Baker v. Cenlar FSB
- John Tunheim
- 0:20-cv-00967
- U.S. District Court · District of Minnesota
- 14
In Baker v. Cenlar FSB, Judge Bowbeer granted in part and denied in part Baker’s motion to compel discovery, ordering searches, responses, and a limited deposition extension.
Michelle A. Baker and Cenlar FSB. Cenlar was required to conduct additional discovery searches, provide written responses and a verified answer, and comply with a limited extension of the deposition deadline.
What happened
Michelle A. Baker sued Cenlar FSB over an alleged attempted foreclosure and alleged trademark and other harms. She asked Cenlar to provide information about a document she called a “tender of payment,” which she said Cenlar received by certified mail on August 5, 2019, and about Cenlar’s role in the foreclosure.
Cenlar had produced account-servicing records but said it could not find information about the tender of payment. Baker argued that Cenlar had not formally confirmed the scope and results of its search. She also asked Cenlar to answer whether it had foreclosed for itself or for CitiMortgage, Inc., and sought more time for discovery.
In Baker v. Cenlar FSB, Magistrate Judge Hildy Bowbeer ordered Cenlar to conduct a diligent search, produce any additional non-privileged documents, provide written supplemental responses, and give a verified answer about whom it represented in the foreclosure. Judge Bowbeer granted the discovery extension only for depositions and denied it for new written discovery.
The detailed version
- Baker v. Cenlar FSB · No. 0:20-cv-00967
- John Tunheim
- June 18, 2021
Background
Michelle A. Baker brought claims against Cenlar FSB concerning an alleged attempted foreclosure on property in Andover, Minnesota. Her amended complaint alleged that Cenlar tried to foreclose after receiving a payment tender and continued foreclosure procedures after being told that Baker no longer owned the property. The amended complaint also appeared to allege trademark rights in the name Michelle A Baker and requested relief related to the foreclosure, alleged trademark violations, breach of fiduciary duties, stress, and mental anguish.
Baker served discovery requests seeking information about what she called a “negotiable instrument.” During the parties’ discussions, she clarified that the term referred to a “tender of payment” that she said Cenlar received by certified mail on August 5, 2019. At the hearing, she described the tender as a notarized document that purported to transfer certain Internal Revenue Service credits to Cenlar as mortgage payment, subject to special deposit instructions. Baker said she did not have a copy of the tender but had produced an inventory of the package’s contents and a certified-mail receipt.
Cenlar produced 87 documents, including account-servicing notes and two Excel files. One Excel file contained more than 2,400 lines of account-activity data. Baker said the production did not mention Cenlar’s receipt or handling of the tender. Cenlar stated that it had looked further into the matter but could not locate information showing that the tender was received or what happened to it. Cenlar also said it had no further information beyond the account-servicing notes.
Motion to Compel
The court applied the discovery rules requiring requested information to be relevant to a claim or defense and proportional to the needs of the case. Baker sought to compel responses to items (b) through (f) of her May 3 requests, which sought documents about the tender’s location, use, disposition, knowledgeable persons, communications, and accounting records. She also sought a response to item (g), asking whether Cenlar had foreclosed for CitiMortgage or for Cenlar’s own benefit.
The court found that the requests, as clarified by Baker, were relevant and proportional. The court understood the request concerning knowledgeable persons to be limited to people with information about the tender’s whereabouts, use, or disposition, rather than everyone who might have had access to Baker’s account information. The court also found that Cenlar’s statements about its search had not been provided in formal written discovery responses and did not specifically describe the search or confirm that no additional records existed.
Ruling
The court granted in part and denied in part Baker’s Motion to Compel Full and Complete Discovery Responses. For requests (b) through (f), the court ordered Cenlar to conduct a diligent search in locations where responsive documents might be maintained, including inquiries to departments that would have handled or processed the package. Cenlar had to produce any additional responsive, non-privileged documents it found by July 1, 2021. It also had to serve written responses that described the search and either unequivocally stated that no additional documents could be located or identified and produced the additional documents. Any withheld documents based on privilege or work-product protection had to be identified with a privilege log.
For item (g), the court ordered Cenlar to provide by July 1, 2021, a verified answer to this question: “At the time CENLAR FSB foreclosed on the property, was it foreclosing on behalf of CITI MORTGAGE INC. or was the foreclosure for the benefit of CENLAR FSB.”
The court extended the fact-discovery deadline from July 1 to July 30, 2021, but only for depositions. Unless the parties agreed or the court later ordered otherwise for good cause, neither party could serve new written discovery requests. All other deadlines and provisions of the pretrial scheduling order remained in effect. The order was signed by Hildy Bowbeer, United States Magistrate Judge.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.