LEFORGE v. FEIWELL & HANNOY, P.C.

Filing 129

ORDER granting Plaintiff's 120 Motion in Limine concerning attorney fees and GRANTING in part, DENYING in part and taking under advisement in part Plaintiff's 121 Motion in Limine regarding character, the underlying debt, short sale, and other parties. Signed by Judge Richard L. Young on 11/13/2014. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LUDA CHRISTINE HAYWARD
LEFORGE,

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Plaintiff,
vs.
FEIWELL & HANNOY, P.C.,
Defendant.

1:11-cv-00526-RLY-DKL

ENTRY ON PLAINTIFF’S MOTION IN LIMINE
Plaintiff, Luda Christine Hayward LeForge, brought suit under the Fair Debt
Collection Practices Act (“FDCPA”) against Defendant, Feiwell & Hannoy, P.C.
(“F&H”). In anticipation of trial, Plaintiff filed two motions in limine seeking to bar
reference to attorney fees (Filing No. 120) and to bar any evidence or testimony
regarding Plaintiff’s character, underlying debt, short sale, and other parties (Filling No.
121). For the reasons set forth below, the court GRANTS the motion in limine
concerning attorney fees and GRANTS in part and DENIES in part the motion in
limine regarding character.
I.

Discussion
A.

Reference to Attorney Fees

Plaintiff seeks to bar the reference of the availability of attorney’s fees to Mrs.
LeForge should she succeed in this litigation. Defendant objects asserting that it is
warranted and appropriate for counsel to remind the jury in argument that any award of
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actual damages must be predicated only upon matters contained within the court’s
instructions and not on attorney’s fees. Defendant also wishes to question jurors in voir
dire with respect to how they would arrive at an award for actual damages and whether
they would feel it necessary to include attorney’s fees in the award.
Neither party cites to an applicable Seventh Circuit decision. Plaintiff relies on a
case from the Central District of Illinois and one from the Ninth Circuit. Defendant relies
on a case from the Middle District of Louisiana and the Third Circuit. The court agrees
with the Plaintiff that evidence that, if successful, Plaintiff may seek attorney’s fees is
irrelevant to whether Defendant violated the FDCPA and also to the bona fide error
defense. A jury instruction indicating that attorney’s fees are not calculated as actual
damages will suffice to remedy the potential windfall Defendant fears. Additionally,
Defendant may use voir dire to inquire whether jurors believe they can follow such an
instruction. Thus, Plaintiff’s motion in limine to bar reference to attorney’s fees (Filing
No. 120) is GRANTED.
B.

Deadbeat Argument

Plaintiff seeks to preclude any argument that Plaintiff, by bringing an FDCPA
claim, seeks to immunize herself from the collection process and the natural, legitimate
consequences of nonpayment of debt. Additionally, Plaintiff seeks to bar any testimony
or argument in which the Plaintiff is referred to as a “deadbeat.” Defendant does not
object to barring the use of “deadbeat” or similar degrading terms to describe the

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Plaintiff. As such, Plaintiff’s motion in limine concerning the deadbeat argument (Filing
No. 120) is GRANTED. 1
C.

Plaintiff’s Motives

Plaintiff seeks to preclude any argument that the Plaintiff is in this case for the
money. Defendant states it has reason to believe that Plaintiff will make a demand in
excess of $1,000,000.00 and states that should this occur, F&H should be permitted to
argue that such a demand is absurd. The court agrees with the Plaintiff that Defendant
cannot argue that Plaintiff is in this case solely for the money; however, this does not
preclude the Defendant from arguing that the damage award sought is excessive or
unsupported by the evidence. Therefore, Plaintiff’s motion in limine concerning her
motives in GRANTED.
D.

Other FDCPA Claims

Plaintiff seeks to preclude Defendant from alluding to, in any manner, the
existence of FDCPA claims other than the one involved in this case. Plaintiff argues that
such evidence should be precluded under Federal Rules of Evidence 403, 404, 608, and
802 because it has no probative value and would be used for the sole purpose of creating
unfair prejudice and confusing the jury. Defendant responds that Mrs. LeForge made
prior inconsistent statements in the prior FDCPA claim against the Bank of Americas and
those statements should be available for impeachment. Additionally, F&H believes the

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Defendant asserts that this issue should not be so broad as to include references to the alleged
underlying debt. The court’s ruling on this matter does not encompass the underlying debt,
which the court will discuss the underlying debt in section I.E. below.

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jury needs to understand the context in which those statements were given to fully and
appropriately evaluate the weight to give those statements.
The court agrees that evidence of another suit is not relevant to Defendant’s case
in chief; however, if Plaintiff made inconsistent statements, then Defendant may use
those statements for impeachment purposes. The court will take under advisement what
context may be necessary for the jury to understand such statements. Therefore, this
motion in limine is DENIED in part and taken UNDER ADVISEMENT in part.
E.

Existence of the Debt

Plaintiff also seeks to prevent Defendant from examining or referring to any other
debt of Plaintiff’s or to whether the plaintiff owes the underlying debt from this case.
According to Plaintiff, this evidence is irrelevant as to whether the Defendant violated the
FDCPA. Defendant objects and asserts that it should be permitted to contradict any
testimony by Plaintiff that she did not owe a debt with evidence in its file showing that
the bank believed she was delinquent and had evidence supporting that delinquency. The
court agrees that such evidence may be used for impeachment purposes only.
Additionally, Plaintiff seeks to preclude the Defendant from the use of the term
“short sale” in reference to the disposition of the subject property as such term refers to
accounts that are delinquent and would therefore be prejudicial and irrelevant. Defendant
argues that the manner in which the promissory note was paid off is relevant and
admissible. The court agrees with Defendant, and DENIES Plaintiff’s motion in limine
regarding the existence of the debt for purposes of impeachment and the use of the term
“short sale.”
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F.

Attorney’s Motives

Plaintiff seeks to preclude any argument that the Plaintiff’s attorney’s fee recovery
is the “engine running this suit.” Defendant agrees that it would be improper to discredit
the motives of opposing counsel. Therefore, the court GRANTS this portion of
Plaintiff’s motion in limine.
II.

Conclusion
Plaintiff’s motion in limine concerning attorney fees (Filing No. 120) is

GRANTED. Plaintiff’s motion in limine regarding character, the underlying debt, short
sale, and other parties (Filling No. 121) is GRANTED in part, DENIED in part, and
UNDER ADVISMENT in part. Specifically, the court found that the deadbeat
argument cannot be made, Plaintiff’s motives are irrelevant, inconsistent allegations in
other FDCPA claims may be used for impeachment purposes, the existence of the debt
may be used for impeachment purposes, and the attorney’s motives are irrelevant. The
admissibility of the context surrounding the other FDCPA claim is UNDER
ADVISEMENT.

SO ORDERED this 13th day of November 2014.
s/ Richard L. Young________________
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RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
RICHARD L. YOUNG, CHIEF JUDGE
Southern District of Indiana
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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