Dionne et al v. Federal National Mortgage Association et al
Filing
65
ORDER granting 39 Motion to Exclude. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason S. Dionne, et al.
v.
Civil No. 15-cv-056-LM
Opinion No. 2016 DNH 155
Federal National Mortgage
Association and
JPMorgan Chase Bank, N.A.
O R D E R
Plaintiffs originally filed this mortgage foreclosure
dispute in New Hampshire Superior Court, Hillsborough County,
Southern District.
Defendants Federal National Mortgage
Association (“Fannie Mae”) and JPMorgan Chase Bank, N.A.
(“Chase”) removed the lawsuit to this court.
Defendants move to
exclude the opinions and proposed testimony of plaintiffs’
proposed expert, Diane Cipollone.
Plaintiffs object.
Background1
Denise Dionne has lived at her home at 40 Tallant Road in
Pelham, New Hampshire (the “property”) since 1977.
In 2005,
Denise added her son, Jason Dionne, to the property’s deed.
In
2006, Denise, Jason, and Jason’s wife, Kathy Dionne
(collectively, the “Dionnes”), took out a loan, which was
The facts are summarized in detail in the court’s order
granting in part and denying in part defendants’ motion to
dismiss. See doc. no. 37. The court provides only a brief
summary of the facts here.
1
secured by a mortgage on the property.
The mortgage states that
Mortgage Electronic Registration Systems, Inc. (“MERS”) is the
mortgagee as nominee for the lender, Domestic Bank.
MERS assigned the mortgage and note to Washington Mutual
Bank (“Mutual Bank”) in 2008.
Chase obtained the mortgage and
note when it acquired Mutual Bank later in 2008.
assigned the mortgage to Fannie Mae.
In 2010, Chase
Chase also acted as the
loan servicer at all times relevant to this case.
The Dionnes
allege that they were in default on their obligations under the
note when Mutual Bank and Chase obtained the loan, and when
Chase began servicing the loan.
In 2010, the Dionnes’ loan was modified after they fell
behind on their loan payments.
Sometime after the 2010 loan
modification, the Dionnes again fell behind on their modified
loan payment obligations.
In August 2014, Chase sent the Dionnes2 a letter informing
them that “the foreclosure sale date has been rescheduled” for
October 1, 2014.3
Doc. no. 21-2 at 1.
Chase did not serve or
deliver the letter via registered or certified mail.
After
The various communications from Chase are addressed to
either Denise or both Denise and Jason. For simplicity, the
court will refer to the recipients of the communications as “the
Dionnes.”
2
It is unclear whether the Dionnes had been notified of a
foreclosure sale prior to August 2014.
3
2
receiving the letter informing them of the rescheduled
foreclosure date, the Dionnes completed a loss mitigation
application (which they downloaded from Chase’s
website) seeking a modification of their loan.
Over the next several months, the Dionnes submitted and
resubmitted various documents Chase requested with regard to the
loan modification application.
Chase sent several contradictory
letters over that time frame to the Dionnes, with some
indicating that it had received all the necessary documents and
others indicating that it had not received certain documents and
requesting those documents from the Dionnes.
On January 12, 2015, the Dionnes’ home was sold at a
foreclosure sale, despite their pending loan modification
application.
Fannie Mae purchased the property at the sale.
Discussion
The claims remaining in this case are: (i) violation of
Regulation X of the Real Estate Settlement and Procedures Act
(“RESPA”), 12 C.F.R. § 1024.41 (against Chase); (ii) violation
of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(d)(1)
(against both Chase and Fannie Mae); (iii) violation of the Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692 et. seq.
(against Chase); (iv) violation of the Unfair Deceptive, or
Unreasonable Collection Practices Act, N.H. Rev. Stat. Ann.
3
(“RSA”) § 358-C (against both Chase and Fannie Mae); and (v)
violation of the New Hampshire Consumer Protection Act, RSA 358A (against Fannie Mae).
Defendants move to exclude the opinion and testimony of
Diane Cipollone, the Dionnes’ expert.
I.
The Dionnes object.
Applicable Standard
Federal Rule of Evidence 702 is “[t]he touchstone for the
admission of expert testimony in federal court litigation . . . .”
Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007).
Under that
rule, an expert witness may offer opinion testimony if: (a) the
expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of
reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.
R. Evid. 702.
Fed.
As the structure of this rule suggests, before the
factfinder in a case can consider expert testimony over the
adverse party’s objection, the trial judge, serving as
“gatekeeper,” must determine whether the testimony satisfies the
relevant foundational requirements.
See Daubert v. Merrell Dow
Pharm. Inc., 509 U.S. 579, 597 (1993).
The party who is the
proponent of the expert opinion bears the burden of showing that
4
it is admissible.
United States v. Tetioukhine, 725 F.3d 1, 6
(1st Cir. 2013).
II.
Cipollone’s Opinions
Cipollone offers two opinions in her expert report:
1) JPMorgan Chase Bank Received a Complete Loss Mitigation
Application Pursuant to RESPA Regulation X No Later Than October
17, 2014;
2) In the Alternative, Chase Should Have Regarded
Plaintiffs’ Application as “Facially Complete” as of October 17,
2014, Pursuant to RESPA Regulation X.
Defendants argue that Cipollone’s opinions merely summarize
facts in the record and offer a conclusion that certain legal
standards were met.
They argue that Cipollone’s opinions are
not based on specialized knowledge.
Defendants further argue
that even if Cipollone’s opinions are based on specialized
knowledge, she offers impermissible legal conclusions.
A.
Cipollone’s First Opinion: Complete Application Under
RESPA
The Dionnes argue that Cipollone’s first opinion, that
Chase received a complete loss mitigation application on or
before October 17, 2014, is based on specialized knowledge.
They contend that Cipollone uses her expertise in mortgage loan
servicing and loss mitigation issues
to explain to the jury what [Chase’s] servicing notes
mean with regard to what documents Chase told
Plaintiffs it needed to deem Plaintiffs’ loss
5
mitigation application complete, what information
Chase knew that altered Chase’s list of required
documentation and when it knew it, and when Chase
received each requested document.
Doc. no. 42-1 at 5.
The Dionnes’ argument has several problems.
questions are factual in nature.
First, these
The Dionnes received at least
eight letters from Chase concerning their loan modification
application, and many of the letters referenced documents Chase
claimed it needed to properly review the application.
Expert
testimony is not necessary to explain the content of those
letters.
Second, the Dionnes argue that Cipollone’s testimony is
necessary to explain Chase’s loan servicing records to the jury
because they “contain short-hand notes, codes, and jargon unique
to the mortgage loan servicing industry.”
Doc. no. 42-1 at 2.
A review of Chase’s records, however, which were included with
the Dionnes’ objection, shows that the records are easily
understandable to a lay person.
For example, in her expert report, Cipollone references
several of Chase’s records which “indicate that pay stubs for
Accountemps were missing and needed for underwriting the loan
modification.”
Doc. no. 42-2 at 5.
Rather than codes or
industry jargon, the records referenced by Cipollone use plain
language.
See doc. no. 42-3 at 15 (“DOCS STILL NEEDED: 2 MOST
6
CURRENT PAYSTUBS DENISE FROM ACCOUNTEMPTS [sic]. ONE DOC ON FILE
NOT LEGIBLE;” id. at 11 (“STILL NEED . . . ADDITIONAL PAYSTUB
FROM ACCOUNTEMPS”); id. at 5, 8-10, 12-14.
Cipollone does not
interpret Chase’s loan servicing documents; she merely
paraphrases them.
Such testimony would not “assist the trier of
fact to understand or determine a fact in issue.”
Ruiz–Troche
v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 81 (1st
Cir. 1998) (citing Daubert, 509 U.S. at 591-92); see also In re
Novatel Wireless Sec. Litig., No. 08cv1689 AJB (RBB), 2011 WL
5827198, at *4
(S.D. Cal. Nov. 17, 2011) (“The documents in
this instance are not complicated and speak for themselves.
Expert testimony is inadmissible if it addresses lay matters
which a jury is capable of understanding and deciding without
the expert’s help.” (internal quotation marks and citations
omitted)).
Even if Cipollone’s testimony could be useful in
interpreting Chase’s servicing records, she did not disclose an
opinion on that subject.
The Dionnes cite two cases from the
Southern District of Mississippi, see Ishee v. Fed. Nat’l Mortg.
Ass’n, No. 2:13-CV-234-KS-MTP, 2015 WL 224800, at *6 (S.D. Miss.
Jan. 15, 2015) and Neel v. Fannie Mae, No. 1:12CV311-HSO-RHW,
2014 WL 1117247, at *4 (S.D. Miss. Mar 20, 2014), which they
assert hold that “the question of what a mortgage servicer’s
loan servicing records show is appropriate subject matter of
7
expert testimony.”
Doc. no. 42-1 at 5.
The problem for the
Dionnes is that the experts in both those cases were “certified
fraud examiners,” who were specifically asked, as part of their
opinions, to provide a forensic accounting investigation of the
records and offer findings and conclusions.
See Ishee, 2015 WL
224800, at *2 (noting that expert was asked to “provide a
forensic accounting investigation, examination, and analysis of
the mortgage loan transactions during the life of the subject
mortgage loan and offer his findings and conclusions”
(alterations omitted)); Neel, 2014 WL 1117247, at *1
(plaintiff’s expert was retained to provide a “forensic analysis
of the data contained in” defendants’ servicing notes and
records of plaintiff’s payment history).
Unlike the experts in Ishee and Neel, Cipollone did not
provide an opinion based on a forensic investigation of Chase’s
records.
Cipollone cannot testify about an opinion that the
Dionnes failed to disclose.
B.
See Fed. R. Civ. P. 26(a)(2)(B)(i).
Cipollone’s Second Opinion: Facially Complete
Application Under RESPA
The Dionnes also argue that Cipollone’s second opinion,
that Chase should have regarded the Dionnes’ application as
“facially complete,” is appropriate expert testimony.
Although
the Dionnes concede that Cipollone’s opinion is “couched in
8
terms of the applicable regulatory scheme,” they argue that the
opinion itself is “squarely factual” and, therefore, admissible.
Doc. no. 42-1 at 6.
“Expert testimony that consists of legal conclusions cannot
properly assist the trier of fact . . . .”
Nieves–Villanueva v.
Soto–Rivera, 133 F.3d 92, 100 (1st Cir. 1997) (internal
quotation marks and citation omitted).
“This is because the
judge’s expert knowledge of the law makes any such assistance at
best cumulative, and at worst prejudicial.”
Id. (citing
Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207,
1213 (D.C. Cir. 1997) (“Each courtroom comes equipped with a
‘legal expert,’ called a judge, and it is his or her province
alone to instruct the jury on the relevant legal standards.”)).
Cipollone’s second opinion merely quotes various
subsections of RESPA’s Regulation X, and concludes with the
following language:
Consistent with this provision of the loss mitigation
regulation, if Chase determined after receipt of
Plaintiffs’ documents submitted through October 17,
2014 that additional documentation was needed to make
the application complete, Chase was required to
promptly notify Plaintiffs of the missing documents
and treat the application as complete until the
Plaintiffs were given a reasonable opportunity to
complete the application. Compliance with the
facially complete regulation would have afforded
Plaintiffs substantial protections to enable them to
submit any such additional documentation so that the
application would be timely reviewed.
9
Doc. no. 42-2 at 7.
In other words, Cipollone’s second
“opinion” simply paraphrases the language of RESPA.
testimony is improper.
Such expert
See, e.g., Stewart Title Ins. Co. v.
Credit Suisse, No. 1:11-cv-227-BLW, 2015 WL 4250704, at *15 (D.
Idaho July 13, 2015) (excluding expert’s opinion because “they
simply describe the law”).4
Conclusion
For the foregoing reasons, defendants’ motion to exclude
the opinions of Diane Cipollone (doc. no. 39) is granted.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
August 31, 2016
cc:
David E. Buckley, Esq.
Nathan Reed Fennessy, Esq.
Gary Goldberg, Esq.
Andrea Bopp Stark, Esq.
The Dionnes cite Darling v. IndyMac Bank, F.S.B., No. 06123-B-W, 2007 WL 4276903, at *3-5 (D. Me. Dec. 3, 2007), in
which expert opinion on the Truth In Lending Act’s regulatory
framework was allowed with strict limits. While expert opinion
may be admissible in some regulatory contexts, the Dionnes have
not shown that to be the case here.
4
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?