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Fuchs v. Selene Finance, LP

United States District Court, S.D. Ohio, Eastern Division

April 7, 2017

Mary Fuchs, et al., Plaintiffs,
Selene Finance, LP, Defendant.



          Terence P. Kemp United States Magistrate Judge.

         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 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).

         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 ...

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