United States District Court, W.D. Missouri, Western Division
KELLY W. KENT, Plaintiff,
SETERUS, INC., LERETA, LLC, and QUICKEN LOANS INC., Defendants.
ORDER ON DISCOVERY DISPUTE
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
case arises out of unpaid real estate taxes. Plaintiff Kelly
Kent (“Plaintiff”) alleges that he made payments
to his mortgage company, including amounts for real estate
taxes, but Defendants failed to forward these payments to the
taxing authority. Plaintiff is suing the mortgagor, the loan
servicer, and the company that provided property tax
reporting and monitoring services on his loan.
before the Court is a discovery dispute concerning
Plaintiff's response to one of Defendant Seterus,
Inc.'s (“Seterus”) interrogatory questions.
After reviewing the parties' memoranda regarding the
discovery dispute (Docs. 58 and 61) and hearing argument from
counsel during a teleconference on January 31, 2018, the
Court denies Seterus's request to compel a response from
purchased a condo in Chicago, Illinois in 2007. As part of
that purchase, he obtained a mortgage on the property and
later refinanced that loan with Quicken Loans Inc.
(“QLI”). Plaintiff arranged with QLI an escrow
account whereby he made monthly payments into the account
with the understanding that those monies would be applied to
his annual property tax obligation. Seterus is a loan
servicer and serviced Plaintiff's loan with QLI. In 2012,
QLI sold or transferred Plaintiff's loan to Federal
National Mortgage Association, (“Fannie Mae”). In
2016, Plaintiff learned the property taxes on his condo were
not timely paid, causing one years' tax account to be
sold at the county's annual tax sale and an assessment of
late penalties on his account.
Plaintiff sued Seterus and Lereta, LLC, for violations of the
Real Estate Settlement Practices Act, the Missouri
Merchandising Practices Act, various common law negligence
claims, and breach of contract. On December 7, 2017, the
Court granted in part Seterus's motion to dismiss (Doc.
42). While the motion to dismiss was pending, Plaintiff
amended his complaint adding QLI as a party.
December 28, 2017, Plaintiff filed a motion to file a second
amended complaint to add Fannie Mae as a party and to amend
the scheduling order. Seterus and Lereta opposed the motion.
Nonetheless, the Court granted the motion and in doing so,
extended the deadline for discovery to April 2, 2018 (Doc.
served interrogatories on Plaintiff, including No. 11 which
requested the amount of financial damages along with an
explanation of how those damages were calculated. In his
initial response, Plaintiff objected asserting
“attorney-client privilege and/or work product
doctrine” and stated that the amount of damages would
require an expert opinion and the findings of a jury. (Doc.
58-3 at 4). Later, Plaintiff filed a supplemental answer
providing the same response as his initial answer, but
attached a Privilege Log.
Seterus complained of two issues, but now agrees that the
first issue, related to the delivery of Plaintiff's
expert report, is moot given the Court's amended
scheduling order. As to the second issue, Seterus complains
that Plaintiff has not provided it with a “full and
complete explanation of the means by which each category [of
damages] were calculated as requested” in Seterus's
Interrogatory No. 11. (Doc. 58 at 4).
states that he intends to supplement his initial response to
Seterus's Interrogatory No. 11 after additional discovery
is complete. Plaintiff states that he learned during
mediation additional facts that-if true-modify his actual
damages calculation. Plaintiff also states that his actual
and future damages are dependent on input from his retained
Rule of Civil Procedure 26 requires that a party must provide
a computation of each category of damages claimed.
Fed.R.Civ.P. 26(a)(1)(iii). It also permits supplementing
disclosures and responses when a party learns that some
material is incomplete or incorrect. Fed.R.Civ.P. 26(e).
cites to Gillespie v. Block Maint. Sols., to support
its position that Plaintiff is required to immediately
provide the means by which he calculates his damages. No.
12-947-CV-W-DGK, 2013 WL 6199198, at *1 (W.D. Mo. Nov. 27,
2013). The Court in Gillespie ordered the plaintiff
to identify the amount of damages sought, explain how that
value was derived, and provide documentation to support that
computation. However, this order was issued only after the
time for discovery had ended, and after the Court had granted
the defendant's motions to compel that information.
the parties agree that Plaintiff is required to provide the
information Seterus is requesting; this dispute centers on
the timing of this disclosure. Because the Court has amended
the scheduling order, the parties now have two full months of
discovery remaining. Plaintiff states this discovery is
necessary in order to provide Seterus with its requested
information. It is reasonable to believe that Plaintiff will
file supplemental answers as to his damages calculation when
he has the necessary information because he has already done
so once. Accordingly, Seterus's motion to compel
Plaintiff to provide an explanation of how its actual and
future damages are ...