.

ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 7

1 that the illegal conduct violates a statute that contains a specific legislative
2 declaration of public interest impact; or (3) show that the conduct (a) injured other
3 persons, (b) had the capacity to injure other persons, or (c) has the capacity to
4 injure other persons.
Plaintiffs cite Demelash v. Ross Stores, Inc., 105 Wash. App. 508, 519, 20

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6 P.3d 447, 453 (2001), where the Court granted a motion compelling defendant
7 Ross Stores, Inc. to propound information on other shoplifting security incidents
8 separate from the plaintiff’s own incident. The court did so to allow the plaintiff to
9 show that the “unfair or deceptive conduct occurred as part of a generalized course
10 of conduct in the past that is likely to continue into the future.” Id.
This is part of the prong set forth by the Washington Supreme Court to

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12 allow plaintiffs to show public interest impact where the allegedly unfair or
13 deceptive act was a consumer transaction. See Hangman Ridge Training Stables,
14 Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 790 (1986). However, because the
15 Court concludes the public interest is impacted, there is no need for these factors
16 to be considered, and thus no need for discovery to be propounded on this issue.
In Panag v. Farmers Ins. Co. of Wash., the Washington Supreme Court held

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18 that “the business of debt collection affects the public interest.” 166 Wn.2d 27, 54
19 (2009). 2 Though the judiciary may no longer sua sponte declare certain actions as
20 per se public interest cases, Hangman Ridge, 105 Wn.2d at 790, this interpretation
21 of other per se violation rules help the Court determine that the public interest
22 prong would be proven in this case. Violations of the FDCPA, DTA, and the CAA
23 are per se public interest violations of the CPA. Id. Defendant has alleged
24 violations of these acts in their complaint. This in itself is sufficient for the public
25 interest to be impacted under their claims.
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Further, federal courts have found that repeat-players in the foreclosure industry effect the

27 public interest. See, e.g., Knecht v. Fid. Nat. Title Ins. Co., No. C12-1575RAJ, 2013 WL
28 7326111, at *6 (W.D. Wash. Mar. 11, 2013).
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 8

Further, “[t]he strong public policy underlying state and federal law

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2 regulating the practice of debt collection also applies where collection practices do
3 not fall within the laws’ prohibitions.” Panag, 166 Wn.2d at 54. Therefore, even if
4 the precise acts Plaintiffs allege in their complaint do not lead to exact violations
5 of the CAA, DTA, or FDCPA, the allegation of claims related to the “regulat[ion
6 of] the practice of debt collection” are sufficient for the Court to find the public
7 interest is impacted in the case. This is because “the CPA is intended to provide
8 broader protection than exists under the common law or statute.” Id.
Defendant concedes these points, and admits that Plaintiffs do not need

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10 “pattern and practice” evidence to prove the public interest element of a CPA
11 claim. Since the public interest factor is met as a matter of law through the statutes
12 under which Plaintiffs bring their claims, the discovery in question presents no
13 importance in resolving an issue in this case. Allowing the discovery to proceed
14 would be disproportionate to the needs of the case.3 For the above reasons, the
15 propounded discovery in issue will be denied under Plaintiffs’ CPA claims.
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17 B. Fair Debt Collection Practices Act Claim.
The Court now turns to Plaintiffs’ other proffered reason for their discovery

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19 request: alleged violations of the FDCPA. To establish a FDCPA claim, “a
20 plaintiff must establish that (1) the plaintiff is a consumer, (2) who was the object
21 of a collection activity arising from a debt, (3) the defendant is a debt collector,
22 and (4) the defendant violated a provision of the FDCPA.” Munoz v. Cal. Bus.
23 Bureau, Inc., No. 1:15-CV-01345-BAM, 2016 WL 6517655, at *4 (E.D. Cal. Nov.
24 1, 2016) (citing Turner v. Cook, 362 F.3d 1219, 1227-28 (9th Cir. 2004)).
Nothing in the statute indicates that a plaintiff need to prove that a

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26 defendant “violated a provision of the FDCPA” in regards to another consumer in
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Under the “relative access to information” factor, the Court also notes that complaints filed in

28 lawsuits are generally publically available.

ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 9

1 another case or transaction. It is clear that to succeed in a FDCPA claim, a plaintiff
2 need only show defendant harmed him or her viz a viz that particular lending
3 relationship. Thus the Court concludes that when evaluating the elements of an
4 FDCPA claim there is no indication that discovery on other, unrelated foreclosures
5 or court cases is proportional to the needs of the case, or an issue at stake, and
6 offers no benefits in contrast to the cost to produce. Fed. R. Civ. P. 26(b)(1).
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Plaintiffs specify that under the damages provision of the FDCPA, the Court

8 must consider “the frequency and persistence of noncompliance by the debt
9 collector, the nature of such noncompliance, and the extent to which such
10 noncompliance was intentional.” 15 U.S.C. § 1692k(b)(1). A plain reading of this
11 statute indicates that these factors would be evaluated in terms of a plaintiff’s
12 relationship and transactions with a defendant.
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However, Plaintiffs argues that they “need pattern and practice discovery to

14 prove that Defendant’s persistent noncompliance was intentional.” ECF No. 33 at
15 5:14-16. The Court concludes that theoretically, evidence of massive and systemic
16 noncompliance with the FDCPA could lend some evidence to a finding of intent,
17 but such evidence is not close to necessary for a finding of intent under FDCPA
18 and allowing for an award of damages. Rather, the statute is properly read in the
19 context of persistent debt collectors frequently harassing borrowers with phone
20 calls and voice messages. Further, intent can be determined and inferred in
21 numerous ways, including the examination of corporate policies, internal
22 discussions of Plaintiffs’ case, and the nature of Defendant’s actions with regard to
23 Plaintiff. Given the low probity of the discovery sought, its low importance in
24 resolving relevant issues, and the high cost of producing it, the Court concludes
25 that a protective order should issue.
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There is no requirement that plaintiffs show intent through the consideration

27 of other cases or foreclosures initiated by Defendant. Courts uniformly construe
28 § 1692k(b)(1) factors as between the individual plaintiff and defendant. In Garcia
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 10

1 v. Creditors Specialty Serv., Inc., No. 14-CV-01806-BLF, 2016 WL 6778681, at
2 *8 (N.D. Cal. Nov. 16, 2016), while construing “the factors enumerated in 15
3 U.S.C. section 1692k(b)(1),” the court awarded statutory damages. In doing so, the
4 court only considered the defendant’s conduct viz a viz the plaintiff. In Jiang v.
5 New Millennium Concepts Inc., No. 15-CV-04722-JST, 2016 WL 3682474, at *4
6 (N.D. Cal. July 11, 2016), the court found that defendant acted willfully in
7 persistently notifying plaintiff about efforts to collect a debt after plaintiff
8 indicated it was contested. This Court itself has construed the statute in this
9 manner in the past. Weigand v. Cheung, No. 2:14-CV-00278-SAB, 2016 WL
10 3222836, at *1 (E.D. Wash. Feb. 4, 2016). See also Corvello v. Wells Fargo Bank
11 N.A., No. 10-CV-05072-VC, 2016 WL 3995909, at *5 (N.D. Cal. Jan. 29, 2016)
12 (construing statutory damages under FDCA on “a case-by-case basis”).
Further, the FDCPA act specifies in § 1692k(b)(2) that class action cases

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14 use the same factors to determine damages. The presence of separate statutory
15 sections, one for individual claims, and a second for class action claims, would
16 logically indicate that cases arising under the former should be limited to evidence
17 of persistence, noncompliance, and intent generated from the relationship and
18 transactions at suit.
Plaintiffs have not shown that collecting information on other complaints

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20 filed against Defendant will help establish intent nearly as effectively as discovery
21 related to the specific treatment of Plaintiffs by Defendant. The requested
22 discovery for other cases is therefore disproportionate to the claims at issue in this
23 case.
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COSTS
Under Fed. R. Civ. P. 37(a)(5), after granting a motion for protective order,

27 the Court “must require . . . the party or attorney advising [the conduct
28 necessitating the motion] to pay the movant's reasonable expenses incurred in
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 11

1 making the motion, including attorney's fees.” The only exceptions are if the other
2 party’s “nondisclosure, response, or objection was substantially justified” or
3 “other circumstances make an award of expenses unjust.” Id. Plaintiff having not
4 offered any other circumstances, the Court considers whether there was substantial
5 justification, i.e., whether “reasonable people could differ as to whether the party
6 requested must comply” with the motion for a protective order. Reygo Pac. Corp.
7 v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982).
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Plaintiffs had a colorable argument that their discovery requests were

9 necessary to prove an element of their claims. Generally, plaintiffs are allowed to
10 decide what way to prove their cases, and it was uncertain to them whether the
11 Court would conclude the public interest element of a CPA claim was per se
12 proven. Therefore, reasonable minds could have differed as to the propriety of the
13 discovery request. The award of costs is DENIED.
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PLAINTIFF’S MOTION TO CONTINUE DEFENDANT’S MOTION FOR

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SUMMARY JUDGMENT, ECF NO. 46

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Plaintiffs filed a motion to continue the Court’s consideration of

18 Defendant’s pending motion for summary judgment. Plaintiffs argue that the
19 above discovery is necessary for them to properly present a full response to
20 Defendant’s dispositive motion. Fed R. Civ. P. 56(d) states that when a party
21 establishes that they cannot properly defend against a motion for summary
22 judgment, the Court may continue the motion to allow the non-movant more time
23 to collect necessary evidence.
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When the evidence is “crucial to material issues in the case, discovery

25 should be allowed before the trial court rules on a motion for summary judgment.”
26 Program Engineering, Inc. v. Triangle Pub’lns., Inc., 634 F.2d 1188, 1193 (9th
27 Cir. 1980). However, as discussed above, the requested discovery is not crucial to
28 a material element in this case. In any motion for summary judgment, the Court is
ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 12

1 certain to find that the public interest is impacted in this case under a CPA claim,
2 and that a FDCPA claim does not require pattern evidence to survive. See supra.
3 Thus the requested evidence has no need to be placed in a response to Defendant’s
4 motion for summary judgment. See Hangman Ridge, 105 Wn.2d at 791-92 (public
5 interest element established as a matter of law when a per se allegation is
6 involved).
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Thus, allowing the discovery to go forward would have no impact on

8 Plaintiffs’ ability to survive a summary judgment motion. The Court therefore
9 denies the order. However, in considering the time the Court has held these
10 motions under advisement, the Court will allow Plaintiffs to respond to
11 Defendant’s motion as if it were filed today.
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CONCLUSION

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The requested discovery does not contribute to the resolution of issues in

15 this case. Balanced against the high cost of producing so many documents, the
16 Court concludes that the discovery request is disproportionate to the needs of the
17 case and grants the motion for a protective order.
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Accordingly, IT IS HEREBY ORDERED:

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1. Defendant’s Motion for Protective Order, ECF No. 26, is GRANTED.

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2. Under Fed. R. Civ. P. 26(c), Defendant MTC Financial, Inc. is protected

22 from answering the following discovery requests propounded by Plaintiffs, dated
23 December 16, 2016:
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A. Interrogatories nos. 2 through 7;

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B. Requests for Production nos. 1 through 4, and 6 through 13; and

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C. Documents requested as part of Plaintiff’s Notice of 30(b)(6) deposition,

27 as listed in Exhibit B, nos. 2 through 5 and 7 through 14. The scope of document
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ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 13

1 request 1 in Exhibit B is limited to documents relevant to foreclosure of the
2 property in question in this lawsuit.
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3. The request for costs is DENIED.

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4. Plaintiffs’ Motion to Continue Defendant’s Motion for Summary

5 Judgment Pursuant to Fed. R. Civ. P. 56(d), ECF No. 46, is DENIED.
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5. Plaintiff may file a response to Defendant’s motion for summary

7 judgment by May 1, 2017. Any other responses or replies shall be in accordance
8 with the Local Rules of this Court and the Federal Rules of Civil Procedure.
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IT IS SO ORDERED. The Clerk of Court is directed to enter this Order

10 and forward copies to counsel.
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DATED this 30th day of March, 2017.

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Stanley A. Bastian

United States District Judge

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ORDER GRANTING DEFENDANT’S MOTION FOR . . . ^ 14