MCGINNIS v. AMERICAN HOME MORTGAGE SERVICING, INC
ORDER denying 145 Motion for Reduction, New Trial, and/or Remittitur. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/6/17 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
No. 5:11‐CV‐284 (CAR)
AMERICAN HOME MORTGAGE
ORDER ON MOTION FOR NEW TRIAL
This case is presently before the Court on remand from the Eleventh Circuit
Court of Appeals for consideration of Defendant Homeward Residential’s motion for
new trial on the issue of punitive damages. Upon due consideration of the Eleventh
Circuit’s mandate, the evidence, the parties’ arguments, and the relevant law, the Court
finds that the jury’s punitive award in this case is neither unconstitutional,
unconscionable, nor excessive in light of the evidence presented at trial.
Plaintiff Jane McGinnis (“McGinnis”) filed the present action for wrongful
foreclosure, conversion, interference with property, and intentional infliction of
emotional distress against Defendant Homeward Residential, Inc. (“Homeward”), the
servicer of the mortgages on several properties for which Plaintiff was a landlord. At
the end of a bifurcated trial, the jury found against Homeward on all claims and
awarded McGinnis $3,506,000.00 in damages ($6,000.00 for her economic injury,
$500,000.00 for her emotional distress, and $3,000,000.00 in punitive damages).
After the trial, Homeward renewed its motion for judgment as a matter of law
under Rule 50 of the Federal Rule of Civil Procedure (“Renewed JMOL”), and also
moved, in the alternative, for a new trial and/or remittitur of damages under Rule 59.
Homeward’s Renewed JMOL was granted only on the issue of punitive damages.1 The
motions were otherwise denied.
The parties, thereafter, cross‐appealed, and the Eleventh Circuit Court of
Appeals affirmed this Court’s ruling in its entirety. That opinion was vacated a short
time later (following a decision by one the judges to recuse herself), and the appeal was
referred to a second panel.2 After review, the second panel affirmed all but one of the
Court’s rulings, concluding that Homeward was procedurally barred from challenging
the punitive damages award in its Renewed JMOL.3 The Court’s ruling on this issue
under Rule 50 was accordingly reversed. The case was then remanded to this Court for
consideration of the same arguments under Rule 59, which had been timely raised by
Homeward but not yet ruled upon by the Court.
See Order, McGinnis v. Am. Home Mortg. Servicing Inc., No. 5:11‐CV‐284 CAR, Doc. 124 at 42, 2014 WL
2949216 at *16 (M.D. Ga. June 30, 2014), affʹd in part sub nom. 621 F. Appʹx 935 (11th Cir. 2015), vacated
(June 2, 2015), and revʹd and vacated, 817 F.3d 1241 (11th Cir. 2016).
2 Doc. 145‐1 at 1. See also Docs. 135, 136.
3 McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241 (11th Cir. 2016).
Homeward’s motion for new trial on the issue of punitive damages is thus now
again before the Court.4 On remand, the parties were allowed to each file a
supplemental brief for consideration. Homeward filed a post‐appeal motion, and
McGinnis filed a response thereto.5 Homeward then moved to file a reply brief.6 That
motion is GRANTED over McGinnis’s objection,7 as her response included new
arguments to which Homeward may respond. The reply has thus been considered.8
Homeward’s “Post‐Appeal Motion to Reduce Punitive Damages Award, or
Alternatively for New Trial or Remittitur”9 is now ripe for consideration.
Standard of Review under Rule 59
Rule 59 of the Federal Rules of Civil Procedure allows the district court to order a
new trial on evidentiary grounds if the trial judge, in his discretion, determines that the
jury’s verdict is against the “great weight” of the evidence presented at trial.10 Thus,
because the weight of the evidence is considered, the district judge may grant a new
trial even if there was sufficient evidence to prevent a directed verdict under Rule 50.11
See id. at 1264.
Docs. 145, 147
6 Doc. 148
7 Doc. 149
8 Doc. 148‐1
9 Doc. 145
10 Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). See also Steger v. Gen. Elec. Co., 318 F.3d
1066, 1081 (11th Cir. 2003).
11 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984).
When considering a motion for new trial, however, the district judge may not
substitute his own credibility choices and inferences for those made by the jury. 12 The
jury’s verdict may be set aside on evidentiary grounds only if “the verdict is against the
great ‐ not merely the greater ‐ weight of the evidence.”13 The jury’s award of damages
must likewise stand undisturbed unless the amount is shown to be clearly outside “the
universe of possible awards which are supported by the evidence.”14
With these standards in mind, the Court now turns to the arguments raised in
Homeward’s Motion for New Trial: (1) that the jury’s punitive award is
unconstitutionally excessive; (2) that the jury’s punitive award is grossly excessive
under Georgia law; and (3) that the jury’s verdict on punitive damages is against the
great weight of the evidence presented at trial.
The Jury’s Punitive Award is Not Unconstitutionally Excessive
The first issue before the Court is whether the jury’s punitive award is so
excessive that it violates due process. A punitive damages award may run afoul of the
Due Process Clause “when it can fairly be categorized as grossly excessive” in relation
to “a [s]tateʹs legitimate interests in punishing unlawful conduct and deterring its
repetition.”15 The relevant question in this case is thus whether the jury’s award is
Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982).
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001).
14 Johansen v. Combustion Engʹg, Inc., 170 F.3d 1320, 1329 (11th Cir. 1999); Carter v. DecisionOne Corp., 122
F.3d 997, 1004 (11th Cir. 1997), Narcisse v. Illinois Cent. Gulf R. Co., 620 F.2d 544, 547 (5th Cir. 1980).
15 Myers v. Cent. Florida Investments, Inc., 592 F.3d 1201, 1218 (11th Cir. 2010) (citing BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 560 (1996)).
grossly excessive in relation to Georgia’s strong interest in preventing a mortgage
servicer from unfairly exercising its power of sale.16
When deciding whether an amount of punitive damages offends due process,
three factors must be considered: the degree of reprehensibility of the defendant’s
conduct; “the disparity between the actual or potential harm suffered by the plaintiff
and the punitive . . . award”; and “the difference between the punitive damages
awarded and civil penalties authorized or imposed in comparable cases.”17
The degree of reprehensibility of a party’s conduct is the “dominant
consideration” in determining whether a punitive award is excessive.18 Evaluating the
reprehensibility of a defendant’s conduct is meant to ensure that the “damages imposed
on a defendant . . . reflect the enormity of his offense.”19 The “gravity of the defendantʹs
conduct” must therefore be balanced with the “harshness of the award of punitive
damages”20 – i.e., a higher degree of reprehensibility weighs in favor of a larger award
of punitive damages. With respect to this inquiry, courts have been instructed to
consider a number of sub‐factors, such as whether the harm caused was physical or
economic; whether the defendant’s conduct showed an indifference to the health and
See generally, O.C.G.A. § 23‐2‐114; DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 448 (2008).
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (citing Gore, 517 U.S. at 575).
18 Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1283 (11th Cir. 2008).
19 Gore, 517 U.S. at 575.
20 Browning–Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301 (1989) (OʹCONNOR, J.,
concurring in part and dissenting in part)
safety of others; whether the target of the conduct was financially vulnerable; whether
the conduct involved repeated actions or a single incident; and whether the evidence
showed malice, trickery, or deceit.21 Thus, for example, repeated “conduct which causes
emotional as well as economic harm [may be viewed as] more reprehensible than that
which causes only economic harm.”22
After considering the facts of this case in light of the relevant factors, the Court
finds a high degree of reprehensibility in Homeward’s conduct. During the trial of this
case, there was ample evidence presented to show that Homeward was aware of both
McGinnis’s financial vulnerability and her good‐faith attempts to notify Homeward of
its error in calculating the amount owed.23 Homeward nonetheless bullied and
harassed McGinnis to pay greater amounts and flatly maintained that she was required
to pay “any amount” it demanded, regardless of whether it was reasonable or in error.24
When McGinnis refused to pay the disputed amounts, Homeward proceeded with
foreclosure in a short amount of time; and as a result of Homeward’s repeated refusals
to concede its error, McGinnis suffered not only an economic injury but also physical
and emotional harm.25 Homeward’s actions in this context were reprehensible and
warrant a substantial penalty beyond the award of compensatory damages.
Campbell, 538 U.S. at 419.
Merrick v. Paul Revere Life Ins. Co., 594 F. Supp. 2d 1168, 1185‐86 (D. Nev. 2008).
23 See McGinnis, 2014 WL 2949216 at *6, 11, aff’d by, 817 F.3d at 1259.
24 Id. at *9, 11‐12, aff’d by, 817 F.3d at 1259.
25 Id. at *11, aff’d by, 817 F.3d at 1259.
B. Ratio Between Compensatory and Punitive Damages
The Court must next consider the disparity between the actual or potential harm
suffered by the plaintiff and the punitive damages award.”26 In this inquiry, the
mathematical ratio of punitive to compensatory damages is instructive.27 A single‐digit
ratio (less than 10‐to‐1) will most likely comport with due process.28 There is, however,
no firm rule or “bright‐line ratio which a punitive damages award cannot exceed.”29
The core question is whether the amount of punitive damages is “reasonable and
proportionate to” the amount of compensatory damages recovered.30 The
reasonableness of the award thus depends “on the facts and circumstances of the
defendantʹs conduct and the [actual and potential] harm” that was likely to result.31
In this case, the ratio of punitive to compensatory damages is 5.9‐to‐1.32 This is a
single digit ratio and not presumptively suspect.33 Homeward, nonetheless, contends
that, even at a single‐digit ratio, the punitive award offends due process because of
McGinnis’s substantial recovery for emotional distress.
In support of its motion, Homeward relies on frequently‐cited caselaw
suggesting that, if an award of compensatory damages is substantial, it is possible that
See Campbell, 538 U.S. at 418.
See State Farm, 538 U.S. at 425
28 See Campbell, 538 U.S. at 425.
29 Id. See also Gore, 517 U.S. at 582.
30 See Campbell, 538 U.S. at 426; Gore, 517 U.S. at 583.
31 Id. at 425.
32 The Court is unpersuaded by Homeward’s contention that only the economic damages should be
considered in this analysis. See Goldsmith, 513 F.3d at 1283.
33 See Campbell, at 425 (suggesting in dicta that single digit ratios are presumptively valid).
“a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost
limit of the due process guarantee.”34 Prior cases have also suggested that a punitive
damages award “more than four times the amount of compensatory damages might [in
some cases] be close to the line of constitutional impropriety.” 35 These suggestions,
however, are no more than suggestions – intended to be instructive; they neither
demarcate an uppermost limit for a punitive award nor mandate the use of any
particular calculation for determining whether a punitive damages award is outside the
acceptable range.36 Federal courts have “consistently rejected the notion that the
constitutional line is marked by a simple mathematical formula.”37
Thus, “particularly egregious conduct . . . may justify bumping the acceptable
ratio to a higher level.”38 The Eleventh Circuit has, many times, upheld ratios greater
than 5.9‐to‐1.39 Punitive awards having a greater ratio of disparity have even been
Action Marine, Inc. v. Contʹl Carbon Inc., 481 F.3d 1302, 1321 (11th Cir. 2007) (quoting Campbell, 538 U.S.
35 See id. at 1322.
37 Gore, 517 U.S. 582 (“We need not, and indeed we cannot, draw a mathematical bright line between the
constitutionally acceptable and the constitutionally unacceptable that would fit every case.”)
38 See Register v. Rus of Auburn, 193 F. Supp. 2d 1273, 1277 (M.D. Ala. 2002) (citing TXO Production Corp. v.
Alliance Resources Corp., 509 U.S. 443, 460 (1993)).
39 Brim v. Midland Credit Mgmt., Inc., 795 F. Supp. 2d 1255, 1264 (N.D. Ala. 2011) (“The Eleventh Circuit as
approved numerous punitive awards where the ratio was similar or higher.”) (citing Johansen, 170 F.3d at
1338 (ratio of 100:1); Goldsmith, 513 F.3d 1261, 1283 (11th Cir. 2008) (ratio of 9.2:1); W & O, 213 F.3d at 616–
17 (ratio of 8.3:1); Action Marine, 481 F.3d at 1323 (ratio of 5.5:1). “[T]he one occasion where the Eleventh
Circuit struck down a punitive award for constitutional excess, it reduced an award with a ratio of 8,692:1
to an award with a ratio of 2,173:1.” Brim, 795 F. Supp. 2d at 1264 (citing Kemp v. Am. Tel. & Tel. Co., 393
F.3d 1354, 1357 & 1365 (11th Cir. 2004) (reducing the punitive award from $1,000,000 to $250,000 when
compensatory damages amounted to $115.05, noting “a single digit multiplier would not have effectively
deterred At & T from future misconduct).
upheld in cases factually similar to this one: In Brim v. Midland Credit Mgmt., Inc.,40 for
example, the district court upheld a ratio of 6.23‐to‐1 after finding a high degree of
reprehensibility in the defendant’s attitude of indifference and failure to investigate
consumer complaints, where there was: evidence that plaintiff made numerous efforts
“to have the defendant correct its records”; testimony “regarding … the amount of time
[the plaintiff] had to devote to his credit … because of defendantʹs actions or inactions”;
and evidence “that the defendantʹs sole effort [in response to consumer complaints] was
to check its records against its very own records.” 41
Furthermore, the actual injury caused to McGinnis in this case is not the only
relevant consideration: The potential that existed for a greater harm is also relevant.42 If
the potential or likelihood for greater harm is high, the jury may impose a higher award
to “teach a duty of care” and/or deter the repetition of such conduct.43 Heavier punitive
awards are likewise “justified when wrongdoing is hard to detect (increasing chances of
getting away with it)” or when the value of the economic injury provides little incentive
to sue.44 Indeed, in some cases, only a heavy penalty will cause the kind of “memorable
and unmistakable sting” necessary to punish and deter repetition of the conduct. 45
795 F. Supp. 2d at 1264
Id. at 1261‐1262.
42 Gore, 517 U.S. at 581 (emphasis in original) (citing TXO Prod. Corp, 509 U.S. at 460 (quotation marks
43 TXO Prod. Corp., 509 U.S. at 459–60.
44 Exxon Shipping, 554 U.S. at 494 (citations omitted).
45 Flying Fish Bikes, Inc. v. Giant Bicycle, Inc., 8:13‐cv‐2890, 2016 WL 695972, at *17 (M.D. Fla. Feb. 22, 2016).
See also Gore, 517 U.S. 559, 591 (1996) (“Since a fixed dollar award will punish a poor person more than a
All of these justifications for a large award of punitive damages are present here.
The potential for financial and economic harm – if Homeward’s conduct was repeated
on a large scale – is tremendous. The indifference and obstinacy shown by
Homeward’s agents in this case likewise suggest that a strong deterrence from
repetition may be needed. Smaller actions by Homeward – such as the collection of
unreasonable amounts, fees and expenses – may also be hard to detect, and the amounts
collected, in just a single case, may often be too small to justify litigation. Homeward is,
in addition, a wealthy corporation: “AHMSI [was] the 13th largest mortgage servicer in
the country managing nearly $71 billion in loan servicing,”46 and thus a higher award
may necessary to achieve the desired goals of punishment and deterrence.
The Court, therefore, does not find the jury’s punitive award to be
C. Civil Penalties
The final factor to be considered in this analysis is the amount of any civil
penalties authorized or imposed in comparable cases.47 This factor is often accorded
less weight than the first two.48
wealthy one, one can understand the relevance of this factor to the Stateʹs interest in retribution.”); W&O,
Inc., 213 F.3d at 616–17 (noting that “wealth and size of the defendant” can be considered in determining
whether the punitive award is reasonable).
46 Doc. 89‐5 (Pl.’s Trial Ex. 45)
47 Campbell, 538 U.S. at 428.
48 Compare Cont’l Trend Res. v. Oxy USA, 101 F.3d 634, 641 (10th Cir. 1996) (declining to considering factor
of potential penalties where defendant’s “misconduct involved a violation of common law tort duties that
do not lend themselves to a comparison with statutory penalties”); Cortez v. Trans Union, LLC, 617 F.3d
In this case, Homeward asks the Court to compare the civil penalties authorized
under the Real Estate Settlement Procedures Act (“RESPA”)49 with the punitive
damages awarded. RESPA, however, provides no real guidance in this case; and
Homeward fails to identify any comparable cases in which RESPA penalties were
considered or imposed. The Court thus give little, if any, weight, to this factor. Yet,
even if RESPA penalties were to be considered, the Court suspects that they would also
weigh in favor of a large punitive award, as even under RESPA, there is no cap on the
penalty which can be imposed in the case of multiple intentional wrongs by a lender.50
Accordingly, and having now weighed all of the relevant factors identified
above, the Court finds that the jury’s punitive award in this case cannot be fairly
categorized as grossly excessive in relation to the State’s legitimate interests.51
The Punitive Damages Award is Not Unconscionable under State Law
Homeward next contends that the jury’s punitive award is grossly excessive
under state law. The Court presumes, as does McGinnis, that Homeward’s argument is
made under Georgia’s common law criteria for determining whether a punitive award
is excessive.52 Most relevant to this inquiry is that, under Georgia law, the purpose of
688, 724 (3d Cir. 2010) (“third guidepost is not useful in the analysis of punitive damages here as there is
no ‘truly comparable’ civil penalty [to a punitive damages award under the Fair Credit Reporting Act]”).
49 See generally 12 U.S.C. § 2609.
50 § 2609(d)(2).
51 See Myers, 592 F.3d at 1218.
52 If the defendant does not raise (or has waived) a federal due process claim, state courts have applied
“state common law criteria for determining whether [the] award is excessive.” See Time Warner Entmʹt Co.
v. Six Flags Over Ga. LLC, 254 Ga. App. 598, 603 (2002).
an “award of punitive damages . . . is to deter the repetition of reprehensible conduct by
the defendant or others.”53 “Because deterrence is based on factors other than the actual
harm caused,” Georgia has “rejected the notion that punitive damages must necessarily
bear some relationship to the actual damages awarded by the jury.”54
Thus, in Georgia, a punitive award will generally be upheld absent evidence that
there was a “prejudice or bias on the part of the jury.”55 If there is no direct proof of
prejudice or bias on the part of the jury, Georgia courts will “look to the ratio of
compensatory to punitive damage (and other federal guideposts) for some evidence
that the punitive damages award is infected by bias or prejudice.”56 The bar for
satisfying this standard is, however, a high one: Georgia courts have stated that, for an
award to be set aside on the ground that it is excessive, it must, “when considered in
connection with all the facts,” “shock the moral sense, appear exorbitant, flagrantly
outrageous, and extravagant.”57 It must be “monstrous indeed”; it must carry its death
warrant upon its face.”58
Id. (citing Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614–615 n. 2 (1991)). See Colonial Pipeline
Co. v. Brown, 258 Ga. 115, 120 (1988).
56 Id. at 604. (“We believe the Gore guideposts might also be helpful in determining whether an award of
punitive damages is infected by bias or prejudice.”) See also Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487,
494 (2013) (“trial court did not abuse its discretion in denying the motion for new trial or j.n.o.v. on this
ground because there is no evidence that the award of punitive damages was ‘infected by undue passion
and prejudice’”). See also e.g. Middlebrooks, 256 F.3d at 1250 (10‐to‐1 ratio “does not convince us that the
award is tainted by prejudice or bias”).
57 Id. Western & Atlantic R. v. Burnett, 79 Ga. App. 530, 542–543 (1949)) (emphasis added)
58 Id. at 604 (quoting Western, 79 Ga. App. 530, 542–543) (emphasis added).
In this case, the Court finds no direct proof that the jury’s award was infected by
other considerations, bias, or prejudice;59 nor does the Court find (for those reasons
already discussed in Part I. supra) that the amount of the jury’s punitive award is so
excessive as to “shock the judicial conscience.” The Court accordingly does not find
the award to be grossly excessive under Georgia law.
The Punitive Award is Not Excessive in Light of the Evidence Presented
The final question before the Court is whether the jury’s punitive damages
verdict is against the great weight of the evidence presented at trial.60 Before reaching
this issue, however, the Court must first address the procedural objection raised on
remand. In her post‐appeal response, McGinnis contends that Homeward is
procedurally barred from now challenging the sufficiency of the evidence as to punitive
damages in its motion for new trial because it did not raise any objection to the
sufficiency of this evidence prior to the verdict.
As the Court discussed at length in its prior order,61 litigants are barred, under
Rule 50 from raising arguments for the first‐time post‐judgment. However, Rule 59,
applicable here, does not have the same procedural bar.62 A district judge may grant a
See also Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487, 494 (2013) (“trial court did not abuse its discretion
in denying the motion for new trial or j.n.o.v. on this ground because there is no evidence that the award
of punitive damages was ‘infected by undue passion and prejudice’”). See also e.g. Middlebrooks, 256 F.3d
at 1250 (10‐to‐1 ratio “does not convince us that the award is tainted by prejudice or bias”).
60 See Doc. 145 at 10.
61 See McGinnis, 2014 WL 2949216, at *13.
62 See Urti v. Transport Commercial Corp., 479 F.2d 766, 769 (5th Cir. 1973) (failure to make Rule 50 motion
did not bar motion for new trial under Rule 59); Greenleaf v. Garlock, Inc., 174 F.3d 352, 364‐65 (3d Cir.
new trial under Rule 59 based on the weight of the evidence ‐ even if there was
sufficient “evidence [to] prevent the direction of a verdict” at trial under Rule 50.63
Still, not all arguments may be raised for the first time in a motion for new trial.
A district court need not grant a new trial under Rule 59 based on arguments or theories
that were previously available, but not pressed.64 As McGinnis suggests, Homeward
could have argued at trial that there was insufficient evidence to present the claims for
capped and/or uncapped punitive damages to the jury, but it did not. Homeward is
thus barred from making those arguments now.
Homeward’s present argument – that the amount of the jury’s award on punitive
damages is excessive in light of the great weight of the evidence presented at trial –
poses an entirely different question, is subject to different burden of proof, and was not
one available to Homeward at trial. At trial, Homeward could not yet have known
what the damages award would be. Homeward is thus not procedurally barred from
raising the two evidentiary challenges now before the Court.
A. Willful and Wanton Misconduct
Homeward first contends that the jury’s punitive damages award must be
vacated or remitted because, under Georgia law, punitive damages may not be
1999) (same); TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir. 1981) (citation omitted)
(“motions for directed verdict and judgment n.o.v. are not prerequisites to a motion for a new trial”).
63 Hewitt, 732 F.2d at 1556. See Urti, 479 F.2d at 769; Lipphardt, 267 F.3d at 1186.
64 Davis v. Habitat for Humanity of Bay Cty., Inc., 558 F. Appʹx 850, 852 (11th Cir. 2014). See also Linet, Inc. v.
Village of Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (a plaintiff may not use “Rule 59(e) motion to re‐
litigate old matters, raise arguments or present evidence that could have been raised prior to …
awarded absent a finding that the defendant’s actions were “willful, malicious,
fraudulent, wanton, oppressive, or intentionally taken without concern for the
consequences that might result therefrom.”65 Homeward suggest that there was little or
no evidence presented at trial from which the jury could infer “willful misconduct,
malice, fraud, wantonness, oppression, or an entire want of care” on its part.
Homeward thus believes the jury’s finding of such conduct was against the clear weight
of the evidence.
After a review of the evidence, the Court strongly disagrees. The Court in fact
finds (as it has before)66 ample evidence from which the jury could infer that Homeward
continued to harass and demand payment from McGinnis with a willful and wanton
disregard for Plaintiff’s rights and conscious indifference to the consequences of its
actions.67 The jury’s decision to award punitive damages in this case was thus not
against the great weight of the evidence presented at trial. 68
B. Specific Intent to Harm
Homeward next argues, in the alternative, that the jury’s award of uncapped
punitive damages must be vacated or remitted because the jury’s finding of “specific
See O.C.G.A. § 51–12–5.1(b).
McGinnis, 2014 WL 2949216, at *12, 15.
68 See Lipphardt, 267 F.3d at 1186.
intent to harm” – a prerequisite to an award in excess of Georgia’s $250,000.00 statutory
cap – is against the clear weigh to the evidence.69
This Court has already found that the evidence presented at trial sufficiently
demonstrates that Homeward’s conduct was “extreme and outrageous,”70
“reprehensible,”71 “wanton,”72 and “reckless.”73 The same evidence, however, is not
necessarily sufficient to also satisfy the standard of proof required for finding a specific
intent to harm.74 In fact, when previously considering this issue under Rule 50, the
Court found no evidence that Homeward set‐out or desired to cause McGinnis harm at
the time it inherited her loan.75 The Court likewise found no evidence that Homeward
would have otherwise desired to cause Plaintiffʹs injuries or that it believed the injuries
actually suffered by Plaintiff were substantially certain to result from its obstinacies and
demands for payment.76 “All evidence instead suggests that Homeward intended and
believed its conduct would cause Plaintiff to make the payments demanded.”77
O.C.G.A. § 51‐12‐5.1(f),(g).
McGinnis, 2014 WL 2949216, at *12‐13. See also McGinnis, 817 F.3d at 1259‐60 (reaching the same
conclusion and affirming this ruling)
71 Supra at 6‐7.
72 McGinnis, 2014 WL 2949216, at *12 (finding evidence sufficient for jury to find “extreme and outrageous
conduct, arising from an intentional and wanton abuse of power by Homeward”).
73 Id. at *10(finding “sufficient evidence from which the jury could reasonably find that Homeward acted
“in reckless disregard” for the rights of others.”).
74 See Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (1992). See also Amegy Bank Nat. Assʹn v. Deutsche Bank
Alex.Brown, 619 F. Appʹx 923, 932 (11th Cir. 2015) (noting that the “want of care which would raise the
presumption of conscious indifference to consequences – falls short of specific intent”).
75 See McGinnis, 2014 WL 2949216 at *15.
On remand, however, McGinnis asks the Court to reach a different conclusion.
McGinnis contends that, while the Court may have been correct in finding “no direct
evidence” to show that Homeward “purposely sought” to cause the specific injuries
McGinnis’s suffered, there is, nonetheless, evidence from which the jury could infer
specific intent – i.e., evidence that Homeward engaged in a course of conduct despite
knowing that it would almost certainly harm McGinnis.78
McGinnis is correct that this Court is not bound by its previous ruling on this
issue.79 The Eleventh Circuit vacated this Court’s ruling under Rule 50 and did not
reach the issue of specific intent on appeal. McGinnis is also correct that a finding of
specific intent may be supported by either (1) evidence that the actor desired to cause the
consequences of its act or (2) evidence the actor knew the consequences of his act were
certain, or substantially certain, to result and still went ahead.80 Intent to harm thus
does not require direct proof. A jury can find intent through consideration of the
words, conduct, demeanor, motive, and circumstances connected with the defendant’s
actions81 ‐ or as in this case, the actions of the defendant’s agents.82
Doc. 147 at 12.
See Burgos v. Napolitano, 330 F. Appʹx 187, 188 (11th Cir. 2009) (“law of the case doctrine bars
consideration of only those legal issues that we actually, or by necessary implication, decided”). See also
United States v. Tamayo, 80 F.3d 1514, 1521 (11th Cir. 1996) (issues outside the scope of the limited
mandate are precluded by law of the case doctrine)).
80 See J.B. Hunt Transport, Inc. v. Bentley, 207 Ga. App. 250, 255 (1996). Restat. 2d of Torts § 8A (emphasis
81 Croley v. Matson Navigation Company, 434 F.2d 73 (1970).
82 Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1374 (S.D. Ga. 1993) (quoting Croley v.Matson Nav.
Co., 434 F.2d 73, 77 (5th Cir. 1970) (“A question of ‘intent’ is a question regarding state of mind. As the
The Eleventh Circuit Court of Appeals has also rejected attempts “to narrow
[the] definition of specific intent” in a manner that requires proof that the defendant
purposely sought to cause the harm suffered.83 The Court’s instruction to the jury (to
which Homeward did not object) also did not define specific intent so narrowly.84
Homeward thus cannot now argue that more is required;85 nor can Homeward escape
an uncapped punitive award because it was not absolutely certain which one of
multiple harmful consequences would result from its actions. To infer specific intent,
the jury only needed to find evidence that the defendant knew it would certainly (or
almost certainly) cause harm to the plaintiff and yet continued in the same course of
conduct despite the known consequences of its actions.
Yet, upon review of this Court’s prior findings under Rule 50, it is apparent that
Homeward’s arguments86 (and thus this Court’s consideration thereof) focused
primarily on the first method of proof and the lack of evidence that Homeward
specifically set‐out or desired to cause McGinnis’s injuries. The Court thus will now, in
light of McGinnis’ arguments on remand, revisit this issue and further consider the
evidence she identified as creating an inference of Homeward’s specific intent to harm.
former Fifth Circuit observed in an analogous context, ‘[state of mind] on the part of the company can be
proved only by showing the state of mind of its employees.”).
83See Doc. 147 at 9; Action Marine, 481 F.3d at 1312.
84 See id.
85 See Action Marine, 481 F.3d at 1312.
86 See Doc. 115 at 11‐12 (Homeward arguing that “…the punitive damages cap cannot be pierced unless
the plaintiff presents sufficient evidence to show that the defendant actually intended to injure the
plaintiff. … In other words, under Georgia law, uncapped punitive damages are only permitted where
there is evidence that the defendant specifically set out to do harm to the plaintiff”) (citation omitted).
1. Evidence of Homeward’s Conduct and Awareness of its Error
McGinnis first contends that evidence demonstrating Homeward’s conduct,
words, demeanor, and knowledge of its error is sufficient proof of its intent to harm.87
At trial, McGinnis indeed produced evidence and testimony to show the jury that she
did not owe the amounts demanded and that she repeatedly notified Homeward both
of its error in calculating her escrow payment and that its demands for payment were
unreasonable.88 McGinnis then showed the jury that, despite both her good‐faith efforts
and Homeward’s “own tacit admission of its erroneous calculation and subsequent
decrease in the escrow amount,”89 its agents “continually failed to justify the increase,”
refused to “retract its demand that [she] pay the inflated amount,”90 and responded to
her requests for help with indifference, obstinacy, and, at times, belligerence.91 The
Court agrees that this evidence would allow the jury to infer an intentional, rather than
mistaken, infliction of harm.
This evidence was also, for the most part, un‐rebutted by Homeward at trial.
When questioned, Homeward could neither verify nor produce a copy of its escrow
McGinnis made a similar argument for the jury at trial in closing: Anybody can make a mistake. Itʹs
understandable. But when you are told about it over and over and over. … When you are sent a fax with
bank statements this thick with canceled checks this thick. When you’re talking on the phone constantly
with these people. It becomes where it’s no longer a mistake. You know, at some point it becomes
Trial Tr. Vol. III, Doc. 110 at 103‐104.
88 See McGinnis, 2014 WL 2949216 at *6, 11.
89 McGinnis, 817 F.3d at 1259.
91 Id.(noting “Homewardʹs awareness of its error … opaqueness, unresponsiveness, and belligerence”).
analysis to justify the payment increase.92 Homeward’s witness, Christopher Delbene,
just blindly “insisted that [Homeward’s] escrow analysis was correct, even though he
had not seen the document and had not attempted to calculate the escrow.”93 It was
also Homeward’s position, according to Delbene, 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,” 94 and, if
there was an error, Plaintiff could later request a refund of any amounts received in
excess of what was necessary to pay her taxes and insurance at the end of the year.95
Meanwhile, however, McGinnis would be deprived of the use of her money, possibly
“hundreds of dollars … every month on each of her seven loans,”96 without any firm
guarantee that those amounts would actually be refunded.
Homeward’s own evidence (or lack thereof) thus did little or nothing to dispel
the inference of an intent to harm. From the evidence presented, the jury could have
reasonably inferred that Homeward’s agents continued in the same course of conduct
despite the knowledge of its error and a belief that its actions would certainly (or almost
certainly) cause McGinnis harm – whether it be from the Homeward’s wrongful taking
and withholding of hundreds of dollars each month (if she did make the payments) or
McGinnis, 2014 WL 2949216, at *6.
Id. at *11
96 Doc. 118 at 23.
from Homeward’s eventual foreclosure on her property (if she continued to refuse to
make the disputed payments). The Court thus finds that the great weight of this
evidence is not against the verdict.
2. Evidence of Homeward’s Use of the Suspense Account
McGinnis has also argued that the jury’s finding of intent is supported by
Homeward’s collection of late fees and other expenses, as income, through use of a
suspense account.97 The jury did find that this collection and withholding of money in a
suspense account was an unlawful conversion of McGinnis’s payments, an intentional
tort which, under Georgia law, supports an award of punitive damages.98
According to the evidence at trial, once McGinnis refused to pay any increase,
Homeward began placing her monthly payment into a suspense account, rather than
crediting those payments to her account, and then further deducted, as its own income,
late fees and other expenses.99 Homeward in fact collected more than $6,000 in fees and
expenses from McGinnis by holding her payments in the suspense account. 100 And,
according to the evidence, Homeward was, while collecting these fees, also aware that it
had increased McGinnis’s “monthly escrow payment by more than 300 percent, an
“A willful repetition of … conversion can authorize a claim for punitive damages.” E. Prop. Dev. LLC v.
Gill, 558 F. Appʹx 882, 887 (11th Cir. 2014). See also Taylor v. Powertel, Inc., 250 Ga. App. 356 (2001)).
99 McGinnis, 2014 WL 2949216, at *7.
100 Doc. 118 at 14.
amount far in excess of that allowed by the Security Deed and RESPA.”101 McGinnis had
“repeatedly brought these errors to Homeward’s attention.”102
From this evidence, a jury could reasonably infer that Homeward knew its use of
the suspense account and collection of related fees would further pressure McGinnis
into paying the amounts greater than what she owed103; and yet Homeward’s agents
continued use of the suspense account and collection of fees as penalties for the non‐
payment of an increase McGinnis had disputed, with evidence, in good faith and had
shown to be unreasonable. The Court thus agrees that the jury could have considered
Homeward’s use the suspense account as evidence of a specific intent to harm –
whether it be by forcing McGinnis to pay amounts in excess of what she owed, by
requiring her to pay penalties and fees Homeward could collect as income, or by
decreasing the likelihood that she would be able cure the default and avoid foreclosure.
3. Evidence of Intentional Infliction of Emotional Harm
Evidence regarding McGinnis and her son’s many calls and letters from (and to)
Homeward may also support an inference of Homeward’s intent to harm. As noted by
the Eleventh Circuit on appeal:
The evidence indicated that over the course of Homeward’s relationship
with McGinnis, Homeward’s agents frequently harassed McGinnis by
phone and mail. Because Homeward’s misconduct involved [multiple
properties owned by McGinnis] . . . this harassment [became] a constant
Doc. 118 at 6‐7.
103 AAFMcQuay, Inc. v. Willis, 308 Ga. App. 203, 214 (2011) (emphasis added).
fixture of their lives; in fact, if you stacked all the collection letters
together, they would reach five feet high. 104
The jury heard this and other evidence suggesting that Homeward’s agents were aware
of the emotional distress they were causing – if only due to the sheer volume of
adversarial communications between them and looming threats of foreclosure they
repeatedly offered. The jury was obviously swayed by this and similar evidence at
trial, as indicated by its verdict in favor of McGinnis’s claim of intentional infliction of
emotional distress (“IIED”) and sizable award of emotional damages.
The inferential leap required to go from the jury’s verdict on Plaintiff’s IIED
claim to a finding of specific intent to harm is not too great. The same evidence would
have allowed the jury to infer that Homeward knew it was certainly (or almost
certainly) causing McGinnis some level of emotional harm – whether it be due to stress
caused by Homeward’s weekly (if not daily) harassing demands; frustration caused by
Homeward’s indifference and lack of response to her plight; or worry and fear caused
by Homeward’s repeated and obstinate threats of foreclosure – but Homeward
nonetheless proceeded in the same aggressive, unresponsive, and condescending tactics
in hopes McGinnis would eventually just concede defeat and pay whatever amounts it
demanded. As McGinnis suggested to the jury, under similar circumstances, “most
people are going to pay it … because they donʹt want to lose their home.”105
McGinnis, 817 F.3d at 1258‐59.
Doc. 110 at 104.
4. Homeward’s Attempts to Avoid Foreclosure
Finally, McGinnis contends that Homeward’s offering her the opportunity to
bring her account current does not negate any inference of specific intent.106
Homeward did offer McGinnis an opportunity cure her default and thereby avoid
foreclosure. But, under Homeward’s terms, McGinnis would have had to give in to all
of Homeward’s existing demands – paying the full amount of the increase in dispute as
well as the all penalties and fees subsequently incurred.107
McGinnis’s acceptance of Homeward’s non‐negotiable terms for avoiding
foreclosure would thus not have allowed her to escape Homeward’s tactics unharmed.
McGinnis would suffer the same economic injury as if she had previously paid the
inflated amounts – without any firm guarantee that she would receive any refund for
the overpayments, much less the fees, expenses, and penalties already charged. The
Court thus agrees that Homeward’s giving McGinnis an opportunity to bring her
account current prior to foreclosure does not preclude an inference of intent to harm.
Accordingly, and after considering the evidence presented by McGinnis against
that produced by Homeward, the Court is unable to conclude that the jury’s finding of
specific intent and award of uncapped punitive damages was against the great weight
Doc. 114 at 16.
McGinnis, 2014 WL 2949216 at *6, 11.
of the evidence presented at trial. Neither Homeward’s arguments nor its evidence in
conflict with the verdict is enough to set it aside.108
Homeward’s Motion for Reduction, New Trial, and/or Remittitur of the punitive
damage award is therefore DENIED.
SO ORDERED, this 6th day of March, 2017
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
Lipphardt, 267 F.3d at1186.
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