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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

TIM L. NEFF, et al., 

 Plaintiffs, 

 vs. Civil Action 2:11-cv-1136 

 Judge Sargus 

 Magistrate Judge King 

FLAGSTAR BANK, FSB, 

 Defendant. 

OPINION AND ORDER

 This matter is before the Court for consideration of the Motion 

of Plaintiffs Tim and Bobbie Neff to Compel Discovery (“Motion to 

Compel”), Doc. No. 35, defendant’s Memorandum in Opposition to Motion 

to Compel Discovery (“Defendant’s Response”), Doc. No. 37, and 

Plaintiffs’ Reply, Doc. No. 39. For the reasons that follow, 

plaintiffs’ Motion to Compel is GRANTED in part and DENIED in part. 

I. Background 

 The Court has previously set forth the background of this case: 

On September 30, 2008, the plaintiffs, Tim L. and Bobbie K. 

Neff, executed a note in favor of the defendant Flagstar 

Bank, FSB (“Flagstar”), payment of which was secured by a 

mortgage to Mortgage Electronic Registration System, Inc. 

(“MERS”) as nominee for Flagstar, against real property 

located at 174 Salem Avenue in Fredericktown, Ohio 

(“Property”). Because of financial difficulties, the Neffs 

contacted Flagstar in September 2009 about modifying their 

loan, and Flagstar requested that the Neffs complete and 

submit certain documents toward that end. The Neffs 

completed and submitted the documents. In October 2009, 

Mr. Neff was injured during the course of his employment. 

Flagstar requested that the Neffs send additional paperwork 

related to a potential loan modification, and they 

complied. 

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On February 15, 2010, Flagstar sent the Neffs a letter 

offering them a “reinstatement arrangement” and indicated 

that they would be reviewed for a loan modification after 

they made four payments of $1,116.92. (Compl. ¶ 28, Ex. 

A.) The letter provides that the Neffs' “account will be 

allowed to remain delinquent” so long as they make each 

required payment on or before March 1, April 1, May 1, and 

June 1, 2010. (Compl., Ex. A at 1.) After each payment 

was made, the Neffs were to submit additional documents so 

that Flagstar could determine “alternatives to cure the 

delinquency.” Id.

The Neffs signed the letter on February 19, 2010 and sent 

in the first payment contemplated by it. In a telephone 

conversation in April 2010, “Flagstar told Mr. Neff to make 

the remaining payments according to the [letter], and 

[Flagstar] would offer a loan modification after 

determining affordability.” (Compl. ¶ 33.) 

The Neffs made the May payment. On May 11, 2010, Flagstar 

sent the Neffs a letter informing them that they were in 

default on their loan. 

The Neffs submitted their June 2010 payment and, in another 

telephone conversation that month, Flagstar represented to 

Mr. Neff that it would provide a loan modification 

agreement. 

On August 31, 2010, Flagstar “sent the Neffs a letter 

requesting more documents, which they next promptly 

sent.” Id. ¶¶ 44–45. “[O]n September 14, 2010, [Flagstar] 

sent the Neffs another letter indicating that they were 

still in default.” Id. ¶ 46. Mr. Neff contacted Flagstar, 

which again requested documents. Mr. Neff supplied the 

requested documents. 

In November 2010, Mr. Neff called Flagstar, which again 

informed Mr. Neff that he needed to continue to submit 

paperwork, and that Flagstar was reviewing his file for a 

modification. 

On December 16, 2010, a law firm, on behalf of Flagstar, 

sent a letter to the Neffs indicating that . . . their loan 

was in default and that they owed Flagstar $151,351.10. In 

January 2011, Mr. Neff called Flagstar to ask about the 

status of the contemplated loan modification. Flagstar 

indicated that it was working on the modification. 

On January 21, 2011, Flagstar filed a complaint for 

foreclosure in the Knox County, Ohio, Court of Common 

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Pleas, Case Number 11FR01–0042 (“Foreclosure Action”). 

On February 22, 2011, Flagstar sent the Neffs a letter 

requesting more documents. Specifically, Flagstar 

requested that the Neffs send a financial form and their 

last two paystubs. Mr. Neff submitted the requested 

documents. 

There was no contact between the parties until May 2011 

when Mr. Neff telephoned Flagstar. At that time, Flagstar 

informed him that it needed to continue to update his file 

with more financial paperwork. Mr. Neff provided the 

requested paperwork. 

The Neffs aver that, “[g]enuinely believing that [Flagstar] 

was completing a loan modification for the[m], the Neffs 

did not answer the state foreclosure action.” Id. ¶ 65. 

In July 2011, default judgment was entered against the 

Neffs in the Foreclosure Action. 

In August 2011, Mr. Neff called Flagstar to ask about the 

loan modification. Flagstar requested that Mr. Neff send 

more paperwork and stated that it was working on a new 

agreement for the Neffs. 

In September 2011, Flagstar called the Neffs and “asked Mr. 

Neff to send more paperwork and [indicated] that if the 

property is foreclosed on, although a default judgment had 

already been entered, that Mr. Neff should call 

[Flagstar].” Id. ¶ 73. “The Neffs understood 

‘foreclosure’ to mean the scheduled sale of the property, 

not realizing the implications of Flagstar having already 

secured a default judgment against them.” Id. ¶ 74. Mr. 

Neff asked Flagstar whether the Neffs should retain counsel 

to help resolve . . . their situation with Flagstar. 

Flagstar told Mr. Neff not to obtain counsel, that it could 

do the same thing an attorney could do, and that counsel 

was not necessary. 

On September 14, 2011, the Court of Common Pleas in Knox 

County ordered a sheriff's sale of the Neffs' home. In 

October 2011, Mr. Neff received a notice of the foreclosure 

sale through the newspaper, which indicated that their home 

would be sold on December 9, 2011. Mr. Neff called 

Flagstar, and was told that he needed to send more 

financial documents to complete the loan modification, 

which he did. 

On November 16, 2011, the Neffs retained counsel. On 

November 23, 2011, counsel for the Neffs filed in the Knox 

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County Court of Common Pleas a motion for relief from 

judgment and a motion to stay the sheriff's sale. On 

December 6, 2011, Flagstar opposed those motions. On 

December 11, 2012, the state court entered on its docket an 

“express[ ] confirm[ation]” that it overruled the Neffs' 

motion for relief from judgment and stay of sheriffs sale. 

On December 20, 2011, the Neffs filed the instant action. 

The Neffs bring federal and state claims, alleging that 

this Court possesses federal question jurisdiction over its 

federal claim, and supplemental and diversity jurisdiction 

over its state law claims. 

On February 17, 2012, Flagstar moved to dismiss this action 

pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 

No. 3), which this Court granted (Doc. No. 17). The Neffs 

appealed that decision, and the Sixth Circuit reversed and 

remanded. 

Neff v. Flagstar Bank, FSB, No. 2:11-cv-1136, 2013 WL 3872115, at *1-2 

(S.D. Ohio July 25, 2013). On remand, this Court dismissed 

plaintiffs’ claim for violation of the Fair Debt Collections Practices 

Act, 15 U.S.C. § 1692, et seq., and permitted plaintiffs’ state law 

claims for fraudulent misrepresentation and promissory estoppel to 

proceed. See Opinion and Order, Doc. No. 28. This matter is now 

before the Court for consideration of plaintiffs’ Motion to Compel. 

II. Standard 

Rule 37 of the Federal Rules of Civil Procedure authorizes a 

motion to compel discovery when a party fails to provide proper 

response to requests for production of documents under Rule 34. Fed. 

R. Civ. Pro. 37(a)(3)(B). “The proponent of a motion to compel 

discovery bears the initial burden of proving that the information 

sought is relevant.” Martin v. Select Portfolio Serving Holding 

Corp., No. 1:05–cv–273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio 

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Sept. 25, 2006) (citing Alexander v. Fed. Bureau of Investigation, 186 

F.R.D. 154, 159 (D.D.C. 1999)). 

Rule 26(b) provides that “[p]arties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s 

claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance for discovery 

purposes is extremely broad. Lewis v. ACB Bus. Servs., Inc., 135 

F.3d 389, 402 (6th Cir. 1998). “The scope of examination permitted 

under Rule 26(b) is broader than that permitted at trial. The test is 

whether the line of interrogation is reasonably calculated to lead to 

the discovery of admissible evidence.” Mellon v. Cooper-Jarrett, 

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970). However, “district courts 

have discretion to limit the scope of discovery where the information 

sought is overly broad or would prove unduly burdensome to produce.” 

Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 

(6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(2)). See also Lewis, 

135 F.3d at 402 (determining the proper scope of discovery falls 

within the broad discretion of the trial court). In determining the 

proper scope of discovery, a district court balances a party’s “right 

to discovery with the need to prevent ‘fishing expeditions.’” Conti 

v. Am. Axle & Mfg. Inc., 326 F. App’x 900, 907 (6th Cir. 2009) 

(quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)). 

Finally, the party moving to compel discovery must certify that 

it “has in good faith conferred or attempted to confer with the person 

or party failing to make disclosure or discovery in an effort to 

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obtain it without court action.” Fed. R. Civ. P. 37(a)(1). See also

S.D. Ohio Civ. R. 37.2. 

III. Discussion 

 This discovery dispute arises out of defendant’s alleged 

deficient responses to two interrogatories and four requests for 

production of documents. Specifically, plaintiffs argue that 

defendant failed to adequately respond to Interrogatories 9 and 13 and 

failed to make any response to Document Requests 44, 50, 51, 52, and 

53. Motion to Compel, p. 3. Interrogatory 9 provides: “State what 

actions You took to set up a face-to-face meeting with Plaintiffs 

prior to initiating the State Foreclosure Action, including the dates 

said actions were taken.” Interrogatories 9, 13, attached to Motion 

to Compel as Exhibit A, p. 2. Interrogatory 13 provides: 

“Please provide a detailed explanation of Defendant’s 

decision to foreclose on the Home rather than modify the 

terms of Plainitffs’ Loan, including: 

a) Identifying Fully the person or persons who made the 

decision to foreclose on the Home rather than modify the 

terms of Plaintiffs’ Loan; 

. . . 

b) The date Defendant decide [sic] it was going to 

foreclose on the Home rather than modify the terms of 

Plaintiffs’ Loan; and 

. . . 

c) The reasoning behind Defendant’s decision to foreclose 

on the Home rather than modify the terms of Plaintiffs’ 

loan. 

Id. at pp. 3-4. Document Request 44 seeks: “A complete copy of the 

Investor Loss Mitigation and Loan Modification Guidelines related to 

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this Loan.” Requests for Production of Documents 44, 50-53, attached 

to Motion to Compel as Exhibit B, p. 2. Finally, Document Requests 

50-53 seek: 

50. A copy of all written loss-mitigation rules and workout procedures related to any defaults regarding this Loan 

and similar loans. 

51. Copies of any agreements You have signed with any 

member or members of the United States Congress with 

respect to the implementation of Loss Mitigation Rules and 

Policies for any type of mortgage product. 

52. All Documents that support Your compliance with all 

conditions precedent before initiating the State 

Foreclosure Action, including but not limited to: 

a. All Documents mailed to Plaintiff that comply with 

Covenant 7 of the Mortgage; 

b. All Documents mailed to Plaintiff that comply with 

paragraph 6 of the Note; 

c. All Documents provided to Plaintiff by Defendant that 

comply with 24 C.F.R. 203; and 

d. Documents utilized internally by Plaintiff to ensure 

compliance with 24 C.F.R. 203. 

53. All manuals or Documents describing the Procedure used 

by Defendant to ensure compliance with the conditions 

precedents located within the Mortgage and Note. 

Id. at p. 3. 

 The Motion to Compel seeks “discovery from Defendant on the 

underwriting guidelines of Defendant’s foreclosure alternative 

programs available from 2009 to 2011” and “information and documents 

on Defendant’s efforts to comply with the Federal Housing 

Administration (‘FHA’) guidelines incorporated into the note and 

mortgage.” Motion to Compel, p. 3. 

 As an initial matter, defendant argues that plaintiffs’ Motion to 

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Compel should be denied because plaintiffs “never formally requested 

the documents they now seek” and because they failed to make a good 

faith effort to resolve this discovery dispute prior to filing the 

Motion to Compel. Defendant’s Response, pp. 2, 7, 12-14. Without 

addressing the merits of defendant’s arguments, the Court concludes 

that the parties are at impasse on the matter and that judicial 

intervention is necessary to resolve this discovery dispute. Notably, 

discovery is still proceeding and, after conducting a discovery 

conference on September 25, 2013, the Court directed plaintiffs to 

file a motion to compel. See Order, Doc. No. 34. The Court will 

therefore address the substance of plaintiffs’ Motion to Compel. 

 As discussed supra, plaintiffs seek to compel “discovery from 

Defendant on the underwriting guidelines of Defendant’s foreclosure 

alternative programs available from 2009 to 2011” and “information and 

documents on Defendant’s efforts to comply with the [FHA] guidelines 

incorporated into the note and mortgage.” Motion to Compel, p. 3. 

The parties disagree as to the relevance of the requests. Defendant 

argues that the requested discovery is not “relevant to any claim or 

defense at issue in this case.” Defendant’s Response, p. 8. 

Specifically, defendant argues that “whether or not the Neffs actually 

qualified for a specific loan modification program that Flagstar had 

is not the issue.” Id. at p. 9. Defendant takes the position that 

plaintiffs’ claims survived defendant’s motion to dismiss only “on the 

assumption that ‘but for’ Flagstar’s statements that it would modify 

[plaintiffs’] loan, the Neffs would have cured their default ‘without 

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Flagstar’s assistance.’” Id. at p. 11 (citations and emphasis 

omitted). “The actual content of Flagstar’s programs and the validity 

of defenses that the Neffs could have raised in the Foreclosure 

Action,” defendant argues, “will not make proof of that issue before 

the Court more or less likely.” Id. Defendant’s argument is without 

merit. 

The Complaint, Doc. No. 1, asserts claims for fraudulent 

misrepresentation and promissory estoppel. In Ohio,1

[t]he elements of fraud or fraudulent misrepresentation are 

(1) a representation or, where there is a duty to disclose, 

concealment of a fact, (2) which is material to the 

transaction at hand, (3) made falsely, with knowledge of 

its falsity, or with such utter disregard and recklessness 

as to whether it is true or false that knowledge may be 

inferred, (4) with the intent of misleading another into 

relying upon it, (5) followed by justifiable reliance upon 

the representation or concealment by the other party, and 

(6) a resulting injury proximately caused by the reliance. 

Funk v. Durant, 799 N.E.2d 221, 224 (Ohio App. 5 Dist. 2003) (citing 

Friedland v. Lipman, 429 N.E.2d 456 (Ohio App. 8 Dist. 1980)). 

Promissory estoppel requires a showing of: “(1) a clear and 

unambiguous promise; (2) reliance on that promise; (3) reliance that 

was reasonable and foreseeable; and (4) damages caused by that 

reliance.” Current Source, Inc. v. Elyria City Sch. Dist., 813 N.E.2d 

730, 737 (Ohio App. 9 Dist. 2004) (citations omitted). 

 As previously determined by the Court in resolving defendant’s 

motion to dismiss, 

 

1

 When sitting in diversity, this Court applies the substantive law the of 

the forum state. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th 

Cir. 2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 

(1941); Macurdy v. Sikov & Love, P.A., 894 F.2d 818, 820 (6th Cir. 1990)). 

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the Neffs specifically pled that a representative of 

Flagstar informed them on numerous occasions, specifically 

laid out in the complaint, that a loan modification was 

being considered, for the Neffs to make certain payments, 

to continue to provide the requested information, and to 

not obtain counsel for the Foreclosure Action. The Neffs 

suggest that Flagstar's representations were false in that 

it had no intention of modifying the loan, just in keeping 

the Neffs from responding in foreclosure or seeking to 

remedy the delinquency through other avenues so that it 

could obtain the Property. The Neffs aver that they relied 

on these representations by taking no action in the 

Foreclosure Action, in which a default judgment had been 

entered but no sheriff sale had yet been ordered or 

conducted. The Neffs had previously arranged certain 

payments with Flagstar, which they made. The Court can 

reasonably infer that absent Flagstar's representations, 

the Neffs would have addressed the delinquency of their 

mortgage and/or the Foreclosure Action without Flagstar's 

assistance but did not do so in detrimental reliance on 

Flagstar's representations. 

Neff, 2013 WL 3872115 at *5. 

 As noted supra, to prevail on their fraudulent misrepresentation 

claim, plaintiffs must prove, inter alia, that there was a material 

representation of fact that was “made falsely, with knowledge of its 

falsity, or with such utter disregard and recklessness as to whether 

it is true or false that knowledge may be inferred.” See Funk, 799 

N.E.2d at 224 (citations omitted). Evidence of defendant’s 

foreclosure alternative guidelines and, specifically, whether 

plaintiffs qualified for an alternative under defendant’s guidelines, 

could serve as evidence of defendant’s intention (or lack thereof) to 

modify plaintiffs’ loan. Whether defendant intended to modify 

plaintiffs’ loan when it made the alleged statements that it would, 

see e.g., Complaint, ¶¶ 88, 112, is therefore relevant to whether the 

alleged statements were “made falsely, with knowledge of its falsity, 

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or with such utter disregard and recklessness as to whether it is true 

or false that knowledge may be inferred.” Similarly, evidence of a 

viable defense in the Foreclosure Action is relevant to whether the 

Neffs would (or could) have addressed the delinquency of their 

mortgage and/or the Foreclosure Action without Flagstar’s assistance 

and whether they suffered injury proximately caused by their reliance 

on the alleged statements. Discovery related to “Defendant’s efforts 

to comply with the [FHA] guidelines incorporated into the note and 

mortgage,” which defendant concedes is related to the Neffs’ ability 

to defend the Foreclosure Action, see Defendant’s Response, p. 11, is 

therefore relevant in this action. It follows, then, that this 

information falls within the ambit of discoverable information. See

Fed. R. Civ. P. 26(b). 

 plaintiff seek an award of their expenses, including attorney’s 

fees, incurred in connection with the Motion to Compel. A court must 

ordinarily award a movant’s reasonable expenses, including attorney’s 

fees, if a motion to compel is granted. Fed. R. Civ. P. 37(a)(5)(A). 

However, a court should not award expenses if, among other things, the 

opposing party’s nondisclosure was substantially justified or other 

circumstances make an award of expenses unjust. Id. A court is 

vested with wide discretion in determining an appropriate sanction 

under Rule 37. See Nat’l Hockey League v. Metro. Hockey Club, 427 

U.S. 639 (1976). 

 Defendant argues that an award of expenses is unwarranted 

because, inter alia, plaintiffs failed to make a reasonable attempt to 

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resolve this discovery dispute prior to filing the Motion to Compel. 

Defendant’s Response, pp. 3, 12-14. This Court agrees. 

Plaintiff sent only one letter to defense counsel addressing the 

substance of this discovery dispute prior to seeking Court 

intervention. See Motion to Compel, Exhibit H; Defendant’s Response, 

Exhibit K. Notably, that letter fails to address Document Requests 

50, 52, or 53, or “information and documents on Defendant’s efforts to 

comply with the [FHA] guidelines incorporated into the note and 

mortgage,” issues that plaintiffs pursue in this motion. See Motion 

to Compel, pp. 1-3. Moreover, defendant responded to plaintiffs’ 

letter with substantive responses and expressly sought further 

clarification from plaintiffs regarding their position, see Motion to 

Compel, Exhibit I; Defendant’s Response, Exhibit L, but plaintiffs 

never responded to that request. 

Under the circumstances, the Court cannot conclude that 

plaintiffs made a good faith effort to confer with defendant, or that 

plaintiffs exhausted all extrajudicial means for the resolution of 

this dispute, prior to seeking Court intervention. See Fed. R. Civ. 

P. 37(a)(1); S.D. Ohio Civ. R. 37.1. Although the Court has 

overlooked that deficiency in considering the merits of the Motion to 

Compel, nevertheless, an award of expenses would be unjust under these 

circumstances. 

WHEREUPON, plaintiffs’ Motion to Compel, Doc. No. 35, is GRANTED 

in part and DENIED in part, consistent with the foregoing. 

The Court suspended the expert report production dates pending 

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resolution of plaintiffs’ Motion to Compel. See Order, Doc. No. 34. 

The Scheduling Order, Doc. No. 25, is therefore MODIFIED as follows: 

Primary expert reports must be produced by plaintiffs no later 

than December 31, 2013 and by defendant (which expects to use only 

rebuttal experts) no later than February 19, 2013. 

All discovery must be completed by February 28, 2013. 

Motions for summary judgment may be filed no later than March 31, 

2014. 

October 30, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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