Opinion
Civil No. 01-336 WJ/LFG-ACE
January 14, 2002
ORDER DENYING MOTION TO COMPEL AND FOR SANCTIONS
THIS MATTER is before the Court on Plaintiffs Second Motion to Compel and Determine Sufficiency of Defendant Ocwens Responses to Plaintiffs Second Request for Admissions [Doc. 83].
The motion, response and reply were simultaneously filed in accord with the districts rule. Oral argument is not necessary. This matter may be resolved based on the parties submissions. Plaintiff Gwen Shepherd (Shepherd) contends that she served Second Request for Admissions on Defendant Ocwen Federal Bank, FSB, (Ocwen) and that Ocwens answers are evasive, not in good faith, argumentative, and not in conformity with the requirements of the federal rules.
The present motion indicates some misunderstanding of the purpose of requests for admission. The purpose of requests for admission is not necessarily to obtain information, as with other discovery devices, but rather to narrow the issues for trial. Shepards Discovery Proceedings in Federal Court, 3d Ed., § 19.02 (Fall 2001); Kershner v. Beloit Corp., 106 F.R.D. 498 (D.Me. 1985) (principal use of admissions of fact is to expedite trial and relieve parties of burdens and expenses of proving at trial facts which are undisputed). Indeed, legal scholars suggest that the rules purpose might be better understood if it were called request for stipulations, rather than request for admissions. Id.
A request for admission is not a discovery tool at all, but is simply a device to determine what facts are still in dispute and what facts can be eliminated from the case so as to narrow the issues that need to be tried.
Upon receipt of a request for admission, the responding party essentially has four options:
(1) the party can admit the request, in part or in full; (2) the party can deny the request, in part or in full; (3) the party may set forth reasons why it cannot admit or deny the request; or (4) it can object to the request by stating a specific objection or applying for a protective order. Baicker-McKee, Janssen Corr, Federal Civil Rules Handbook, commentary on Rule 36 ( 2002 ). When a party denies a request for admission, it must specifically address the substance of the request. Advisory Committee Note to Rule 36(a); ATD Corp. v. Lydall, Inc., 159 F.3d 534, 548 (Fed. Cir. 1998). The intent is to be clear and specific. If a party can admit, it should. With that admission, the factual dispute is eliminated from the case and the propounding party is not required to tender evidence to prove the fact. Indeed, if the requested admission is partially accurate and partially not, the proper response is to admit the accurate portion and to deny the balance. ATD Corp., 159 F.3d at 549.
Similarly, if a responding party is able to deny the requested admission, the denial should be specific. The responding party should not hem or haw, demonstrating a speakers indecisiveness and hesitancy as if seeking to avoid a clear response.
When the responding party denies the request, it alerts the propounding party that the issue remains a factual dispute and, therefore, evidence to prove the fact must be submitted at the time of trial.
If the responding party is genuinely unable to admit or deny the requested admission, the party can so state, but must describe in detail why, after reasonable inquiry, the party can neither admit nor deny. Tabor v. Unknown Officers, 2001 WL 138908, No. 00C652 (N.D.Ill. Feb. 16, 2001); Baicker-McKee, Jenssen Corr, Federal Civil Rules Handbook, p. 634 ( 2002 ). Here, it appears that Shepherds complaints are that Ocwen disagrees with Shepherds view of the purported facts. For example, Second Request for Admissions No. 1 requires Ocwen to admit or deny Plaintiffs loan was funded on September 23, 1998 by American West Financial check #13922.
It its response to the motion, Ocwen denied the request, stating:
Request No. 1 requires Ocwen to admit that the loan in question was funded on September 23, 1998. The only proof of this is Plaintiffs testimony and a copy of a check from the original lender which check has not been authenticated and which check could be explained, as the undersigned has advised Plaintiffs counsel, by various explanations including that it might be a replacement check and not a copy of the original check issued at loan funding.
The other proof offered by Plaintiff of the funding date for the subject loan consists of an argumentative, self-serving affidavit issued by an Amy Jackson, purportedly involved in the loan funding and an employee of American West Financial, the loan servicer. . . . This Affidavit was prepared, on information and belief, by Plaintiffs counsel. The Affidavit itself states that the loan funding occurred on September 28, 1998, thereby supporting in part Defendants denial that the loan funded on September 23, 1998.
(Response, pp. 2,3).
The simple fact that Shepherds own witnesss affidavit contradicts the Request for Admissions is sufficient to allow Ocwen to deny the request.
Moreover, the fact that Ocwen disagrees with Shepherds characterization of the fact does not mean that its denial is inappropriate. Ocwen has clearly and specifically denied the Request for Admissions, alerting Shepherd that this is, indeed, a fact in dispute and that Shepherd must present evidence to prove the fact.
In Second Request for Admissions No. 3, Shepherd argues that Ocwen refused to admit that, Defendant Ocwen, its agents, and employees were demanding payment on the second (2nd) of each month, the funding of Plaintiffs Loan was on September 23, 1998.
Ocwen admitted that it sent Shepherd late notices and notice of default, but denied the second half of the admission. It has already denied, supra, that the loan funded on September 23. Indeed, Shepherds own witness, Amy Jackson, testified that the loan funding occurred on September 28. (Exhibit 1AJ). As indicated above, if the responding party believes that part of the requested admission is accurate and part is not, it is proper to admit the accurate portion and to deny the balance. ATD Corp., 159 F.3d at 549. It appears that is exactly what Ocwen has done.
No further response to Plaintiffs Second Request for Admissions No. 3 is necessary. Shepherd argues that Ocwen improperly refused to admit Second Request for Admissions No. 4. This requests asks Ocwen to admit or deny, Defendant Ocwen, in accordance to `First Payment Notice from Plaintiffs Loan package admit that Plaintiffs first payment was due thirty (30) days after funding, according to the `First Payment Notice.
Ocwen admitted it sent late notices and notice of default to Shepherd based on the terms of the subject note and mortgage contained in its loan servicing agreement. It denied the balance of the Request for Admissions and stated that it has not been able to obtain information from any credible third party to contradict the information contained in the loan servicing file that payments were due other than on the second of each month.
As above, Ocwen admitted a portion of the request and denied a portion. It is undisputed that Ocwen sent late notices and notices of default to Shepherd, and its further clear that Ocwen contends that payments were due the second of each month based on the mortgage and note contained in its loan servicing file. The other matters are in dispute and those should be the subject of proof presented at the time of trial. The Court does not view Ocwens responses as improper.
Shepherd argues that Ocwen failed to admit Second Request for Admissions No. 5, which states, Defendant Ocwen was servicing an unsecured Loan. Ocwen denied this request, and in its response in opposition, noted that Shepherd signed a mortgage securing the loan in question and that Ocwens counsel provided title information to the parties showing the succession of recorded assignments of the mortgage. Under these circumstances, Shepherds demand that Ocwen admit that this is an unsecured loan is puzzling. There is no agreement on this and Ocwen has in its possession documents which refute Shepherds categorization of the fact. As before, Ocwens denial is clear and specific. It neither hemmed nor hawed. This matter remains to be established at trial.
In Second Request for Admissions No. 6, Shepherd contends Ocwen improperly denied the request, Defendant Ocwen can make adjustments to Plaintiffs payment due date. Ocwen specifically denied the request. In support of its argument that this denial was wrong, Shepherds counsel states:
Plaintiff challenges Defendants denial in Plaintiffs case because of Plaintiffs continued disputes and assistance from American West, Amy Jackson, showing that Defendant Ocwen was wrong but Ocwen intentionally continued to perpetrate the falsity. Ocwen states that it cannot make sense of Shepherds argument. The Court agrees. The fact that Ocwen disagrees with Shepherds characterization or facts or theory of the case does not mean that its denials are improper. Here, Ocwen clearly and specifically denied the request, alerting Shepherd of the necessity to prove the disputed fact at trial. Shepherd argues that the denial of the Second Request for Admissions No. 7 was improper.
In this request, Shepherd asks Ocwen to admit, The funding check from American West Financial is dated September 23, 1998. Ocwen admits that the check appears to be dated September 23, 1998, although it denies the remainder of the request for admission. The Court is unsure whether there is anything left to deny. The request was to admit the date on the check and Ocwen made that admission. Further argument on this issue seems superfluous.
Finally, Shepherd argues that Second Request for Admissions No. 8 should have been admitted. In this request, Shepherd asks Ocwen to admit, Defendant Ocwen and their agents and employees called Plaintiff after she told them not to call her.
Denied, but this response is qualified as follows: Plaintiff sent a letter to Ocwen sometime in October or November of 1999 (date not known) that advised Do not call me until you have fixed my due date to show due on the 22nd. Defendant contends that this letter did not (a) direct a cessation of all contacts in, indeed, invited a response, (b) is not a proper notification of a dispute under the Fair Debt Collection Practices Act, and (c) does not prevent Defendant from attempting to contact Plaintiff or contacts allowed under the Fair Debt Collection Practices Act.
In reviewing the response, it is clear that Shepherd wants Ocwen to admit that Shepherd said, do not call me. The letter referred to by Ocwen shows a somewhat different statement, that is, Do not call me until you have fixed my due date to show due on the 22nd. Thus, Ocwen is free to deny the request to admit and may offer its explanation as it has done. No further response is necessary.
For the reasons stated above, the Court does not find that Ocwen violated any obligation under the rule governing requests for admission. Shepherds motion is denied, as is her request for sanctions.