MCGINNIS v. AMERICAN HOME MORTGAGE SERVICING, INC
Filing
124
ORDER denying 104 Motion for New Trial; granting in part and denying in part 105 Motion for Judgment as a Matter of Law; denying 116 Motion for Hearing. Ordered by U.S. District Judge C ASHLEY ROYAL on 6/30/14 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JANE MCGINNIS,
:
:
Plaintiff,
:
:
v.
:
Civil Action
:
No. 5:11‐CV‐284 (CAR)
AMERICAN HOME MORTGAGE
:
SERVICING INC.,
:
:
Defendant.
:
___________________________________ :
ORDER ON RENEWED MOTION FOR JUDGMENT
AS A MATTER OF LAW & MOTION FOR NEW TRIAL
Following a jury verdict and entry of judgment in favor of Plaintiff Jane
McGinnis, Defendant Homeward Residential, Inc. f/k/a American Home Mortgage
Servicing Inc. (herein “Homeward”) filed a Renewed Motion for Judgment as a Matter
of Law [Doc. 105] and, in the alternative, a Motion for New Trial and/or Remittitur
[Doc. 104]. Homeward has also filed a Request for Hearing [Doc. 116] on these motions.
Because Homeward’s motions are based on much of the same evidence and
repeat many of the same arguments the Court previously considered on summary
judgment and during Homeward’s oral motion for judgment as a matter of law at the
close of the evidence, the Court finds that a hearing and further oral argument is
unnecessary. Homeward’s Request for a Hearing [Doc. 116] is therefore DENIED.
1
After having now considered the extensive written briefs, the evidence present at
trial, and the relevant law, the Court agrees with Homeward that the evidence at trial
was not legally sufficient for a reasonable jury to find a “specific intent to harm.” The
Renewed Motion for Judgment as a Matter of Law is thus GRANTED in part; and it is
ORDERED that the punitive damages award be reduced to $250,000.00.1 The
remainder of Homeward’s Renewed Motion for Judgment as a Matter of Law and
Homeward’s Motion for a New Trial are, however, DENIED.
BACKGROUND
This is an action for wrongful foreclosure, conversion, interference with property
rights, and intentional infliction of emotional distress filed by a borrower, Plaintiff Jane
McGinnis, against the company that serviced her loans, Defendant Homeward
Residential, Inc. The evidence at trial showed that, shortly after Homeward began
servicing Plaintiff’s non‐residential mortgage in the Fall of 2009, there was in increase in
the amount of her monthly payment, from $605.38 to $843.58, which Homeward
attributed to an increase in the escrow. Following two more escrow analyses, Plaintiff’s
monthly payment was reduced to $638.32. Plaintiff disputed and refused to pay the
increased amounts, and instead continued to submit her original monthly payment of
$605.38. Because of this, Plaintiff went into default, and Homeward foreclosed on the
property.
1
See O.C.G.A. § 51‐12‐5.1(g).
2
At trial, Plaintiff claimed that the foreclosure was wrongful and that her default
was caused by Homeward’s breach of their lending agreement. Plaintiff asserts that
Homeward breached a duty owed to her by unreasonably increasing her escrow
payment, failing to give her proper notice of the increase, and failing to credit her
account at the time payments were made. Plaintiff put forth evidence that Homeward
refused to reconsider its position that she was in default, harassed her for payments,
and foreclosed on her property despite her attempts to cure the deficiency and pay the
account in full, and in so doing, caused Plaintiff to suffer severe emotional distress.
Homeward, on the other hand, takes the position that Plaintiff simply refused to
pay a routine increase in her escrow payment because she did not agree with it. It
presented evidence at trial that Plaintiff was in default, remained in default even after
her escrow payments were reduced, failed to cure the deficiencies despite being given
opportunities to do so, and thus left Homeward with no choice but to foreclose.
At the close of evidence, Homeward moved, pursuant to Federal Rule of Civil
Procedure 50(a), for judgment as a matter of law on Plaintiff’s claims for wrongful
foreclosure, conversion, interference with property rights, and intentional infliction of
emotional distress.2 The Court took the motion under advisement.3 The jury then
returned a verdict in favor of Plaintiff and against Homeward as to all claims and
awarded Plaintiff $6,000.00 in economic, compensatory damages, $500,000.00 in
2
3
Tr. Vol. II at 208‐228 [Doc. 109].
Tr. Vol. III at 45 [Doc. 45].
3
emotional damages, and $3,000,000.00 in punitive damages. After accepting the jury’s
verdict, the Court denied Homeward’s motion for judgment as a matter of law.4
PROCEDURAL POSTURE
Homeward has now filed two timely post‐judgment motions challenging the
jury’s verdict in the case: a Renewed Motion for Judgment as a Matter of Law, under
Federal Rule of Civil Procedure 50(b) and, in the alternative, a Motion for a New Trial
and/or Remittitur, under Federal Rule of Civil Procedure 59(a). Although the
arguments in both motions are very similar, the two motions “have wholly distinct
functions and entirely different standards govern their allowance.”5 If a motion for new
trial is granted, the case is simply tried again; if the court grants a motion for judgment
as a matter of law under Rule 50(b), the case is at an end.6 A Rule 50(b) motion is thus
measured by a far more rigorous standard. “On a motion for a new trial, the court has a
wide discretion to order a new trial whenever prejudicial error has occurred. On a
motion for judgment as a matter of law, it has no discretion whatsoever and considers
only the question of whether there is sufficient evidence to raise a jury issue.”7
Where, as in this case, a party files alternative motions under Rules 50 and 59
making materially indistinguishable arguments, the arguments may be considered
Order, Sept. 5, 2013 [Doc. 99].
State Farm Fire & Cas. Co. v. Silver Star Health and Rehab Inc., No. 6:10–CV–1103, 2012 WL 983775, at *1
(M.D. Fla. Mar. 22, 2012) (quoting 9A Wright & Miller, Federal Practice and Procedure § 2531 (3d ed.)).
6 Id.
7 Id.
4
5
4
together though the legal standards differ.8 In such cases, “the trial judge should rule
on the motion for judgment. Whatever his ruling thereon he should also rule on the
motion for a new trial, indicating the grounds of his decision.”9
STANDARDS OF REVIEW
I.
Standard of Review under Rule 50(b)
“The standard for granting a renewed motion for judgment as a matter of law
under Rule 50(b) is precisely the same as the standard for granting the pre‐submission
motion under 50(a).”10 Thus, regardless of whether the district courtʹs analysis is
undertaken before or after submitting the case to the jury, the question before the
district court is, “whether the evidence is legally sufficient to find for the party on that
issue.”11 “Any renewal of a motion for judgment as a matter of law under Rule 50(b),”
however, “must be based upon the same grounds as the original request for judgment
as a matter of law made under Rule 50(a) at the close of the evidence and prior to the
case being submitted to the jury.”12
“[I]n ruling on a partyʹs renewed motion under Rule 50(b) after the jury has
rendered a verdict, a courtʹs sole consideration of the jury verdict is to assess whether
Tucker v. Housing Auth. of Birmingham Dist., 507 F. Supp.2d 1240, 1265 (N.D. Ala. 2006) (citing
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253 (1940)).
9 Duncan, 311 U.S. at 253.
10 Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007) (quoting 9A C. Wright and A. Miller,
Federal Practice & Procedure § 2537 (2d ed. 1995)).
11 Id. (quoting Fed. R. Civ. P. 50).
12 Id. (quoting Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 903 (11th Cir. 2004)).
8
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that verdict is supported by sufficient evidence.”13 “[T]he court must evaluate all the
evidence, together with any logical inferences, in the light most favorable to the non‐
moving party.”14 “[I]t is not the function of the Court to make credibility or factual
determinations”; and “if there are conflicting inferences that can be drawn from that
evidence, it is not the [c]ourtʹs role to pick the better one.”15 “It is the juryʹs task ‐ not
[the court’s] ‐ to ‘weigh conflicting evidence and inferences, and determine the
credibility of the witnesses.’”16
A party seeking judgment as a matter of law under Rule 50 based on the
sufficiency of the evidence has a heavy burden to carry. The motion may be granted
only “when the facts and inferences . . . point so strongly and overwhelmingly in favor
of one party that the Court believes that reasonable men could not arrive at a contrary
verdict.’”17 The Court must “affirm the jury verdict unless there is no legal basis upon
which the jury could have found for [the prevailing party].”18 “Conversely, if there is
substantial evidence opposed to the motion such that reasonable people, in the exercise
of impartial judgment, might reach differing conclusions,” the jury’s verdict must be
Id.
Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1560 (11th Cir. 1995).
15 Marlite, Inc. v. Eckenrod, No. 09–22607, 2011 WL 39130, at *3 (S.D. Fla. Jan. 5, 2011).
16 Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir. 2002) (quoting Lipphardt v. Durango
Steakhouse, 267 F.3d 1183, 1186 (11th Cir. 2001)).
17 United States v. Vahlco Corp., 720 F.2d 885, 889 (11th Cir. 1983) (quoting Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir. 1969)).
18 Telecom Tech. Servs., Inc. v. Rolm Co., 388 F.3d 820, 830 (11th Cir. 2004).
13
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left intact.19 Simply stated, a Rule 50 motion must be denied if there is any evidence
from which the jury “reasonably could have resolved the matter the way it did.”20
If a pure legal error is detected, the district court has an obligation and the power
“to correct the error by vacating or reversing the juryʹs verdict.”21 “Similarly, where a
portion of a verdict is for an identifiable amount that is not permitted by law, the court
may simply modify the juryʹs verdict to that extent and enter judgment for the correct
amount.”22 “If a reduction in damages is necessitated by legal error, the reduction is not
a remittitur and a new trial is not required.”23
II.
Standard of Review under Rule 59(a)
A losing party may move for a new trial on grounds that “the verdict is against
the great weight of the evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair . . . ; and may raise questions of law arising out of alleged
substantial errors in admission or rejection of evidence or instructions to the jury.”24
Thus, under Rule 59(a), a district judge may, in his discretion, grant a new trial “if in his
opinion, ‘the verdict is against the clear weight of the evidence . . . or will result in a
Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1264 (11th Cir. 2008). “A mere scintilla of evidence
is not sufficient to support a jury verdict,” however. Robbins v. Koger Props., Inc., 116 F.3d 1441, 1446 (11th
Cir. 1997). There must be “enough evidence that reasonable minds could differ concerning material
facts.” U.S. Anchor Mfg. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir. 1993). “The issue is not whether the
evidence was sufficient for [the losing party] to have won, but whether the evidence was sufficient for it
to have lost.” Rodriguez, 518 F.3d at 1264‐65.
21 Johansen v. Combustion Engʹg, Inc., 170 F.3d 1320, 1330 (11th Cir. 1999).
22 Id. (“[T]he district court [may] strike the unconstitutional excess from a juryʹs punitive damage award
and enter judgment for that amount.”).
23 Id.
24 Duncan, 311 U.S. at 251; Steger v. Gen. Elec. Co., 318 F.3d 1066, 1081 (11th Cir.2003).
19
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miscarriage of justice, even though there may be substantial evidence which would
prevent the direction of a verdict.’”25
When ruling on a motion for new trial, however, the judge should not substitute
his own credibility choices and inferences for the reasonable credibility choices and
inferences made by the jury.26 For this reason, “new trials should not be granted on
evidentiary grounds unless, at a minimum, the verdict is against the great ‐ not merely
the greater ‐ weight of the evidence.”27 “A trial court should not grant a new trial
merely because the losing party could probably present a better case on another trial”;28
nor is the court free “to set aside the verdict merely because the judge might have
awarded a different amount of damages.”29 Rule 59 also cannot be used by the losing
party to raise arguments that could, and should, have been made before the judgment
was issued;30 a motion for new trial is not “a chance for [a party] to correct poor
strategic choices.”31
On the other hand, on a motion for new trial, the trial judge is permitted to set
aside the verdict even though there is substantial evidence to support it.32 The judge is
also “not required to take that view of the evidence most favorable to the verdict‐
Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984) (quoting United States v. Bucon Constr.
Co., 430 F.2d 420, 423 (5th Cir. 1970)). See also Lipphardt, 267 F.3d at 1186.
26 Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982).
27 Lipphardt, 267 F.3d 1186.
28 Hannover Ins. Co. v. Dolly Trans Freight, Inc., 2007 WL 170788, *2 (M.D. Fla. Jan. 18, 2007).
29 11 Charles Alan Wright, Arthur R. Miller, & Mary Kane, Federal Practice and Procedure § 2807 (3d ed.).
30 Michael Linet, Inc. v. Village of Wellington, Fla., 408 F. 3d 757, 763 (11th Cir.2005).
31 S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 15 (D.D.C. 2010).
32 11 Charles Alan Wright, Arthur R. Miller, & Mary Kane, Federal Practice and Procedure § 2806 (3d ed.).
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winner” and is free to weigh the evidence.33 “The mere fact that the evidence is in
conflict is not enough to set aside the verdict, however.”34 “Indeed the more sharply the
evidence conflicts, the more reluctant the judge should be to substitute his judgment for
that of the jury.”35 The district court thus has less freedom to disturb a jury verdict in
cases involving simple issues or highly disputed facts than it does in cases involving
complex issues, facts not highly disputed, and events arguably marred by error.36
If the court finds that a juryʹs award of damages is excessive, it may grant a new
trial, but the trial judge also has the discretion to, in the alternative, order remittitur and
reduce the damages.37 Although the decision whether to grant a new trial or remittitur
on the grounds of excessive damages is a matter within the sound discretion of the
district judge, the non‐moving party must be given the option of a new trial in lieu of
remitting a portion of the juryʹs award.38
DISCUSSION OF ARGUMENTS
As noted above, the motions currently before the Court are based on much of the
same evidence and repeat many of the same arguments the Court previously
considered on summary judgment and during Homeward’s oral motion for judgment
Id.
Id.
35 Id.
36 Williams, 689 F.2d at 973.
37 Fed. R. Civ. P. 59; Peer v. Lewis, No. 06‐60146, 2008 WL 2047978, at *17 (S.D. Fla. May 13, 2008) (citing
Johansen, 170 F.3d at 1329).
38 Peer, 2008 WL 2047978 at *17 (citing Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1310 (11th Cir.
1990)).
33
34
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as a matter of law at the close of the evidence. In the Renewed Motion for Judgment as
a Matter of Law, Homeward asserts that there was insufficient evidence for the jury to
reasonably find in favor of Plaintiff as to her claims of wrongful foreclosure, conversion,
and intentional infliction of emotional distress; 39 that there was no evidence to support
the award of damages; and that the amount of punitive damages awarded violates due
process. In the alterative, Homeward has moved for a new trial under Rule 59(a) and
argues that the weight of the evidence does not support the verdict as to either the
substantive claims or the award of damages. Homeward also argues that it is entitled
to a new trial and/or remittitur because the jury instruction on wrongful foreclosure
contained substantial error and the award of damages is excessive.
The Court will now consider each of Homeward’s arguments in turn under both
of the relevant standards of review.
I.
Wrongful Foreclosure Claim
Throughout this action and at trial, Plaintiff claimed that Homeward caused her
default and thus wrongfully foreclosed on her property. Under Georgia law, a debtor
bringing a claim of wrongful foreclosure must establish a legal duty owed to her by the
Homeward’s Renewed Motion for Judgment as a Matter of Law makes no reference to Plaintiff’s
interference claim, and the Motion for New Trial only mentions it in passing when arguing that Plaintiff
failed to prove wrongful foreclosure.
39
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foreclosing party; a breach of that duty; a causal connection between the breach and the
injury she sustained; and damages.40
In both motions now before the Court, Homeward contends that Plaintiff did not
carry her burden on the breach or causation elements of a wrongful foreclosure claim.
As to the breach element, Homeward argues that there was insufficient evidence
presented at trial to show that Homeward (1) failed to provide notice of the increase in
the escrow payment before it was due; (2) increased Plaintiff’s escrow payments in an
amount and manner inconsistent with their loan agreement; or (3) failed to properly
credit payments made to Plaintiff’s account. As to causation, Homeward argues that, as
a matter of law, Plaintiff’s default precludes her claim for wrongful foreclosure. In the
alternative, Homeward argues that it is entitled to a new trial because the Court
improperly permitted the jury to find wrongful foreclosure despite Plaintiff’s default
and allowed the jury to determine the reasonableness of the escrow increase.
A. There is Sufficient Evidence to Support the Jury’s Finding of Wrongful
Foreclosure
Homeward first argues that the jury could not have reasonably found in favor of
Plaintiff on her wrongful foreclosure claim based on the evidence presented. As
Homeward contends, it was undisputed (at trial) that Plaintiff may have received some
DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 448 (2008) (quoting Heritage Creek Dev. Corp. v.
Colonial Bank, 268 Ga. App. 369, 371 (2004)).
40
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notice of an increase in her monthly loan payment prior to November 1, 2009.41 It was
likewise undisputed that Plaintiff was in default at the time of the foreclosure.
Nonetheless, the Court finds that there was sufficient evidence from which a jury could
reasonably conclude that Homeward breached a duty owed to Plaintiff and that
Homeward’s actions caused Plaintiff’s default and injuries.
1. Evidence of Failure to Provide Notice
Homeward contends that no reasonable jury could have found that it failed to
provide Plaintiff with notice of the escrow increase because of Adam McGinnis’s trial
admission that Plaintiff may have received a payment coupon with a letter sent prior to
November 1, 2009, which showed her monthly payment to be $843.58.42 Mr. McGinnis
did, in fact, make this admission. A reasonable jury, however, could have given the
admission less weight than Homeward assumes it was due.
The payment coupon, on which Homeward now solely relies, did not indicate
that it was intended to serve as notice of a temporary increase in Plaintiff’s monthly
payment. It also did not provide any explanation for the increase or make any reference
to an escrow shortage for that year.43 The letter merely advised Plaintiff that a new
company was servicing her account and that she should expect a regular monthly
Tr. Vol. II at 75 [Doc. 109].
Id. at 75‐76.
43 See Tr. Vol. I at 68 [Doc. 108]; Tr. Vol. II at 75 [Doc. 109]; Ex. D‐89 [Doc. 90‐5].
41
42
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statement.44 Furthermore, when Mr. McGinnis acknowledged that Plaintiff may have
received this payment coupon, he also testified that, even if the coupon was attached to
the letter, it would have been questioned because it wrongly showed her to be behind in
payments.45 McGinnis further testified that Plaintiff did not receive any monthly
statements thereafter.46
From this, a reasonable jury could conclude that, while Plaintiff may have
received a coupon showing a payment of $843.58 due prior to her default, she was not
sufficiently notified of a legitimate increase in her monthly payment or of an escrow
shortage at that time. This would then support a finding that Homeward failed to
provide notice of the increase. Mr. McGinnis’s trial admission thus did not necessarily
foreclose a finding in favor of Plaintiff.
2. Evidence of an Unreasonable Increase in Escrow Payments
There was likewise sufficient evidence from which a jury could reasonably
conclude that the 2009 escrow increase breached a duty owed to Plaintiff. In response
to Homeward’s motions, Plaintiff argues that a reasonable jury could have reached this
conclusion based on the vast disparity between the October and November escrow
payments alone.47 Indeed it is undisputed that Plaintiff was current on her account
See Tr. Vol. II at 8, 63, 100, 126, 140 [Doc. 109]. The letter also stated that the transfer to a new servicer
would not affect any terms or conditions of the mortgage instruments. See Ex. D‐89 [Doc. 90‐5].
45 See Tr. Vol. II at 75‐76 [Doc. 109].
46 Id. at 8, 163‐64.
47 See also Order on Def.’s Pending Mtns., July 2, 2013, at 35 [Doc. 62] (finding a jury could conclude that
an escrow estimate that increased a monthly payment from $115.45 to $353.45 was unreasonable).
44
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prior to November 1, 2009,48 and that, once Homeward took over the servicing of
Plaintiff’s loan in October of 2009, her monthly payments immediately increased from
$605.38 to $843.58 with little or no explanation for the increase.49
At trial, the jury was also instructed that, if there was a shortage in Plaintiff’s
escrow, Homeward only had two options under the terms of the Security Deed: It
could choose to either allow a shortage to exist or require Plaintiff “to repay the
shortage in equal monthly payments over at least twelve months.”50 The jury was then
presented with evidence that Homeward’s escrow increase would have recouped any
shortage in much less than twelve months and that if the amount demanded was
collected over twelve months, the escrow collected would total two or three times the
amount needed to cover Plaintiff’s tax and insurance costs.51 The evidence additionally
showed that Homeward performed a third escrow analysis, in February of 2010, that
reduced Plaintiff’s payment from $843.58 to $638.32,52 a number much more in line with
what she had previously been paying.53 Yet, Homeward still insisted that Plaintiff
owed payments of $843.59 from November, 2009 through April, 2010.54
Tr. Vol. I at 62‐63, 78 [Doc. 108]; Tr. Vol. II at 9, 11, 26 [Doc. 109]; Delbene Dep. at 38‐39 [Doc. 46].
Tr. Vol. II at 14, 16, 50 [Doc. 109]. See also, Ex. D‐89 [Doc. 90‐5].
50 Jury Instructions at 12 [Doc. 91]. Homeward does not now, in either motion, raise an objection to this
instruction or argue that this was error.
51 Homeward sent an escrow disclosure statement to Plaintiff in December of 2009, which showed a
shortage amount of $616.83. Ex. D‐314 [Doc. 90‐15]. Plaintiff’s expert calculated the shortage in 2009 at
$663.94. Tr. Vol. I at 94 [Doc. 108].
52 Tr. Vol. II at 16‐18, 84 [Doc. 109].
53 Pl.’s Ex. 8 [Doc. 89‐20].
54 Vol. II at 18, 35, 50, 84, 143 [Doc. 109].
48
49
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From this circumstantial evidence, a reasonable jury could have inferred that the
payments demanded by Homeward were unreasonable and that, by demanding these
payments, Homeward breached a duty owed to Plaintiff.
On this issue, Mr. McGinnis also testified that he knew the increase was an error
based on his calculations and experience managing Plaintiff’s properties.55 This went
factually unrebutted by Homeward, as it chose not to offer any evidence as to exactly
how it arrived at the $843.58 payment. The evidence in the case instead showed that
Plaintiff repeatedly brought this error to Homeward’s attention, but Homeward failed
to verify or produce a copy of the October 2009 escrow analysis.56 The jury could have
reasonably considered this as evidence of Homeward’s knowledge of its breach and
refusal to correct it in violation of its duty to comply with the Security Deed.
Homeward now argues, however, that the jury could not have found that the
2009 escrow increase violated the terms of the Security Deed absent expert testimony on
the issue and thus it was error to permit the jury to consider Mr. McGinnis’s lay opinion
as evidence of a breach. Homeward provides no legal support for this contention; and
the Court disagrees. Because the estimation of an escrow payment involves only a basic
mathematical calculation, McGinnis’s testimony was properly considered by the jury. 57
Id. at 14‐15; 143.
Id. at 11‐12, 14‐15, 19‐21, 24‐29, 35, 51, 62.
57 See Fed. R. Civ. P. 701 (allowing lay testimony where the subject matter is “not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702”). Cf. United States v. Hamaker, 455
F.3d 1316, 1331‐32 (11th Cir. 2006) (holding that a lay witness could testify to conclusions based on simple
arithmetic calculations); United States v. Madison, 226 F. App’x 535, 543–44 (6th Cir. 2007) (holding that a
55
56
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The Court is equally unpersuaded by Homeward’s argument that the admission
of lay testimony on this issue conflicts with the Court’s order limiting the scope of
testimony of Plaintiff’s expert, Thomas Berry. The Court precluded Mr. Berry from
testifying that Homeward’s escrow analysis was “incorrect”; and, as Homeward
contends, the Court did so because Mr. Berry’s opinion was based on his personal,
subjective views.58 The exclusion of Mr. Berry’s opinion was thus not based on a
finding that Mr. Berry was unqualified to offer this opinion. The exclusion was instead
based on the fact that his testimony – i.e., his inferences as to the accuracy of
Homeward’s escrow analysis – would not be helpful to the jury: The Court found that
his opinion involved “lay matters which a jury is capable of understanding” and offered
“nothing more than what Plaintiff’s lawyer [could] argue to the jury.”59 The Court’s
order excluding Mr. Berry’s testimony as to the accuracy of Homeward’s escrow
increase is thus not inconsistent with the Court’s permitting the jury to consider Mr.
McGinnis’s lay testimony as to why he believed the increase to be unreasonably high.
lay witness may give an opinion based on application of simple arithmetic); American Gen. Life Ins. Co. v.
Schoenthal Family, LLC, 248 F.R.D. 298, 306 (N.D. Ga. 2008) (allowing lay testimony regarding the
calculation of acceptable policy ranges because it involved a “straightforward arithmetic procedure”);
Trustees of Operating Eng’rs Pension Trust v. Smith‐Emery Co., Inc., 906 F. Supp. 2d 1043, 1069 n. 30 (C.D.
Cal. 2012) (“[A] lay witness can permissibly testify as to the proper amount of interest that is owed, for
example, based on simple mathematical computation”); Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300,
1326 (N.D. Ala. 2008) (“While . . . calculations include[d] inferences, assumptions, and derivations that
arguably exceeded simple arithmetic, they did not appear to exceed understanding of lay witness or
require knowledge of expert to reach conclusions presented.”); Smith v. Illinois Assʹn of School Bd., No. 3–
10–CV–00242, 2012 WL 895426, at *3 (S.D. Ill. Mar. 15, 2012) (“[U]nder Evidence Rule 701 he is competent
to testify as to his damages as the calculations are simple math”).
58 Order on Def.’s Pending Mtns., July 2, 2013, at 25‐27 [Doc. 62].
59 Id.
16
3. Evidence of Failure to Credit Payments
Homeward next contends that the jury could not have reasonably concluded,
based on the undisputed evidence at trial, that it failed to credit any payments to
Plaintiff’s account. The Court finds, however, that there was sufficient evidence to
support the jury’s finding.
At trial, both Mr. Berry60 and Mr. McGinnis61 testified that Homeward failed to
credit Plaintiff’s account for a payment made prior to November 1, 2009. Homeward’s
witness, Christopher Delbene, also testified to this fact initially;62 it was not until after
some prompting by Homeward’s counsel that he testified otherwise.63 From this
testimony, a reasonable jury could find that Homeward failed to properly credit a
payment to Plaintiff’s account. Again, it is the juryʹs task ‐ not the Court’s – “to weigh
conflicting evidence and inferences, and determine the credibility of the witnesses.”64
It was also undisputed that Plaintiff’s account was not credited as her monthly
payments were made, but rather Homeward placed her monthly payments in a
Tr. Vol. I at 63‐64, 67, 74, 78‐79 [Doc. 108]. According to Homeward, Mr. Berry admitted that the
payment on the November 3, 2009, statement showed a past due payment for November, not a payment
owed to prior lender. The jury may not have heard the testimony that way, however, as Mr. Berry also
stated that, in his opinion, the November payment was not late until November 15th, and he did not
agree with counsel’s assertion that the payment was past due on November 3, 2009. Id. at 102‐103.
61 Tr. Vol. II at 11‐12, 23‐24, 26, 35, 51, 112, 113, 143 [Doc. 109]. Mr. McGinnis testified Homeward told
him, in February of 2010, that a payment made to Taylor, Bean, and Whitaker had not been credited to his
account. Id. at 23‐24.
62 Delbene Dep. at 29, 32‐36 [Doc. 46].
63 Id. at 43.
64 Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir. 2002).
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suspense account until additional funds arrived.65 Homeward now argues, as it did on
summary judgment, that it was entitled to withhold the funds in the suspense account
under the terms of the Security Deed. This argument, however, “assumes that
Plaintiff’s monthly payments were reasonable and correct and thus Plaintiff was
required to pay the amount Homeward charged.”66 If, at trial, the jury believed the
monthly payments charged by Homeward were not reasonable and correct, then it
could have also have found that Homeward was not entitled to hold Plaintiff’s monthly
payments in suspense. In such a case, a reasonable jury could, based on this evidence,
also conclude that Homeward did not properly credit payments to Plaintiff’s account.
4. Plaintiff’s Default and Injury
Finally, in its Rule 50(b) motion, Homeward contends that, as a matter of Georgia
law, a borrower in default cannot prevail on a claim of wrongful foreclosure.67 The
Court disagrees. Contrary to Homeward’s assertions,68 the mere fact that a debtor is in
default at the time of the foreclosure does not necessarily bar a wrongful foreclosure
action under Georgia law.69 A defaulting debtor can still prove the elements of a
Tr. Vol. I at 79‐81 [Doc. 108]; Delbene Dep. at 45, 79, 87‐88 [Doc. 46].
Order on Def.’s Pending Mtns., July 2, 2013, at 41 [Doc. 62].
67 Def.’s Br. in Support of Rule 50(b) Mtn. at 29 [Doc. 114].
68 In support of these arguments, Homeward cites to a single, unpublished district court opinion from the
North District of Georgia, Kynes v. PNC Mortgage, No. 1:12–CV–4477, 2013 WL 4718294, at* 9 (N.D. Ga.
Aug. 30, 2013), which states that “[f]ailure to make the proper loan payments defeats a wrongful
foreclosure claim.” Kynes is plainly distinguishable from this case: There, the court found that there was
“no genuine issue of material fact as to whether [the lender] breached any duty owed to [the plaintiffs].”
69 Armstrong v. Ocwen Mortg. Co., No. CV413–010, 2014 WL 1319389, at *4 (S.D. Ga. March 28, 2014) (citing
Brown v. Freedman, 222 Ga. App. 213, 215 (1996)).
65
66
18
wrongful foreclosure claim.70 If not, it would be almost impossible “for any party
wrongfully put into default by the inappropriate action of a creditor to obtain relief.”71
However, claims by a debtor in default will only be successful if he is able to prove that
the foreclosing party caused the default.72 This may be done through evidence that the
foreclosing party violated provisions of either the loan instruments or Georgia law,73
and proof of “a causal connection between” that breach and the plaintiff’s injury. 74 If
the debtor’s injuries are attributable “solely to [his] own failure to pay, [he] cannot
recover for wrongful foreclosure.”75
In anticipation of this finding, Homeward argues that, even if the default did not
bar Plaintiff’s wrongful foreclosure claim, no reasonable jury could have found that the
default was attributable to anything other than Plaintiff’s own failure to pay.
Homeward emphasizes that Mr. McGinnis, on behalf of Plaintiff, refused to pay more
than $605.58 when Homeward reduced the monthly payment to $638.32, even though
he admitted Plaintiff owed more than what she was paying. Homeward contends that
the jury was thus required to find that Plaintiff’s undisputed failure to pay the full
Id.
Id.
72 Id.; Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 371–72 (2004).
73 See Heritage Creek, 268 Ga. App. at 374; McCarter v. Bankers Trust Co., 247 Ga. App. 129, 132 (2000). See
also, e.g., Rourk v. Bank of Am. Natʹl Assʹn, No. 4:12–CV–42 (CDL), 2012 WL 3745953, at *6 (Aug. 28, 2012)
(holding that plaintiff stated a viable claim for conversion under Georgia law based on the bankʹs alleged
unlawful collection of fees and expenses from plaintiff); James v. Litton Loan Servicing, L.P., No. 4:09–CV–
147 (CDL), 2011 WL 59737, at *12 (M.D. Ga. Jan. 4, 2011) (finding that plaintiffs stated a viable claim for
conversion under Georgia law based on the bankʹs alleged misapplication of plaintiffsʹ loan payments).
74 See Heritage Creek, 268 Ga. App. at 372.
75 Rourk, 2013 WL 5595964, at* 6 (citing Heritage Creek, 268 Ga. App. at 372).
70
71
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amount of her monthly payment, even after Mr. McGinnis admitted she owed more,
was the sole cause of her injuries.
The Court again disagrees. Although there was evidence that Plaintiff failed to
make full payments of $638.32 during the relevant time period, there was also evidence
presented which would have permitted the jury to find that this was not the sole cause
of Plaintiff’s injuries. McGinnis testified that he attempted to bring the account current
during this time and learned that he could not (and would thus remain in default) as
long as he disputed the prior increase.76 Mr. McGinnis also offered to pay off the
account in full, but Homeward would not permit him to do so unless he also paid the
amounts and fees in dispute.77 Plaintiff’s expert, Mr. Berry, likewise testified that
Plaintiff would remain in default unless she paid the challenged amounts.78
The Court additionally finds that Mr. McGinnis’s testimony regarding his
confusion about the actual amounts owed and Homeward’s lack of assistance would
further support a finding that Plaintiff’s failure to make full payments after the escrow
reduction did nothing to exacerbate the damage already done by Homeward’s earlier
breach. In other words, a reasonable jury could have concluded that Plaintiff’s failure
to remit full payments, although a breach of the lending agreement, was excused due to
Tr. Vol. II at 29, 35, 112 [Doc. 109].
Id. at 30.
78 Tr. Vol. I at 69 [Doc. 108].
76
77
20
Homeward’s earlier breaches and errors and the resulting confusion surrounding her
account. 79
For this reason, and all others discussed above, the Court concludes that there
was sufficient evidence from which a jury could have reasonably found in favor of
Plaintiff on her wrongful foreclosure claim. Of course, there was also evidence
presented at trial which would permit the jury to find in favor of Homeward.
However, the question before the Court, under Rule 50(b), is whether there was
“enough evidence that reasonable minds could differ concerning material facts.”80 “The
issue is not whether the evidence was sufficient for [the losing party] to have won, but
whether the evidence was sufficient for it to have lost.”81 Because the Court finds that
“reasonable people, in the exercise of impartial judgment, might reach differing
conclusions”82 in this case, Homeward’s Renewed Motion for judgment as a Matter of
Law must be DENIED as to the wrongful foreclosure claim.
B. The Jury’s Finding of Wrongful Foreclosure Was Not Against the Clear
Weight of the Evidence and Will Not Result in a Miscarriage of Justice
In its Rule 59(a) Motion for New Trial, Homeward makes essentially the same
evidentiary arguments as it does in its renewed motion for judgment as a matter of law.
It additionally argues, however, that it is entitled to a new trial as to Plaintiff’s wrongful
Cf. Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 692 (7th Cir. 2011) (finding fact question as to whether
the plaintiffsʹ failure to remit a timely payment was excused because of “the lendersʹ earlier breaches and
errors and the resulting confusion surrounding their account”).
80 U.S. Anchor Mfg. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir. 1993).
81 Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1264‐65 (11th Cir. 2008).
82 Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
79
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foreclosure claim because the Court incorrectly permitted the jury (1) to find for
Plaintiff even if she was in default at the time of foreclosure, and (2) to determine the
reasonableness of the increased escrow payments.
The Court does not find substantial error in either the Court’s instruction or the
submission of these issues to the jury. As explained in detail above, the mere fact that a
debtor is in default does not necessarily preclude a finding of wrongful foreclosure. As
also discussed above, there is sufficient evidence from which the jury could have
reasonably found that the escrow increase in 2009 breached a duty owed to Plaintiff
which in turn caused her injury, and expert testimony as to the reasonableness of the
escrow payment was not required for the jury to find a breach. After weighing the
evidence presented at trial and considering all of those arguments discussed above
under the less stringent standard applicable under Rule 59 – the Court further finds that
the jury’s verdict on the wrongful foreclosure claim is not against the clear weight of the
evidence and will not result in a miscarriage of justice. Plaintiff’s Motion for New Trial
on the wrongful foreclosure claim is accordingly DENIED.
II.
Conversion Claim
Homeward next contends that Plaintiff’s conversion claim fails as a matter of
law. In the alternative, Homeward argues that the jury’s verdict on the conversion
claim was against the clear weight of evidence.
22
A. There was Sufficient Evidence to Support a Jury Finding of
Conversion
At trial, Plaintiff argued that Homeward unlawfully converted her loan
payments by refusing (1) to apply payments to her mortgage account and (2) to remove
and refund the unauthorized fees she was charged. Under Georgia law, conversion is
“[a]ny distinct act of dominion wrongfully asserted over anotherʹs property in denial of
his right, or inconsistent with it.”83 The jury was thus instructed that, in order to prove
conversion, Plaintiff was required to show that “(1) she had an ownership interest in the
loan payments; (2) Homeward actually possessed the loan payments; and (3)
Homeward acted in a manner inconsistent with Plaintiff’s right of possession.”84
In its Rule 50(b) motion, Homeward now argues that Plaintiff’s conversion claim
fails because, under Georgia law, “the misapplication of lawfully acquired funds could
not, as a matter of law, constitute conversion of personal property.”85 Homeward then
appears to suggests that, to state a claim for conversion, Plaintiff was required to
present evidence that Plaintiff demanded return of her property and Homeward
Md. Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1987).
See Jury Instructions at 14‐16 [Doc. 91].
85 Def.’s Br. in Support of Rule 50(b) Mtn. at 32 [Doc. 114] (citing Kin Chun Chung v. JPMorgan Chase Bank,
N.A., 975 F. Supp. 2d 1333, 1346‐47 (N.D. Ga. 2013)).
In its Reply Brief [Doc. 122], Homeward alternatively argues (for the first time) that there was
insufficient evidence in the trial record to show that Plaintiff had an “ownership interest” in the loan
payments after she made them. This argument will not be considered; Homeward cannot unveil new
arguments for the first time in a reply brief. Herring v. Secʹy of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005)
(“Arguments raised for the first time in a reply brief are not properly before a reviewing court.”). See also,
e.g., Adams v. Homeward Residential, Inc., Civ. No. 13–0329, 2014 WL 460936, at *5 n.10 (S.D. Ala. Feb. 5,
2014) (“Federal courts generally do not consider new arguments presented for the first time in a reply
brief.”). Furthermore, as discussed, infra, this argument (if considered) would also fail because it was not
previously raised in Homeward’s Rule 50(a) motion.
83
84
23
unlawfully refused. It is thus unclear whether Homeward is challenging the sufficiency
of the evidence or claiming legal error.
Regardless, the Court is not persuaded that Plaintiff was required to show that
she demanded the return of her payments, as Homeward now seems to suggest. The
majority of cases faced with facts similar to those presented here have found that
evidence of a failure to properly credit a borrower’s monthly mortgage payment,
despite the borrower’s request that it do so, will support a claim for conversion.86 In
accord with those cases, the Court finds sufficient evidence here to support a conversion
claim. The trial record shows that Mr. McGinnis requested that Homeward credit
Plaintiff’s account for payments made prior to November 1, 2009, on multiple occasions
and asked that Homeward apply all payments to her account rather than holding them
in suspense.87 There is also evidence that Homeward refused to comply with Plaintiff’s
See, e.g., Blackburn v. BAC Home Loans Serv., LP, 914 F. Supp.2d 1316, 1325 (M.D. Ga. 2012) (denying
summary judgment on conversion claim based on servicer’s failure to apply payments and wrongful
collection fees and expenses); See James v. Litton Loan Servicing, LP, No. 4:09–CV–147, 2011 WL 59737, at
*12 (M.D. Ga. Jan. 4, 2011) (denying summary judgment on conversion claim where plaintiffs presented
evidence that servicer intentionally delayed applying payments to account in order to charge interest and
late fees); Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366, 1378‐79 (N.D. Ga. 2012) (denying motion to
dismiss conversion claim where plaintiff alleged lender converted her money by holding her monthly
mortgage payments in a separate account rather than applying them to her loan balance in order to
extract unlawful late fees, interest and other charges); Johnson v. Citimortgage, Inc., 351 F. Supp.2d 1368,
1372 (N.D. Ga. 2004) (finding that plaintiff had stated a conversion claim under Georgia law where
plaintiff alleged that loan servicer failed to properly apply loan payment to plaintiff’s outstanding loan).
But see Kin Chun Chung, 975 F. Supp. 2d at 1346‐47 (finding plaintiff’s request that the lender
acknowledge that her payments satisfied her payment obligations did not support the demand element
of a conversion claim).
87 Tr. Vol. II at 11‐12, 14‐15, 19‐21, 24‐29, 35, 51, 62.
86
24
requests.88 Therefore, a reasonable jury could have found a demand by Plaintiff for the
return of her payments to the proper account and Homeward’s refusal to do so.
Homeward’s Renewed Motion for Judgment as a Matter of Law is accordingly
DENIED as to Plaintiff conversion claim.
B. The Jury’s Finding of Conversion was Not Against the Clear Weight of
the Evidence
In the alternative, Homeward contends that it is entitled to a new trial on the
conversion claim because the jury’s verdict was against the clear weight of the evidence.
The arguments made here are the same as those made by Homeward in its challenge to
Plaintiff’s wrongful foreclosure claim.89 After considering those arguments and now
weighing the evidence presented at trial under the standard required by Rule 59, the
Court does not find that the jury’s verdict is against the clear weight of the evidence.
Homeward’s Motion for New Trial is thus DENIED as to Plaintiff’s conversion claim.
III.
IIED Claim & Emotional Distress Damages
Homeward next argues that the evidence at trial was not sufficient to satisfy the
elements required to state a claim for intentional infliction of emotional distress
(“IIED”). Homeward alternatively contends that the jury’s verdict in Plaintiff’s favor on
the IIED claim is against the clear weight of the evidence.
Id. Cf. James, 2011 WL 59737 at *12 (evidence that servicer did not properly credit the plaintiff’s account
when the plaintiff demanded that it do so would support a conversion claim).
89 See discussion supra Section I.A.
88
25
A. There was Sufficient Evidence to Support the Jury’s Finding of Intentional
Infliction of Emotional Distress
In order to sustain an IIED claim, a plaintiff must show that (1) the conduct
giving rise to the claim was either intentional or in reckless disregard for the rights of
others; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe.90 In its post‐verdict motions,
Homeward now argues that Plaintiff’s evidence failed to satisfy either the first or
second element of an IIED claim.
As to the first element, Homeward argues that Plaintiff failed to present any
evidence that Homeward acted with the “specific intent” to harm her.91 Georgia courts,
however, have recognized that “an intentional wrongful foreclosure can be the basis for
an action for intentional infliction of emotional distress.”92 A showing of “specific
intent” is also not necessarily required to support an IIED claim. The state of mind
element of an IIED claim is satisfied by evidence that the defendant acted in “reckless
disregard of the rights of others.”93 Under Georgia law, “a reckless and wanton
See Racette v. Bank of Am., N.A., 318 Ga. App. 171, 179 (2012); Ward v. Papaʹs Pizza To Go, Inc., 907 F.
Supp. 1535, 1540 (S.D. Ga. 1995) (“[T]he state of mind inquiry is met when the defendant acts in ‘reckless
disregard of the rights of others.’”).
91 Def.’s Br. in Support of Rule 50(b) Mtn. at 31 [Doc. 114].
92 Racette, 318 Ga. App. at 179. See e.g., DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 449 (2008)
(evidence supported claim for intentional infliction of emotional distress where party proceeded with
foreclosure and sale after being told it foreclosed on wrong property); Clark v. West, 196 Ga. App. 456,
457–458 (1990) (IIED claim could proceed where debtor alleged that foreclosing parties “knew the note
was not in default and [that] they had no right to foreclose”).
93 Ward v. Papaʹs Pizza To Go, Inc., 907 F. Supp. 1535, 1540 (S.D. Ga. 1995) (citing Moses v. Prudential Ins. Co.
of Amer., 187 Ga. App. 222, 224, 369 S.E.2d 541 (1988)).
90
26
disregard of consequences may evince an intention to inflict injury.”94 Thus, while
evidence of specific intent will certainly support and IIED claim, evidence of a specific
intent to cause emotional distress is not required.95 For this reason, the jury in this case
was instructed that they could find an intentional infliction of emotional distress if
Homeward’s “reckless” conduct caused Plaintiff’s injuries:96 “A party recklessly causes
harm when [it] is aware of, but consciously and carelessly ignores, facts and
circumstances clearly indicating that the consequences are substantially certain to result
from the parties act.”97
Here, if the jury believed Plaintiff’s evidence and made all inferences in her
favor, it could find that Homeward callously disregarded or outright ignored facts and
circumstances clearly indicating that it had breached a duty owed to Plaintiff and
caused her default. From this a reasonable jury could conclude that, despite receiving
this information, Homeward proceeded in the same course of conduct, blindly
maintained its position without justification, and foreclosed on her property with
conscious and careless disregard for the consequences substantially certain to occur.
E‐Z Serve Convenience Stores, Inc. v. Crowell, 244 Ga. App. 43, 45 535 S.E.2d 16 (2000) (claim of intentional
infliction of emotional distress caused by conscious indifference, rather than specific intent, of defendant
was properly sent to the jury for determination); Hamilton v. Powell, Goldstein, Frazer & Co., 252 Ga. 149,
150 (1984) (“[I]t is equally well established that for a reckless disregard of the rights of others, equivalent
to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish
suffered therefrom.”) (internal citations omitted).
95 Id; Ekokotu v. Pizza Hut, Inc., 205 Ga. App. 534, 536 (1992) (“in order to sustain a claim for intentional
infliction of emotional distress, appellant was ‘required to put forth evidence that defendantsʹ behavior
was wilful and wanton or intentionally directed to harm [him].”).
96 Jury Instructions at 19 [Doc. 91].
97 Id. at 22.
94
27
There was thus sufficient evidence from which the jury could reasonably find that
Homeward acted “in reckless disregard” for the rights of others.
It was not enough for Homeward to have acted recklessly, however. To prevail
on an IIED claim, Plaintiff must also establish that Homeward’s conduct in this case
was “extreme and outrageous.” The issue of whether conduct reaches this level is a
question of law.98 “The rule of thumb in determining whether the conduct complained
of was sufficiently extreme and outrageous is whether the recitation of the facts to an
average member of the community would arouse . . . resentment against the defendant
so that [he] would exclaim ‘Outrageous!’”99 The conduct must “go beyond all
reasonable bounds of decency so as to be regarded as atrocious and utterly intolerable
in a civilized community” and “naturally give rise to such intense feelings of
humiliation, embarrassment, fright or extreme outrage as to cause severe emotional
distress.”100 Evidence of “mere insults, indignities, threats, annoyances, petty
oppressions, or other vicissitudes of daily living” will not satisfy this standard.101
Thus, the mere fact that a lender wrongly forecloses on a property is, in‐and‐of
itself, “not the kind of action that rises to the level of extreme, outrageous, atrocious or
intolerable conduct required to support a claim for intentional infliction of emotional
Racette, 318 Ga. App. at 179 (“Whether a claim rises to the requisite level of outrageousness and
egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.”).
99 United Parcel Serv. v. Moore, 238 Ga. App. 376, 377 (1999).
100 Id.
101 Id.
98
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distress.”102 Evidence of “[s]harp or sloppy business practices” are also not generally
considered “as going beyond all reasonable bounds of decency as to be utterly
intolerable in a civilized community.”103 There must be evidence of more egregious
conduct. When there is evidence of more, however, Georgia courts have held that a
jury can properly infer intentional infliction of emotional distress from a wrongful
foreclosure and actions related to a wrongful foreclosure.104
The Court finds that this is one of those cases. As Plaintiff’s contends,
Homeward’s position as the servicer of her loans placed it in a position of power that
magnifies the outrageousness of its conduct. It is not a novel idea to say that “[t]he
extreme and outrageous character of a defendantʹs conduct may . . . occur by virtue of
an abuse . . . of a relationship which puts [the defendant] in a position of actual or
apparent authority over plaintiff or gives defendant power to affect plaintiffʹs
Clark v. PNC Bank, N.A., 1:13–CV–1305–WSD, 2014 WL 359932, at *7 (N.D. Ga. Feb. 3, 2014). See e.g.,
Ingram v. JIK Realty Co., 199 Ga. App. 335, 337 (1991) (affirming grant of summary judgment on
intentional infliction claim where defendantʹs conduct consisted of wrongfully foreclosing on plaintiffʹs
property). See also Racette, 318 Ga. App. at 179 (that the defendant conducted the foreclosure sale despite
knowing of inaccuracies in the published foreclosure advertisements “cannot be described as extreme,
outrageous, atrocious, intolerable or beyond the bounds of decency.”).
103 Moore, 238 Ga. App. at 377.
104 Kerfoot v. FNF Servicing, Inc., No. 1:13–CV–33, 2013 WL 5797662, at *6 (M.D. Ga. Oct. 25, 2013) (finding
complaint stated sufficient allegations for IIED claim where it alleged that mortgage company had been
notified numerous times of the unlawfulness of the loan and yet “hounded the [plaintiffs] with letters
and calls demanding payment at the threat of foreclosure.”). See, e.g., DeGolyer, 291 Ga. App. at 449‐50
(finding evidence to support IIED claim where both plaintiff informed defendant that it was foreclosing
on the wrong tract of property, but defendant nevertheless proceeded with foreclosure despite the lack of
any legal description of the property attached to its security deed).
102
29
interests.”105 In such cases, like this one, a finding of IIED would not be based solely on
the wrongful foreclosure, but also on a series of intentional or reckless actions
demonstrating an abuse of power by a lender over the debtor at its mercy.106
The evidence at trial, when viewed in the light most favorable to Plaintiff,
showed that Plaintiff notified Homeward of errors in the handling of her account and
thereafter attempted to resolve the errors in good faith. Plaintiff’s requests for
clarification and/or correction were met with resistance and little, if any, help.107
Homeward’s agents either were unable or simply refused to justify the increased
payment;108 continued to insist that Plaintiff was behind a payment;109 and failed to give
notice of the increase or provide any monthly billing statements thereafter.110
Homeward’s Rule 30(b)(6) witness, Christopher Delbene, may have in fact
provided the jury with some insight into the attitude or approach employed by
Homeward in this process. During his testimony, Delbene insisted that the 2009 escrow
analysis was correct, even though he had not seen the document and had not attempted
Warren v. Juneʹs Mobile Home Vill. & Sales, Inc., 66 Mich. App. 386, 391 (1976). See also, Ward, 907 F.
Supp. at 1540 (“The existence of a special relationship in which one person has control over
another…may produce a character of outrageousness that otherwise might not exist.”).
106 See, e.g., Margita v. Diamond Mortg. Corp., 159 Mich. App. 181, 190 (1987) (“Defendants obviously have a
great deal of power to affect plaintiffsʹ credit rating and future borrowing ability.”).
107 Tr. Vol. II at 24, 159 [Doc. 109].
108 Id. at 14, 16.
109 Id. at 11‐12, 23‐24; Delbene Dep. at 121‐123 [Doc. 46].
110 Tr. Vol. II at 8 [Doc. 109]. Mr. McGinnis in fact testified that Plaintiff did not receive monthly billing
statements despite the fact that he had been “pleading” for a monthly statement since 2009. Id. at 8, 163‐
64.
105
30
to calculate the escrow.111 Delbene then suggested that Plaintiff was required to pay any
amount Homeward demanded, regardless of whether it appeared reasonable or in
error, simply because that is what she “agreed to under the note and mortgage.”112
Homeward’s position was that Plaintiff had to pay any amount demanded, and then
dispute it or seek a refund at the end of year if necessary, regardless of whether she
could afford to do so.113
There was also evidence that Homeward and its agents continually harassed
Plaintiff by phone and mail114 and proceeded with foreclosure proceedings even with
the knowledge that Plaintiff was attempting to resolve these issues.115 Witnesses
testified that Plaintiff did not abandon her obligation or cease making payments on the
property. Plaintiff never missed a monthly payment,116 though she did continue to
dispute the amount Homeward demanded and paid a lesser amount (which was
Delbene Dep. at 105 [Doc. 46].
Id. at 63.
113 Id. at 59‐61. When finally faced with Plaintiff’s calculations showing that the 300% increase in her
escrow payment was unreasonable, Delbene stated,
Sir, I’m sorry, but the borrower relinquished [her] right to pay [her] own taxes when
[she] agreed in the loan document to pay an escrow fund. . . . It is the servicer . . . to
conduct an escrow analysis, not the borrower. We – we conduct our escrow analysis. We
have a department dedicated to doing such, not the borrower. So until I see our escrow
analysis with what number we determined went into that escrow, I will not be using the
borrower’s escrow to answer my questions.
Id. at 106.
114 Tr. Vol. II. at 27, 163‐64 [Doc. 109].
115 Id. at 29‐31, 33‐34, 51‐53, 59‐60. Mr. McGinnis testified that, at one point, he sent Homeward forty‐three
pages, documenting every payment he had made, but received no response other than from a Homeward
attorney who stated that she could see what McGinnis had done but “they” did not work for him and
would not stop foreclosure proceedings unless she heard a response from Homeward telling her to do so.
Id. at 37.
116 Id. at 26.
111
112
31
sufficient to cover the principal, interest, and some escrow) as she attempted to resolve
the dispute.117
Homeward, nonetheless, chose to foreclose on the property, despite Plaintiff’s
efforts to resolve the matter, inquiries as to how she could become current, and offer to
pay full amount owed, minus any fees and overcharges in dispute.118 Homeward then
began sending Plaintiff’s checks back, 119 refusing to accept her payments, and ran a
foreclosure notice in the local newspaper for four months ‐ causing Plaintiff great
embarrassment, fear, angst, and damage to her reputation. 120 Ultimately, Homeward
would sell Plaintiff’s property on the courthouse steps for a mere $25,000.00,121 though
the unpaid principal balance on the loan was $69,529.00. Thus, a balance of over
$40,000.00 (that Plaintiff offered to pay if Homeward would concede its error and forgo
the resulting fees) was left unpaid.122 Plaintiff’s expert later estimated that the
theoretical difference between what Plaintiff had paid and what was owed at the time
of foreclosure was minimal – little more than $98.00.123
While it is true that some of the actions and failures by Homeward, when viewed
individually, could be considered “mere insults, indignities, threats, annoyances, petty
Id. at 35‐36; Delbene Dep. at 185 [Doc. 46].
Tr. Vol. II at 29‐31 [Doc. 109].
119 Id. at 40.
120 Id. at 41‐43, 65‐66, 161‐162.
121 Id. at 43.
122 Delbene Dep. at 155, 159 [Doc. 46].
123 Mr. Berry testified that there were four checks that Plaintiff was not given credit for at the time she
should have been which totaled $2,455.00, and at the time of foreclosure Homeward claimed $2,533.25
past due on the account; a difference of only $98.22. Tr. Vol. I at 85‐86 [Doc. 108].
117
118
32
oppressions, or other vicissitudes of daily living,”124 the totality of Homeward’s actions
– could be found to be “extreme and outrageous conduct” as a reckless, abusive and
arbitrary exercise of power. A reasonable person may declare that the whole scenario –
ending with a foreclosure over a theoretical difference of less than $100.00 – to be
“Outrageous!” Although this was not Plaintiff’s residence, the evidence did show that
this property and all of the others threatened with foreclosure are Plaintiff’s livelihood,
her nest egg, her security, her life’s work, and a representation of her character in the
community.125 Plaintiff likewise provided evidence from which the jury could find that
all of this has had a severe effect on Plaintiff both emotionally126 and physically. 127
The Court accordingly finds that, if the jury believed all of Plaintiff’s evidence at
trial, it could have reasonably found the presence of extreme and outrageous conduct,
arising from an intentional and wanton abuse of power by Homeward, which caused
Plaintiff to suffer severe emotional distress. Homeward’s Renewed Motion for
Judgment as a Matter of Law on Plaintiff’s IIED claim is therefore DENIED.
B. The Jury’s Verdict on the IIED Claim was Not Against the Clear Weight of the
Evidence
Homeward alternatively contends that, even if there is sufficient evidence to
deny its Rule 50(b) motion, it is still entitled to a new trial because the jury’s findings as
United Parcel Serv. v. Moore, 238 Ga. App. 376, 377 (1999).
Tr. Vol. II at 65‐66, 154, 157, 161‐62 [Doc. 109].
126 Id; Sappington Dep. at 6‐8, 19, 22, 59 [Doc. 82‐2].
127 Tr. Vol. II at 65‐66, 154‐155 [Doc. 109]; Sappington Dep. at 14 [Doc. 82‐2].
124
125
33
to Plaintiff’s IIED claim were against the clear weight of the evidence. At trial,
Homeward did present evidence to show that it did not intend to injure Plaintiff, but
was simply doing business under a belief that Plaintiff was required to pay the amounts
it demanded. This includes evidence that Plaintiff was undisputedly in default and
received some notice of the increase; that Plaintiff continually defaulted after the escrow
was reduced; that Plaintiff was provided with opportunities to cure her default and
refused; that the property involved was a commercial investment, not Plaintiff’s home;
and that Plaintiff is merely complaining of poor customer service and was, at times,
equally as stubborn or difficult as Homeward’s agents.
Yet, even after weighing all of the evidence presented by Plaintiff impartially
against the evidence presented by Homeward under the less stringent standard of Rule
59, the Court cannot find that the jury verdict as to this claim was against the great ‐ not
merely the greater ‐ weight of the evidence.128 The mere fact that the evidence is in
conflict is not enough to set aside the verdict.129 Accordingly, Homeward’s Motion for
New Trial on Plaintiff’s IIED claim is DENIED.
IV.
Compensatory & Punitive Damages
Because the Court will not disturb the jury’s verdict as to Plaintiff’s substantive
claims, Homeward next challenges the award of damages. Homeward’s Rule 50(b)
argument is three‐fold: (1) Plaintiff cannot recover punitive damages under Georgia
128
129
Lipphardt v. Durango Steakhouse, 267 F.3d 1183, 1186 (11th Cir. 2001).
Id.
34
law, O.C.G.A. § 51‐12‐6, because there was no basis to award economic, compensatory
damages; (2) even if Plaintiff can recover punitive damages, they must be capped at
$250,000.00 because there is no evidence that Homeward acted with the “specific
intent” to harm; and (3) even if Plaintiff can recover punitive damages in an amount
more than $250,000.00, the award in this case violates due process. In the alternative,
Homeward argues, under Rule 59, that the Court should order a remittitur or a new
trial because the jury’s award of damages was excessive.
In response to this, Plaintiff argues that all of Homeward’s arguments regarding
damages have been waived because Homeward did not raise these issues in its Rule
50(a) motion at the close of evidence. Plaintiff alternatively contends that the award of
damages is supported by the evidence.
A. O.C.G.A. § 51‐12‐6
In its first argument, Homeward asserts that the jury was not permitted, as a
matter of law, to award punitive damages to Plaintiff because there was no evidence, at
trial, of a physical injury or of quantifiable economic damages in any amount. Georgia
law, O.C.G.A. § 51‐12‐6, provides that “[i]n a tort action in which the entire injury is to
the peace, happiness, or feelings of the plaintiff, no measure of damages can be
prescribed except the enlightened consciences of impartial jurors. In such an action,
punitive damages . . . shall not be awarded.”
35
The Court agrees with Plaintiff that, because Homeward did not make this or
any closely‐related argument in its Rule 50(a) motion at trial or during the charge
conference,130 Homeward cannot now raise the issue under Rule 50(b) or Rule 59. “A
motion under Rule 50(b) is not allowed unless the movant sought relief on similar
grounds under Rule 50(a) before the case was submitted to the jury.”131 Rule 59 is
likewise not a vehicle “to raise arguments . . . that could have been raised prior to the
entry of judgment.”132 The purpose of these rules is, obviously, to avoid a post‐verdict
ambush of the court and counsel after trial when there is no longer an opportunity to
cure the error.133
In this case, Homeward surprises both the Court and opposing counsel with a
new legal argument regarding Plaintiff’s claim for compensatory damages. The Court
could not locate, and Homeward did not identify, any portion of the record in which
Vol. II at 198.
Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1245 (11th Cir. 2001) (affirming the district court’s
finding that defendant had waived argument that O.C.G.A. § 51–12–6 precluded an award of punitive
damages by not preserving it at trial). See also, Kelly v. City of Oakland, 198 F.3d 779, 786 (9th Cir.1999)
(holding that defendant could not challenge punitive damage award in a Rule 50(b) motion, where the
defendant did not object to the jury instructions on punitive damages, and did not challenge the
sufficiency of the evidence to support punitive damages in his Rule 50(a) motion).
132 “If a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on
an issue at the conclusion of all of the evidence, [it] waives both its right to file a renewed post‐verdict
Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal.”
Flowers v. Regional Physician Svs., 247 F.3d 229, 238 (5th Cir. 2001). See also, Richardson v. Bombardier, Inc.,
No. 8:08–cv–544–T–31MSS, 2005 WL 3087864, at * 7 (M.D. Fla. Nov.16, 2005) (“[T]he moving party may
not raise objections to alleged errors for the first time in a motion for new trial.”) (citing Nissho‐Iwai Co.,
Ltd. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir. 1988)). C.f., Sands v. Kawasaki Motors Corp.
U.S.A., 513 F. Appʹx 847, 856 (11th Cir. 2013) (affirming district courtʹs denial of motion for new trial
where plaintiff had failed to object to the jury verdict as inconsistent before the jury was excused); Costa v.
Samʹs East, Inc., No. 11–0297, 2012 WL 5386921, at* 11, *15 (S.D. Ala. Oct. 31, 2012) (argument for new trial
waived when not raised at trial).
133 See National Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir. 1986).
130
131
36
defense counsel raised the argument that there were no basis for awarding economic
damages in any amount and thus Plaintiff was precluded from recovering punitive
damages under Georgia law.
In its Rule 50(a) motion, Homeward did raise the issue of whether Plaintiff’s
conversion claim could be supported by testimony regarding Homeward’s assessment
of late fees.134 The argument now presented post‐verdict, however, is fundamentally
different. The question of whether Homeward converted or misapplied Plaintiff’s
funds to pay late fees obviously does not require the same response as the question of
whether Plaintiff suffered an actual economic injury as a result of the fees charged.
Plaintiff responded to and the Court addressed the first argument. At trial, Plaintiff’s
counsel pointed to testimony from Mr. Delbene showing that Homeward had collected
fees from the suspense account.135 Plaintiff now shows that Mr. Berry also testified that
more than $6,000.00 was “taken” from Plaintiff’s loan payments and applied toward
fees.136 Thus, to the extent it is relevant here, the Court again finds that there was
evidence from which the jury could reasonably conclude that Homeward converted or
misapplied $6,000.00 to pay its fees.
The Court, however, will not address Homeward’s present argument that there
was “no evidence of quantifiable damages in any amount” presented at trial. Homeward did
Tr. Vol. II at 208‐211
Tr. Vol. II at 211
136 See Tr. Vol. I at 83‐84.
134
135
37
not make this argument in its Rule 50(a) motion at the close of evidence or when given
the opportunity to object to the jury’s instruction on damages.137 If, in fact, there was no
evidence to support an award of economic damages, and thus punitive damages could
not be awarded as a matter of law, Homeward was certainly aware of this fact before
this case was sent to the jury and was required to raise the issue at that time.
B. Statutory Cap on Punitive Damages
Homeward next argues that, because there was no evidence of a specific intent to
harm Plaintiff in this case, Georgia law caps any punitive damages to $250,000.00. If the
cap does not apply, Homeward alternatively contends that the amount awarded in this
case violates due process. In response, Plaintiff again argues that all of Homeward’s
arguments regarding the award of punitive damages have been waived.
After a review of the trial transcript, the Court finds that Homeward’s arguments
regarding “specific intent” were not waived and can be considered. The rule barring
the introduction of new arguments post‐verdict does not require that the parties’ prior
arguments be word‐for‐word identical to those raised post‐verdict; the Court may thus
overlook some differences in regard to the content of a post‐verdict motion if the issues
Compare, Splitt v. Deltona Corp., 662 F.2d 1142, 1144‐45 (11th Cir. 1981) (affirming grant of directed
verdict as to punitive damages because defendant had objected to the jury charge on the same ground,
and therefore the purpose of Rule 50 had been served because all parties were on notice of defendantʹs
concern).
137
38
raised at trial were closely related.138 A Rule 50(b) argument may be considered, for
example, even if not raised in the Rule 50(a) motion, so long as the moving party’s
argument was otherwise made clear at trial such as in an objection to a jury charge.139
In this case, Homeward did argue that there was “no evidence of specific intent”
prior to the close of evidence.140 Although Homeward did not raise this argument in the
context of punitive damages during trial, Homeward’s arguments regarding the
instruction on intent and emotional damages at the charge conference were closely‐
related to those raised in the present motion. Because Homeward raised a similar
argument earlier, Plaintiff cannot argue that she has now been ambushed with an
entirely new legal argument.
Homeward, then and now, argues that there was no evidence of a specific intent
to harm Plaintiff.141 Homeward now adds that the absence of such evidence bars an
award of punitive damages in excess of $250,000.00. Georgia law places a $250,000.00
cap on punitive damages for any tort action, unless the jury finds that “the defendant
acted, or failed to act, with the specific intent to cause harm.”142 “[S]pecific intent to
See Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289‐90 (11th Cir. 1998) (“If the grounds argued in a
motion under Rule 50(a) are “closely related” to those argued in a Rule 50(b) motion, then setting aside a
juryʹs verdict is no surprise to the non‐movant.”).
139 See Splitt, 662 F.2d at 1144‐45.
140 See Tr. Vol. II at 202 [Doc. 109] (“. . . there isn’t any evidence of specific intent in this case”).
141 See id.
142 Alta Anesthesia Assoc. &c. v. Gibbons, 245 Ga. App. 79, 89 (2000); O.C.G.A. § 51‐12‐5.1(g).
138
39
harm” exists if “the actor desires to cause consequences of his act, or that he believes
that the consequences are substantially certain to result from it.”143
In response to Homeward’s motion, Plaintiff asserts that there was sufficient
evidence from which the jury could infer a “specific intent to harm.” In making this
argument, Plaintiff relies on Mr. Delbene’s inability to explain how Homeward arrived
at the $843.58 payment, refusal to consider Plaintiff’s escrow analysis, and position that
Plaintiff was required to pay whatever amount Homeward demanded.144 Plaintiff also
argues that intent may be inferred from the evidence showing that Homeward
increased the escrow payment in a manner that would allow it to recoup the shortage in
far less than the required twelve‐month period and that Homeward refused to
reconsider its position even after Plaintiff notified Homeward that she was current on
her payments and that the increased escrow was improper.
The Court has considered the evidence in the light most favorable to Plaintiff, as
is required under Rule 50(b), and finds, for those reasons already discussed above, that
there is sufficient evidence that Homeward repeatedly acted with a reckless disregard
for Plaintiff’s rights. Such willful and wanton conduct is sufficient to sustain an award
of punitive damages.145 The same evidence, however, does not support a finding that
J.B. Hunt Transport, Inc. v. Bentley, 207 Ga. App. 250, 255 (1996).
Delbene Dep. at 56‐59, 110, 165‐66 [Doc. 46].
145 J.B. Hunt Transport, Inc., 207 Ga. App. at 255 (“Evidence of such ‘conscious indifference to
consequences’ supported the submission of the issue of punitive damages to the jury . . . .”). See also E.
Prop. Dev. LLC v. Gill, ‐‐ F. App’x ‐‐, 2014 WL 868613, at *3 (11th Cir. Mar. 6, 2014) (“A willful repetition of
. . . conversion can authorize a claim for punitive damages . . . .”).
143
144
40
Homeward acted with the specific intent to harm, as is required to pierce the
$250,000.00 cap on punitive damages.146 Again, an actor has “specific intent” only if he
“desires to cause consequences of his act, or that he believes that the consequences are
substantially certain to result from it.”147 “[T]he mere knowledge and appreciation of a
risk, short of a substantial certainty, is not the equivalent of intent.”148
In this case, there is no evidence that Homeward acted with the “specific intent”
to cause Plaintiff emotional distress or to wrongfully foreclose on her property. There is
no evidence suggesting that Homeward bore any particular animus against Plaintiff or
that Homeward would have been substantially enriched by harming Plaintiff – either
emotionally or through foreclosure. There is likewise no evidence showing that
Homeward would have otherwise desired to cause Plaintiff’s injuries or that it believed
those injuries were substantially certain to result from its obstinacies and demands for
payment. All evidence instead suggests that Homeward intended and believed its
conduct would cause Plaintiff to make the payments demanded. It is in fact unclear
what benefit Homeward would reap by forcing a debtor into foreclosure; and, other
than the collection of some service fees, there is no evidence that Homeward reaped any
“These two inquiries are separate and distinct.” Tomczyk v. Jocks & Jills Restaurants, LLC, 513 F. Supp.
2d 1351, 1363 (N.D. Ga. 2007), rev’d on other grounds, 269 F. App’x 867 (11th Cir. 2008) (“[T]here is no
inconsistency between a jury finding of ‘willful or wanton’ acts ‘directed’ toward Plaintiff along with a
finding that there was no ‘specific intent to cause harm.”).
147 J.B. Hunt Transport, Inc., 207 Ga. App. at 255.
148 Id.
146
41
great financial benefit here. The sale of the property in fact resulted in a huge loss,149
and Homeward did not attempt to collect the balance from Plaintiff after the
foreclosure.150
The Court therefore finds that, while a reasonable jury could conclude that
Homeward was consciously indifferent to any harm it caused Plaintiff so as to support
an award of punitive damages, the evidence was not sufficient to permit the jury to go
one step further and find a “specific intent to harm” as is required to justify an award of
punitive damages in excess of $250,000.00. The jury’s award of $3,000,000.00 is
accordingly in excess of what is permitted under Georgia law, and the punitive
damages award must be reduced to $250,000.00 pursuant to O.G.C.A. § 51‐12‐5.1(g). To
this extent, Homeward’s Renewed Judgment as a Matter of Law is GRANTED.
In light of this, the Court need not consider Homeward’s Motion for New Trial
on this ground or whether the $3,000,000.00 award violated due process.
C. Jury’s Award of Damages was Not Excessive
Finally, Homeward contends that the jury’s award of punitive and emotional
distress damages was excessive and unsupported by the evidence presented at trial. “In
implementing Rule 59, courts have long recognized that a new trial may be warranted
by an excessive . . . jury award.”151 Thus, “[w]hen it is determined that the damages
Delbene Depo. at 155, 158‐159.
Tr. Vol. II at 124.
151 Johnson v. Clark, 484 F .Supp. 2d 1242, 1256 (M.D. Fla. 2007).
149
150
42
awarded by a jury are excessive but the finding of liability is supported by the evidence,
it is appropriate to order remittitur or a new trial limited to the issue of damages.”152
Where state law claims are involved, the issue of the excessiveness of a damage
award is governed by federal standards but guided by state law. “In reviewing an
award of punitive damages, . . . the role of the district court is to determine whether the
juryʹs verdict is within the confines set by state law, and to determine, by reference to
federal standards developed under Rule 59, whether a new trial or remittitur should be
ordered.”153 “The same distinction necessarily applies where the judgment under
review is for compensatory damages: State substantive law controls what injuries are
compensable and in what amount; but federal standards determine whether the award
exceeds what is lawful to such degree that it may be set aside by order for new trial or
remittitur.”154
The Eleventh Circuit “adheres to an exceedingly high standard for granting a
new trial on those grounds” under Rule 59.155 The challenged award must be, not only
“grossly excessive,” indicating that “the juryʹs verdict was swayed by passion and
prejudice,” but also “so excessive as to shock the conscience of the court.”156
Id. (citing Wilson v. Taylor, 733 F.2d 1539, 1549–50 (11th Cir.1984), overruled on other grounds by Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)).
153 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 463 (1996) (quoting Browning‐Ferris Indus. of Vt., Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 279 (1989)).
154 Id. at 463‐64.
155 Warren v. Cnty. Comʹn of Lawrence County, Ala., 826 F. Supp. 2d 1299, 1304 (N.D. Ala. 2011).
156 Id. (quoting Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1447–48 (11th Cir. 1985)).
152
43
1. Award of Punitive Damages
In its Rule 59 motion, Homeward contends that the jury’s award of punitive
damages is excessive. In light of the reduction of the punitive damages under O.G.C.A.
§ 51‐12‐5.1(g), supra, the Court is hesitant to further interfere with the jury’s findings in
this case as to punitive damages. Furthermore, during the trial of this case, there was
sufficient evidence from which the jury could have reasonably found (1) that
Homeward callously and carelessly ignored its potential error in calculating Plaintiff’s
escrow despite the fact that it could not justify the increase and Plaintiff notified it of an
error; (2) that Homeward took advantage of its position of power over Plaintiff and
caused her default and foreclosure; and (3) that Homeward frightened, harassed, and
embarrassed Plaintiff, causing her severe emotional distress to the point of physical
illness. Under Georgia law, punitive damages are awarded to penalize, punish, or
deter.157 A punitive damages award of $250,000.00 in this case is consistent with these
purposes, and the Court does not find this amount to be grossly excessive.
2. Award of Emotional Distress Damages
The only remaining question before the Court is whether the record supports the
award of emotional damages. In assessing the appropriateness of an award of
compensatory damages, courts will look to: “(1) the size of the award; (2) the rational
relationship between the award and the evidence adduced at trial; and (3) awards in
157
O.G.G.A. § 51–12–5.1(c).
44
similar cases.”158 The Eleventh Circuit has held, however, that “[t]he standard of review
for awards of compensatory damages for intangible, emotional harms is deferential to
the fact finder because the harm is subjective and evaluating it depends considerably on
the demeanor of the witnesses.”159 Thus, “[w]hen the juryʹs verdict is within the bounds
of possible awards supported by the evidence, its award should not be disturbed.”160
In this case, Homeward asserts that the jury’s emotional damages award of
$500,000.00 was “exorbitant” because the evidence merely showed that Plaintiff and her
son became “frustrated” at Homeward’s handling of their disagreement. The evidence
showed more than this, however. Plaintiff and her family presented evidence of her
stress and worry about the state of her loans and the effect it was having on her son; her
public humiliation resulting from the foreclosure of her property; and the toll this has
taken on her mentally and physically.
The evidence also showed that Plaintiff sought treatment for her mental health
problems, and Plaintiff’s psychologist testified at trial regarding her emotional distress.
The psychologist in fact diagnosed Plaintiff with major depression161 and stated that her
dispute with Homeward was the precipitating and recurring cause of her depression.162
The psychologist testified that Plaintiff perceived this dispute as a “life or death
Copley v. BAX Global, Inc., 97 F.Supp.2d 1164, 1171 (S.D. Fla. 2000).
Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1349 (11th Cir. 2000) (quoting Ferrill v. Parker Group, Inc.,
168 F.3d 468, 476 (11th Cir. 1999)).
160 Carter v. Decision One Corp., 122 F.3d 997, 1006 (11th Cir. 1997).
161 Sappington Dep. at 7 [Doc. 82‐2].
162 Id. at 6, 8, 19, 22, 59.
158
159
45
situation,”163 and that she worried about the loss of income, her reputation, and
standing among neighbors to the point where she became physically ill.164
Plaintiff’s psychologist also testified, however, that Plaintiff may have had a
history of depression,165 that other significant life factors may have also contributed to
her depression,166 and that Plaintiff was able to engage in normal life activities during
her treatment.167 There was further evidence that Plaintiff’s son, Adam McGinnis,
handled the incessant phone calls and collection letters and that Plaintiff no longer lives
or engages business in the community in which the foreclosure occurred.
The jury heard all of this evidence, was instructed on the parameters for finding
emotional damages, and then awarded Plaintiff $500,000.00. Reasonable people, and
thus reasonable juries, could of course differ as to the appropriate amount that would
compensate Plaintiff for the mental anguish she suffered. Homeward’s post‐verdict
argument, however, fails to identify sufficient evidence or any analogous case authority
to support a finding that the juryʹs verdict was swayed by passion and prejudice or that
the $500,000.00 award must otherwise be considered grossly excessive. An award of
this size has in fact been upheld by the Eleventh Circuit even in the absence of medical
Id. at 12.
Id. at 14.
165 Id. at 31.
166 Id. at 30‐34, 45, 48, 53, 55.
167 Id. at 45, 49.
163
164
46
testimony to support the plaintiffs’ self‐serving claims of upset, embarrassment,
humiliation, and depression.168
In the absence of any evidence or analogous law in support of remittitur, the
Court can discern no reason to substitute its judgment for that of the jury as to a
reasonable amount to compensate Plaintiff for her emotional distress. There is no
reason to assume that a jury ‐ which has simply discounted the testimony favorable to
the defense and the arguments of defense counsel – has misapprehended a case.169 The
Court is likewise not permitted to “set aside the verdict merely because [it] might have
awarded a different amount of damages.”170 Here, the jury was clearly instructed to
consider only Plaintiff’s emotional distress and only that distress proximately caused by
Homeward’s conduct.171 The Court must now assume that the jury followed its
instructions unless evidence is presented to the contrary.172 No such evidence is
presented here. This Court will thus defer to the fact finder and will not disturb the
jury’s verdict as to emotional damages.
See Bogle v. McClure, 332 F.3d 1347, 1359 (11th Cir. 2003) (upholding $500,000.00 emotional damage
award where plaintiffs testified that defendants conduct caused them to be “upset,” “embarrassed,”
“humiliated,” “ashamed,” and “depressed” even though plaintiffs did not present any independent
medical evidence of emotional distress). See also, Johnson v. Clark, 484 F. Supp. 2d 1242, (M.D. Fla. 2007)
(reducing damages for loss of professional reputation and mental pain and suffering to $500,000.00);
Forsberg v. Pefanis, No. 1:07–cv–03116, 2009 WL 4798124, at * 8 (N.D. Ga. Dec. 8, 2009) (rejecting the
contention that that there is a bench mark or limit for damages on emotional distress at $150,000.00 and
awarding $1,500,000.00 for emotional damages in a sexual harassment case); Fabe v. Floyd, 199 Ga. App.
322, 330, 405 S.E.2d 265 (1991) (upholding $450,000.00 award even though sole evidence of mental distress
was businessmanʹs unrebutted testimony).
169 See Myers v. Central Florida Invs., Inc., 592 F.3d 1201, 1213 (11th Cir. 2010).
170 11 Charles Alan Wright, Arthur R. Miller, & Mary Kane, Federal Practice and Procedure § 2807 (3d ed.).
171 Jury Instructions at 21‐22 [Doc. 91].
172 Shannon v. United States, 512 U.S. 573, 585 (1994).
168
47
CONCLUSION
For these reasons, Homeward’s Renewed Motion for Judgment as a Matter of
Law [Doc. 105] is GRANTED in part and DENIED in part; and it is ORDERED that the
punitive damages award be reduced to $250,000.00. Homeward’s Motion for a New
Trial and/or Remittitur [Doc. 104] is DENIED.
SO ORDERED, this 30th day of June, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
JLR/adp
48
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