1 14-1163-cv Krishtul v. VSLP

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4 th day of May, two thousand and sixteen.
Present: JOHN M. WALKER, JR., GUIDO CALABRESI, PETER W. HALL, Circuit Judges

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____________________________________________________ I GOR K RISHTUL , Plaintiff-Counter-D efendant–Appellant , v. No. 14-1163-cv
VSLP U NITED , LLC, Defendant-Counter-Claimant–Appellee

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_____________________________________________________ For Plaintiff-Counter-D efendant–Appellant: I GOR K RISHTUL , pro se, Brooklyn, NY. For Defendant-Counter-Claimant–Appellee: T HOMAS J. H ALL , Hall & Hall LLP, Staten Island, NY.

____________________________________________________ Appeal from a judgment of the United States District Court for th e Eastern District of New York (Reyes, M.J. ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Igor Krishtul, pr oceeding pro se, appeals th e district court’s judgment dismissing his complaint under the Truth in Le nding Act (“TILA”) and the Home Ownership Equity Protection Act (“HOEPA”). Appellant sued VSLP United, LLC (“VSLP”) seeking rescission of two loans, which were secure d by a lien on Appellant’s Brooklyn cooperative apartment. Appellant claims that VSLP viol ated TILA and HOEPA by failing to disclose required information pertaining to the loans. Afte r a bench trial, the di strict court found that VSLP was not a creditor under TILA because A ppellant failed to show that the loan was procured by a mortgage broker. We assume the part ies’ familiarity with th e underlying facts, the procedural history of the cas e, and the issues on appeal. Although the parties dispute whet her the loans at issue were consumer or business loans, this appeal turns on how the dist rict court defined “mortgage broke r” under TILA. The term was undefined at the time of the releva nt transactions in this case. The Federal Reserve subsequently promulgated a regulation that de fines a mortgage broker as one who, “for compensation or other monetary gain, . . . arranges, negotiates, or otherw ise obtains an extension of consumer credit for another person . . . [and] is not an employee of the creditor. ” 12 C.F.R. § 226.36(a)–(b). We defer to the Federal Reserve’s reasonable in terpretation of an ambi guous term in TILA. Vincent v. The Money Store , 736 F.3d 88, 105-06 (2d Cir. 2013). In th is case, we conclude that this definition of a mortgage broker is reasonable. Applying that definition here, we conclude that the magistra te judge did not commit clear error when it found, after a bench trial, that A ppellant had failed to establish the loans were3 procured by a mortgage broker. 1 See Bessemer Trust Co., N.A. v. Branin , 618 F.3d 76, 85 (2d Cir. 2010) (“In reviewing a district court’s decision in a bench trial, we review the district court’s findings of fact for clear erro r and its conclusions of law de novo .”). Appellant’s testimony that he believed Zybin was paid for hi s services in arranging the loan transaction was contradicted by VSLP’s witnesses who testified th at Zybin was not paid at all. The magistrate judge did not commit clear error in crediting VSLP’s witnesses’ testimony. Arch Ins. Co. v. Precision Stone,
Inc. , 584 F.3d 33, 39 (2d Cir. 2009) (“In reviewing findi ngs for clear error, we are not allowed to second-guess the trial court’s choice between perm issible competing inferences, because in that case, the factfinder’s choice cannot be clearly e rroneous.” (internal quot ations, citations, and alterations omitted)). We find no abuse of discretion in the magist rate judge’s grant of an unopposed motion in limine to exclude Appellant’s unauthenticated emails. Crawford v. Tribeca Lending Corp. , 815 F.3d 121, 126 (2d Cir. 2016) (“Federal Rule of Eviden ce 901(a) requires that an item of evidence be ‘authenticated’ through introdu ction of evidence sufficient to wa rrant a finding that the item is what the proponent says it is.”); cf. United States v. Vayner , 769 F.3d 125, 130–32 (2d Cir. 2014) (finding abuse of discretion where the district court admitted an unauthenticated printout of a criminal defendant’s purported profile page from a Russian soci al networking site).

1 When the district court ruled on VSLP’s summary judgment mo tion, the Appellant was estopped from claiming that Broadscope and Epel man were mortgage brokers because Appellant had acknowledged at the loan closing that they were being paid for services unrelate d to the loan transaction and VSLP had re lied on Appellant’s acknowledg ement to its detriment. See Republic of Ecuador v. Chevron Corp. , 638 F.3d 384, 400 (2d Cir. 2011) (“Eq uitable estoppel is properly invoked where the enforcement of th e rights of one party would wo rk an injustice upon the other party due to the latter’ s justifiable reliance upon the former’s words or conduct.” (internal quotation omitted)). Moreover, in the particular circumstances of this case and given the sophistication of the parties, we have no reason to doubt the validity of the acknowledgement.4 Finally, we find no abuse of discretion in the ma gistrate judge’s award of attorneys’ fees. The loan security agreements permitted attorneys’ fees if the defendant was forced to defend its security interest, and Appellant’s complaint sought to void the security interest. The magistrate judge properly considered the rele vant factors and awarded reasonabl e attorneys’ fees and costs. Carco Grp., Inc. v. Maconachy , 718 F.3d 72, 86–87 (2d Cir. 2013). We have considered all of Appellant’s argum ents and have found in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk