Snyder v. Bank of America, N.A.

Background

Pamela Marie Snyder sued Bank of America, N.A., asserting that it mishandled her loan concerning a four-unit property. After an earlier summary-judgment ruling, the remaining claims were intentional and negligent misrepresentation claims based on written representations that two loan-modification offers complied with the National Mortgage Settlement.

The first offer, made on February 22, 2013, required three payments of $7,640.23 and offered a possible principal reduction of $1,003,478.57. Snyder did not make the required payments. A second offer, made on June 4, 2013, required three payments of $6,200 and offered the same possible principal reduction. Snyder also did not make those payments. Bank of America’s loan servicing was later transferred to Nationstar.

The court had set deadlines for pretrial motions. Bank of America filed six motions under Daubert, which governs whether expert testimony is sufficiently relevant and reliable to be presented to a jury, along with motions limiting trial evidence and a motion to divide the trial into separate phases. Snyder did not file oppositions to those motions.

Expert-testimony rulings

The court granted each of Bank of America’s Daubert motions:

- Thomas Tarter: The court excluded his opinions about loan origination because that subject was irrelevant to the remaining claims. It also excluded his opinions about Bank of America’s intent, the savings Snyder might have received from a compliant offer, the National Mortgage Settlement, and whether the 2013 offers complied with that settlement. The court found that Tarter lacked shown specialized knowledge regarding the settlement and had applied inapplicable Home Affordable Modification Program standards. The court also found that he had not adequately addressed whether a proposed modification would have produced a positive net present value. - Pamela Snyder: The court excluded Snyder’s proposed expert testimony. It found that allowing her to testify as both the plaintiff and an expert could confuse and unfairly prejudice the jury, and that she had not shown the qualifications and experience needed to testify as an expert about the National Mortgage Settlement, loan servicing, loan origination, or credit reporting. The court also found her opinions unreliable or irrelevant, including her property-value opinion and opinions about damages unrelated to reliance on the two loan-modification offers. - Jim Nishimura: The court excluded his property-valuation report and testimony. It found contradictions between his valuations, unreliable assumptions about comparable properties, an inadequate factual foundation for repair-cost estimates, and unexplained and arbitrary downward adjustments. - Rik Liddell: The court excluded his property-valuation opinion and testimony because it used the same types of unexplained downward adjustments and failed for the same reasons as Nishimura’s opinion. - Saul Rosenberg: The court granted the motion to exclude his testimony. It also granted the request to strike his revised report because it was provided after the expert-discovery deadline without an explanation. The court found that his original opinion did not connect Snyder’s psychological conditions to her alleged reliance on the February and June 2013 loan-modification offers. - Stan Smith: The court excluded his opinions about additional costs, lost time, and loss of enjoyment of life. It found that the opinions were not tied to Snyder’s reliance on the 2013 offers and relied on unsupported assumptions, including the use of Home Affordable Modification Program guidelines and Snyder’s property valuation. The court also found problems with his calculations concerning lost time and loss of enjoyment of life.

Motions limiting trial evidence

The court granted Bank of America’s motion in limine concerning dismissed allegations and loan origination evidence, explaining that evidence unrelated to the remaining misrepresentation claims was not relevant. It also granted the motion concerning Bank of America’s other litigation and consent judgments, finding that the evidence was not relevant to whether Bank of America misrepresented compliance with the National Mortgage Settlement and posed a risk of unfair prejudice.

The court granted the motion to exclude references to the parties’ summary-judgment motions and the court’s rulings on them, because those matters could confuse the jury. It denied the motion concerning Snyder’s later handwritten notes, although it stated that the notes appeared irrelevant or inadmissible and that Bank of America could object to particular exhibits at trial.

The court granted the motion to exclude evidence of a discovery dispute. It granted in part the motion concerning damages not based on Snyder’s reliance on the two loan-modification offers, allowing potentially recoverable damages only if they were directly caused by that reliance. It granted in part the motion concerning construction costs, excluding contractor quotes or bids and construction not performed in reliance on the offers, while leaving open possible objections to particular receipts or exhibits.

The court granted the motion to exclude evidence of Snyder’s medical treatment and a mugging because those matters were not shown to have been caused by reliance on the loan-modification offers. It granted the motion to exclude Rosenberg’s revised report as untimely. It denied the motion concerning evidence of Bank of America’s worth, while noting that the court could give a limiting instruction restricting any such evidence to punitive damages.

Motion to bifurcate and disposition

Bank of America asked to divide the trial into a liability phase and a punitive-damages phase, arguing that evidence of its net worth could prejudice the jury. The court denied that motion. It found that bifurcation would not be efficient, particularly because it was unclear whether Snyder had evidence of Bank of America’s net worth, the case had already been delayed, and a limiting instruction could address any prejudice.

In conclusion, the court granted each of Bank of America’s Daubert motions, granted in part and denied in part its motions in limine, and denied its motion to bifurcate. Judge Kandis Westmore did not decide the truth of the remaining misrepresentation claims in this pretrial evidentiary order.