In re Daisymae Deleveaux, ______ B.R. _______, Chapter 13, Case No. 16-13966-MSH (February 1, 2019)
Practice Area: Bankruptcy / Chapter 13
Date: February 1, 2019
Outcome: Motion for Sanctions Allowed
“On January 17, 2019, the Court conducted a hearing on the motion for sanctions and the supplemental motion for sanctions, at which time the Court issued an Order treating the supplemental motion for sanctions as superseding the previously-filed motion for sanctions. During the course of oral argument, {Bank’s] counsel acknowledged that no witness list was provided to debtor’s counsel in response to the debtor’s discovery requests and that it did not provide the names or contact information regarding persons at Flagstar involved with reviewing and approving the 2013 loan modification or the debtor’s post-petition loan modification applications. [Bank’s] counsel indicated that [the Bank] had sent directly to debtor’s counsel (and not via its own counsel) [Bank’s] discovery responses on December 18, 2018, by both overnight mail and by electronic mail. Debtor’s counsel denied that he had ever received any of Flagstar’s discovery responses by means of electronic mail and was prepared to testify as to same under oath if so requested. [Bank’s] counsel further acknowledged that the form of [Bank’s] discovery responses was not in compliance with the provisions of Fed. R. Civ. P. 33(b)(3) and (5), made applicable hereto by Fed. R. Bankr. P. 7033, as they were not signed under oath and the objections were not subscribed to by [Bank’s] counsel. What’s more, at the January 17, 2019 hearing, [Bank’s] counsel acknowledged that [the Bank] was the “owner” of this loan and that while the mortgage loan held by it was “insured” by the U.S. Department of Housing and Urban Development, there was no third-party “investor/owner” of the loan. This shocking position was reiterated repeatedly in [Bank’s] responses to the debtor’s discovery requests and directly contradicted the reason [the Bank] gave the debtor for denying her permanent modification.
This case presents the highly unusual circumstance in which a debtor has been approved for a mortgage loan modification on a trial basis and has faithfully complied with the requirements of that modification by making the required trial payments, only to have the mortgage lender, here [the Bank], ultimately refuse to offer a permanent loan modification. The basis for the repudiation was set forth in a July 1, 2013 letter from [the Bank] to the debtor, cryptically stating as the basis for denial that the debtor was not approved for loss mitigation by ‘the investor/owner of the loan.’
One of the common threads running through these consolidated contested matters and the discovery requests was the debtor’s efforts to understand why, how and by whom her previously approved and fully performed trial period payment plan had been rejected when it came time for a permanent loan modification as well as why she had not been approved by [the Bank] for a post-petition loan modification. {The Bank] has repeatedly and without justification failed and refused to supply the debtor with that basic information. I find that [the Bank’s] discovery responses were not submitted to the debtor through her counsel in a timely fashion as required under Fed. R. Civ. P. 33(b)(2), despite [the Bank] being granted two separate extensions of time within which to respond, nor did the discovery responses comply with Fed. R. Civ. P. 33(b)(5), as they were not signed under oath and not signed by [Bank’s] counsel. The failure of [the Bank], in the first instance, to respond at all to the debtor’s discovery requests in a timely fashion, and then, after having been served the motion for sanctions, to respond to the discovery requests late and in an incomplete and internally contradictory manner that does not comply with the requirements of the Federal Rules of Civil Procedure, I find to be a flagrant violation of this Court’s discovery orders and a contempt of court. [The Bank] and its counsel were well aware of the requirements to comply with the discovery deadline set forth in the pre-trial order and subsequent orders extending the deadline and chose to ignore them.”