Ifreedom Direct v. First Tennessee Bank National et al

Filing 152

MEMORANDUM DECISION granting in part and denying in part 96 Motion to Exclude. Signed by Judge David Nuffer on 07/09/2012. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
iFREEDOM DIRECT CORPORATION,
f/k/a New Freedom Mortgage Corporation
Plaintiff,
v.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, successor-in-interest to First
Horizon Home Loan Corporation,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
EXCLUDE EXPERT TESTIMONY OF
KEVIN GATES
Case No. 2:09-cv-205-DN
District Judge David Nuffer

Defendant.
Defendant First Tennessee Bank National Association (FTB) moves 1 this Court to
exclude Plaintiff iFreedom Direct Corporation's (Freedom) witness Kevin P. Gates from offering
any expert testimony or opinions. After reviewing the parties’ filings 2 and the governing law,
the court rules that Mr. Gates may testify about his experience, but not offer opinions.
Freedom intends to call Mr. Gates as an expert to testify about “’various factors that have
affected opportunities and lender performance in the mortgage industry since 2000,’ ‘the
difference between subprime lenders and the lenders involved in this matter,’ and that ‘periods of
economic downturn . . . present opportunities to mortgage lenders, which are able to continue to
be profitable for numerous reasons such as lower interest rates that frequently accompany

1

Defendant First Tennessee Bank National Association’s Motion to Exclude Expert Testimony of Kevin Gates,
docket no. 96, filed May 23, 2012.

2

Memorandum in Support of Defendant’s Motion to Exclude Expert Testimony of Kevin Gates (Memo in Support),
docket no. 97, filed May 23, 2012; Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Exclude
Expert Testimony of Kevin Gates, docket no. 104, filed June 11, 2012; Declaration of Kevin P. Gates Submitted in
Opposition to Defendant’s Motion to Exclude Expert Testimony (Declaration), docket no. 105, filed June 11, 2012;
Reply Memorandum in Support of Defendant’s Motion to Exclude Expert testimony of Kevin Gates, docket no. 118,
filed June 28, 2012.

economic downturns, as occurred in 2008.’" 3 However, the Declaration offered in support of his
qualifications provides no factual support for Mr. Gates’s assertion that he has “experience
running a mortgage lending business during many types of economic climates, including
expansions and recessions.” 4 If he had such experience, he could testify about that experience.
Yet, the court would still not permit him to give opinion testimony about the opportunities for
FTB’s mortgage operations to continue to be profitable in the economic downturn beginning in
2008. The court will only permit Mr. Gates to testify about his experience. He may testify
incidentally about his direct experience, if any, with various factors that have affected
opportunities and lender performance in the mortgage industry since 2000 and his direct
experience with the difference between subprime lenders and other lenders. But, Mr. Gates also
may not opine about the application of those experiences to FTB’s mortgage operations.
IT IS HEREBY ORDERED that the Motion to Exclude Expert Testimony of Kevin
Gates 5 is GRANTED IN PART AND DENIED IN PART.
Dated July 9, 2012.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

3

Memo in Support at 3 (quoting Plaintiff’s Supplemental Disclosure of Possible Expert Testimony by Kevin P.
Gates (Supplemental Disclosure) at 2, docket no. 75, filed Mar. 20, 2012).

4

Declaration at 4.

5

Docket no. 96.

2