15‐1403‐cv
Crawford v. Franklin Credit Mgmt. Corp. et al.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 15‐1403‐cv
LINDA D. CRAWFORD,
Plaintiff‐Counter‐Defendant‐Appellant,
v.
TRIBECA LENDING CORP., FRANKLIN CREDIT MANAGEMENT CORP.,
Defendants‐Counter‐Claimants‐Cross‐Claimants‐Appellees,
AND LENDERS FIRST CHOICE AGENCY, INC.,
Defendant‐Cross‐Defendant‐Appellee.
________
Appeal from the United States District Court
for the Southern District of New York
________
SUBMITTED: FEBRUARY 29, 2016
DECIDED: MARCH 8, 2016
________
Before: CABRANES, PARKER, and LYNCH, 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.
________
PER CURIAM :
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
3
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 identical
6
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 advisory
7
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 the
8
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 introduced
9
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 in
10
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 not
12
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).
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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.