MCGINNIS v. AMERICAN HOME MORTGAGE SERVICING, INC
ORDER granting with limitations 64 Motion in Limine; denying 65 Motion in Limine; granting with limitations 66 Motion in Limine; granting in part 67 Motion in Limine; granting 68 Motion in Limine; granting 69 Motion to Bifurcate. Ordered by Judge C. Ashley Royal on 7/31/2013 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
No. 5:11‐CV‐284 (CAR)
AMERICAN HOME MORTGAGE
Before the Court is Defendant Homeward Residential, Inc.’s (f/k/a American
Home Mortgage Servicing, Inc.) Motions in Limine [Docs. 64, 65, 66, 67, 68, & 69].
Plaintiff Jane McGinnis entered into a loan with Taylor, Bean, & Whitaker
(“TB&W”) for each of her seven investment properties in 2006. Plaintiff was current on
all of her loan payments to TB&W, and, in October of 2009, Defendant was assigned all
seven of Plaintiff’s loans. After Defendant’s assignment, Plaintiff made less than full
payments and began receiving notices from Defendant that she was in default, despite
having never received any monthly statements from Defendant nor any notice that her
For an in‐depth discussion of the background of this case, see this Court’s Order on Defendant’s motion
for summary judgment [Doc. 62].
payment had increased. In June of 2011, Defendant foreclosed on one of Plaintiff’s
properties, prompting Plaintiff to file the instant action in July of 2011. In March of
2013, Plaintiff’s six remaining loans, currently in default, were transferred to Ocwen
Loan Servicing, LLC, as a result of the December 27, 2012 acquisition of Defendant by
In the order on summary judgment, the Court dismissed the following claims:
violations of the Real Estate Settlement and Procedure Act (“RESPA”); wrongful
foreclosure premised on Homeward’s failure to respond to her communications;
intentional interference with contractual relations claim; and Georgia RICO. The Court
did, however, find that a genuine issue of material fact existed as to Plaintiff’s wrongful
foreclosure claim premised on Defendant’s increase of Plaintiff’s monthly payment
without notice, Defendant’s retroactive increase of her monthly payment without
notice, and Defendant ignoring Plaintiff’s requests to correct her account. The Court
also permitted Plaintiff’s conversion, intentional interference with property rights,
intentional infliction of emotional distress, punitive damages, and attorney’s fees claims
to proceed to trial.
MOTIONS IN LIMINE
Presently before the Court are Defendant’s Motions in Limine, seeking, in large
part, to exclude general pieces of evidence. At the pretrial conference on July 25, 2013,
the Court granted Defendant’s Motion to exclude all evidence related to Plaintiff’s
dismissed claims [Doc. 66], but limited its ruling to only the evidence that does not
support one or more of Plaintiff’s remaining claims. The Court also granted
Defendant’s Motion to exclude all evidence of other lawsuits and claims not brought by
Plaintiff against Defendant [Doc. 68].2 The Court denied Defendant’s Motion to exclude
Christopher Delbene’s escrow analyses testimony [Doc. 65], but reserved ruling on how
Delbene’s testimony may be used at trial. The Court also reserved ruling on
Defendant’s Motion to exclude evidence of Plaintiff’s voluntarily dismissed RESPA
claim [Doc. 64]; its Motion to exclude evidence of any communications between Plaintiff
and Ocwen Servicing; and its Motion to bifurcate the trial as to punitive damages and
attorney’s fees [Doc. 69].
In its Motion, Defendant seeks to exclude all evidence relating to Plaintiff’s
voluntarily dismissed RESPA claim in which she alleged that Defendant did not take
timely action to respond to Plaintiff’s requests to correct errors relating to allocation of
payments. At the pretrial conference, Defendant pointed to Exhibit 26 of Plaintiff’s
proposed exhibits that support her voluntarily dismissed RESPA claim, namely her
communications with Defendant about her prior “Qualified Written Requests”
(“QWR”) as to Defendant’s accounting errors. Certainly this evidence is relevant to
This Motion was unopposed by Plaintiff.
Plaintiff’s dismissed RESPA claims, and to the extent that such evidence is proffered in
support of her dismissed claims, Defendant’s Motion is GRANTED.
However, Exhibit 26 also could establish Defendant’s awareness of its accounting
errors. Such evidence is relevant to her wrongful foreclosure claim premised on
Homeward’s failure to correct Plaintiff’s account and her claims for attorney’s fees and
punitive damages. The probative value of this evidence substantially outweighs the
minimal prejudicial effect, and thus, Defendant’s Motion is DENIED.
Rule 30(b)(6) Witness Testimony on Escrow Analyses
As noted, the Court previously denied Defendant’s Motion to exclude Delbene’s
testimony.3 Presently at issue is the extent to which Delbene’s testimony may be offered
at trial, especially in light of Defendant’s revelation that Delbene is no longer its
After considering the parties’ filings and arguments at the pretrial conference,
and, after thoroughly reviewing Delbene’s testimony, the Court concludes that Plaintiff
is permitted to use Delbene’s deposition in its entirety. Defendant not only produced
Delbene as its Rule 30(b)(6) witness, but Delbene, under oath, also acknowledged that
See King v. Pratt & Whitney, 191 F.R.D. 475 (S.D. Fla. 1995) (Rule 30(b)(6) does not limit what is asked of a
designated witness at a deposition, but rather it “simply defines a corporation’s obligations”); accord Am.
Gen. Life Ins. Co. v. Billard, No. C10‐1012, 2010 WL 4367052, at *4 (N.D. Iowa Oct. 28, 2010); Philbrick v.
Enom, Inc., 593 F. Supp. 2d 352, 363 (D. N. H. 2009); Detoy v. City & Cnty. of San Francisco, 196 F.R.D. 362,
366 (N.D. Cal. 2000); Cabot Corp. v. Yamulla Enterprises, Inc., 194 F.R.D. 499 (M.D. Pa. 2000); Overseas
Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67 (D. D.C. 1999); Edison Corp. v. Town of Secaucus, 17 N.J. Tax
178, 182 (1998).
he was the person most familiar with Plaintiff’s case.4 Any prejudice to Defendant is
substantially outweighed by the high probative value of Delbene’s testimony. Based on
this record, the Court concludes that Defendant’s Motion [Doc. 65] is DENIED.
Communications between Plaintiff and Ocwen
Next, Defendant seeks to exclude all testimony and evidence of Plaintiff’s
communications with Ocwen. Defendant represents that Ocwen, a legally separate
corporation, is Defendant’s parent corporation by virtue of an acquisition on December
27, 2012. According to Defendant, Ocwen and Defendant are two separate corporate
entities and thus any communication between Ocwen and Plaintiff should be excluded
under Rules 402 and 403 of the Federal Rules of Evidence. Plaintiff contends that
Defendant’s tortious conduct, initiated in 2009, continues to this day by “its successor,
Ocwen.”5 Specifically, Plaintiff seeks to offer transcripts of recorded conversations with
Ocwen to establish Defendant’s liability and to establish Plaintiff’s damages. In support
of her position, Plaintiff contends that Ocwen is Defendant’s successor in liability or, in
the alternative, that Defendant is Ocwen’s agent.
As outlined by the Court at the pretrial conference, the evidence at issue has two
components. First, Ocwen’s representations to Plaintiff about Defendant’s conduct and
accounting records could be considered by the jury as admissions of Defendant.
Delbene Dep. 27‐28.
Pl.’s Resp. Br. at 2 [Doc. 71].
Second, the communications could be used to support Plaintiff’s allegations of
continuing suffering as a result of Defendant’s conduct.
With respect to whether the communications are Defendant’s admissions and
thus are not hearsay, Rule 801(d) of the Federal Rules of Evidence states:
(d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
(2) An Opposing Partyʹs Statement. The statement is offered against an
opposing party and:
(D) was made by the partyʹs agent or employee on a matter within the
scope of that relationship and while it existed.6
Importantly, Rule 801 also states that the statement “does not by itself establish the …
existence or scope of the relationship under (D).” Consequently, in order for Plaintiff to
offer her communications with Ocwen as non‐hearsay, Plaintiff must first lay a
foundation that establishes the existence of an agency or successor in liability
relationship between Defendant and Ocwen. If, and to the extent Plaintiff attempts to
establish some corporate relationship, the Court reserves ruling of this issue until that
Likewise, without this foundation, Plaintiff’s communications with Ocwen
offered to establish her continuing damages are inadmissible. Importantly, Defendant
Fed. R. Evid. 801(d).
is not the tortfeasor causing Plaintiff’s injury, and to permit Plaintiff to proffer evidence
of Ocwen’s tortious conduct without any evidence of a corporate relationship to
Defendant, would potentially hold Defendant liable for an unrelated tortfeasor’s
actions. Certainly, the Court acknowledges the potentially viable claim against Ocwen
for its own tortious conduct; however, without the proper foundation, such evidence is
not admissible here against Defendant.
In its final Motion at issue, Defendant seeks to bifurcate the trial so as to have
punitive damages and attorney’s fees in the second phase.7 Having considered the
Motion and the statements of counsel at the pretrial conference, the Court concludes
that the trial of this matter is to occur in two phases. In the first phase, the parties will
present evidence on the liability for compensatory damages and the propriety of
punitive damages and attorney’s fees. In the second phase, if the jury finds that
punitive damages and attorney’s fees should be awarded, the parties will present
evidence as to the amount of punitive damages and attorney’s fees. Consequently,
Defendant’s Motion to Bifurcate Trial [Doc. 69] is GRANTED.
Based on the foregoing, Defendant’s Motions to bifurcate the trial with respect to
punitive damages and attorney’s fees [Doc. 69] and to exclude other loan claims [Doc.
At the pretrial conference, Defendant withdrew its request to bifurcate the issue of punitive damages.
68] are GRANTED. Defendant’s Motion to exclude all evidence of Plaintiff’s dismissed
claims [Docs. 66 & 64] is GRANTED with the limitations outlined above. Defendant’s
Motion to exclude Delbene’s escrow analyses testimony [Doc. 65] is DENIED.
Defendant’s Motion to exclude evidence of any communications between Plaintiff and
Ocwen Servicing [Doc. 67] is GRANTED in part; however, with respect to her claims
involving emotional damages, the Court reserves ruling on this issue for trial, if
SO ORDERED, this 31st day of July, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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