The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0216n.06
No. 13-6023
UNITED STATES COURTS OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 21, 2014
DEBORAH S. HUNT, Clerk
HOLLIS H. MALIN, JR; LINDA D. MALIN, )
)
Plaintiffs-Appellants, )
)
v. )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
JPMORGAN CHASE BANK, NATIONAL )
COURT FOR THE EASTERN
ASSOCIATION, successor in interest Chase Home )
DISTRICT OF TENNESSEE
Finance LLC; CHASE HOME FINANCE, LLC, )
)
Defendants-Appellees. )
)
Before: BOGGS and KETHLEDGE, Circuit Judges; RESTANI, Judge.*
RESTANI, Judge. Hollis Malin and Linda Malin appeal the district court’s grant of
summary judgment in favor of JPMorgan Chase Bank, NA (“Chase Bank”) on plaintiffs’ suit to
prevent foreclosure and to quiet title. The Malins contend that the district court improperly
excluded the testimony of a proposed expert witness and that outstanding disputes as to material
fact precluded summary judgment. Because the district court did not abuse its discretion in
exercising its gatekeeping role when considering the Malins’ proposed expert and because there
are no genuine disputes as to material facts, we affirm.
The Malins’ proposed expert witness was considered by the district court for the purpose
of testifying as to what can be done with certain computer software to alter documents to the
extent that it would prove or disprove the authenticity of the mortgage documents relied upon by
*
The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation.
No. 13-6023
Malin v. JPMorgan Chase Bank, NA
Chase Bank in foreclosing on the Malins’ property. Accordingly, the district court properly
analyzed whether the Malins’ purported expert was qualified to opine on this issue under the
criteria outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–94 (1993).
The court agreed with the magistrate judge’s findings that the expert’s methodology was not
based on any standard established in the field, the expert lacked any qualifications or education
in document forensics or examination, and the expert’s methodology was subject to very limited
testing. As the district court’s findings were not clearly erroneous, the district court did not
abuse its discretion in deciding not to admit this witness as an expert on the only relevant issue,
the authenticity of the mortgage documents.1
Because the district court properly excluded the Malins’ expert witness, the Malins were
left with a case based on speculation alone. At their depositions, the Malins conceded that they
had no way of knowing whether the mortgage documents were authentic, and in fact, both
expressed their belief that the documents appeared authentic. The court’s refusal to consider
untimely evidence the Malins attempted to submit on this issue, after a prior extension, was not
an abuse of discretion under Federal Rule of Civil Procedure 56. When the lack of any record
evidence disputing the authenticity of the mortgage documents is taken together with the
Purchase and Assumption Agreement, by which Chase Bank inherited all of the assets of
Washington Mutual Bank, FA, the original note holder, it becomes clear that the Malins had no
evidence to support their claim. Accordingly, the district court properly granted the summary
judgment motion of Chase Bank.2
1
The Malins also claim in their “Issues Presented” that their proposed expert witness should have been admitted as a
fact witness. This argument is not developed in the argument portion of the brief, and therefore it is waived. See
Fed. R. App. P. 28(a)(8).
2
Chase Bank notified the court of the Malins’ motion in the district court to alter judgment under Federal Rule of
Civil Procedure 60(b). We lack jurisdiction to consider the motion in the first instance, and the district court has not
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No. 13-6023
Malin v. JPMorgan Chase Bank, NA
The district court’s judgment is affirmed.
indicated that it is inclined to grant the motion; therefore, remand is unnecessary. See First Nat’l Bank of Salem,
Ohio v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976).
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