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Mayer v. EMC Mortgage Corporation

United States District Court, N.D. Indiana, Hammond Division

February 4, 2015

TODD and LISA MAYER, Plaintiffs,
v.
EMC MORTGAGE CORPORATION, JP MORGAN CHASE BANK, N.A., and DOES 1-100, INCLUSIVE, Defendants.

OPINION AND ORDER

ANDREW P. RODOVICH, Magistrate Judge.

This matter is before the court on the Motion for Order to Compel Discovery [DE 74] filed by the plaintiffs, Todd and Lisa Mayer, on November 28, 2014. For the following reasons, the motion is GRANTED in part and DENIED in part.

Background

On March 30, 2011, the plaintiffs, Todd and Lisa Mayer, initiated this matter in the Porter County Superior Court. The defendants, JP Morgan Chase Bank, N.A. and EMC Mortgage Corporation, removed the case to this court on April 25, 2011. The plaintiffs filed a second Amended Complaint on November 7, 2013 that alleged Count I - violations under the Real Estate Settlement Procedure Act and Count II - breach of contract regarding four agreements. The defendants filed a Motion to Dismiss both counts. On April 22, 2014, this court denied the Motion to Dismiss Count I but granted in part and denied in part the Motion to Dismiss Count II. Following this court's order of April 22, 2014, the remaining claims include Count I - violations under RESPA and Count II - breach of contract regarding a single agreement.

The present dispute involves five interrogatories and two requests for production. On June 17, 2014, the plaintiffs tendered an interrogatory request and a request for production. Chase responded to the request for production on August 27, 2014 and the interrogatory request on October 16, 2014. The plaintiffs have admitted that Chase responded timely but claim that Chase's responses were evasive, incomplete, or non-responsive.

This dispute concerns the following interrogatories:

1. If Lender accepts any Payment or Partial Payment which is insufficient to bring the Loan current, describe the method by which the Payment or Partial Payment is applied to the interest due under the Note, principal due under the Note, amounts due for escrow, late charges, and the principal balance of the Note; whether these funds are immediately credited to the interest due under the Note, principal due under the Note, amounts due from escrow, late charges, and the principal balance of the Note; whether they are returned to the Borrower or whether they are applied to a Suspense Account or Unapplied Funds Account.
2. If any Payment or Partial Payment is applied first to a Suspense Account or Unapplied Funds Account, before being applied to the interest due under the Note, principal due under the Note, amounts due for escrow, late charges, and the principal balance of the Note, describe Lender's policy regarding when such funds are to be removed from the Suspense Account or Unapplied Funds Account and applied to the Periodic Payment due under the Loan.
3. If any Payment or Partial Payment is applied first to a Suspense Account or Unapplied Funds Account before being applied to the interest due under the Note, principal due under the Note, amounts due for escrow, late charges, and the principal balance of the Note, describe Lender's policy regarding when such funds would be removed from this Suspense Account or Unapplied Funds Account and applied to the interest due under the Note, principal due under the Note, amounts due for escrow, late charges, and the principal balance of the Note, or when such amounts will be applied to the next consecutive Periodic Payment when Borrower is in a Trial Payment Plan or undergoing review for qualification under the HAMP program.
4. Is the following an accurate description of Lender's policy regarding the handling of monies held in a Suspense Account or Unapplied Funds Account: If the payment is held in a Suspense Account or Unapplied Funds Account, when sufficient funds accumulate in the suspense or unapplied funds account to cover an amount sufficient to cover principal, interest, and escrow for a given billing cycle, the funds are credited to the borrower's loan account.
5. If Lender's policy regarding the handling of monies held in a Suspense Account or Unapplied Funds Account differs in any manner from the above quoted statement in Interrogatory 4, please describe the difference in detail making note of when amounts sufficient to cover the next due or outstanding Periodic Payment or Payments would not be taken from the Suspense Account or Unapplied Funds Account and applied to the next due or outstanding Periodic Payment of Payments.

Chase responded identically to each interrogatory as follows:

Chase objects to Request No. [] as it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving this objection, Chase applies payments to the Loan, defined in the Requests, in the manner described in the Note and Security Instrument, as defined in the Requests. For an accounting of how payments have been applied to the Plaintiffs' Loan, please see the payment histories already tendered with Chase's Response to Plaintiffs' Requests for Production of Documents in 2012 as Bates Nos. CH_0802-CH_0809, CH_0810-CH_0823, CH_0834-CH_0835, and supplemented in 2014 with Bates Nos. CH_0836-CH_0886.

The plaintiffs claim that the interrogatories are relevant to the RESPA and breach of contract claims. They indicate that Interrogatory 1 seeks to determine Chase's policy regarding their suspense account during normal servicing periods. Interrogatories 2 and 3 seek to determine Chase's policy regarding the plaintiffs' suspense account during the HAMP Trial Period Plan. Interrogatories 4 and 5 ask whether the ...


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