            Case: 17-11494   Date Filed: 08/22/2018   Page: 1 of 21


                                                                      [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT



                                No. 17-11494



                    D.C. Docket No. 5:11-cv-00284-CAR

JANE MCGINNIS,

                                                             Plaintiff - Appellee,

                                   versus



AMERICAN HOME MORTGAGE SERVICING, INC.,

                                                          Defendant - Appellant.



                 Appeal from the United States District Court
                     for the Middle District of Georgia



                              (August 22, 2018)

Before TJOFLAT, ROSENBAUM, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge:

     American Home Mortgage Servicing, now known as Homeward, appeals the

denial of a new trial concerning an award of punitive damages arising from a
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wrongful foreclosure. Jane McGinnis, the owner of several rental properties,

brought suit against Homeward, the servicer of seven of her residential properties’

mortgages, alleging wrongful foreclosure, conversion, interference with property,

and intentional infliction of emotional distress. The jury found against Homeward

on all claims and awarded McGinnis $3,506,000 in damages ($6,000 for economic

injury, $500,000 for emotional distress, and $3,000,000 in punitive damages).

Homeward appeals the district court’s denial of a motion for a new trial, arguing

(1) that the punitive damages award was unconstitutionally excessive under the

Due Process Clause of the Fourteenth Amendment and (2) that the punitive

damages award unlawfully exceeded Georgia’s $250,000 cap on punitive damages

under O.C.G.A. § 51-12-5.1(f), (g). 1 Because we conclude that the award violates

neither the U.S. Constitution nor Georgia law, we affirm the judgment of the

district court.

                            I.      FACTUAL BACKGROUND

       McGinnis owns numerous residential rental properties in Georgia that served

as her nest egg. McGinnis entrusted her son, Adam, with managing the properties.



1
  “In a tort case in which the cause of action does not arise from product liability, if it is found
that the defendant acted, or failed to act, with the specific intent to cause harm . . . there shall be
no limitation regarding the amount which may be awarded as punitive damages.” O.C.G.A. § 51-
12-5.1(f). “For any tort action not provided for by subsection . . . (f) of this Code section in
which the trier of fact has determined that punitive damages are to be awarded, the amount
which may be awarded in the case shall be limited to a maximum of $250,000.00.” Id. § 51-12-
5.1(g).
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McGinnis refinanced seven of her properties with Taylor, Bean & Whitaker

(“TB&W”), granting security deeds and promissory notes to TB&W. Her monthly

payment to TB&W for one such rental property, located at 172 Hilton Street, was

$605.58, including $490.13 for principal and interest and $115.45 for the escrow

deposit. On October 17, 2009, Homeward obtained the rights to service

McGinnis’s seven loans. Homeward sent McGinnis a welcome letter that said

McGinnis’s payment on 172 Hilton Street for November 2009 was $843.58

without explaining the basis for the increase. McGinnis disputed the increase and

paid $605.58 for November. In December 2009, Homeward sent McGinnis an

escrow analysis showing a present payment of $843.58, including $490.13 for

principal and interest and $353.45 for the escrow deposit. No explanation was

given for the high percentage increase in the escrow deposit portion of the

payment. The statement described McGinnis’s new monthly payment beginning

February 1, 2010 as $680.08. McGinnis sent a fax to Homeward asserting that the

escrow amounts were incorrect and continued paying $605.58.

      On January 15, 2010, Homeward sent McGinnis a letter explaining that the

escrow analysis on her loan could have reflected an escrow error and directing her

to disregard the December analysis and continue making payments at the previous

amount. On February 20, 2010, Homeward sent a second escrow statement that

described McGinnis’s present payment as $843.59 through March 2010 and her


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new payment, effective April 1, 2010, as $638.32. Homeward treated the past

payments of $605.58 as partial, and held the funds in a suspense account until there

were enough funds to pay off the oldest past-due monthly payment. The interest

and late fees continued to mount and Homeward frequently contacted Adam and

Jane by phone and mail demanding payment. On May 19, 2010, McGinnis sent

Homeward a fax explaining that the correct payment for November 2009 through

March 2010 should have been $605.58 and providing her own escrow analysis,

which was identical to Homeward’s analysis with respect to payments after April

2010. The only difference was the $843.58 that McGinnis refused to pay for

November 2009 through March 2010 and associated late fees. Homeward failed to

explain or retract the $843.48 amount and the issues persisted throughout 2010.

McGinnis continued to pay $605.58 until January 2011 when she began paying the

$638.32.

       From February through May 2011, Homeward returned McGinnis’s

payments. On March 22, 2011, Homeward sent a formal notice of foreclosure on

172 Hilton Street and finally foreclosed on July 7, 2011.2 At trial McGinnis

testified that the experience traumatized her. Her clinical psychologist, Dr. Andrew

Sappington, also testified that the events leading up to the foreclosure were a


2
  Each loan was subject to a family rider providing that default on any one of the loans triggered
a default on the others. McGinnis v. Am. Home Mort. Servicing, Inc., 817 F.3d 1241, 1247 (11th
Cir. 2016). And Homeward’s conduct at issue here involved all seven properties. Id. at 1249.
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“major cause of . . . depression” for McGinnis as well as of physical symptoms that

included projectile vomiting. McGinnis, who is retired and relies on her rental

properties as her income, described the effect of the foreclosure: “I am too old to

start over. They have taken my life away from me.” McGinnis also presented at

trial a letter that Adam had sent a fax to Homeward on December 17, 2009

describing the “und[ue] stress” Homeward’s constant demands had caused him and

his mother. At trial, McGinnis also presented recordings of phone conversations

with Homeward in which Adam mentioned his and his mother’s frustration with

Homeward’s repeated demands for payment and refusal to explain the increase.

Homeward’s only witness, a default case manager at Homeward, insisted that

McGinnis was obligated to pay any amount Homeward demanded whether

reasonable or in error.

                          II.   PROCEDURAL HISTORY

      McGinnis filed suit against Homeward in the United States District Court for

the Middle District of Georgia asserting claims of (1) wrongful foreclosure, (2)

violation of the Real Estate Settlement Procedures Act (“RESPA”), (3) intentional

infliction of emotional distress (“IIED”), (4) conversion, (5) tortious interference

with property rights, (6) defamation, and (7) violation of Georgia’s Racketeer

Influenced and Corrupt Organizations (“RICO”) Act. McGinnis sought attorney’s

fees and punitive damages. After discovery, Homeward moved for summary


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judgment. The district court granted summary judgment for Homeward on the

RESPA, defamation, and Georgia RICO Act claims.

      The case then proceeded to trial, which was bifurcated into two phases: one

phase on liability and the other on punitive damages and attorney’s fees. At the end

of McGinnis’s case on liability, Homeward moved for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50(a), which the district court denied.

      By special verdict, the jury found for McGinnis on all of her remaining

claims—conversion, wrongful foreclosure, interference with property rights, and

IIED. The jury awarded McGinnis $6,000 in economic damages and $500,000 in

emotional distress damages. In the second phase of the trial, McGinnis withdrew

her claim for attorney’s fees, and the jury found that Homeward acted with the

specific intent to cause McGinnis harm and awarded $3,000,000 in punitive

damages.

      After trial, Homeward filed a renewed motion for judgment as a matter of

law pursuant to Federal Rule of Civil Procedure 50(b), and in the alternative, for a

new trial on the issue of punitive damages. The district court granted in part the

renewed judgment as a matter of law and reduced the punitive damages award to

the statutory cap of $250,000 pursuant to O.C.G.A. § 51-12-5.1(g), finding that

there was insufficient evidence Homeward acted with specific intent to cause




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harm. 3 On appeal regarding Homeward’s post-trial motions, we determined that

Homeward did not properly preserve the issue of specific intent with regard to

punitive damages in its Rule 50(a) motion, and was therefore precluded from

raising the argument in its Rule 50(b) motion. McGinnis, 817 F.3d at 1261–64.

Accordingly, we reversed the district court’s ruling that Homeward had preserved

the issue of specific intent and vacated the judgment that had reduced the jury’s

award to $250,000. Id. We remanded and instructed the district court to rule on the

motion for a new trial on the issue of punitive damages. Id. at 1264.

       On remand, the district court denied Homeward’s motion for a new trial,

concluding that the punitive damages award was not unconstitutionally excessive

and that the jury’s finding of specific intent—a prerequisite to an award in excess

of Georgia’s $250,000 statutory cap—was not against the clear weight of the

evidence. Homeward filed the present appeal.

                           III.   STANDARDS OF REVIEW

       The district court’s “decision that the punitive damages award does not run

afoul of the federal Constitution . . . is subject to de novo review, though we ‘defer

to the District Court’s findings of fact unless they are clearly erroneous.’” Action

Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d 1302, 1309 (11th Cir. 2007) (quoting



3
 The district court did not conditionally rule on Homeward’s motion for a new trial on the issue
of punitive damages.
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Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 440 n.14

(2001)).

      “The district court’s denial of a motion for a new trial is reviewed for an

abuse of discretion.” Id. (citing Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d

1241, 1247 (11th Cir. 2001)). “Deference to the district court is particularly

appropriate where a new trial is denied and the jury’s verdict is left undisturbed.”

Id. at 1309 (quoting Middlebrooks, 256 F.3d at 1247–48 (internal quotation marks

omitted)).

                               IV.   DISCUSSION

      This appeal raises two issues related to the jury’s punitive damages award:

(1) whether the award violates Homeward’s due process rights because it is grossly

excessive; and (2) whether the district court abused its discretion when it

concluded Homeward is not entitled to a new trial on the basis that there was

insufficient evidence Homeward acted with specific intent to harm.

A.    The Punitive Damages Award Is Not Unconstitutionally Excessive.

      Homeward argues that the jury’s punitive damages award is excessive in

violation of due process. The Supreme Court has said that a punitive damages

award violates due process when it is “grossly excessive” in relation to the State’s

interest in punishment and deterrence. BMW of N. Am., Inc. v. Gore, 517 U.S. 559,

568 (1996). The Supreme Court has instructed courts to consider three guideposts


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when determining whether an award violates due process: (1) the degree of

reprehensibility of the defendant’s misconduct; (2) the ratio between the actual or

potential harm suffered by the plaintiff and the punitive damages award; and (3)

the difference between the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases. Id. at 575–83. The district

court concluded that under those factors the award in this case is not

unconstitutionally excessive. We agree and address each factor in turn.

      The reprehensibility of the defendant’s conduct is the “dominant

consideration” in assessing whether a jury’s punitive damages award is excessive.

Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1283 (11th Cir. 2008). To

determine reprehensibility, the Supreme Court has instructed courts to consider

several sub-factors: (1) whether the harm caused was physical or economic; (2)

whether the conduct evinced an indifference to or reckless disregard of the health

or safety of others; (3) whether the target of the conduct was financially

vulnerable; (4) whether the conduct involved repeated actions rather than an

isolated event; and (5) whether the conduct involved intentional malice, trickery, or

deceit rather than mere accident. State Farm Mut. Auto. Ins. Co. v. Campbell, 538

U.S. 408, 419 (2003) (citing Gore, 517 U.S. at 576–77).

      On the first Gore guidepost, we find a high degree of reprehensibility in

Homeward’s conduct based on the relevant sub-factors. First, Homeward’s conduct


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caused McGinnis physical and emotional harm in addition to economic harm.

McGinnis’s psychologist testified that the events leading up to the foreclosure were

a major cause of her depression as well as her physical symptoms, including

projectile vomiting. Second, Homeward’s conduct evinces an indifference to

McGinnis’s health. Adam informed Homeward in writing that its actions were

causing both of them “und[ue] stress.” Further, “the sheer volume of adversarial

communications . . . and looming threats of foreclosure” that Homeward

repeatedly offered reflect that Homeward almost certainly knew its conduct was

causing McGinnis emotional harm. McGinnis v. Am. Home Mort. Servicing, Inc.,

240 F. Supp. 3d 1337, 1352 (M.D. Ga. 2017).

      Third, Homeward knew that McGinnis was financially vulnerable. The

seven properties at issue in the foreclosure represented McGinnis’s “livelihood, her

nest egg, her security, her life’s work, and a representation of her character in the

community.” McGinnis, 817 F.3d at 1259. And in the numerous communications

with Jane and Adam, “Homeward almost certainly learned the stakes involved with

the foreclosure, and yet it never looked back.” Id.

      Fourth, Homeward’s conduct involved repeated actions rather than an

isolated event. Adam “repeatedly notified Homeward of errors in the handling of

[the] account and attempted to resolve the errors in good faith.” Id. Each time,

however, Homeward refused to correct its error or justify the increase. Moreover,


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“Homeward’s agents frequently” contacted McGinnis and Adam “by phone and

mail” such that according to Adam, Homeward’s demands became “a constant

fixture of their lives.” Id. at 1258. Indeed, the correspondence was so extensive that

the collection letters stacked together reached five feet high. Id. Homeward also

began placing each of McGinnis’s monthly payments into a suspense account from

which it “deducted, as its own income, late fees and other expenses,” McGinnis,

240 F. Supp. 3d at 1351, numerous times over the course of five months,

McGinnis, 817 F.3d at 1248, which, as noted below, facilitated the collection of

more monies to which it was not entitled.

      Fifth, Homeward’s conduct went well beyond a calculation error. As we

previously noted, Homeward’s failure to explain, even at trial, how it arrived at the

payment amount “speaks volumes” about its conduct. McGinnis, 817 F.3d at 1257.

Homeward had numerous opportunities to correct any error but failed to do so each

time. And when Adam and Jane reached out for help Homeward responded “with

indifference, obstinacy, and, at times, belligerence.” McGinnis, 240 F. Supp. 3d at

1350. Homeward also repeatedly contacted Jane and Adam to demand payment of

an amount to which it knew it was not entitled. McGinnis, 817 F.3d at 1258.

Indeed, “we [found] Homeward’s awareness of its error rendered its opaqueness,

unresponsiveness, and belligerence—in pursuing foreclosure in a fairly short




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amount of time for a relatively small amount of money—extreme and outrageous

as a matter of law.” Id. at 1259. Such conduct is more than mere accident.

      Homeward’s use of the suspense account also involved intentional malice,

trickery, or deceit. Homeward’s placement of McGinnis’s monthly payments in a

suspense account, rather than crediting those payments to her account, allowed it to

collect fees and expenses that Homeward knew McGinnis did not owe. McGinnis,

240 F. Supp. 3d at 1351. The jury determined that such conduct amounted to

unlawful conversion—an intentional tort. Id. That is no surprise. Homeward knew

that it had increased McGinnis’s monthly payment beyond what was owed because

McGinnis repeatedly pointed out the error. Id. Therefore, Homeward knew that the

fees and expenses it deducted from the suspense account were not in fact due but

deducted them anyway. Id. And Homeward knew that the suspense account would

pressure McGinnis to pay the disputed amount in order to stop the deduction of

late fees or to avoid foreclosure. Id. Thus, each of the State Farm sub-factors

supports the conclusion that Homeward’s conduct was highly reprehensible.

      Turning to the second Gore guidepost, we consider whether the ratio of

punitive damages to compensatory damages awarded by the jury in this case—

5.9:1—is unconstitutionally excessive. We conclude that it is not. As an initial

matter, the Supreme Court has approved of “single-digit multipliers” as “more

likely to comport with due process, while still achieving the State’s goals of


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deterrence and retribution, than awards with [higher] ratios.” State Farm, 538 U.S.

at 425.

      Homeward argues that even a single-digit ratio award offends due process in

this case because of McGinnis’s substantial recovery of other damages. Homeward

relies on dicta in State Farm suggesting that “[w]hen compensatory damages are

substantial, then a lesser ratio, perhaps only equal to compensatory damages, can

reach the outermost limit of the due process guarantee.” Id. However, in that same

discussion the Supreme Court made clear that its suggested ratios were intended to

be “instructive” and that “[t]he precise award in any case . . . must be based upon

the facts and circumstances of the defendant’s conduct and the harm to the

plaintiff.” Id. Further, we have upheld ratios substantially greater than 1:1 in cases

with large compensatory damages awards. In Action Marine, we upheld a punitive

damages award of $17.5 million despite a sizeable $3.2 million compensatory

damages award (a ratio of nearly 5.5:1) where the defendant’s conduct was

“exceedingly reprehensible.” 481 F.3d at 1321. Similarly, in Goldsmith, we upheld

a ratio of 9.2:1 on the basis of particularly reprehensible behavior after the jury

awarded $54,321 in compensatory damages. 513 F.3d at 1283. And in Bogle v.

McClure, 332 F.3d 1347, 1362 (11th Cir. 2003), we upheld a punitive damages

award of $2,000,000 where the plaintiff recovered $500,000 in compensatory

damages, a ratio of 4:1.


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       Homeward argues that we must discount emotional distress damages when

conducting the ratio analysis, but our case law has held otherwise. In Bogle, we

upheld a substantial punitive damages award of $2,000,000 even though the

$500,000 in compensatory damages award was based entirely on emotional

distress. Id. at 1359, 1362. Similarly, in Goldsmith, we made no distinction

between economic and emotional distress damages when upholding a punitive

damages award of $500,000 based on a $54,321 award, half of which consisted of

damages for emotional distress. 513 F.3d at 1275, 1283. Further, Homeward’s

assertion that the damages for emotional distress contained a punitive element in

this case is unfounded because the trial court instructed the jury to base its

compensatory damages award only on its determination of the appropriate amount

to compensate McGinnis for her injury.

       The final Gore guidepost we must consider is the amount of civil penalties

authorized or imposed in comparable cases. Homeward asks us to compare the

punitive damages award to the civil penalties available under RESPA for failure to

provide an escrow analysis.4 However, Homeward has failed to identify any



4
  This provision of RESPA provides: “In the case of each failure to submit a statement to a
borrower as required under subsection (c) of this section, the Secretary shall assess to the lender
or escrow servicer failing to submit the statement a civil penalty of $50 for each such failure, but
the total amount imposed on such lender or escrow servicer for all such failures during any 12-
month period referred to in subsection (b) of this section may not exceed $100,000.” 12 U.S.C. §
2609(d)(1). Intentional violations carry a $100 penalty and the $100,000 cap does not apply. Id.
§ 2609(d)(2).
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similar cases in which RESPA penalties were actually applied. And, in any event,

RESPA provides little if any guidance in this case because Homeward’s conduct

involved far more than failing to provide escrow statements. Homeward refused to

justify or correct the payment increase and repeatedly demanded payments to

which it knew it was not entitled through numerous phone calls and collection

letters. At the same time, Homeward used a suspense account to “deduct[], as its

own income,” even more in late fees and expenses that it was aware were based on

an unreasonable increase in McGinnis’s monthly payments. McGinnis, 240 F.

Supp. 3d at 1351.

       In sum, after considering all of the Gore factors, we conclude that the jury’s

punitive damages award is not grossly excessive in relation to the State’s

legitimate interest in deterring Homeward’s conduct, and therefore, does not

violate the due process rights of Homeward.

B.     The District Court Did Not Abuse Its Discretion by Concluding the Jury’s
       Finding of Specific Intent Was Not against the Weight of Evidence.

       We review the district court’s decision to deny a new trial for abuse of

discretion. 5 Rule 59 of the Federal Rules of Civil Procedure6 allows a district court



5
  McGinnis argues that Homeward lost its right to challenge the jury’s finding of specific intent
under Rule 59 because it failed to make that argument under Rule 50. We disagree. This Court
instructed the district court on remand to consider “Homeward’s Rule 59 motion for a new trial
on the issue of punitive damages.” McGinnis, 817 F.3d at 1264. And although a movant cannot
use Rule 59 to press matters that could have been pressed earlier, Michael Linet, Inc. v. Village
of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005), Rule 50 motions “are not prerequisites
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to order a new trial if it determines that that the jury’s verdict is against the weight

of the evidence presented at trial. Montgomery Ward & Co. v. Duncan, 311 U.S.

243, 251 (1940); Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.

1984).

       Homeward argues that the punitive damages award unlawfully exceeded the

$250,000 statutory cap in O.C.G.A. § 51-12-5.1(g) because there was no evidence

from which a jury could conclude that it acted with the specific intent to harm

McGinnis. Georgia law caps punitive damages at $250,000 unless “it is found that

the defendant acted, or failed to act, with the specific intent to cause harm,” in

which case there is no statutory limitation. O.C.G.A. § 51-12-5.1(f), (g). Specific

intent to cause harm exists where an actor desires to cause the harm resulting from

his or her actions or believes that the resulting harm is substantially certain to

result from his or her actions. Action Marine, 481 F.3d at 1313.7 In other words,

specific intent can be established by showing that the actor engaged in a course of

conduct even though he or she believed the conduct was almost certain to cause



to a motion for a new trial,” Urti v. Transp. Commercial Corp., 479 F.2d 766, 769 (5th Cir.
1973). Here, Homeward’s argument that the jury’s finding of specific intent is against the weight
of the evidence could not have been made until after the jury reached a verdict.
6
  “The court may, on motion, grant a new trial on all or some of the issues—and to any party—as
follows: . . . after a jury trial, for any reason for which a new trial has heretofore been granted in
an action at law in federal court.” Fed. R. Civ. P. 59.
7
  The district court in the instant case gave the jury an instruction on the definition of specific
intent nearly identical to the definition used by the Action Marine court. See Action Marine, 481
F.3d at 1313. Because Homeward did not object to that instruction it cannot now argue that more
is required to establish specific intent. See id.
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harm. McGinnis, 240 F. Supp. 3d at 1349.8 The district court determined that it

was not against the weight of the evidence for the jury to conclude that Homeward

knew its conduct was substantially certain to cause McGinnis emotional harm from

four pieces of evidence: Homeward’s awareness of its error and refusal to retract

its demands, Homeward’s use of the suspense account, Homeward’s knowledge of

the emotional harm suffered by McGinnis, and Homeward’s offer to avoid

foreclosure. We agree.

       First, the jury’s finding of specific intent was supported by evidence

showing Homeward knew its escrow analysis was in error yet proceeded to

demand payment repeatedly without explanation and then foreclose on McGinnis’s

property. See DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 450, 662

S.E.2d 141, 148 (2008) (concluding that proceeding to foreclosure based on a

known calculation error could constitute extreme or outrageous conduct supporting

a claim for IIED). At trial, McGinnis presented evidence that she and Adam

repeatedly made good-faith attempts to inform Homeward of its escrow calculation

error. McGinnis, 817 F.3d at 1259. Undeterred, Homeward continued to demand

payment of the unexplained amount, collect unwarranted late fees, and proceed to



8
 Homeward argues that an intentional tort is not the same as specific intent. That is correct. But
as the district court explained, specific intent does not only mean having the desire to cause harm
but also “engag[ing] in a course of conduct despite knowing that it would almost certainly” cause
harm. McGinnis, 240 F. Supp. 3d at 1349. It is the latter meaning of specific intent that the
district court determined, and we agree, a jury could find supported by the evidence here.
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foreclosure without ever justifying the increase. And, even at trial, Homeward

failed to produce any justification for the increase and insisted that McGinnis was

required to pay any amount Homeward demanded. McGinnis, 817 F.3d at 1259.

      Second, Homeward’s use of the suspense account could support the jury’s

finding of specific intent. The evidence at trial showed that once McGinnis refused

to pay the unexplained increase, Homeward began putting her payments in a

suspense account from which it “deducted, as its own income, late fees and other

expenses.” McGinnis, 240 F. Supp. 3d at 1351. Further, “according to the evidence,

Homeward was, while collecting these fees, also aware that it had increased

McGinnis’s monthly escrow payment by more than 300 percent,” id., and as a

consequence, that the fees and penalties were not in fact owed. Therefore, “the jury

could have considered Homeward’s use of the suspense account as evidence of

specific intent to harm” McGinnis by forcing her “to pay amounts in excess of

what she owed, by requiring her to pay penalties and fees . . . or by decreasing the

likelihood that she would be able to cure the default and avoid foreclosure.” Id.

      Third, a jury could infer from the evidence that Homeward knew its conduct

was substantially certain to cause McGinnis emotional harm. The evidence showed

that Adam explained to Homeward in writing that its conduct was causing him and

Jane “und[ue] stress” and mentioned over the phone the frustration caused by

Homeward’s conduct. In addition, as the district court explained, a jury could infer


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that Homeward knew its conduct was substantially certain to cause emotional

distress from “the sheer volume of adversarial communications . . . and looming

threats of foreclosure.” McGinnis, 240 F. Supp. 3d at 1352. We explained similarly

in the prior appeal in this case that “Homeward almost certainly learned the stakes

involved with the foreclosure,” including McGinnis’s livelihood and reputation in

the community. McGinnis, 817 F.3d at 1259. Accordingly, the jury’s finding of

specific intent was supported by evidence that Homeward knew its conduct was

almost certain to cause McGinnis emotional harm. 9

       Finally, the district court did not abuse its discretion by concluding that

Homeward’s offer to let McGinnis bring her account current and avoid foreclosure

was not contrary to the jury’s finding of specific intent. Although McGinnis could

have avoided foreclosure, she “would have had to give in to all of Homeward's

existing demands,” including by paying the unexplained monthly payment amount

as well as all of the late fees and penalties. McGinnis, 240 F. Supp. 3d at 1352. In

other words, she would have suffered the same harm even if she brought the

account current. Therefore, Homeward’s offer to allow McGinnis to bring the



9
  Homeward argues that because it directed most of its correspondence to Adam, it could not
have known its conduct was causing Jane emotional harm. We are unpersuaded. Jane was
present on at least some of the phone calls between Adam and Homeward (and certainly should
be expected to be aware of correspondence regarding her property, even if addressed to Adam).
Adam also informed Homeward that the correspondence was causing both of them “und[ue]
stress.” Moreover, it is hard to see how Homeward could believe that Adam, as Jane’s agent, was
not telling her everything that was happening.
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account current does not contradict the jury’s finding that Homeward knew its

conduct was substantially certain to cause McGinnis harm regardless of whether

she brought the account current. In sum, we conclude that the district court did not

abuse its discretion by determining that the jury’s finding of specific intent was not

against the weight of evidence.

      Homeward also argues that upholding the district court’s decision not to

reverse the jury’s award in the instant case would make a substantial punitive

damages award available in every foreclosure action wrongful or not. We disagree.

Homeward’s conduct went well beyond ordinary threats to foreclose. McGinnis

repeatedly attempted to notify Homeward of the error in its billing, but Homeward

never retracted or justified its demands. In fact, it continued to demand that

McGinnis make the increased payments even at trial where Homeward’s only

witness maintained that McGinnis was obligated to pay any amount Homeward

demanded whether reasonable or in error. Adam testified that Homeward’s

demands had “become a constant fixture of [Jane and Adam’s] lives and resulted in

a stack of collection letters that would reach five feet high. McGinnis, 817 F.3d at

1258. Homeward continued to send those demands and threaten foreclosure even

though it knew that those demands were unreasonable and that its actions were

causing McGinnis harm. At the same time, Homeward used a suspense account to




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collect even more money to which it was not entitled by way of fees and expenses.

The egregious actions in this case were not typical.



                              V.     CONCLUSION

      The judgment of the district court is AFFIRMED.




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