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McLawhorn v. Ocwen Loan Servicing, LLC

United States District Court, D. South Carolina, Florence Division

February 15, 2017

Charles McLawhorn, Plaintiff,
v.
Ocwen Loan Servicing, LLC; and Altisource Residential Corporation, Defendants.

          ORDER

          R. Bryan Harwell United States District Judge.

         This matter is before the Court on Plaintiff's [ECF No. 70] motion in limine, and motions in limine [ECF No. 71 & 72] filed by Defendants, Ocwen Loan Servicing, LLC (“Ocwen”) and Altisource Residential Corporation (“Altisource Residential”). For the reasons stated below, the Court denies and finds as moot Plaintiff's motion in limine and grants Defendants' motions in limine.[1]

         Background

         Plaintiff is the owner of a parcel of real property located at 3405 Burris Street, North Myrtle Beach, South Carolina ("McLawhorn Property"). On or about August 31, 1999, Dorothea and James Estes executed a mortgage on 3507 Burris Street, North Myrtle Beach, South Carolina ("Estes Property"). Plaintiff has never held an ownership interest or been a party to any loan agreement, guaranty, or other agreement related to the Estes Property or Estes Mortgage and Dorothea and James Estes have never held an ownership interest in the McLawhorn Property. The McLawhorn Property was not encumbered by any mortgage at any time relevant to the complaint.

         Plaintiff contends that Defendants, on one or more occasions, forced entry into the McLawhorn Property by breaking through the front door. Plaintiff alleges Defendants and/or their agents displayed foreclosure notices and/or instruments throughout the McLawhorn Property, turned off the power supply, turned off the water supply, drained hot water tanks, maliciously damaged the front door of Plaintiff's home, changed the locks, and placed a lock box on Plaintiff's front door. Defendants respond that a mistake in the loan servicing documents led them to believe that the Estes mortgage, which went into foreclosure, was connected with 3405 Burris Street (McLawhorn Property) instead of 3507 Burris Street (Estes Property) and that they mistakenly entered the Plaintiff's property at 3405 Burris Street to winterize it thinking that it was the Estes Property.

         On July 1, 2016, Ocwen and Altisource Residential filed a joint motion for summary judgment, which the Court granted in part and denied in part. Altisource Residential also filed a separate motion for summary judgment, which the Court denied, arguing that Plaintiff sued the wrong defendant entity and that Altisource Residential was entitled to summary judgment as there was no genuine issue of material fact regarding its lack of involvement in this matter. Following the Court's Order on Defendants' motions for summary judgment, Plaintiff's remaining claims are for trespass and negligence against Ocwen and Altisource Residential.

         I. Plaintiff's motion in limine [ECF No. 70]

         Plaintiff's motion in limine seeks to exclude: 1) testimony of an unidentified representative of Altisource Solutions, Inc.; 2) evidence and testimony pertaining to correspondence dated February 16, 2013, from Ocwen Loan Servicing, LLC; 3) evidence and testimony pertaining to an Order of the United States Bankruptcy Court from the Southern District of New York filed on November 21, 2012; 4) evidence and testimony pertaining to a Stipulation and Order of the United States Bankruptcy Court from the Southern District of New York filed on February 15, 2013; and 5) the affidavit and deposition testimony of Katherine Ortwerth taken in another proceeding in which Plaintiff was not a party.

         A. Unidentified Altisource Solutions, Inc. Representative

         Plaintiff anticipates that the Defendants will attempt to offer testimony of an Altisource Solutions, Inc. representative relating to its business relationship and its transactions with Defendant Ocwen Loan Servicing, LLC (“Ocwen”). For the same reasons the Court denied Altisource Residential's motion for summary judgment, Plaintiff's motion is DENIED as to the unidentified Altisource Solutions representative.

         B. February 16, 2013 Correspondence from Ocwen Loan Servicing, LLC

         Plaintiff anticipates that Defendants will attempt to offer a letter dated February 16, 2013, from Defendant Ocwen that shows that Freddie Mac is the owner of the Estes Mortgage and that Ocwen was servicing the Estes Mortgage on behalf of Freddie Mac. Plaintiff contends that the letter and its contents are irrelevant. Plaintiff also objects arguing the letter constitutes inadmissible hearsay. Defendants respond that they no longer plan to offer the letter into evidence but may seek to offer testimony regarding its contents. Based on Defendants' withdrawal of the letter, Plaintiff's motion to exclude the letter is now MOOT. To the extent Defendants seek to offer testimony that Freddie Mac was the owner of the Estes Mortgage during the relevant time period and that Ocwen was servicing the loan on behalf of Freddie Mac, this Court would find that such testimony is relevant based on Ocwen's position that an error in the loan servicing documents on the Estes Mortgage led to Defendants' wrongful entry onto Plaintiff's property.

         C. Bankruptcy Court Orders filed November 21, 2012 and February 15, 2013

         Plaintiff seeks to exclude evidence and testimony related to Orders of the United States Bankruptcy Court for the Southern District of New York filed on November 21, 2012, and February 15, 2013. Plaintiff appears to argue that the Orders are irrelevant and may confuse or mislead the jury. Plaintiff believes that Defendants will attempt to introduce evidence relating to the referenced Orders to support their assertion that Altisource Residential is not a proper party due to their claim that Freddie Mac owned the Estes Mortgage. Defendants have indicated that they no longer intend to offer ...


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