Bess v. Ocwen Loan Servicing LLC et al

Filing 50

ORDER Requesting Supplemental Joint Status Report or Briefing by Judge Benjamin H. Settle. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NANCY BESS,

CASE NO. C15-5020
Plaintiff,

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v.

ORDER REQUESTING
SUPPLEMENTAL JOINT STATUS
REPORT OR BRIEFING

OCWEN LOAN SERVICING, LLC,

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Defendant.

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This matter comes before the Court on the parties’ joint status report, filed April
24, 2018. Dkt. 45.
The parties’ joint status report reveals a dispute that should be resolved promptly

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regarding the formulation of a phased discovery plan. Specifically, Plaintiff argues that a

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discovery plan should be implemented in a manner in which the precertification phase

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includes a class list that identifies all members of the putative class and allows broad

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discovery into all complaints made during the class periods, all complaints by members

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of the putative class, and all work orders completed (and relevant information about such

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work) during the class period. See Dkt. 45 at 8–9. Plaintiff also argues that such

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precertification discovery should also include a list of all Defendant’s vendors and

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clients, a representative sample of agreements and contracts with those clients and

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vendors, all documents pertaining to Defendant’s use of vendors who were ordered to

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complete property preservation actions, as well as common policies and procedures

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governing vendor conduct and relating to property preservation activities. Id.

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On the other hand, Defendant argues that Plaintiff has not pled any actual class

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claims in her operative complaint and that she is therefore not entitled to discovery

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related to class certification. Dkt. 45 at 3–4, 10. Alternatively, Defendant argues that the

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precertification phase should “be limited to discovery related to the named Plaintiff’s

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individual claims and class certifications issues” and that Plaintiff’s proposed plan is too

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broad in its precertification phase. Dkt. 45 at 10. The Court rejects Defendant’s first

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argument that no allegations pertaining to class claims have been pled. The operative

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complaint plainly alleges that:

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[A]ll Plaintiffs own or owned real property in Washington State; subject to
a loan owned or serviced by Ocwen; who, prior to completion of any
judicial or non-judicial foreclosure, and without any express
contemporaneous consent or permission of the Court, had their property
entered upon by Ocwen and/or its agents; had some form of property
preservation service performed upon their property; and/or were charged a
fee for property preservation services.

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Dkt. 23 at 4. While the operative complaint continues to describe in far more precise

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detail the alleged unlawful actions taken in regards to Plaintiff’s loan, deed of trust, and

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property, it is further alleged that all such “actions and inactions were part of Ocwen’s

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and/or its agents’ pattern or general course of conduct.” Id. at 9. It is abundantly clear that

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the operative complaint asserts all of its causes of action on behalf of the proposed class.

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Defendant’s second argument regarding Plaintiff’s proposed discovery plan is

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more persuasive. Specifically, Defendant contends that Plaintiff’s proposed

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precertification stage would improperly include “a class list identifying all putative class

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members and complaints/logs of complaints made by members of the putative class.”

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Dkt. 45 at 11. The Court agrees that the expansive discovery Plaintiff requests regarding

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all complaints and logs of complaints made by members of the expansive class is

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unnecessarily burdensome for questions of class certification, but rather is best reserved

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for determining the merits of class claims if a class is certified. This is also true for

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Plaintiff’s requests regarding all documents pertaining to Defendant’s use of vendors in

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preservation actions, all work orders completed during the class period, and all class

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members’ contact information. But that does not mean that no discovery should be

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granted into such evidence during the precertification stage. In fact, such information

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could be highly relevant in determining class size, typicality, and predominance.

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Unfortunately, Defendant offers no alternative explanation as to what specific discovery

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should be allowed during the precertification phase.

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The Court is inclined to find that the best route for proceeding is to approve a

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discovery plan with a precertification phase that mirrors Plaintiff’s proposed plan with a

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less expansive approach. For instance, the Court would likely approve discovery of a

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class list identifying all members of the putative class, but would not require that the list

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contain all members’ contact information, work order information, and complaints.

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Instead, the list of names would be used to generate an appropriate representative sample,

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after which discovery would be allowed into this sample’s contact information, work

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orders, and complaints. Under this procedure, after the parties reached an agreement on

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an appropriate sample size, Plaintiff would randomly select that number of names from

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the class list. Depending on the number of vendors, the Court might consider a similar

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procedure for discovery into a vendor list and “documents relating to Ocwen’s hiring,

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training, oversight, communications with evaluations of, termination or demotion of

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vendors who were ordered to complete property preservation actions in Washington

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. . . .” Dkt. 45 at 9.

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In light of the forgoing, it is the Court’s preference that the parties should meet,

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confer, and reach an agreement on a stipulated discovery plan. Nonetheless, should the

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parties fail to reach an agreement, the Court would request that the parties submit

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supplemental briefing regarding how discovery should proceed in order to best assist

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them in formulating an appropriate discovery plan. For instance, it is unclear from

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Plaintiff’s allegations how large the proposed class or list of vendors are estimated to be

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or how the parties could arrive at an appropriate representative sample. Plaintiff has only

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vaguely suggested that the proposed class would include “thousands of other

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Washingtonians.” Dkt. 45 at 2. Similarly, Defendant has not offered any substantive

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explanation as to why any particular aspect of Plaintiff’s proposed precertification phase

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would result in unduly burdensome discovery, or what specific discovery should be

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allowed under its own proposal.

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Therefore, the Court orders that the parties shall submit, no later than May 25,

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2018, either (1) a supplemental joint status report with a stipulated phased discovery

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plan, or (2) supplemental briefing with disputed proposed discovery plans. Should the

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parties submit supplemental briefing rather than a stipulated plan, they may submit

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additional response briefs no later than June 1, 2018.

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IT IS SO ORDERED.

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Dated this 10th day of May, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 5