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Eiss v. Ocwen Loan Servicing, LLC

United States District Court, E.D. Michigan, Southern Division

September 26, 2019

HARRY E. EISS, Plaintiff,



         On or about August 17, 2017, Plaintiff Harry E. Eiss (“Plaintiff”) filed the instant action, alleging that Defendants breached a Modification Agreement and seeking declaratory judgment. Defendants removed the case to this Court on September 25, 2017. The parties are scheduled to appear before the Court for a bench trial on October 1, 2019. Defendants have filed a Motion in Limine to Exclude Evidence of Undisclosed Damages and Testimony by Plaintiff’s Attorney. ECF No.27. The Motion in Limine has been fully briefed, and the Court previously notified the parties that the Motion in Limine would be decided on the briefs. ECF No. 29. For the reasons that follow, the Motion in Limine is denied in its entirety.

         I. Evidence of Undisclosed Damages

         Defendants argue that the Court should exclude evidence of damages in this case because Plaintiff: (a) failed to provide a computation of damages under Fed.R.Civ.P. 26(a)(1)(A)(iii); (b) failed to supplement their initial disclosures; (c) failed to disclose their damages in response to Defendants’ discovery requests; and (d) failed to supplement their discovery responses. The Court disagrees.

         In his initial disclosures, Plaintiff disclosed that he was seeking the disputed amount in the Modification Agreement and the damages incurred as a result of not being able to timely refinance his loan, plus costs and attorney fees. Although Plaintiff did not specify an amount of the damages incurred because he could not refinance his loan, Plaintiff’s initial disclosures put Defendants on notice of the basis of Plaintiff’s alleged damages on or about November 22, 2017 (approximately 17 months before the Motion in Limine was filed). Plaintiff also provided Defendants an interest rate estimate from TIAA-CREF no later than March 26, 2018, over one year before the Motion in Limine was filed.

         Defendants could have filed a motion to compel prior to the discovery deadline, especially after Plaintiff failed to compute his damages in response to their Interrogatories and or explain at his deposition why he was denied refinancing. All of these things were known to Defendants at least 11 months prior to the Final Pretrial Conference and at least 10 months before the ultimate motion in limine cut-off date. See ECF No. 22 (due November 26, 2018); ECF No. 26 (due March 18, 2019, one week before the Final Pretrial Conference). There was no need to wait to first raise this issue at the Final Pretrial Conference and not file their Motion in Limine until after the conference. The fact that the Court allowed Defendants to file the motion in limine does not mean that the motion would be granted or that the timeliness of the motion was irrelevant.

         The Court finds that this is not a complex case with respect to damages. Defendants have long known that Plaintiff’s claimed damages were based on the discrepancy in the amount of the mortgage debt Plaintiff owed (approximately $132, 000) and the losses incurred because Plaintiff could not refinance his mortgage (an amount that can easily be determined based on the interest rate at which Plaintiff could have refinanced). Unless Defendants agree on the amount of the interest rate at which Plaintiff could have refinanced (and that Plaintiff could have refinanced at all), Defendants would still have to take the same steps to determine what the losses incurred by Plaintiff were, whether or not Defendants knew (or know) the amount of damages attributable to such losses.

         Accordingly, the Court denies Defendants’ Motion in Limine to the extent Defendants seek to exclude evidence of damages.

         II. Testimony by Catherine Riesterer

         Defendants move to preclude any testimony by Catherine Riesterer, someone who acted as Plaintiff’s attorney in conjunction with the loan modification at issue in this case. Ms. Riesterer has never filed an appearance in this case, but she is a name partner at the law firm that represents Plaintiff in this litigation.

         Defendants contend that the Court should not allow Ms. Riesterer to testify as a witness because “there would be a conflict between Plaintiff’s testimony and the testimony of Ms. Riesterer, ” in violation of Michigan Rule of Professional Conduct 3.7 (Lawyer as Witness). ECF No. 27, PgID 509. Defendants argue that Plaintiff’s deposition testimony that he “pretty much on [his] own” obtained the Modification Agreement and Ms. Riesterer “didn’t help [him] a great deal” conflicts with Ms. Riesterer’s expected testimony regarding her discussions with GMAC (Defendants’ predecessor in interest) about the modification of Plaintiff’s loan.

         Ms. Riesterer was not deposed, nor has she submitted an affidavit specifying what her testimony will be. Plaintiff indicates that “Ms. Riesterer’s anticipated testimony relates solely to the terms of the existing written Modification Agreement. Ms. Riesterer’s testimony goes to the interpretation of the written Modification Agreement[.]” ECF No. 30, PgID 586 (emphasis in the original).

         Rule 3.7 provides, in relevant part:

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from ...

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