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Vilkofsky v. Specialized Loan Servicing, LLC

United States District Court, W.D. Pennsylvania

June 12, 2018



          Nora Barry Fischer United States District Judge


         Plaintiff, the owner of a home in McKeesport, Pennsylvania, brought this action against the servicers of his mortgage for violations of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. (“RESPA”). Presently before the Court are the Motion to Exclude Testimony and Expert Report of Theresa Bishop (Docket No. 124) filed by Rushmore Loan Management Services, LLC (“Rushmore”) and the Motion to Exclude Testimony of Theresa M. Bishop as an Expert and Lay Opinion Witness, and to Exclude Her Expert Report (Docket No. 126) filed by Specialized Loan Servicing LLC (“SLS”) (collectively “Defendants”). The Court has now reviewed Rushmore's Motion (Docket No. 124), the Brief in Support of Rushmore's Motion (Docket No. 125), SLS's Motion (Docket No. 126), the Brief in Support of SLS's Motion (Docket No. 127), Plaintiffs' Brief in Opposition, (Docket No. 130), Rushmore's Reply Brief (Docket No. 132), SLS's Reply Brief, (Docket No. 134), and Plaintiff's Sur-Reply Brief (Docket No. 138). The parties waived the hearing and oral argument with regard to the Defendants' Motions and all supplemental briefing. (Docket No. 133). After careful consideration of the parties' positions, and for the following reasons, Defendants' Motions are GRANTED, in part, and DENIED, in part.


         Plaintiff Frank Vilkofsky is the owner of a home in McKeesport, Pennsylvania. (Docket No. 58 at ¶ 5). Vilkofsky alleges that the servicer of the mortgage on his home, Rushmore, accepted all of Vilkofsky's mortgage payments for the 2013 calendar year and up until August 2014, when Rushmore allegedly returned Vilkofsky's mortgage payment without explanation. (Docket No. 58 at ¶¶ 17-19). Correspondence between Vilkofsky and Rushmore in September and October 2014 reveals that Rushmore had increased the amount of Vilkofsky's monthly payments. (Docket Nos. 58-1 - 58-6). The parties dispute whether Vilkofsky had been notified of the increase. Nevertheless, Vilkofsky did not pay the increased amount as of the effective date and, as such, Rushmore considered the account to be two months' delinquent as of October 23, 2014, with the payment due September 1, 2014 still outstanding. (Docket No. 58-6).

         Vilkofsky alleges that he sent multiple checks to Rushmore, but the checks were either held without being cashed or were returned. (Docket Nos. 58-2:58-18). As of November 4, 2015, Rushmore considered Vilkofsky to be fifteen payments delinquent. (Docket No. 58-16). Regular correspondence between Vilkofsky and Rushmore did not resolve the matter. (Docket Nos. 58-8 - 58-17).

         On December 28, 2015, SLS replaced Rushmore as Vilkofsky's mortgage servicer. (Docket No. 58 at ¶¶ 40-41). Following a review of the financial records related to the mortgage, SLS concluded that there were no errors, the delinquency was proper, and that all fees due and owing to Rushmore were valid. (Docket No. 58-19). SLS also provided its summary of customer account activity. (Docket No. 58-20). SLS informed Vilkofsky that it would not accept payment in any amount less than the full amount due and owing: $23, 414.14 as of June 13, 2016. (Docket No. 58-19).

         On August 24, 2016, Vilkofsky initiated the instant action alleging violations of numerous consumer protection statutes by SLS, Rushmore, and U.S. Bank. (Docket No. 1). The claims in this case were subsequently narrowed to only those claims in Counts I and III of the Second Amended Complaint that allege violations of RESPA by the servicers of Vilkofsky's mortgage, Rushmore and SLS.[2] (Docket Nos. 54, 81). “A plaintiff claiming a RESPA violation must allege not only a breach of a duty required to be performed under RESPA, but must also show that the breach caused him to suffer damages.” (Docket No. 80, at 7 (citing Wilson v. Bank of Am., N.A., 48 F.Supp.3d 787, 799 (E.D. Pa. 2014)). Vilkofsky alleges that Rushmore and SLS's improper handling of error notices related to his mortgage caused him to sustain actual damages in the form of “enormous mental stress for [his] family” and “extreme stress worrying about whether he will lose his home in foreclosure.” (Docket No. 58 at ¶ 84).

         To further his claims, Vilkofsky has proffered Theresa Bishop, BS, MS, L.P.C., C.A.A.D.C. (“Bishop”), a licensed professional counselor, as an expert in this matter to testify regarding his alleged emotional distress, including anxiety and depression, and related damages. Bishop prepared an expert report dated December 9, 2018 (Docket No. 125-2, the “Bishop Letter”) to “express [her] opinions regarding the psychological impact of Mr. Vilkofsky's mortgage problems on Mr. Vilkofsky, and the basis for those opinions.” In said letter, she concludes that “Mr. Vilkofsky suffers from both anxiety and depression.” (Id.).


         Bishop is a professional addiction counselor and mental health therapist. (Bishop Depo., Docket No. 130-1, at 14-16). She earned a bachelor of science degree in social work in 2004 and a master of science degree in professional counseling in 2009 from Carlow University. (Id. at 13-14). Bishop became a Licensed Professional Counselor (“L.P.C.”) in the Commonwealth of Pennsylvania in 2014, and earned an Advanced Certification in Drug and Alcohol Counseling (“C.A.A.D.C.”) from the International Certification and Reciprocity Consortium in 2011. (Id. at 14). She is also certified to diagnose based on the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition (“DSM-IV”). (See Bishop Depo. at 17-18).

         She is currently employed by the Pennsylvania Organization for Women in Early Recovery (“POWER”), where she conducts in-home drug and alcohol assessments to determine an appropriate level of care and then makes referrals and recommendations. (Id. at 14). Prior to working at POWER, Bishop worked as a mental health therapist for approximately nine months for a community treatment team called Wesley Family Services. (Id. at 14-15). While at Wesley Family Services, Bishop worked with adults in the community who had been diagnosed with serious mental illness. (Id. at 15). She also worked as an addiction counselor at Tadiso Incorporated for approximately two years, where she provided counseling to people with opiate addictions. (Id. at 15-16). Prior to her work at Tadiso, she worked as a drug and addiction counselor and intake specialist at the Discovery House Pennsylvania. (Id. at 16). In her earlier roles, she was responsible for diagnosing patients as it related to drugs and alcohol, but has never diagnosed a patient with severe depression or anxiety. (Id. at 19).

         Bishop has never published in the area of psychology or counseling, and has never conducted any peer-reviewed studies or research. (Id. at 14). Also, she has not served as an expert witness. (Id.). At this point in the litigation, Bishop has produced one expert report in the form of a two-page letter (Docket No. 125-2) as noted above, and sat for a deposition on February 12, 2018 (Docket No. 125-1).


         Bishop testified at her deposition that she first met Vilkofsky in August 2015 after meeting him on the online dating website, and the two developed a friendship. (See Id. at 21-22). She further testified that her conclusions in the Bishop Letter that Vilkofsky suffers from both anxiety and depression as a result of his interactions with the servicers of his mortgage are based on interactions with Vilkofsky during their friendship. (Id. at 34-35).

         In support of her opinions, Bishop wrote that Vilkofsky discussed his personal life, “professional life and family matters” and that he expressed his frustrations about his experiences with “those entities that are handling his mortgage payments on his personal residence.” (Bishop Letter, at 2). Bishop opined that “the emotional and physical issues that Mr. Vilkofsky has been experiencing over the last several years are the result of Mr. Vilkofsky's interactions with the entities that have been handling Mr. Vilkofsky's mortgage on his personal residence.” (Id.).

         Bishop testified that she has never seen Vilkofsky in a professional setting nor provided him with professional services (Bishop Depo. at 28, 34, 40), and that the methodology she would otherwise impose on a patient to reach a DSM-IV diagnosis was not employed in this case. (Id. at 34-35). Bishop further stated that she felt it would be unethical to provide Vilkofsky with a diagnosis due to their friendship. (Id. at 44).

         Bishop does not have an engagement letter for this matter and is not being paid for her testimony or her report in this case. (Id. at 8-9, 27-28, 41, 44). Bishop did not maintain any notes of her conversations with Vilkofsky. (Id. at 27).

         V. DISCUSSION

         The use of an expert witness at trial is governed by both the federal procedural and evidentiary rules. While Rule 702 of the Federal Rules of Evidence governs the admissibility of expert opinion testimony at trial, Rule 26 of the Federal Rules of Civil Procedure details the discovery procedures for the disclosure of expert witnesses, their reports, and matters considered by the expert.

         A. Rule 26 Analysis

         Under Fed.R.Civ.P. 26, a party must disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702” and “this disclosure must be accompanied by a written report, ” which must contain the following:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in ...

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