*1 A number of pending motions filed by both the plaintiffs (collectively “Westgate” or “the Westgate plaintiffs”) and the defendants (collectively “Wesley”) seek either to exclude from trial or to permit the introduction at trial of evidence relating to what Westgate refers to as its mortgage-backed securitization (“BMS”) process or, simply, securitizations and that Wesley characterizes as relating to whether any plaintiff owned a particular timeshare promissory note at the time of default. The motions include:

The securitization issue also figures in seven of the twenty-one “Contested Issues of Law” (item nos. 6–12) the parties have identified in their Joint Proposed Pretrial Order (Doc. No. 542).

As set forth below, the court finds generally that Westgate does not have to prove ownership of the notes at the time of default to establish that it suffered damages when timeshare owners defaulted on their notes. Moreover, although Westgate's securitization process is relevant to its claim for, and computation of, damages, the assignment documents it seeks to exclude and the reassignment documents Wesley seeks to exclude are both subject to exclusion.

I. BACKGROUND

*2 As noted in other recently entered Orders, this court has already granted partial summary judgment to the plaintiffs (collectively “Westgate” or “the Westgate plaintiffs”) on their Tennessee Consumer Protection Act (“TCPA”) claim, finding that the defendants (collectively “Wesley”) had “deceived consumers, harmed Westgate, and violated the TCPA by (1) engaging in the unauthorized practice of law and thus representing that Wesley's services entail a ‘legal’ cancellation of Westgate owners' timeshares through something other than simply payment default and (2) representing that its services include credit repair services for Westgate owners who stop making maintenance and mortgage payments to Westgate.” (Doc. No. 387, at 2.) While Westgate adequately established at the summary judgment stage that it had generally suffered harm as a result of Wesley's actions in violation of the TCPA, the issues of whether Wesley's conduct actually caused Westgate monetary damages and, if so, in what amount were not resolved at summary judgment and remain to be determined at trial.

Regarding their damages, the Westgate plaintiffs allege, in simple terms, that they suffered harm when Wesley's conduct induced Westgate timeshare owners to cease making payments on their timeshare promissory notes. (See Doc. No. 508, at 5 (“[T]he measure of Plaintiff's damages is the monetary harm Wesley caused, which is fairly approximated by the balances owed on the notes that Wesley unlawfully induced to default.”).) Aside from contesting whether the Westgate plaintiffs can establish that they suffered any harm resulting from Wesley's conduct, Wesley maintains that to establish damages arising from the default of any note, the plaintiffs must show that a specific plaintiff owned the note at the time of default. It asserts that, in many cases, Westgate will not be able to prove damages, because many of the notes had been sold or assigned to some other entity as of the time of default.

For instance, Wesley recently filed a Motion for Status Conference (Doc. No. 466) (which the court denied (Doc. No. 530), arguing that Westgate should be required to make an “offer of proof” to establish its ownership of each of the notes at issue and that it was “self-evident that if a third party other than a Plaintiff owned a Customer Note when it defaulted, the third party—and not any Plaintiff in this lawsuit—was the only person deprived of a right to receive payment and is the only one who can assert a TCPA claim due an allegedly deceptive act causing the customer to default.” (Doc. No. 467, at 7–8.) In its Response to that motion, Westgate argued that Wesley had obtained “robust” discovery relating to Westgate's mortgage-backed securitization (“MBS”) process; that this process was no surprise to Westgate; and that the question of whether a Westgate entity actually owned a particular Note at the time of default was irrelevant to its damages. (Doc. No. 508, at 5.) The court has already denied that motion (Doc. No. 530), but Wesley continues to claim that it has only recently learned that Westgate may not have owned any of the notes at issue at the time of default and to insist that Westgate can only prove damages if it owned the notes.

Westgate disagrees. Its Omnibus Motion in Limine to Exclude Evidence seeks to preclude “Wesley from offering evidence, argument, and/or commentary about the securitization of Westgate's timeshare loans.” (Doc. No. 464, at 27; see also Doc. No. 1, at 1.) It argues that “[t]he securitization of the loans originated by Westgate are wholly irrelevant to any claim or defense in this matter.” (Doc. No. 464, at 18.)[1] In response, Wesley asserts that it is simply “beyond dispute that Plaintiffs cannot have been damaged if they did not own the timeshare loans at the time of default or at the time they brought this lawsuit” and that the evidence that some third party owned the loans “is highly relevant.” (Doc. No. 5121, at 14.) Wesley contends that “securitization remains important for jury consideration,” and a jury must determine, among other things, whether the harm allegedly caused is too remote to be “proximately caused by Wesley.” (Id.)

*3 Wesley's First Omnibus Motion in Limine seeks to exclude Westgate's reassignment documents based on a variety of legal theories, including that tort claims are not assignable; that Westgate cannot bring claims on behalf of third parties and has not pleaded entitlement to do so; that its status as a servicer does not make it a real party in interest. (Doc. No. 471.) Its Second Omnibus Motion in Limine seeks to exclude supposedly new reassignment evidence under Rule 37(c)(1) of the Federal Rules of Civil Procedure as previously undisclosed with no substantial justification. (Doc. No. 474.) Westgate, in response, agrees that the reassignments should be excluded because the entire topic of securitizations is irrelevant. (Doc. No. 507.) It only seeks to introduce the reassignments to “provide a complete picture of the securitization process” in the event Wesley is permitted to introduce the evidence of assignments and other securitization documents.

In support of its Motion to Preclude and/or for Other Relief Pursuant to Rule 37(c), Wesley continues to insist that the fact that Westgate withheld documents in discovery that would have established that it did not actually own the timeshare notes and that Wesley has only recently, through its own efforts, “uncovered hard evidence of Plaintiffs' assignment of the subject notes by spending the time and resources to comb through various county records for the documents Plaintiffs—and Plaintiffs' counsel—had in their custody or control.” (Doc. No. 490, at 2.) Westgate's response accuses Wesley of using “over-the-top rhetoric,” maintains that it has never withheld evidence, and points out that its securitization process is not new news to Wesley. (Doc. No. 541, at 1.)

II. LEGAL STANDARDS

Under Rule 401 of the Federal Rules of Evidence, “evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Unless expressly excluded by another evidentiary rule, relevant evidence is admissible. Fed. R. Evid. 402. Although motions in limine are not explicitly authorized by the Federal Rules of Evidence, the Supreme Court has recognized that district courts have authority to adjudicate such motions pursuant to their “inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Courts should exclude evidence in limine “only when evidence is clearly inadmissible on all potential grounds.” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D. Ky. 2010) (citation omitted); see also In re Davol, Inc., 575 F. Supp. 3d 924, 928 (S.D. Ohio 2021) (same).

In addition, Rule 26 of the Federal Rules of Civil Procedure requires the timely production of any documents a disclosing party has in its possession that it may use to support its claims or defenses, as well as the timely supplementation of discovery answers, “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(a)(1)(A)(ii), 26(e)(1)(A). Under the Federal Rules of Evidence, “[i]f a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless,” or unless the court orders some other sanction instead. Fed. R. Evid. 37(c)(1); Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015)

III. DISCUSSION

The court has little tolerance for Wesley's histrionic rhetoric or its filing of multiple motions raising and reraising the same issue. The court, moreover, has read in its entirety the June 3, 2022 deposition of John Willman, which makes it abundantly clear that Wesley has known at least since that date about all of the matters it is only just now claiming to have recently learned through its own deep dive into publicly available real estate transaction documents. That is, based on Willman's deposition testimony, Wesley has known about the basic structure of Westgate's mortgage-backed securitization process; the fact that this process involves the assignment and reassignment of timeshare notes; Westgate's position that it is harmed by a timeshare obligor's default irrespective of whether a particular Westgate entity actually holds the note at the time of default; Westgate's actual possession of the assignment documents; Westgate's position that, irrespective of what the transaction documents actually say, it views (and refers to) the securitizations internally as “pledges,” rather than sales or assignments; and its position that, assuming its ownership of the notes is relevant, all of the notes are ultimately returned (reassigned) back to the Westgate developer entities upon default or, at the latest, at the closure of the mortgage backed securitization transaction. Willman also testified extensively about his view of how the Westgate developers suffer harm through a timeshare purchaser's nonpayment on his note. In general terms, according to Willman, irrespective of whether there is a paper trail of each note going in and out of securitization, and being assigned and reassigned through the course of that transaction, the financial impact of each default falls on the Westgate entity. (See generally Willman June 3, 2022 Dep., Doc. No. 510-2.)

*4 Although Wesley now contends that Westgate withheld documents that Wesley believes it should have disclosed, Westgate's position is that it either had no obligation to disclose the documents under Rule 26(a), because it did not intend to use them to support its claims, or, as stated by counsel during Willman's deposition, the documents were not responsive to any discovery requests it had received. (See Willman Dep. 77.) Willman specifically stated that Westgate was in possession of assignment documents relating to the timeshare notes at issue here. (Id. at 77.) Thus, the assignments Wesley now seeks to introduce simply corroborate Willman's testimony. If Wesley believed it should have received these documents or was entitled to them at that time, it should have made efforts to obtain them near the time of Willman's June 3, 2022 deposition and to disclose its intent to rely upon them. As best the court can tell, it did neither.

The court finds that Wesley has not established either that Westgate's theory of recovery has somehow changed or only recently been sprung on Wesley or that Westgate has withheld documents it should have produced. Because it is clear that Wesley could and should have disclosed its intent to rely on the assignment documents it has included among its proposed exhibits well before now, and, moreover, because it is clear that these voluminous documents would serve no purpose other than to confuse the jury, the court GRANTS IN PART Westgate's Motion to Exclude Evidence Not Disclosed or Produced (Doc. No. 462), specifically that part of the motion that seeks to exclude the thousands of pages of late-disclosed real property records, including deeds, assignments and reassignments and other documents relating to the securitization process, that Wesley has included among its proposed exhibits.

Likewise, because Westgate has only sought to introduce into evidence reassignment documents in response to Wesley's attempt to introduce assignment documents, the court GRANTS IN PART Wesley's First Omnibus Motion in Limine, specifically that part denominated “Motion in Limine #2,” seeking to exclude Westgate's “reassignment” trial exhibits. The court also GRANTS IN PART Wesley's Second Omnibus Motion in Limine (Doc. No. 474), insofar as it seeks exclusion of the same documents. Wesley's Motion to Preclude and/or for Other Relief Pursuant to Fed. R. Civ. P. 37(c) (Doc. No. 489) is hereby TERMINATED AS MOOT, insofar as it seeks the same relief.

These decisions do not completely resolve the “securitization” issue. The court, in brief, is not persuaded by Wesley's repeated unsupported assertions that it is axiomatic that Westgate cannot prove damages arising from the default of any timeshare note if it cannot prove the particular Westgate plaintiff at issue owned the note at the time of default (and at the time the lawsuit was filed). As Westgate points out, it is not suing for tortious interference with contract; it is suing for damages under the TCPA. All that is required in order to recover money damages is that Westgate establish that it suffered monetary damages in a reasonably ascertainable amount proximately caused by Wesley's tortious conduct. Westgate's ownership of the notes is not determinative of its ability to prove damages.

That said, it is also clear that Westgate's securitization process is relevant to its ability to establish damages, as stated in the Order denying Wesley's Motion for Status Conference. Both parties have identified Willman as a testifying witness, and Wesley will have the opportunity to question Willman either on cross-examination or on direct about that process. The court, therefore, will not grant in its entirety Westgate's motion to preclude Wesley from offering any evidence, argument, or commentary about Westgate's securitization process. Wesley will not be entitled to argue to the jury that Westgate's securitization process bars it completely from proving damages, but Wesley certainly may attempt to challenge Willman's credibility and to persuade the jury that the securitization process affects Westgate's computation of damages. Insofar as Westgate seeks to bar the introduction of the actual assignments and reassignments that are the subject of the motions referenced above, the motion is GRANTED. Otherwise, it is DENIED WITHOUT PREJUDICE to Westgate's ability to raise objections to specific evidence and argument offered at trial.

*5 As noted above, Wesley's First Omnibus Motion in Limine also seeks to exclude “evidence that (a) assignments of notes are ‘pledges’; (b) Westgate is the ‘servicer’ of the assigned notes; (c) payments under assigned notes are used to pay down Westgate debt; and (d) evidence of ‘reassignments’ where default occurred before assignment.” (Doc. No. 471, at 1–2.) That portion of Wesley's motion is DENIED. Willman discussed all of these issues during his deposition; it is not new information; and it is relevant to Westgate's proposed computation of damages. Wesley, of course, remains free to cross-examine Willman (and other witnesses) who testify about these issues.

IV. CONCLUSION

To summarize:

To be clear, the exclusion of the assignment and reassignment documents does not mean that argument concerning the assignments and reassignments of the timeshare notes is barred.

These rulings also effectively dispose of items 6 through 12 of the parties' “Contested Issues of Law” identified in the Joint Proposed Pretrial Order. (Doc. No. 542.) The answer to questions 6 through 8 is “no.” As for questions 9 through 12, the plaintiffs have not sued on the assigned rights of third parties or based on reassignments, are not suing based on their status as loan servicers, and timely disclosed to the defendants their securitization process and the fact that some (though apparently not all) of the subject notes were included in securitization transactions. The court is not sure what item 12 means, but the question of the amount of damages remains for the jury.

It is so ORDERED.