Bayview Loan Servicing, LLC v. Boland

259 F.R.D. 516, 2009 U.S. Dist. LEXIS 73417, 2009 WL 2424448
CourtDistrict Court, D. Colorado
DecidedAugust 6, 2009
DocketCivil Action No. 08-cv-00566-WDM-KLM
StatusPublished
Cited by9 cases

This text of 259 F.R.D. 516 (Bayview Loan Servicing, LLC v. Boland) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayview Loan Servicing, LLC v. Boland, 259 F.R.D. 516, 2009 U.S. Dist. LEXIS 73417, 2009 WL 2424448 (D. Colo. 2009).

Opinion

ORDER ON MOTION TO COMPEL

KRISTEN L. MIX, United States Magistrate Judge.

This matter is before the Court on Defendant Wyco Equities, Inc. and Floyd Leger-ski’s Motion to Compel Discovery as to Plaintiff [Docket No. 152; Filed June 16, 2009] (the “Motion”). The Court has reviewed the Motion, Plaintiffs Response to Motion to Compel [Docket No. 156], Defendant Wyco Equities, Inc. and Floyd Leger-ski’s Reply in Support of Their Motion to Compel Discovery as to Plaintiff [Docket No. 166], the entire case file and relevant law, and is fully advised in the premises. For the reasons stated below, the Motion is GRANTED IN PART and DENIED IN PART.

I. Background

According to the Second Amended Complaint, this case concerns eighteen loans provided by Plaintiff for the purchase of commercial condominium units by Defendants Boland, Corsentino, All in One Enterprises, LLC, Matt Morgan, Advanced Investments, Pankoski, and Valdez (“Purchasers”). Second Amend. Compl. [# 49] ¶ 16. Plaintiff is a loan servicing company and the holder of the loans. Id. ¶ 15. Plaintiff alleges that the Purchasers have not made payments required under the loans and are in default. Id. ¶ 28. Plaintiff also alleges that the Purchasers misrepresented their financial ability to make loan payments. Id. ¶31. Plaintiff further asserts that the Purchasers falsely stated that the units were to be owner-occupied or was purchased for the purposes of operating the owner’s business. Id. ¶ 32.

Wyco Equities was the seller of the units sold to Purchasers. Id. ¶ 33. Defendant Legerski is the president of Wyco. Id. ¶ 11. Plaintiff alleges that Wyco entered into an agreement with Danny DeGrande and DeGrande Properties, LLC for DeGrande to solicit individuals to buy the condominium units and to sell the units in excess of the fair market value. Id. ¶34. Wyco and DeGrande allegedly concealed this agreement from Plaintiff and the Purchasers. Id. ¶ 35. Plaintiff alleges that Wyco and DeGrande sold eighteen units at highly inflated prices and split the proceeds. Id. ¶¶ 36, 42. Plaintiff asserts that DeGrande provided to the Purchasers down payments in order to facilitate sales and hid the fact from Bayview. Id. ¶ 44. Plaintiff asserts that Wyco’s payments to DeGrande were part of a conspiracy to aid and abet DeGrande’s unlawful activities in soliciting and inducing the Purchasers to buy the units. Id. ¶47.

Plaintiff brings breach of contract and misrepresentation and concealment claims against the Purchasers. Id. ¶¶ 49-62. As to Wyco and Legerski, Plaintiff alleges claims for fraud, civil conspiracy, respondeat superi- or, and theft under Colorado law. Id. ¶¶ 63-88. Wyco and Legerski have filed cross-claims and counterclaims. Wyco’s cross-claims allege that the Purchasers are liable for fraudulent misrepresentation, fraudulent concealment, and civil conspiracy. Cross-claims [# 95] ¶¶ 42-59. Wyco brings numerous crosselaims against Danny DeGrande and DeGrande Properties, Bayview and IB Property Holdings, LLC, a holding company for Bayview. Id. ¶¶ 60-93. Wyco also alleges counterclaims against Plaintiff. Id. ¶¶ 94-103.

II. Motion to Compel

Defendants Wyco and Legerski (‘Wyco” or “Defendants”) submitted interrogatories, requests for production of documents, and requests for admissions to the Plaintiff on [518]*518January 15, 2009. Motion [# 152] Ex. A. Plaintiff provided its answers and responses. Id. Ex. B. Defendants allege that the responses are evasive and incomplete. Id. at 2. Generally, Defendants claim that Plaintiff has produced over 25,000 pages of documents on numerous compact discs (“CDs”) which were not catalogued or indexed. Id. at 3. Defendants assert that “Plaintiff has done nothing to provide meaningful answers or documents that allow [them] to understand the factual basis for the claims that Plaintiff has asserted against them.” Id. at 4. Defendants Wyco and Legerski request that Plaintiff be ordered to provide “completed interrogatory answers and specifically identify the documents that it relies on in responding to the discovery.” Id. at 4-5.

Plaintiffs position is that it provided over 25,000 pages of documents in response to the discovery requests. Response [# 156] at 5. The documents are on CDs which were provided to Defendants. Id. at 5, 6, 9. Plaintiff claims that the responses have been indexed on each CD and clearly arranged by topic and subtopic. Id. at 5, 19. According to Plaintiff, it has “devoted substantial resources in providing to Defendants all of the information and tools needed to easily navigate those documents.” Id. at 9.

In its response to a number of interrogatories and requests for production, Plaintiff represents that the documents “have previously been produced or are produced herewith and remain available for all parties’ review and inspection at the offices of Plaintiffs counsel.” See Interrogatories 4, 6, 7, 9, 11, 12, 13, 14, 22, and 23; Document Production Requests 1, 3, 4, 5, 8, 9, 12,14,15,16,17, 18, and 21. Motion [# 152] Ex. A.1 Plaintiff provided responsive documents- — the Purchasers’ loan files — on CDs. Plaintiff sent accompanying letters to Defendants’ counsel on October 24, November 5 and November 17 of 2008. Response [# 156] at 5-6. Plaintiff also provided Defendants with a supplemental document production response. Reply [# 152] Ex. C. Defendants contend that the supplement “identifies thousands of pages of documents by general categories,” and are also evasive and incomplete. Motion [# 152] at 3.

Defendants bear the burden of proof on their motion to compel. Echostar Communs. Corp. v. News Corp., 180 F.R.D. 391, 394 (D.Colo.1998). The party moving to compel discovery must prove that the opposing party’s answers are incomplete. Daiflon Inc. v. Allied Chemical Corp., 534 F.2d 221, 227 (10th Cir.1976); Equal Rights Ctr. v. Post Props., 246 F.R.D. 29, 32 (D.D.C.2007). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R.Civ.P. 37(a)(4).

To justify its discovery responses, Plaintiff cites Fed.R.Civ.P. 33(d), which provides:

If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

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Cite This Page — Counsel Stack

Bluebook (online)
259 F.R.D. 516, 2009 U.S. Dist. LEXIS 73417, 2009 WL 2424448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayview-loan-servicing-llc-v-boland-cod-2009.