Expert Witness Blog
Plaintiffs filed suit against bank arguing that the bank illegally foreclosed on their home. Defendants challenged their expert witness on mortgage servicing and the court granted the motion.
Facts: This case (Wivell et al v. Wells Fargo Bank, N.A. et al – United Stated District Court – Western District of Missouri – October 26th, 2015) involves a dispute over a residential foreclosure. The homeowners claim that they contacted the bank to discuss a loan modification on their mortgage. After they were told to default on their loan payments, the bank placed their house into foreclosure. They sued the bank in violation of the Missouri Merchandising Practices Act. They also seek punitive damages. In order to prove their case, the hired Michael A. Ferry as an expert in service mortgage loans. Real estate expert witnesses will want to take note of this opinion.
Mr. Ferry is a licensed attorney in Missouri and Illinois. From 1979-1998 he assisted consumers in their legal disputes with banks, lenders, and finance companies. He now assists low-income clients on matters dealing with Social Security benefits. He also served on the board of directors foe the National Consumer Law Center and currently serves as a commissioner to the National Conference of Commissioners on Uniform State Laws. He is also a fellow at the American College of Consumer Finance Lawyers.
Wells Fargo moved to exclude Mr. Ferry’s opinion on the grounds that he lacks knowledge, skill, experience, training or education on the topic of mortgage loan servicing. They state that his competence does not match the subject matter at issue in the current case.
Discussion: After determining that Mr. Ferry was going to testify on mortgage loan servicing, not on the mortgage industry in general and foreclosures (as sought by the plaintiffs), the court analyzed whether he was qualified to testify. The judge stated that the testimony must be subsumed within the expertise of the witness, not merely related to it. In the present case, the judge opined, Mr. Ferry is not qualified as an expert in mortgage loan servicing as he does not have the knowledge, skill, training, or education in that field of study. There was no indication that he practiced any form of mortgage loan servicing law. In addition, Mr. Ferry has not taken any classes or have any formal training in servicing practices, has not published any material on the topic, has not consulted with anyone in the industry, nor examined any material by mortgage service providers.
The plaintiffs argue that, if the court were to accept Wells Fargo’s arguments in their motion to exclude, the only expert that would be qualified to testify in this case would be an insider employed by a financial services entity. The court was not persuaded by that argument, stating that the plaintiffs could have easily found a professional not employed by a bank that would be acceptable expert. The court finally stated that Mr. Ferry’s opinions would not be helpful to the trier of fact.
Held: The motion to exclude the expert witness testimony of Michael A. Ferry is granted.