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Ponder v. Ocwen Loan Servicing, LLC

United States District Court, D. Massachusetts

May 24, 2019

FRED PONDER, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO QUASH

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         Currently pending before the Court is Defendant Ocwen Loan Servicing, LLC's (“Ocwen”) motion to quash a subpoena duces tecum issued by Plaintiff Fred Ponder to non-party StoneTurn Group, LLC (“StoneTurn”). For the reasons set forth below, Defendant's motion to quash [ECF No. 1] is GRANTED.

         I. BACKGROUND

         Mr. Ponder, alleging credit reporting issues related to his mortgage, has sued Ocwen, his mortgage servicer, under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Real Estate Settlement Procedures Act. See Second Am. Compl., Ponder v. Ocwen Loan Servicing, LLC, No. 16-cv-04125 (N.D.Ga. Nov. 6, 2017). Prior to this lawsuit, in 2011, 2012, and 2014, Ocwen entered into several Consent Orders with the New York Department of Financial Services (“NY DFS”). [ECF No. 2 at 2 n.3]. StoneTurn served as one of the Compliance Monitors for a Consent Order dated December 5, 2012. [Id.]. At the termination of its two-year engagement, which began in June 2013, StoneTurn was required to return all documents and material belonging to Ocwen, NY DFS, and other regulators. [Id. at 5-6].

         The parties have been engaged in discovery since the end of 2018. During that time, Mr. Ponder has served Ocwen with 32 interrogatories, 230 requests for admissions, and 62 requests for production. [Id. at 3]. These requests have included: “all reports by the Compliance Monitor identified in ¶ 9” of the December 19, 2014 Consent Order and “all reports by the Operations or Compliance Monitors generated” pursuant to the December 19, 2014 Consent Order. [Id.].

         On May 7, 2019, Mr. Ponder issued a subpoena duces tecum to StoneTurn (“Subpoena”). [ECF No. 2-1]. The Subpoena commanded StoneTurn to appear on May 21, 2019 for a 30(b)(6) deposition and to produce the following documents:

1. All Ocwen Loan Servicing, LLC (Ocwen) borrower electronic or printed loan files produced or provided to you by Ocwen for audits in connection with any Consent Order entered by Ocwen with the New York Department of Financial Services (NYDFS).
2. All audits, reports, evaluations, business plans (or the like), summaries or communications generated or received by you regarding the violations, complaints, problems, or compliance issues reported or discovered by you during and after the audits of Ocwen borrowers' files pursuant to the Consent Orders identified at ¶ l, supra.
3. All documents and communications that refer or relate to Fred Ponder.
4. All communications and other documents, whether electronic or printed, which evidence or relate to Ocwen's compliance with federal or state laws; including, but not limited to, the Consent Orders identified at ¶ 1, supra.

[Id. at 7]. Ocwen filed the instant motion to quash on May 17, 2019. [ECF No. 1].[1]

         II. DISCUSSION

         A. Legal Standard

         Federal Rule of Civil Procedure 45 allows parties to serve third-party subpoenas. See Fed. R. Civ. P. 45. The scope of discovery that may be sought from a non-party is the same as what may be sought from a party under Federal Rule of Civil Procedure 34, but parties serving non-party subpoenas are required to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed.R.Civ.P. 45(d)(1); Fed.R.Civ.P. 45 advisory committee's note to 1991 amendment. A court “must quash or modify a subpoena that: . . . subjects a person to undue burden” on timely motion from a party or non-party. Fed.R.Civ.P. 45(d)(3). “When determining whether a subpoena duces tecum results in an undue burden on a party such factors as ‘the relevance of the documents sought, the necessity of the documents sought, the breadth of ...


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