Johnson v. MidFirst Bank

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

RHONDA MICHELLE JOHNSON §
§

v. § NO. 4:24-CV-00986-SDJ-BD
§
§

MIDFIRST BANK

MEMORANDUM OPINION AND ORDER
Defendant MidFirst Bank moved for a protective order. Dkt. 73; see Dkts. 75 (response), 77

(reply). The motion will be granted.

BACKGROUND

There are four sets of discovery at issue. Plaintiff Rhonda Michelle Johnson filed her first sets
of requests for admission, requests for production, and interrogatories. Dkts. 73-1 to -3. MidFirst
served responses and objections to Johnson’s first set of discovery and, after conferring with
Johnson, supplemented its responses. Dkt. 73 at 2-3. Johnson then filed a “revised first set of
interrogatories,” which included both restatements from her first set and new interrogatories.
Dkt. 73-4. MidFirst responded and objected to the revised set of interrogatories. Dkt. 73 at 3.
Johnson then served a second set of interrogatories, requests for production, and requests for
admission, Dkt. 73-5, and before MidFirst responded, a third set of interrogatories and requests
for admission, Dkt. 73-6. MidFirst now seeks a protective order relieving it of its duty to respond

to the second and third sets of discovery.

LAW
Under Federal Rule of Civil Procedure 26(c)(1), a district court “may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense.” “The movant bears the burden of showing that a protective order is necessary,
‘which contemplates a particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.’” EEOC ». BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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2017) (quoting In re Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir. 1998)). The district court has broad
discretion in determining whether to grant a motion for a protective order because it is “in the best
position to weigh fairly the competing needs and interests of parties affected by discovery.” Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); see also Harris v. Amoco Prod. Co., 768 F.2d 669, 684
(5th Cir. 1985) (noting that, although“[t]he federal rules do not themselves limit the use of
discovered documents or information,” Rule 26(c) “afford[s] district courts the ability to impose
limits” and that “the district court can exercise its sound discretion to restrict what materials are
obtainable, how they can be obtained, and what use can be made of them once obtained” so long
as “the party from whom discovery is sought shows ʻgood cause’”).
DISCUSSION
A. Interrogatories
MidFirst argues that it should not have to respond to the second and third sets of
interrogatories because they exceed the number permitted. Dkt. 73 at 5. It is correct.
Unless otherwise stipulated, “a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1). When interrogatories are
challenged as exceeding the number allowed, the court should determine whether each
interrogatory contains discreet subparts. Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315
F.R.D. 191, 194 (E.D. Tex. 2016). Although there is no exact formula to determine what constitutes
a discreet subpart, most courts follow the “related question” approach. Id. at 196. Under that
approach, “subparts that are logically or factually subsumed within and necessarily related to the
primary question should not be treated as separate interrogatories.” Id. A subpart is independent
of the first question if the first question can be fully and completely answered without answering
the second. Id; Moser v. Navistar Int’l Corp., No. 4:17-cv-00598, 2018 WL 3614012, at *6 (E.D.
Tex. July 27, 2018).
Although it is common for parties to amend their interrogatories, Johnson served her revised
set of interrogatories on MidFirst only after it had responded to her first set of interrogatories. Cf.
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Barry v. Medtronic, Inc., No. 1:14-cv-104, 2015 WL 11070282, at *2 (E.D. Tex. July 21, 2015)
(discussing amended interrogatories); Dkt. 73 at 3. A party cannot properly exceed the permissible
number of interrogatories by entitling some “revised” if it has already benefited from its
opponent’s responses. The court will treat the revised set of interrogatories as a second set of
interrogatories to the extent they are not duplicative of the first set of interrogatories.
Whether Johnson has exceeded the permissible number of interrogatories depends on how
many subparts each contains. Interrogatories 3–7, 9, and 12 contain discreet subparts. Dkt. 73-3.
Revised interrogatories 1, 3, 4, and 6–10 are duplicative of the first set of interrogatories. Dkt. 73-4.
The remaining interrogatories and revised interrogatories did not contain discreet subparts.
Dkts. 73-3 to -4. In total, Johnson’s first set of interrogatories and revised set of interrogatories
contain 28 discreet subparts.
Interrogatory 1
Describe in detail the process by which MidFirst Bank determined it had the authority to
enforce the promissory note against Plaintiff, including any review of the original loan
agreement. Provide all documents, communications, or legal opinions that support
MidFirst Bank’s determination of its enforcement rights.
This interrogatory does not contain discreet subparts, but its second sentence is a request for
production, rather than an interrogatory.
Interrogatory 2
Describe in detail every step MidFirst Bank took to verify the authenticity and
enforceability of the promissory note before initiating collection or enforcement actions
against Plaintiff. Identify who conducted the verification, how authenticity was determined,
and what documents were reviewed.
This interrogatory does not contain discreet subparts. An interrogatory that asks whether a
particular action was taken, then asks when, by who, and how that action was taken relates to a
single topic. Banks v. Off. of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004).
Interrogatory 3
State whether any material alterations, modifications, endorsements, missing pages, or
unauthorized changes have been made to the original promissory note post-execution by
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Plaintiff. If so: (a) Describe each alteration, who authorized it, and when it occurred;
(b) Identify all individuals, title and contact information, involved in modifying the note;
(c) Produce all versions of the note in MidFirst’s possession, including metadata or
electronically stored versions; (d) Explain how MidFirst Bank determined that the altered
note remains enforceable.
This interrogatory contains two discreet subparts. First, parts (a)–(b) ask whether modifications
were made and for details about those modifications. But part (d) asks how MidFirst determined
that any modifications did not change the enforceability of the note. Because MidFirst can fully
answer the first question without answering the second and vice versa, these are distinct subparts.
Part (c) is a request for production.
Interrogatory 4
Explain whether MidFirst Bank reviewed, audited, and verified whether the original lender
complied with Generally Accepted Accounting Principles (GAAP) when originating the
subject loan prior to enforcement. If so: (a) State who performed the review (name, title,
company); (b) What records were examined (e.g., ledgers, accounting logs, balance
sheets); (c) Whether any issues of non-compliance were identified and how they were
resolved. (d) Produce any and all documents, internal reports, audits, or memoranda
related to this verification.
This interrogatory contains two discreet subparts. First, it asks how a review was performed, then
what the results of that review were. See Moser, 2018 WL 3614012, at *9. Part (d) is a request for
production. An interrogatory asking about a general practice and then the application of that
practice to particular facts contains two subparts. See Banks, 222 F.R.D. at 11.
Interrogatory 5
Identify all Truth in Lending Act (TILA) disclosures provided to Plaintiff at loan
origination and at any subsequent assignments. State whether MidFirst Bank: (a) Reviewed
or verified the accuracy of these disclosures before enforcing the loan; (b) Determined
whether any material misrepresentations existed in prior disclosures.
This interrogatory contains three discreet subparts. First, it asks to identify particular documents.
It then asks whether those documents were reviewed for accuracy. Finally, it asks whether material
misrepresentations existed in earlier documents. Id. at 10.
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Interrogatory 6
Provide the specific amount MidFirst Bank paid to acquire the subject loan from the
previous owner or assignee, including the date of acquisition. (a) If acquired in bulk,
describe the method used to allocate the portion of the total consideration specifically to
Plaintiff’s loan; (b) Provide details of the bulk purchase, including the number of loans
acquired and the total consideration paid; (c) Identify all records reflecting payment for the
subject loan, including wire transfers, purchase agreements, or accounting ledgers. (d) If
MidFirst Bank cannot produce payment records, describe what steps were taken to locate
them and why they are unavailable.
This interrogatory contains three discreet subparts. The first sentence and part (a) ask how much
MidFirst paid for the loan, part (b) asks how many loans were acquired in a bulk purchase and for
how much money, and part (d) asks how MidFirst determined it had no responsive records if it
did. Part (c) is a request for production.
Interrogatory 7
State whether MidFirst Bank maintains records of the original loan account number from
the originating lender. If not, (a) Explain how MidFirst verified it acquired the correct loan
for enforcement; (b) Identify all internal tracking numbers or loan identification methods
used in MidFirst’s records.
This interrogatory contains three discreet subparts. First, it asks whether MidFirst keeps a
particular record, then how it verified the authenticity of the loan, then how it tracks and identifies
loans. MidFirst could answer any one of these three questions without answering any other.
Interrogatory 8
Describe in detail how MidFirst Bank accounted for the acquisition of the subject loan in
its financial and accounting records, including: (a) Whether the promissory note was
classified as an asset; (b) Whether the loan was securitized or transferred into a trust;
Provide details. (c) What internal bookkeeping records exist reflecting MidFirst’s claim of
ownership.
This interrogatory does not contain discreet subparts. It asks about MidFirst’s record keeping,
then specifies particular details of its record keeping Johnson is interested in. Asking about details
within a particular subject does not create a discreet subpart. See Est. of Manship v. United States,
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232 F.R.D. 552, 555 (M.D. La. 2005), aff’d, No. CV 04-91-C, 2006 WL 594521 (M.D. La. Jan. 13,
2006).
Interrogatory 9
State whether MidFirst Bank received any Qualified Written Requests from Plaintiff and:
(a) Identify who reviewed and responded to each QWR; (b) Summarize MidFirst’s
investigation into each QWR request; (c) Provide dates and copies of MidFirst’s responses.
This interrogatory contains two discreet subparts. First, it asks whether MidFirst received and
responded to the Qualified Written Requests. It then asks about MidFirst’s investigation into
them. Part (c) is a request for production.
Interrogatory 10
Describe all collection, foreclosure, or enforcement actions MidFirst Bank initiated against
Plaintiff, including: (a) Dates of collection notices, foreclosure letters, demand letters, or
default notices; (b) The employees, attorneys, or third-party agents involved in collection
efforts.
This interrogatory does not contain discreet subparts. It asks for details about the topic discussed.
Interrogatory 11
Explain the standard policies and procedures MidFirst Bank follows when verifying the
validity and enforceability of a promissory note before initiating collection or foreclosure
actions.
This interrogatory does not contain discreet subparts.
Interrogatory 12
For each affirmative defense asserted in MidFirst’s Answer, identify: (a) The factual basis
for the defense; (b) Any legal authority or statutes supporting the defense; (c) Any
witnesses or documents MidFirst intends to use to support each defense.
This interrogatory contains multiple discreet subparts. Where an interrogatory asks for the
basis of multiple claims or defenses, it will usually constitute multiple subparts. Ritchie Risk-Linked
Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 273 F.R.D. 367, 369 (S.D.N.Y. 2010). But
if it relates to multiple closely related defenses that would be supported by the same facts, those
defenses might be grouped together. Pouncil v. Branch L. Firm, 277 F.R.D. 642, 647 (D. Kan. 2011).
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MidFirst’s answer asserts twelve affirmative defenses. Dkt. 60 at 9. Some of those are actually
assertions that Johnson cannot satisfy the elements of her claims, rather than affirmative defenses.
Id. Other defenses include the statute of limitations, the statute of frauds, unclean hands, the
economic-loss doctrine, a statutory defense, estoppel, and contributory negligence. Id. Because it
will find that Johnson has issued more than 25 interrogatories anyway, the court need not
determine which of these defenses are closely related to each other.
Interrogatory 13
Describe all steps MidFirst Bank has taken to comply with the Real Estate Settlement
Procedures Act (RESPA) and other federal regulations concerning the servicing and
enforcement of the subject loan.
This interrogatory does not contain discreet subparts.
Interrogatory 14
Identify and produce all documents, reports, or electronic records, including those that
may challenge MidFirst Bank’s standing to enforce the note, upon which MidFirst Bank
intends to rely in defending against Plaintiff’s claims. This should encompass documents
that substantiate MidFirst Bank’s assertion of ownership, right to enforce, and any other
claim or defense raised in response to Plaintiff’s allegations. Limit your response to
documents that: (a) Directly support MidFirst Bank's standing to enforce the note against
Plaintiff; (b) Substantiate MidFirst Bank’s authority to initiate collection or foreclosure
actions; (c) Are intended to be introduced as evidence in any phase of the current litigation.
This interrogatory does not contain discreet subparts. Instead, it asks MidBank which documents
it intends to rely on and then clarifies the intended scope of the interrogatory.
Interrogatory 15
State whether MidFirst Bank has communicated with any third parties regarding Plaintiff’s
loan, 	including 	but 	not 	limited 	to 	investors, 	servicers, 	or 	agencies. 	For 	each
communication, describe the nature, content, and purpose, and how these communications
may have influenced the handling, modification, or enforcement of Plaintiff’s loan. Provide
dates and copies of any written communications.
This interrogatory does not contain discreet subparts. The advisory committee notes contemplate
this scenario: “[A] question asking about communications of a particular type should be treated as
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a single interrogatory even though it requests that the time, place, persons present, and contents
be stated separately for each such communication.” 146 F.R.D. 401, 675–76.
Revised Interrogatory 2
State the source of funds used to issue Plaintiff’s loan at closing, identifying whether those
funds were drawn from assets held by Town Square Mortgage and Investments Inc., or
were generated through any pledge, monetization, or conversion of Plaintiff’s promissory
note.
This interrogatory does not contain discreet subparts.
Revised Interrogatory 5
State whether MidFirst Bank, any affiliated entity, assignor, received any financial benefit,
profit, or payment in relation to Plaintiff’s promissory note outside of regular interest or
principal payments.
This interrogatory does not contain discreet subparts.
Revised Interrogatory 11
Below is a screenshot of the Special Warranty Deed provided by Defendant in the discovery
file titled 260-500 2024.06.13 - Response. State all facts known to You concerning the
phrase in the Special Warranty Deed stating: “Note of even date herewith in the original
amount of $294,467 . . . payable to the order of Town Square Mortgage and Investments,”
including whether this reflects ownership, assignment, or any deposit or monetization of
the promissory note.
This interrogatory does not contain discreet subparts.
Revised Interrogatory 12
State whether MidFirst Bank asserts legal authority to enforce Plaintiff’s promissory note
notwithstanding any alteration or endorsement made after execution without Plaintiff’s
consent, and identify the material facts and legal principles supporting that assertion.
This interrogatory does not contain discreet subparts.
All told, Johnson’s first set of interrogatories and revised first set of interrogatories contain 28
discreet 	interrogatories. 	Because 	the 	first 	set 	of 	interrogatories 	and 	the 	revised 	set 	of
interrogatories exceed the 25 permitted by Federal Rule of Civil Procedure 33(a)(1), MidFirst is
not obliged to respond to the second and third sets of interrogatories.
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B. Requests for production and admission
Unlike interrogatories, requests for production and admission are not limited in number unless
limited by the court. Fed. R. Civ. P. 34, 36. “A district court may limit discovery if the information
sought is duplicative, unreasonably cumulative, or when the burden of discovery outweighs the
likely benefit of the information sought.” Muhammad v. Ness, 47 F.3d 427 (5th Cir. 1995).
MidFirst argues that Johnson’s second set of requests for production, Dkts. 73-5, and second
and third sets of requests for admission, Dkts. 73-5 to -6, are duplicative of her first sets of discovery
requests, Dkts. 73-1 to -2. Collectively, Johnson has issued 49 requests for admission and 29
requests for production that relate to similar and overlapping subject matter. MidFirst has already
produced documents and admissions responsive to most of those requests. Dkt. 73 at 5. For
example, request for production number four of Johnson’s second set of requests for production
requests “all general ledger entries, accounting records, or other financial documentation that
reflects MidFirst Bank’s acquisition, ownership, or transfer of the Note.” Dkt. 73-5 at 5.
Documents responsive to that request for production would have been included in MidFirst’s
response to request for production number four of Johnson’s first set, which asked for “all
bookkeeping entries and financial records . . . related to the alleged loan.” Dkt. 73-2 at 5.
MidFirst explains that it has already produced information or documents responsive to each of
Johnson’s discovery requests and that it has no more information in its control that has not been
produced to Johnson. To the extent that she seeks information that has not already been produced,
Johnson may make non-duplicative requests for discovery until 30 days before the close of
discovery. But MidFirst has met its burden to show that it should not be obligated to object or
respond to the currently outstanding discovery requests.
CONCLUSION
It is ORDERED that the motion for a protective order, Dkt. 73, is GRANTED. MidFirst is
not required to object or respond to Johnson’s second and third sets of discovery requests.
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So ORDERED and SIGNED this 13th day of November, 2025.

Bill Davis
United States Magistrate Judge

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