NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 22-1521 ________________

CHRISTOPHER BAINBRIDGE; KELLY BAINBRIDGE, Individually and as h/w,

Appellants

v.

U.S. BANK, N.A. AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN TRUST ASSET-BACK CERTIFICATES SERIES 2007-CB6; OCWEN LOAN SERVICING LLC, f/d/b/a AHMSI; UDREN LAW OFFICES, P.C. ________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-16-cv-00411) District Judge: Honorable Malachy E. Mannion ________________

Submitted under Third Circuit L.A.R. 34.1(a) on January 13, 2023

Before: JORDAN, PHIPPS and ROTH, Circuit Judges

(Opinion filed: November 7, 2023)

________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. JORDAN, Circuit Judge

Christopher and Kelly Bainbridge sued U.S. Bank, N.A. and Ocwen Loan

Servicing LLC, alleging violations of the Fair Debt Collection Practices Act (FDCPA)

and Pennsylvania’s Dragonetti Act.

, et seq.;

,

et seq. The District Court entered summary judgment against the Bainbridges, and they

now appeal.1 The Bainbridges also contend that the District Court should not have ruled

that their expert’s proposed testimony was inadmissible and should have compelled U.S.

Bank and Ocwen to divulge attorney-client privileged communications.

For the reasons that follow, we will affirm.

I. BACKGROUND2

U.S. Bank is a mortgage lender and Ocwen, a loan servicer, and they sued the

Bainbridges for foreclosure in Pennsylvania state court. The Bainbridges won that round.

The state court said Ocwen’s sole witness did not know when the Bainbridges began to

default on their payments, and the court expressed “serious concerns as to whether all

payments to [the prior loan servicer] on this loan were accounted for correctly.” (J.A. at

954 n.1.) Nonetheless, it held that, based on the evidence, “Ocwen believed it had taken

over servicing of a delinquent account[.]” (J.A. at 954 n.1.) The Bainbridges themselves,

at least at one point, acknowledged that the primary purpose of U.S. Bank’s and Ocwen’s

1 They concede their FDCPA claims so we only consider their Dragonetti Act claim. (Reply Br. at 1–2, 10–11.) 2 A protracted and complex procedural history preceded this dispute. Because we write primarily for the parties, we discuss the facts and proceedings only to the extent necessary to resolve this matter.

2 lawsuit was to recover a loan that those entities believed was due. (J.A. at 523:4–9,

524:21–525:16, 590:10–15.)

After their win in the foreclosure action, the Bainbridges turned the tables on U.S.

Bank and Ocwen and sued them for wrongful use of civil proceedings, invoking

Pennsylvania’s Dragonetti Act. The Dragonetti Act holds a party liable when, in filing or

continuing a lawsuit, that party acted “in a grossly negligent manner or without probable

cause and primarily” for an improper purpose.

(a). According

to the Bainbridges, U.S. Bank and Ocwen knew or should have known that the

foreclosure action lacked evidence, and suing “to collect monies which were not owed” is

an improper purpose. (Dist. Ct. Docket 99 at 9.)

As noted earlier, the District Court ruled for U.S. Bank and Ocwen on summary

judgment, saying the Bainbridges “have produced no evidence that the foreclosure action

was filed for any other purpose than to foreclose on the property.” (J.A. at 107.) That

was enough to defeat the Dragonetti Act claim.

On appeal, the Bainbridges fault the District Court for failing to infer improper

purpose from gross negligence and lack of probable cause. They also contend that the

District Court abused its discretion in discovery. First, they say, the Court should have

pierced U.S. Bank’s and Ocwen’s attorney-client privilege under the crime-fraud

exception and so permitted discovery concerning improper purpose. Second, they argue

that the Court should have allowed their expert to testify about the standard of care in

mortgage foreclosures.

3 II. DISCUSSION3

A. U.S. Bank and Ocwen are not liable under the Dragonetti Act because no reasonable jury could find that the forfeiture suit was filed for an improper purpose.

Pennsylvania’s Dragonetti Act targets the improper use of civil proceedings.

McNeil v. Jordan,

(Pa. 2006). To prevail, a Dragonetti Act plaintiff

bears the “heavy burden” of showing by a preponderance of the evidence that the

defendant lacked probable cause or acted with gross negligence in bringing or continuing

the underlying case and that the proceedings were initiated or continued for an improper

purpose. U.S. Express Lines Ltd. v. Higgins,

(3d Cir. 2002);

(a), 8354; Mi-Lor, Inc. v. DiPentino,

, 1157–58 (Pa.

Super. Ct. 1995). The plaintiff must also show that he won the underlying case and was

damaged by its initiation or continuation.

(2), (5).

A Dragonetti Act defendant establishes probable cause if he demonstrates that he

“‘reasonably believe[d]’ in the facts on which [his lawsuit was] based and in the viability

of the legal theory under which it [was] brought.” Gentzler v. Atlee,

(Pa. Super. Ct. 1995) (quoting

). A defendant is grossly

negligent if he lacks even “slight diligence or care,” or behaves “in reckless disregard of a

3 The District Court had diversity jurisdiction under

. It also had jurisdiction over the FDCPA claim under

and supplemental jurisdiction over the state law claims under

(a). We have jurisdiction pursuant to

. We review a grant of summary judgment de novo, “view[ing] the facts in a light most favorable to the nonmoving party” to determine whether “there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” AT & T Corp. v. JMC Telecom, LLC,

(3d Cir. 2006). A dispute is “‘genuine’ … if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

(1986). 4 legal duty and of the consequences to another party[.]” Hart v. O’Malley,

(Pa. Super. Ct. 2001).

Even if a defendant lacked probable cause to file the underlying lawsuit or acted

with gross negligence, he will not be liable under the Dragonetti Act unless he also

brought or continued the suit for an improper purpose. See Broadwater v. Sentner,

(Pa. Super. Ct. 1999) (analyzing improper purpose after deciding lack of

probable cause.). Section 8354, entitled “Burden of proof” lists “probable cause”

separately from improper purpose.

at (3) - (4).4

An improper purpose is one other than “securing the … adjudication of the claim

on which” the lawsuit is based.

(4). For example, a party can

claim to sue for defamation when their primary purpose is securing the defendant’s

silence. See Bannar v. Miller,

(Pa. Super. Ct. 1997) (defamation

action “brought for an improper purpose, namely to prevent appellees from exercising

their rights under the First Amendment”).

Whether a defendant acted primarily for an improper purpose is a question of fact.

See Restatement (Second) of Torts § 673(2)(b) (“In an action for malicious prosecution

… the jury determines … whether the defendant acted primarily for a purpose other than

that of bringing an offender to justice.”).

4 Section 8354 does not mention “gross negligence.” But the Bainbridges concede that improper purpose is always necessary. (See Opening Br. at 18 (“Even if a party lacked probable cause or acted with gross negligence in filing a suit, that party is not liable under the Dragonetti Act unless the suit also was filed for an improper purpose.”).) 5 The District Court determined that “the defendants brought the foreclosure action

for the primary purpose of foreclosing on the Bainbridges’ property and to recoup monies

owed on their loan[,]” which “constitutes an adjudication of the claim on which the

proceedings were based.” (J.A. at 107.) At deposition, both Bainbridges admitted that

U.S. Bank and Ocwen did not bring the suit to harass or for some motive other than

recouping money thought to be due. (J.A. at 523:4–9, 524:21-525:16, 590:10–15.) The

state judge presiding over the foreclosure action also found, based on the evidence, that

“Ocwen believed it had taken over servicing of a delinquent account.” (J.A. at 954 n.1.)

Despite all of that, the Bainbridges argue that the District Court did not evaluate

whether U.S. Bank and Ocwen lacked probable cause or acted with gross negligence in

bringing and continuing the foreclosure action. (Opening Br. at 19–20.) But the Court

did not have to undertake that analysis because, as the Bainbridges concede (Opening Br.

at 18), a Dragonetti Act plaintiff must always show improper purpose to succeed.

Because no reasonable jury could find that U.S. Bank and Ocwen had an improper

purpose, the Bainbridges cannot succeed on their Dragonetti Act claim.

The Bainbridges also say that the District Court should have inferred improper

purpose from U.S. Bank’s and Ocwen’s gross negligence or lack of probable cause.5

5 The Bainbridges forfeited their gross negligence and probable cause arguments to the extent they rely on the continuation of the foreclosure suit. Before the District Court, the Bainbridges argued only that U.S. Bank and Ocwen lacked probable cause and were grossly negligent in filing the foreclosure action. (See Dist. Ct. Docket 99 at 4, 8.) They never argued that there was gross negligence or a lack of probable cause in continuing the action. Freeman v. Pittsburgh Glass Works, LLC,

(3d Cir. 2013) (“We generally refuse to consider issues that the parties have not raised below.”) 6 (Opening Br. at 19–20.) Although Pennsylvania courts have written that an improper

purpose may be inferred from a lack of probable cause, they have hesitated to make that

inference without at least some evidence of improper purpose. See, e.g., Gentzler,

(declining to dismiss the claim where “[plaintiff] alleged facts of improper

purpose, namely to harass or maliciously injure [plaintiff], and unnecessarily to delay and

increase the cost of litigation”); Broadwater,

(finding a genuine issue of

fact as to whether the lawyer brought the underlying action for personal financial gain in

addition to his client’s interests); Miller v. Pennsylvania R.R. Co.,

, 813 (Pa.

1952) (“It is highly significant that no attempt is made to show malice except by

inference because of alleged lack of probable cause. It is true that such an inference of

the existence of malice is permissible, but it has rarely been sufficient unaided by some

showing of private motive.”).

Accordingly, we will affirm the District Court’s determination that U.S. Bank and

Ocwen are not liable under the Dragonetti Act.

Judge Roth would vacate and remand to the District Court to determine whether the Bainbridges demonstrated that U.S. Bank and Ocwen were grossly negligent or lacked probable cause in bringing the foreclosure action, whether U.S. Bank and Ocwen had an improper purpose in continuing, and not merely filing, the action, and whether it should infer improper purpose from want of probable cause. But we will affirm because a Dragonetti Act plaintiff must always show improper purpose. And, as we’ve already noted, the Bainbridges have forfeited any argument about the continuation of the suit. Finally, Pennsylvania Courts hesitate to make the improper purpose inference without some evidence thereof.

7 B. The District Court did not abuse its discretion in preserving U.S. Bank’s and Ocwen’s attorney-client privilege.6

Before the District Court, the Bainbridges argued that the privilege ought to be

pierced because U.S. Bank and Ocwen relied on the advice of counsel as an affirmative

defense. (Supp. App. at 26–27.) Attorney-client privilege is waived when “the client

asserts a claim or defense, and attempts to prove that claim or defense by disclosing or

describing an attorney client communication.” Rhone-Poulenc Rorer, Inc. v. Home

Indem. Co.,

(3d Cir. 1994). However, “[a]dvice is not in issue merely

because it is relevant[.]”

The District Court correctly concluded that U.S. Bank and

Ocwen did not attempt to prove a claim or defense by disclosing or describing a protected

communication. (J.A. at 79–81; see also Dist. Ct. Docket 39 at 6–8 (listing U.S. Bank

and Ocwen’s affirmative defenses).) And the Bainbridges did not assert otherwise. In

their brief, they cite the standard for “advice of counsel” waiver but do not demonstrate

how U.S. Bank and Ocwen waived the privilege. (Supp. App. at 26–27.) In short, the

District Court did not abuse its discretion in preserving U.S. Bank and Ocwen’s attorney-

client privilege.

The Bainbridges also assert a crime-fraud theory to pierce the privilege. (Opening

Br. at 25–28.) Because they bring it up for the first time on appeal, however, they have

forfeited that argument. Freeman v. Pittsburgh Glass Works, LLC,

(3d

Cir. 2013) (“We generally refuse to consider issues that the parties have not raised

below.”).

6 We review decisions regarding the waiver of attorney-client privilege for abuse of discretion. Livingstone v. N. Belle Vernon Borough,

(3d Cir. 1996). 8 C. The District Court did not abuse its discretion in denying admission of the Bainbridges’ expert testimony.7

An expert cannot usurp the district court’s role by testifying regarding the

governing law or offering legal opinions. Berckeley Inv. Grp., Ltd. v. Colkitt,

, 217 (3d Cir. 2006) (citing Fed. R. Evid. 704). The District Court here determined

that the Bainbridge’s expert report did not explain “any industry policies, customs or

practices relative to the plaintiffs’ case[.]” (J.A. at 89.) Instead, it was “a legal brief in

support of plaintiffs’ Dragonetti claim.” (J.A. at 89.) The Bainbridges concede that “the

court was correct to strike testimony regarding conclusions of law[.]” (Opening Br. at

28.) They argue only that the expert “was prepared to testify” regarding industry

standards of care. (Opening Br. at 28–29.) But a reasonable reading of the expert report

allows the conclusion that it did not argue for an industry standard of care, nor did it

apply industry standards to the facts. Instead, it explored the case’s history, described

Dragonetti Act and Pennsylvania mortgage law, and applied the law to the facts. The

District Court did not abuse its discretion in determining that the expert’s proposed

testimony invaded the province of the court and was therefore inadmissible.

III. CONCLUSION

For the foregoing reasons, we will affirm.

7 We review decisions regarding the admissibility of expert testimony for abuse of discretion. United States v. Gibbs,

(3d Cir. 1999).

9