15

‐ 1403

‐ cv

Crawford v. Franklin Credit Mgmt. Corp. et al.



## In the



# United States Court of Appeals

**For the Second Circuit**

________

A UGUST T ERM 2015

No. 15

‐ 1403

‐ cv

L INDA D. C RAWFORD

, Plaintiff

‐ Counter

‐ Defendant

‐ Appellant,

v.

T RIBECA L ENDING C ORP

., F RANKLIN C REDIT M ANAGEMENT C ORP

., Defendants

‐ Counter

‐ Claimants

‐ Cross

‐ Claimants

‐ Appellees,

AND L ENDERS F IRST C HOICE A GENCY

, I NC

., Defendant

‐ Cross

‐ Defendant

‐ Appellee.

________

Appeal from the United States District Court

for the Southern District of New York

________

S UBMITTED : F EBRUARY 29, 2016

D ECIDED : M ARCH 8, 2016

________

Before: C ABRANES

, P ARKER

, and L YNCH

, Circuit Judges

.

________2

Plaintiff

‐ appellant Linda D. Crawford appeals an April 22,

2015 judgment of the United States District Court for the Southern

District of New York (Kimba M. Wood, Judge ). She argues that the

District Court erred in denying her post

‐ verdict motion for

judgment as a matter of law or, in the alternative, for a new trial.

She also challenges the admission of certain items of evidence over

objections predicated on the bar against propensity evidence, see

Fed. R. Evid. 404(a), the requirement of authentication, see Fed. R.

Evid. 901, the rule against hearsay, see Fed. R. Evid. 802, and the so

‐

called “best evidence” rule, see Fed. R. Evid. 1002. Finding no error,

we AFFIRM

.

________

Krishnan S. Chittur, Chittur & Associates, P.C.,

Ossining, NY, for Plaintiff

‐ Appellant.

Martin C. Bryce, Jr., Ballard Spahr LLP,

Philadelphia, PA, for Defendants

‐ Appellees.

________

P ER C URIAM :

Plaintiff

‐ appellant Linda D. Crawford appeals an April 22,

2015 judgment of the United States District Court for the Southern

District of New York (Kimba M. Wood, Judge ). She argues that the

District Court erred in denying her post

‐ verdict motion for

judgment as a matter of law or, in the alternative, for a new trial.

She also challenges the admission of certain items of evidence over

objections predicated on the bar against propensity evidence, see3

Fed. R. Evid. 404(a), the requirement of authentication, see Fed. R.

Evid. 901, the rule against hearsay, see Fed. R. Evid. 802, and the so

‐

called “best evidence” rule, see Fed. R. Evid. 1002. Finding no error,

we AFFIRM

.

BACKGROUND

Crawford brought this suit against defendants

‐ appellants

Tribeca Lending Corp. (“Tribeca”), Franklin Credit Management

Corp. (“Franklin Credit”), and Lenders First Choice Agency, Inc.

(“Lenders First”) (jointly, “defendants”) alleging common

‐ law fraud

and violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §

1601 et seq.

, in connection with a mortgage loan. 1 According to

Crawford, defendants contacted her in November 2004 to offer her a

loan that would enable her to satisfy two existing mortgages on her

home (then in foreclosure). Crawford was interested, and when

defendants asked her to provide them with samples of her signature,

she obliged: she met with defendants’ representative at John F.

Kennedy International Airport (“JFK”) on December 11, 2004, and

signed several blank sheets of paper. Crawford contends that she

never agreed to the loan. Defendants, however, armed with samples

of Crawford’s signature, forged a host of documents and thereby

1 “TILA’s declared purpose is ‘to assure a meaningful disclosure of credit

terms so that the consumer will be able to compare more readily the various

credit terms available to him and avoid the uninformed use of credit

. . . .’”

Poulin v. Balise Auto Sales, Inc.

, 647 F.3d 36, 39 (2d Cir. 2011) (quoting 15 U.S.C. §

1601(a)). Crawford’s complaint alleged that defendants failed to make a number

of disclosures that TILA requires.4

manufactured a $504,000 mortgage on Crawford’s house. They later

foreclosed.

Defendants dispute this account. At trial, they offered

evidence tending to show that, during the meeting at JFK, Crawford

signed not blank sheets of paper but actual loan documents. The

jury sided with defendants and returned a verdict in their favor on

both the fraud and TILA claims. Crawford moved for judgment as a

matter of law under Federal Rule of Civil Procedure 50 or, in the

alternative, for a new trial under Federal Rule of Civil Procedure 59.

The District Court denied the motion. Crawford v. Franklin Credit

Mgmt. Corp.

, No. 08 Civ. 6293 (KMW), 2015 WL 1378882 (S.D.N.Y.

Mar. 26, 2015). On appeal, Crawford challenges that denial, as well

as several evidentiary rulings made during the course of the trial.

DISCUSSION

I. The District Court’s Evidentiary Rulings

We begin with Crawford’s evidentiary challenges, reviewing

the District Court’s rulings for “abuse of discretion.” Keepers, Inc. v.

City of Milford

, 807 F.3d 24, 34 (2d Cir. 2015). “A district court has

abused its discretion if it based its ruling on an erroneous view of

the law or on a clearly erroneous assessment of the evidence, or

rendered a decision that cannot be located within the range of

permissible decisions.” Id. (internal quotation marks omitted).5

A. Testimony of Anthony Decarolis

Crawford first takes issue with testimony offered by Anthony

Decarolis. Decarolis, a lawyer, told the jury that he had met with

Crawford at JFK on December 11, 2004 and that he had not asked

her to sign any blank sheets of paper. He was also permitted to

testify that he had handled “more than a thousand” similar loan

signings during his career, “[s]pecifically in [ ] 2004

‐ 2005,” when

many homeowners were refinancing; that during that time period, it

had not been “uncommon to have 10 [signings] on the schedule a

week”; that his “[t]ypical[ ]” practice when conducting a signing was

to hand documents to the borrower, one by one, and briefly explain

each; and that, though he could not recall all the particulars of his

meeting with Crawford, he would not have deviated meaningfully

from his “usual procedure” during the transaction. Defs.’ App. 7

‐ 9.

Crawford argues that Decarolis’s testimony about his typical

practice, offered to prove that he had acted in conformity with that

practice on December 11, 2004, constituted propensity evidence

barred by Federal Rule of Evidence 404(a).

We disagree. Although Rule 404(a) deems inadmissible

“[e]vidence of a person’s character or character trait

. . . [offered] to

prove that on a particular occasion the person acted in accordance

with the character or trait,” Federal Rule of Evidence 406 provides

that “[e]vidence of a person’s habit or an organization’s routine

practice may be admitted to prove that on a particular occasion the

person or organization acted in accordance with the habit or routine

practice.” Character and habit, though “close akin,” are not identical6

concepts. Fed. R. Evid. 406 advisory committee’s note to 1972

proposed rule (internal quotation marks omitted). Character may be

thought of as “a generalized description of one’s disposition,” while

habit “is more specific”: “[i]t describes one’s regular response to a

repeated specific situation.” Id. (internal quotation marks omitted).

Consistent with these principles, we held in Carrion v. Smith that

Rule 406 permitted testimony by a lawyer that it was his “usual

practice” to discuss with clients their sentencing exposure should

they go to trial, offered to prove that the lawyer had discussed that

topic with a particular client on a particular occasion. Carrion v.

Smith

, 549 F.3d 583, 586

‐ 87, 590 (2d Cir. 2008); see also United States v.

Arredondo

, 349 F.3d 310, 315

‐ 16 (6th Cir. 2003) (“Plachta testified that

he always passed on plea offers to clients. He had already

represented five to fifteen criminal defendants in federal court at the

time of Arredondo’s trial, and had undertaken more representations

since then. In light of Plachta’s experience, his habit testimony was

admissible under Fed. R. Evid. 406 to show that he acted in

conformity with that habit in this case.”).

We see no meaningful difference between Carrion and this

case. Decarolis testified that he had conducted more than a

thousand signings like Crawford’s—many of them in 2004 and 2005,

when he was sometimes conducting ten a week—and that, during

these transactions, he always showed the borrower the documents to

be signed, explaining their significance as he went. This practice

constitutes the sort of “regular response to a repeated specific

situation” contemplated by Rule 406. Fed. R. Evid. 406 advisory7

committee’s note to 1972 proposed rule (internal quotation marks

omitted). The District Court thus acted within its discretion in

admitting Decarolis’s testimony.

B. The Loan Documents

Crawford’s next evidentiary challenge concerns the loan

documents themselves. The District Court admitted 34 such

documents into evidence. Only three—the mortgage itself, the

adjustable rate note, and the adjustable rate rider—were originals

(that is, actually signed in ink). The others were photocopies.

Crawford argues that, for several reasons, the photocopied

documents were inadmissible. We are not convinced.

Crawford first contends that the loan documents should have

been excluded as hearsay under Federal Rule of Evidence 802. This

argument is easily rejected. The rule against hearsay bars

introduction of an out

‐ of

‐ court statement only if it is offered to

prove the truth of what it asserts. Fed. R. Evid. 801(c), 802.

Defendants offered the loan documents not to demonstrate the truth

of any assertions contained therein, but for either of two permissible

purposes. The first was to show that Crawford entered into the loan

agreement. This point was susceptible of proof without reference to

the truth of any assertions in the documents because the

“statements” introduced (i.e., the information in the documents,

combined with Crawford’s signature) carried independent legal

force: they constituted a contract. See United States v. Dupree

, 706

F.3d 131, 137 (2d Cir. 2013) (statements that in themselves affect the8

legal rights of parties are not hearsay). Defendants’ second purpose

was simply to show that Crawford had received the disclosures that

TILA mandates. The presence of Crawford’s signature on the pages

containing those disclosures achieved that end quite apart from the

truth of what the documents asserted. See George v. Celotex Corp.

, 914

F.2d 26, 30 (2d Cir. 1990) (demonstrating notice is a permissible

nonhearsay purpose).

Resisting this conclusion, Crawford argues that the loan

documents cannot accomplish these nonhearsay purposes unless

they are what they purport to be—i.e., loan documents bearing

Crawford’s true signature—and are therefore inadmissible hearsay

because there is no evidence (according to Crawford) that she

actually signed the agreement. But this is not a hearsay objection.

Whether Crawford signed the papers or not, defendants did not

offer them to prove the truth of whatever assertions they might

contain. The rule against hearsay has nothing to say about them.

Crawford’s argument in fact concerns authentication, not

hearsay. Federal Rule of Evidence 901(a) requires that an item of

evidence be “authenticated” through introduction of evidence

sufficient to warrant a finding that the item is what the proponent

says it is. “Rule 901 does not erect a particularly high hurdle” and is

“satisfied if sufficient proof has been introduced so that a reasonable

juror could find in favor of authenticity or identification.” United

States v. Tin Yat Chin

, 371 F.3d 31, 37

‐ 38 (2d Cir. 2004) (internal

quotation marks omitted). Defendants met this standard with

respect to the photocopied loan documents. They introduced9

testimony from several witnesses tending to demonstrate that the

documents were what defendants claimed they were (that is, true

copies of originals signed by Crawford, rather than fakes). Melissa

Olivera, a Franklin Credit employee, testified that she had seen the

original loan documents and that the photocopies faithfully reflected

the originals. See Fed. R. Evid. 901(b)(1) (an item of evidence may be

authenticated through testimony of a witness with knowledge).

Defendants’ handwriting expert, Andrew Sulner, testified that, in

his opinion, the signatures on the documents were Crawford’s, and

that the signatures did not appear to have been forged mechanically

or added to the documents digitally. See Fed. R. Evid. 901(b)(3) (an

item of evidence may be authenticated through “[a] comparison

with an authenticated specimen by an expert witness”). And

Decarolis, as discussed, testified that he had met with Crawford to

close a refinancing transaction and had no reason to think she had

not signed all of the relevant paperwork. This evidence easily

cleared the hurdle of Rule 901(a).

Finally, we reject Crawford’s argument that admission of the

photocopies violated the so

‐ called “best evidence” rule. Federal

Rule of Evidence 1002 provides that if a party wishes to prove the

content of a writing, it generally must do so by introducing the

original. But this command is subject to a handful of exceptions. As

relevant here, an original is not required, and secondary evidence

may be admitted to prove the content of a writing, if “all the

originals are lost or destroyed, and not by the proponent acting in10

bad faith.” Fed. R. Evid. 1004(a). 2 It is for the trial court to

determine whether these factual predicates—which the proponent

must prove by a preponderance of the evidence—have been

satisfied. See Fed. R. Evid. 104(a), 1008; Daubert v. Merrell Dow

Pharm., Inc.

, 509 U.S. 579, 592 n.10 (1993).

The District Court did not “abuse its discretion” in concluding

that the original loan documents had been lost, and not by

defendants’ bad faith. As has been discussed, defendants presented

evidence from Olivera, Sulner, and Decarolis indicating that

originals had once existed (a necessary condition of showing that

they went missing, and a matter of dispute in this case). Testimony

2 We pause to note an oddity. The District Court determined that the

copies were admissible under Rule 1004(a) without considering whether they

might be admitted under Federal Rule of Evidence 1003. It is not perfectly clear

why that is so: the photocopies appear to qualify as “duplicates” under Federal

Rule of Evidence 1001(e), and Rule 1003 provides that “[a] duplicate is

admissible to the same extent as the original unless a genuine question is raised

about the original’s authenticity or the circumstances make it unfair to admit the

duplicate.”

It has been suggested in some quarters that if a duplicate is inadmissible

under Rule 1003 because of a genuine question about the original’s authenticity,

it should not be admitted through the backdoor of Rule 1004. See, e.g.

, Charles

Alan Wright & Victor James Gold, 31 Federal Practice and Procedure: Evidence §

8003 (1st ed. 2000). If this rule is sound (an issue on which we intimate no view),

its corollary should prevent a party from evading the test of Rule 1003 by seeking

in the first instance to admit a duplicate through Rule 1004—as apparently

occurred in this case. But we need not consider this question. Crawford did not

argue below that Rule 1003 bore at all on the admissibility of the photocopies,

and she does not so argue here. We will therefore assume that the photocopies’

admissibility may properly be considered under the framework of Rule 1004.11

from multiple sources demonstrated that the originals were no

longer in defendants’ possession, see App. 134, 253, and Olivera

testified that they had been sent to prior counsel in 2009 and never

seen again, Defs.’ App. 27. Prior counsel, for its part, had informed

Crawford in 2009 that it had in its possession a few original

documents from Crawford’s loan file (the originals later introduced

into evidence) but said nothing about the rest. App. 135. Though it

is true, as Crawford stresses, that defendants provided the District

Court with little information concerning the extent of their search for

the originals, we cannot say that the Court “abused its discretion” in

determining that the documents, absent from defendants’ files and

evidently from prior counsel’s, had been lost. Nor was the Court

unjustified in concluding that defendants had not acted in bad faith.

It considered and found wanting Crawford’s arguments regarding

irregularities in the loan file and purported inconsistencies in

defendants’ testimony. It acted well within its discretion in so

doing.

II. Crawford’s Post

‐ Trial Motions

We now turn to Crawford’s Rule 50 and Rule 59 motions.

Crawford failed to seek judgment as a matter of law under Rule

50(a) before the case was submitted to the jury; thus, as the District

Court correctly ruled, her motion could properly have been granted

only if necessary “to prevent manifest injustice.” Lore v. City of

Syracuse

, 670 F.3d 127, 153 (2d Cir. 2012). In reviewing the District

Court’s denial, we must “give deference to all credibility

determinations and reasonable inferences of the jury, and may not12

weigh the credibility of witnesses or otherwise consider the weight

of the evidence.” Kinneary v. City of New York

, 601 F.3d 151, 155 (2d

Cir. 2010).

We have no trouble concluding that Crawford’s Rule 50

arguments fail, and see no reason to rehash the preceding discussion

of the relevant evidence. Suffice it to say that the testimony from

Olivera, Sulner, and Decarolis, together with the loan documents,

was more than adequate to warrant the jury in finding for

defendants on the case’s central issue—that is, whether Crawford

had actually signed a loan agreement at JFK. Crawford’s arguments

to the contrary are jury arguments, and the jury was at liberty to

reject them.

Nor do we find any error in the District Court’s denial of

Crawford’s Rule 59 motion for a new trial, a denial we review for

“abuse of discretion.” Nimely v. City of New York

, 414 F.3d 381, 392

(2d Cir. 2005). A district court may grant a Rule 59 motion—even if

some evidence supports the verdict—if the court determines, “in its

independent judgment, [that] the jury has reached a seriously

erroneous result or [its] verdict is a miscarriage of justice.” Id.

(second alteration in original) (internal quotation marks omitted).

But a trial judge should not be quick to revisit a jury’s credibility

determinations, and must proceed “with caution and great restraint”

when asked to do so. Raedle v. Credit Agricole Indosuez

, 670 F.3d 411,

418 (2d Cir. 2012).13

In this case, Judge Wood properly heeded that admonition.

As her opinion recognizes, “[t]he jury’s verdict suggests that the jury

found Defendants’ witnesses

. . . sufficiently credible, or Crawford’s

witnesses sufficiently incredible, to warrant a verdict in Defendants’

favor.” Crawford

, 2015 WL 1378882, at *8. Judge Wood found

nothing in the record to warrant upsetting that verdict. Neither do

we. Accordingly, we conclude that the District Court did not err in

denying Crawford’s motion for a new trial.

CONCLUSION

In sum, we find no error in the District Court’s denial of

Crawford’s motion for judgment as a matter of law, and we

conclude that the Court acted within its discretion in denying

Crawford’s motion for a new trial and rejecting her evidentiary

challenges. We thus AFFIRM the April 22, 2015 judgment of the

District Court.