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Rose v. Bank of America, N.A.

United States District Court, E.D. Washington

March 30, 2017

GREGORY ROSE and CATHERINE ROSE, and the marital community composed thereof, Plaintiffs,
v.
BANK OF AMERICA, N.A., aka BANK OF AMERICA CORPORATION, a North Carolina Company; MTC FINANCIAL INC. dba TRUSTEE CORPS., a Washington licensed Corporation; and EQUIFAX INFORMATION SERVICES, LLC, a Georgia Limited Liability Company, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER

          Stanley A. Bastian United States District Judge

         Before the Court is Defendant's Motion for Protective Order, ECF No. 26, and Plaintiff's Motion to Continue Defendant's Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56(d), ECF No. 46. Defendant MTC Financial Inc. (“MTC”) seeks a protective order against certain discovery requests propounded by Plaintiffs Gregory and Catherine Rose related to their claims under the Washington Consumer Protection Act (“CPA”), RCW 19.86.010 et seq., and the federal Fair Debt Collection Process Act (FDCPA), 15 U.S.C. § 1692 et seq. The Court heard the motion without oral argument, and considered Plaintiff's response, ECF No. 33, and Defendant's reply, ECF No. 34. For the reasons below, the Court GRANTS the motion and orders that Defendant MTC Financial, Inc. be protected from responding to certain discovery requests.

         Because of the time the Court took to rule on this motion, the Court will allow Plaintiffs to respond to Defendant's motion for summary judgment on an extended schedule.

         FACTS

         The case arises from the foreclosure of Plaintiffs' former property, a parcel of real estate in Deer Park, Washington. A foreclosure was initiated by Bank of America (“BoA”) in mid-2009, which a state court enjoined. Plaintiffs and BoA engaged in litigation over the foreclosure, which ended through a settlement agreement reached in 2013 discharging Plaintiffs' debt and granting possession and full rights of the property to BoA. Plaintiffs allege that BoA subsequently began harassing them in an attempt to collect the now-discharged debt through letter and telephone, and that BoA failed to pay property taxes owed on the house. Plaintiffs allege that BoA further violated the 2013 settlement by reporting the account to credit agencies as “past due.” BoA appointed Defendant MTC as successor trustee in August 2015. BoA soon referred the home to MTC for foreclosure action in July 2015, though MTC alleges that it was unaware of any harassment regarding the debt.

         MTC sent various demand letters to Plaintiffs and initiated a non-judicial foreclosure against Plaintiffs in February 2016, and later postponed the trustee sale of the property when it received Plaintiffs' complaint in this case. BoA and the Plaintiffs reached a second settlement in 2016 after this case was filed. Plaintiffs contend that MTC's actions constitute violations of the CPA, FDCPA, the Washington Collection Agency Act (“CAA”), RCW 19.16.100 et seq., the Washington Deed of Trust Act (“DTA”), RCW 61.24.005 et seq., and the common law tort of outrage.

         As part of a discovery request, Plaintiffs seek copies of each Notice of Default, Notice of Foreclosure, Notice of Trustee's Sale, and Notice of Postponement of Trustee's Sale that MTC has issued in Washington State in the prior three years. Plaintiffs also ask MTC to describe in detail their reasoning for postponing each trustee's sale in the state, and request copies of all complaints filed against MTC in state and federal courts and agencies over the past four years. These requests form the substance of the instant discovery dispute.

         Defendant contends producing these documents would not be proportional to the needs of the case, and that the documents have no legally relevant bearing on Plaintiffs' claims. Defendant provides an affidavit explaining that the producing the requested documents would be burdensome. Plaintiffs argue that the requested discovery is necessary because the statutes under which they bring their claims require plaintiffs to present pattern and practice evidence, or evidence that Defendant MTC treated other borrowers in a similar manner. In particular, Plaintiffs state that the CPA and FDCPA require “pattern of conduct” discovery. Plaintiffs also deny that producing the requested discovery would be unduly burdensome.

         The parties met and conferred on January 6, 2017, but were unable to resolve the dispute. This motion for a protective order followed.

         DISCOVERY REQUESTS IN DISPUTE

         The Court lists below the discovery requests in dispute:

         A. Plaintiff's First Set of Interrogatories and First Set of Requests for Production of Documents Propounded to Defendant MTC Financial, Inc., ECF No. 28, Ex. B at 18, Interrogatories:

         Number 2: “Please state the number of Notices of Default Defendant issued in Washington State in the previous three years.”

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

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

         Number 5: “Please state the number of properties Defendant actually sold at Trustee's Sale Defendant actually sold in the state of Washington in the previous three years.”

         Number 6: “Please state the number of Notices of Postponement of Trustee's Sales Defendant issued in the state of Washington in the previous three years.”

         Number 7: “Please state in full detail Defendant's reason(s) for postponing each Trustee's Sale referenced in the preceding interrogatory.”

         B. Plaintiff's First Set of Interrogatories and First Set of Requests for Production of Documents Propounded to Defendant MTC Financial, Inc., ECF No. 28, Ex. B at 18, Requests for Production:

         Number 1: “Produce copies of each Notice of Default Defendant issued in the state of Washington in the previous three years.”

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

         Number 3: “Produce copies of each Notice of Trustee's Sale Defendant issued in the state of Washington in the previous three years.”

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

         Number 6: “Produce copies of each complaint filed against Defendant with Washington's Attorney General, ...


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