United States District Court, N.D. Ohio
U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
ANTHONY L. VIOLA, ET AL., Defendants.
OPINION & ORDER [Resolving Doc. 68]
S. GWIN, UNITED STATES DISTRICT JUDGE:
foreclosure action,  Defendant Anthony Viola moves the Court to
compel discovery by Plaintiff U.S. Bank and Defendant United
States. Viola seeks numerous documents and
admissions from his opposing parties. Both Plaintiff U.S.
Bank and Defendant United States filed oppose Viola's
motion to compel discovery. For the reasons stated below, the
Court DENIES Defendant Viola's motion.
2011, a federal jury convicted Viola of two counts of
conspiracy to commit wire fraud in violation of 18 U.S.C.
§ 371 and thirty-three counts of wire fraud in violation
of 18 U.S.C. § 1343. The Court sentenced the Defendant
to 150 months in prison and ordered him to pay $2, 649, 865
in restitution. The Sixth Circuit affirmed his conviction and
sentence. In 2012, a state-court jury acquitted Viola of
charges similar to those in his federal trial.
February 24, 2016, Plaintiff U.S. Bank filed a complaint for
foreclosure in the Cuyahoga County Court of Common Pleas
alleging a breach of a promissory note and mortgage Gwin, J.
given by Viola. The complaint named the United States as a
defendant because the United States had filed a tax lien that
attached to the property at issue. The United States
subsequently removed that complaint to federal
March and June of 2017, Viola sought a number of admissions
and documents from Defendant United States and Plaintiff U.S.
Bank. Both the United States and U.S. Bank
refused to substantively respond to the majority of
Viola's requests. The United States provided the only
substantive response, and gave Viola an itemized accounting
of the criminal case restitution that he had paid, as well as
a non-itemized accounting of the total amount of restitution
paid in that same case.
13, 2017, Defendant Viola filed a motion to compel U.S. Bank
and the United States to comply with his March 2017 and June
2017 discovery requests. On July 24 and 25, 2017, respectively,
U.S. Bank and the United States filed motions
opposing Viola's motion to compel. They argue that
Viola's requests were irrelevant, procedurally improper,
and an attempt to gain information in order to collaterally
attack his federal criminal conviction.
may obtain discovery as to any unprivileged matter relevant
to any party's claim or defense and proportional to the
needs of the case.
Viola's March Request for Production of
March of 2017, Viola requested documents from the
government. Viola sought, among other documents:
records of restitution payments made by various criminal
defendants in Viola's criminal case, payments allegedly
made by the federal government to an individual not involved
in this case, records of restitution received by banks that
are not party to this foreclosure, and records of restitution
payments allegedly made by individuals indicted in a state
response, the United States provided Viola with an accounting
of the total amount of restitution paid on the restitution
order from Viola's criminal conviction, and with
documents describing the amount of restitution Viola himself
paid on that order.
discovery that the United States provided in response to
Viola's request is sufficient. Defendant Viola is
entitled to know the amount he has paid, and the total amount
paid, on his restitution order thus far. These pieces of
information are potentially relevant to Viola's defense
against the United States' interest in this foreclosure
action. The United States has provided this information to
Viola is not, however, entitled to discovery on restitution
payments made in other, unrelated, cases. Viola is also not
entitled to discovery on matters and theories intended to
collaterally attack the validity of his criminal conviction
and restitution order. Neither of these subjects are