Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10

William J. Simon (State Bar No. 001788) [email protected]
THIRD FLOOR CAMELBACK ESPLANADE II 2525 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016-4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Attorneys For Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NANCY KIM SILVAS, also known as KIM SILVAS, an unmarried individual, Plaintiff, CV 03-1573 PHX FJM DEFENDANTS' MOTION IN LIMINE RE: TESTIMONY OF THOSE PERSONS WHO ENTERED INTO FORBEARANCE AGREEMENTS (Assigned to the Honorable Frederick J. Martone)

11

vs.
12 13 14 15

SELECT PORTFOLIO SERVICING, INC., a Utah corporation, formerly known as Fairbanks Capital Corporation; et. al.,

Defendants. Defendants move in limine to preclude the introduction of the testimony of over

16 100 persons who entered into Forbearance Agreements with Select, which are identified in 17 Exhibit A attached to the Supplement to Plaintiff's Pretrial Disclosure filed on August 1, 18 2005. The relevance of these persons' testimony is substantially outweighed by the 19 danger of unfair prejudice, confusion of the issues, or misleading the jury.1 20

Plaintiff has never identified the substance and nature of the testimony from these

21 individuals. However, based upon the pleadings filed and discovery exchanged, 22 Defendants believe that Plaintiff intends to use their testimony to attempt to establish that 23 Select made misrepresentations in the Forbearance Agreements with intent and engaged 24 in a pattern and practice of extortion as defined by A.R.S. § 13-1804(A)(8). 25

Plaintiff alleges that the Forbearance Agreements misrepresented that Select was

26 the holder of the subject notes, beneficiary of the subject deeds of trust, had acquired all
1 Case 2:03-cv-01573-FJM Fed. R. Evid. 403

Document 177

Filed 08/15/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

right, title and interest in the subject notes and had commenced a judicial foreclosure sale against the subject borrowers. Assuming that these statements were not true because Select was the loan servicer instead of the beneficiary of the deeds of trust and had commenced a trustee's sale instead of a judicial foreclosure, a reasonable jury could not find these misrepresentations material. Select as the loan servicer was entitled to service and administer the subject loans independent of the holders of the notes.2 Select's powers as the loan servicer included the authority to act when any loan is in default and to foreclose or take any other action which might affect the ownership of the subject property.3 Therefore, whether Select had acquired all right, title, and interest in the subject notes or was the beneficiary of the deeds of trust was of no consequence as Select had the full power to move forward with foreclosure proceedings and to cause the sale of the subject properties. Whether Select filed Notices of Trustee's Sale instead of judicial foreclosure actions is of no consequence. In fact, the statement that a judicial foreclosure has been commenced is less threatening than stating that a Notice of Trustee's Sale has been recorded. As the Arizona Supreme Court has aptly stated "under a Deed of Trust, the trustee holds a power of sale permitting him to sell the property out of court with no necessity of judicial action. The Deed of Trust statutes thus strip borrowers of many of the protections available under a mortgage."4 For the foregoing reasons, a reasonable jury could not find that the alleged misrepresentations were material and, thus, the relevance of the proffered testimony, if any, is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.5
See Defendants' Amended Separate Statement of Facts in Support of Their Motion for Partial Summary Judgment at ¶ 38. 3 See Id. at ¶ 40. 4 Patton v. First Federal Savings and Loan Association of Phoenix, 118 Ariz. 473, 477, 578 P.2d 152, 156 (1978). 5 See Rule 403.
2

Case 2:03-cv-01573-FJM

Document 177 -2-Filed 08/15/2005

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11

RESPECTFULLY SUBMITTED this 15th day of August, 2005. TIFFANY & BOSCO, P.A.

By

s/ Sean P. St. Clair - 022041 William J. Simon Sean P. St. Clair Attorneys for Defendants

CERTIFICATE OF SERVICE X I hereby certify that on the 15th day of August, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

[email protected]
12 13 14 15 16

_____ I hereby certify that on the _____ day of ________________, 2005, I served the attached document by United States mail on the following, who are not registered participants of the CM/ECF System: NONE

By
17 18 19 20 21 22 23 24 25 26
Case 2:03-cv-01573-FJM
7059-029/282135

s/ Wendy L. Echols Wendy L. Echols

Document 177 -3-Filed 08/15/2005

Page 3 of 3