Page 1 - DEFENDANT SELECT PORTFOLIO SERVICING, INC.’S RESPONSE TO 

PLAINTIFF’S SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE 

TESTIMONY FROM ANY BANA WITNESS

90777235.3 0052161-02921

Amy Edwards, OSB No. 012492

amy.edwards@stoel.com

Crystal S. Chase, OSB No. 093104

crystal.chase@stoel.com

Kennon Scott, OSB No. 144280

kennon.scott@stoel.com

STOEL RIVES LLP

760 SW Ninth Ave., Ste. 3000

Portland, OR 97205

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Attorneys for Defendant Select Portfolio Servicing, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

TERRI KWAKE, an individual and citizen 

of the State of Oregon,

Plaintiff,

v.

SELECT PORTFOLIO SERVICING, INC.; 

a Utah Corporation,

Defendant.

Case No.: 6:15-CV-01713-MC

DEFENDANT SELECT PORTFOLIO 

SERVICING, INC.’S RESPONSE TO 

BANK OF AMERICA, N.A.’S 

MOTION TO QUASH

Defendant Select Portfolio Servicing, Inc. (“SPS”) submits the following response to 

Bank of America, N.A.’s (“BANA”) Motion to Quash (Dkt. #115) (“Motion”). This response is 

supported by the Declaration of Kimberly M. Hammond (“SPS Decl.”), filed herewith.
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I. INTRODUCTION

After months of acting like a cooperating third-party witness, BANA, at the eleventh 

hour, is attempting to re-write its position and undermine its prior agreements with SPS. BANA 

should be required to provide a witness under the subpoena and its Motion should be denied.

II. FACTUAL BACKGROUND

Since the beginning, SPS has been working closely with BANA to defend this case. As 

is customary in the loan servicing industry, BANA, as the prior servicer on Plaintiff’s loan, has 

been cooperating with SPS. (SPS Decl. ¶ 3.) BANA consistently offered to help SPS in the 

litigation, provided SPS information when asked, without being served with formal discovery 

requests, and assisted SPS in discovery disputes with Plaintiff over BANA proprietary 

documents. (Id.) As a result, after the settlement conference, when the trial date was firmly set 

for February, SPS reached out to BANA informally to request the attendance of a BANA 

witness, expecting BANA to cooperate without hesitation. (Id. ¶ 4.) And BANA appeared to do 

so. In fact, until this Monday, BANA never indicated that it would refuse to produce a witness. 

(Id. ¶ 9.) What follows is a short timeline of the communications between SPS and BANA:

• On December 27, 2016, assuming that BANA would cooperate, SPS emails BANA 

asking about the “best way . . . to get a [BANA] witness assigned.” Rather than 

refuse the request, BANA simply asks about the “scope of testimony” needed. (Id.,

Ex. 1.)

• On January 3, 2017, BANA and SPS have a call to discuss the scope of testimony for 

the BANA witness. (Id. ¶ 5.) 

• On January 11, SPS checks in on the assignment of a BANA witness. In response, 

BANA states that it is “still trying to identify someone” to testify on the topics SPS 

and BANA had discussed. (Id., Ex. 3.)

• On January 25, SPS and BANA discuss the BANA witness. SPS indicates that even 

if BANA cannot identify a witness with knowledge of Plaintiff’s loan, SPS still needs 

a witness to explain the policies and procedures of implementing the National 

Mortgage Settlement Program (“NMS Program”). BANA and SPS also discuss 
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TESTIMONY FROM ANY BANA WITNESS

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whether serving a subpoena will help BANA expedite the assignment of a witness. 

(Id. ¶ 6.) 

• On January 30, SPS serves BANA with a subpoena (the “Subpoena”), and provides a 

copy to SPS’s primary BANA contact for this case. (Id., Ex. 2.) SPS also sends 

BANA the witness disclosures it filed, again asking for the “name of the BANA 

witness” as soon as possible. (Id., Ex. 3.)

• On February 6, BANA tells SPS that it is working to respond to the Subpoena and 

will have more information to share the following day. Hearing nothing, SPS emails 

BANA again asking for an update. (Id., Ex. 4.)

• On February 9, BANA tells SPS that it is “actively looking into [SPS’s] request.” 

BANA also states that it has “some concerns” about the topics listed in the Subpoena, 

but it does not suggest it has changed its position on providing a witness. In fact, it 

promises to “make every effort to respond as quickly as possible.” (Id.)

• On February 13, for the first time, BANA refuses to provide a trial witness and states 

that it will move to quash the Subpoena. Just hours later it files its Motion to Quash. 

(Id. ¶ 9.)

III. ARGUMENT

None of the four arguments raised by BANA justify quashing the Subpoena.

A. BANA Has Waived Its Right to Object to the Form of the Subpoena.

BANA’s primary argument is that the Subpoena should be quashed because it is directed 

to BANA, rather than to an individual. SPS recognizes that the Ninth Circuit has held that 

Rule 45 generally requires that subpoenas designate the individual desired to testify. See

Donoghue v. Orange Cty., 848 F.2d 926, 931 (9th Cir. 1987). However, in this case, applying 

that rule would lead to an unjust result. For the past six weeks, BANA has strung SPS along, 

giving SPS every indication that it would provide a witness for trial. In fact, SPS only served the 

Subpoena, because it believed doing so would help BANA assign a witness more quickly. (SPS 

Decl. ¶ 7.) Courts in other jurisdictions have enforced subpoenas served on unnamed corporate 

representatives. Conyers v. Balboa Ins. Co., No. 8:12-CV-30-T-33EAJ, 2013 WL 2450108, at 

*1 (M.D. Fla. June 5, 2013) (denying motion to quash a Rule 45 subpoena served on an unnamed 
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corporate representative); Williams v. Asplundh Tree Expert Co., 2006 WL 2598758, at *2-3 

(M.D. Fla. Sept. 11, 2006) (same).1

 And, more importantly, to permit BANA, on the eve of trial, 

to go back on its word and contest the form of the subpoena, would reward BANA for failing to 

deal with SPS in good faith.

B. There is No Evidence that BANA Cannot Produce a Witness in Oregon.

In its Motion, BANA claims that it informed SPS, prior to service of the subpoena, that 

BANA had no Oregon-based witness with any knowledge relevant to this case. (Motion at 7.) 

As an initial matter, this statement is not supported by any admissible evidence. Counsel for 

BANA attests to this fact, but he cannot possibly have personal knowledge of the suitability of 

every BANA employee living or working in Oregon. (See Laurick Decl. (Dkt. #116) ¶ 2.) 

Moreover, the Motion focuses on BANA’s claim that no one in BANA’s local branch has 

any knowledge of Plaintiff’s loan. (See Motion at 7.) Again, this claim is unsupported by any 

evidence. However, even if it were true, it is irrelevant. The Subpoena demands testimony on 

matters beyond Plaintiff’s loan. As SPS has been explaining to BANA since December, SPS 

seeks a BANA witness to testify to the policies and procedures of implementing the BANA’s 

NMS Program. (SPS Decl. ¶ 4; id., Ex. 2 (Subpoena at 4).) There is no evidence that there is no 

Oregon-based BANA witness with knowledge of this program.2 Therefore, BANA’s argument 

that the Subpoena violates Rule 45’s geographical limits is unfounded.

 1 Donaghue was decided long before Conyers and Williams. Moreover, in Donaghue, the 

Ninth Circuit did not hold that a Rule 45 subpoena may never be served on an unnamed 

corporate representative. Instead, it simply held that, because it had “discovered no authority . . . 

for the proposition that the Rule 30 standards should govern Rule 45 subpoenas of witnesses,” 

the District Court had not abused its discretion in quashing a trial subpoena served on an 

unnamed corporate representative. Donoghue, 848 F.2d at 932.

2 Indeed, in the six weeks of discussion BANA never indicated that it could not provide a 

witness based on the location of the trial.
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TESTIMONY FROM ANY BANA WITNESS

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C. The Subpoena Was Not Untimely.

BANA’s characterization of the Subpoena as belatedly “probing for new information” 

after the discovery deadline is simply inaccurate. Since the beginning of this case, BANA has 

cooperated with SPS in defending against Plaintiff’s claims. It has agreed to provide information 

to SPS, without the service of discovery requests. As a result, SPS did not serve BANA with 

discovery subpoenas or seek to implead it into the case. BANA has known for months that SPS 

needed testimony on the subjects listed in the Subpoena, and SPS only delayed in serving BANA 

with a trial subpoena because BANA gave every indication it was not necessary. As discussed in 

section III.A supra, BANA should not be permitted to benefit from its delay tactics..

D. SPS Seeks BANA Testimony on More Than the Confidential Settlement Agreement.

BANA’s arguments about the confidentiality of the settlement agreement reached in 

Compusano, et al. v. BAC Homes Loan Serving, LP et al. (the “Settlement Agreement”) are 

moot, as the Court decided at the pretrial conference that Settlement Agreement is inadmissible 

at trial. Moreover, BANA’s arguments on this point are irrelevant because the Subpoena seeks 

testimony on more than just the Settlement Agreement. (SPS Decl., Ex. 2 (Subpoena at 4).) 

Therefore, the confidentiality of the Settlement Agreement does not weigh in favor of quashing 

the Subpoena.

IV. CONCLUSION

For the foregoing reasons, BANA’s motion should be denied.

DATED: February 16, 2017. STOEL RIVES LLP

/s/ Amy Edwards

AMY EDWARDS, OSB No. 012492

CRYSTAL S. CHASE, OSB No. 093104

Telephone: (503) 224-3380

Attorneys for Defendant Select Portfolio 

Servicing, Inc.