Preview
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
[6] concerns about juror's commitment to serve constituted
sufficient good cause for her dismissal prior to deliberation;
337 F.Supp.3d 186
and
United States District Court, E.D. New York.
[7] jury's damage awards were against weight of evidence,
Jean Robert SAINT-JEAN, et al., Plaintiffs,
warranting new trial on damages.
v.
EMIGRANT MORTGAGE
Motions granted in part and denied in part.
COMPANY, et al., Defendants.
11 CV 2122 (SJ) (RLM)
| West Headnotes (20)
Signed 08/20/2018
|
[1] Federal Civil Procedure Weight of
Filed 08/30/2018
evidence
Synopsis Federal Civil Procedure Evidence
Background: African-American homeowners and former A court is permitted to enter a judgment as a
homeowners brought action against bank alleging that it matter of law and/or order a new trial following
engaged in predatory practice of originating discriminatory a jury verdict when there is such a complete
and abusive mortgage refinance instruments through equity- absence of evidence supporting the verdict that
stripping “no income, no assets” (NINA) loan program, the jury's findings could only have been the result
in violation of Fair Housing Act (FHA), Equal Credit of sheer surmise and conjecture, or the evidence
Opportunity Act (ECOA), Truth in Lending Act (TILA), and in favor of the movant is so overwhelming that
New York City Human Rights Law. Following jury verdict in a reasonable and fair minded person could not
favor of homeowners, both parties moved for new trial and arrive at a verdict against it. Fed. R. Civ. P. 50(b).
for judgment as a matter of law.
[2] Federal Civil Procedure Evidence
Holdings: The District Court, Johnson, Senior District Judge, Federal Civil Procedure Construction of
held that: evidence
A district court must deny a motion for judgment
[1] sufficientevidence supported jury'sfinding thatbank's
as a matter of law following a jury verdict
predatory mortgage refinancing program was discriminatory;
unless, viewed in the light most favorable to
the nonmoving party, the evidence is such that,
[2] intentional discrimination jury instruction did not fail to
without weighing the credibility of the witnesses
take into account concept of “targeting”;
or otherwise considering the weight of the
evidence, there can be but one conclusion as to
[3] disparate impact jury instruction did not relieve
the verdict that reasonable persons could have
homeowners of their burden to identify specific
reached. Fed. R. Civ. P. 50(b).
discriminatory practice or policy that caused disparity;
[4] waiver jury instruction did not shift burden to homeowner
[3] Federal Civil Procedure Trial Errors
to prove all six factors;
A party is generally entitled to a new trial if the
[5] waiver signed by homeowners was void as against public district court committed errors that were a clear
policy; abuse of discretion that were clearly prejudicial
to the outcome of the trial. Fed. R. Civ. P. 50(b).
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
refinance instruments in violation of Fair
Housing Act (FHA), Equal Credit Opportunity
[4] Federal Civil Procedure Trial Errors Act (ECOA), and New York City Human Rights
Law, where instruction required jury to find
Prejudice to the outcome of a trial, as required
that loan product was “grossly unfavorable”
for a new trial, is measured by assessing the error
to borrower and that bank's effort to make
in light of the record as a whole. Fed. R. Civ. P.
such loans was “motivated, at least in part” by
50(b).
impermissible factors of “race, color, or national
origin.” Consumer Credit Protection Act § 701
et seq., 15 U.S.C.A. § 1691 et seq.; 42 U.S.C.A.
[5] Civil Rights Property and housing
§§ 3604, 3605; New York City Administrative
Civil Rights Evidence Code, § 8-107.
Finance, Banking, and Credit Credit
discrimination; equal credit opportunity
Sufficient evidence supported jury's finding that [7] Civil Rights Loans and financing
bank's predatory mortgage refinancing program Finance, Banking, and Credit Redlining,
was discriminatory, as required for liability reverse redlining, and targeting
under Fair Housing Act (FHA), Equal Credit
Discriminatory animus in connection with a
Opportunity Act (ECOA), and New York City
predatory loan program is not required for
Human Rights Law, including evidence that
liability based on intentional discrimination
bank's “no income, no asset” (NINA) loans
under the Fair Housing Act (FHA), the Equal
focused on homeowners with credit scores
Credit Opportunity Act (ECOA), and the New
under 600, that default interestrate on loans
York City Human Rights Law. Consumer Credit
was 18% after one missed payment, that as
Protection Act § 701 et seq., 15 U.S.C.A. § 1691
percentage of African-American and Latino
et seq.; 42 U.S.C.A. §§ 3604, 3605; New York
residents increased in a community, percentage
City Administrative Code, § 8-107.
of bank's refinance loans that were NINA loans
increased, that bank recruited minority brokers to
sell NINA loans, and that 82% of bank's overall
[8] Civil Rights Property and housing
advertising was in newspapers circulated in areas
with combined African-American and Latino Civil Rights Evidence
population of greater than 80%. Consumer Credit Finance, Banking, and Credit Credit
Protection Act § 701 et seq., 15 U.S.C.A. § 1691 discrimination; equal credit opportunity
et seq.; 42 U.S.C.A. §§ 3604, 3605; New York It is permissible for the trierof fact to infer
City Administrative Code, § 8-107. the ultimate fact of intentional discrimination
from the falsityof the defendant's explanation
for its actions, as a basis for liability under
[6] Civil Rights Property and housing the Fair Housing Act (FHA), the Equal Credit
Civil Rights Instructions Opportunity Act (ECOA), and the New York
City Human Rights Law in connection with
Finance, Banking, and Credit Credit
a predatory loan program. Consumer Credit
discrimination; equal credit opportunity
Protection Act § 701 et seq., 15 U.S.C.A. § 1691
Jury instruction on intentional discrimination
et seq.; 42 U.S.C.A. §§ 3604, 3605; New York
did not fail to take into account concept
City Administrative Code, § 8-107.
of “targeting,” even though it did not use
word “target,” in action by African-American
homeowners and former homeowners alleging
[9] Civil Rights Property and housing
that bank engaged in predatory practice of
originating discriminatory and abusive mortgage Civil Rights Instructions
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 2
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
Federal Civil Procedure Evidence and
matters of fact
Disparate impact jury instruction did not relieve [11] Federal Civil Procedure Evidence and
African-American homeowners and former matters of fact
homeowners of their burden to identify specific Jury instruction on waiver, which stated that
discriminatory practice or policy by bank and there was “no particular factor” out of six listed
that such practice or policy caused disparity, factors that had to be in bank's favor for jury
in homeowners' action alleging that bank to find that release executed by homeowner was
engaged in predatory practice of originating knowing and voluntary, did not shift burden to
discriminatory and abusive mortgage refinance homeowner to prove allsix factors,in action
instruments in violation of Fair Housing Act by African-American homeowners and former
(FHA), Equal Credit Opportunity Act (ECOA), homeowners alleging that bank engaged in
and New York City Human Rights Law, where predatory practice of originating discriminatory
instruction stated that homeowners were alleging mortgage refinance instruments in violation
that bank's practice of making “no income, of Fair Housing Act (FHA), Equal Credit
no asset” (NINA) loans had discriminatory Opportunity Act (ECOA), and New York City
effect, and homeowners offered evidence at trial Human Rights Law, where instruction stated that
that such loans had substantial adverse impact burden of proof was on bank to establish that
on African-American or Hispanic borrowers. waiver was knowing and voluntary. Consumer
Consumer Credit Protection Act § 701 et seq., 15 Credit Protection Act § 701 et seq., 15 U.S.C.A.
U.S.C.A. § 1691 et seq.; 42 U.S.C.A. §§ 3604, § 1691 et seq.; 42 U.S.C.A. §§ 3604, 3605; New
3605; New York City Administrative Code, § York City Administrative Code, § 8-107.
8-107.
[12] Limitation of Actions Suspension or stay
[10] Federal Civil Procedure Evidence and in general; equitable tolling
matters of fact
The requirements for equitable tolling of a
Jury instruction on waiver, which stated that limitations period are (1) that the defendant
there was “no particular factor” out of six listed concealed the existence of a cause of action;
factors that had to be in bank's favor for jury (2) the action commenced within the applicable
to find that release executed by homeowner was limitations period; and (3) the plaintiffs' failure to
knowing and voluntary, did not create incorrect bring the action sooner was not from the absence
assumption that one factor in favor of bank of due diligence.
was enough for jury to find waiver, in action
by African-American homeowners and former
homeowners alleging that bank engaged in [13] Limitation of Actions Concealment of
predatory practice of originating discriminatory Cause of Action
mortgage refinance instruments in violation
Where fraudulent concealment of the existence
of Fair Housing Act (FHA), Equal Credit
of a cause of action can be demonstrated, a
Opportunity Act (ECOA), and New York City
defendant may not present a statute of limitations
Human Rights Law, where instruction provided
defense as to any such claim.
jury with non-exhaustive list and mandate to
consider six factors given, and instruction stated
that jury was to consider factors under “totality”
of circumstances. Consumer Credit Protection [14] Compromise, Settlement, and
Act § 701 et seq., 15 U.S.C.A. § 1691 et seq.; Release Finance, banking, and credit
42 U.S.C.A. §§ 3604, 3605; New York City Federal Civil Procedure Damages
Administrative Code, § 8-107. Federal Civil Procedure Trial Errors
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 3
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
Finance, Banking, and Credit Waiver of U.S.C.A. § 1691 et seq.; 42 U.S.C.A. §§ 3604,
rights or remedies 3605; New York City Administrative Code, §
Waiver signed by African-American 8-107; Fed. R. Civ. P. 47(c).
homeowners releasing and discharging bank
from all claims and demands, including claims
related to their mortgage loan, was void as [17] Damages Questions for Jury
against public policy,warranting new trialon The calculation of damages is the province of the
issue of damages from bank's violation of Fair jury.
Housing Act (FHA), Equal Credit Opportunity
Act (ECOA), and New York City Human Rights
Law in connection with its discriminatory “no [18] Federal Civil Procedure Weight of
income, no asset” (NINA) mortgage loans, even evidence
though bank modified homeowners' loan to
Federal Civil Procedure Presumptions;
terms not subject to FHA, ECOA, and New York
construction of evidence
City Human Rights Law, since homeowners
were back in default within five months of Unlike judgment as a matter of law following a
loan modification due to reduced incomes, and jury verdict, a new trial may be granted even if
bank's motivations to make modification were there is substantial evidence supporting the jury's
concerning, given that modification did little verdict, and a trialjudge is free to weigh the
to bring homeowners within reach of making evidence himself, and need not view it in the light
regular payments. Consumer Credit Protection most favorable to the verdict winner. Fed. R. Civ.
Act § 701 et seq., 15 U.S.C.A. § 1691 et seq.; P. 50(b), 59.
42 U.S.C.A. §§ 3604, 3605; New York City
Administrative Code, § 8-107.
[19] Federal Civil Procedure Verdict or
Findings Contrary to Law or Evidence
[15] Contracts Public Policy in General A motion for a new trial ordinarily should not be
There is no magic formula for determining when granted unless the trial court is convinced that the
a contract is void as against public policy. jury has reached a seriously erroneous result or
that the verdict is a miscarriage of justice. Fed.
R. Civ. P. 59.
[16] Jury Discharge of juror or jury pending
trial
[20] Civil Rights Measure and amount
Concerns about juror's commitment to serve
constituted sufficient “good cause” for her Civil Rights Monetary Relief
dismissal prior to deliberation, in action by Federal Civil Procedure Amount of
African-American homeowners and former recovery in general
homeowners alleging that bank engaged in Finance, Banking, and Credit Measure
predatory practice of originating discriminatory and amount
mortgage refinance instruments in violation
Jury's damage awards were against weight of
of Fair Housing Act (FHA), Equal Credit
evidence, warranting new trial on damages,
Opportunity Act (ECOA), and New York City
in action by African-American homeowners
Human Rights Law, where juror expressed
and former homeowners alleging that bank
desire to hasten deliberation in order to avoid
engaged in predatory practice of originating
returning for even second day of deliberation
discriminatory mortgage refinance instruments
due to personal planned event, and such attitude
in violation of Fair Housing Act (FHA), Equal
had potential to negatively impact deliberations.
Credit Opportunity Act (ECOA), and New York
Consumer Credit Protection Act § 701 et seq., 15
City Human Rights Law; source of damages
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 4
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
assessed by jury was not clear, jury found that generally Tr. of 2/26/16.) Familiarity therewith is assumed.
bank violated allthree laws, damage awards However, due to both the voluminous nature of the record
to separate homeowners fell short of what since developed in this case and the verdict entered on June
they owed bank, awards did not address any 27, 2016 against Defendants in the amount of $950,000
losses due to emotional or mental anguish, following a jury trial, the following additional summary is in
and awards did not account for differences order.
among homeowners, some who still owed bank
and others who had lost their homes through The plaintiffs(“Plaintiffs”)are Black property owners or
foreclosure. Consumer Credit Protection Act former property owners living in various parts of New York
§ 701 et seq., 15 U.S.C.A. § 1691 et seq.; City who, prior to the subprime mortgage meltdown of
42 U.S.C.A. §§ 3604, 3605; New York City the late 2000s, applied for and received “STAR NINA”
Administrative Code, § 8-107; Fed. R. Civ. P. 59. loans from Emigrant, loans for which Emigrant did not
require proof of income or assets. Plaintiffs claim those loans
were predatory and targeted certain minority communities
(particularlyBlack and Hispanic), designed specifically to
strip the equity from their homes by imposing an onerous 18%
Attorneys and Law Firms interest rate upon the occurrence of one late payment. They
argue that the one late payment triggering the 18% interest
*190 SOUTH BROOKLYN LEGAL SERVICES, rate was a calculated plan by Emigrant to so deprive them
Foreclosure Prevention Project, 105 Court Street, Brooklyn, of that home equity,given Plaintiffs'600 or below credit
NY 11201, By: Jennifer Sinton, Meghan Faux, Rachel scores; their payment histories on prior mortgages; the fact
Geballe, Attorneys for Plaintiffs. that Emigrant's advertising and mortgage closing practices
were designed to obscure the likelihood of default (such as
RELMAN DANE & COLFAX, PLLC, 1225 19th St., NW,
allegedly “burying” the rider disclosing the default interest
Suite 600, Washington, DC 20036, By: John P. Relman, Glenn
rate in stacks of closing documents); and Plaintiffs' lack of
Schlactus, Tara Ramchandani, Attorneys for Plaintiffs.
sophistication. Additionally, it is undisputed that none of the
PROSKAUER ROSE LLP, Eleven Times Square, New Plaintiffs had salaries equaling or exceeding that which would
York, NY 10036, By: Bettina B. Plevan, Evandro Cristiano be otherwise required by Emigrant for loans of the amounts
Gigante, Keisha-Ann G. Gray, Jeffrey B. Wall, Attorneys for disbursed. According to Plaintiffs,Emigrant attempted to
Defendants. avoid responsibility for the inevitable default by having the
homeowners sign “Resource Letters” drafted by Emigrant
SULLIVAN & CROMWELL LLP, 125 Broad Street, New which stated, inter alia, that Plaintiffs had access to funds from
York, NY 10004, By: John P. Collins, Jr., Richard H. Klapper, family and friends to repay the loans in the event of default,
Attorneys for Defendants. and that Plaintiffs understood they would have to be willing
to sell their homes to foot the bill in the event of default.
DORSEY & WHITNEY LLP, 51 West 52nd Street, New
York, NY 10019-6119, By: David A. Scheffel, Eric B.
Eight Plaintiffs are involved in this suit,all of whom had
Epstein, Gina Susan Spiegelman, Attorneys for Defendant.
significant equity in their homes prior to borrowing from
Emigrant, and all of whom have either been forced to sell their
homes or live in homes that, pursuant to the terms of their
MEMORANDUM AND ORDER respective STAR NINA loans, were secured by mortgages
that applied an 18% interest rate once each of the Plaintiffs
JOHNSON, Senior District Judge:
made a late payment, which each of the Plaintiffs did.
*191 The facts and circumstances surrounding this action
have been set forth in two previous orders and in the transcript Jean Robert Saint-Jean and his wife Edith Saint-Jean (the
of the February 26, 2016 oral argument after which the “Saint-Jeans”) live in a Canarsie home subject to a foreclosure
Court denied defendants Emigrant Mortgage Company's, and action. At the relevant time, Jean Robert Saint-Jean had a
defendant Emigrant Bank's (“Emigrant” or “Defendants”) credit score of 540 and Edith Saint-Jean had a credit *192
motion for summary judgment. (See Dkt. Nos. 206, 258; see score of 545. They were approved for a $370,000 loan with an
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 5
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
interest rate of 11.75%. Pursuant to their loan, the mortgage Like other Plaintiffs, she too was denied the opportunity to
payment was $4,174, about $2,000 more per month than their make a late payment and, like the Smalls, also sold her home
previous mortgage. After they fell behind on their payments to avoid foreclosure. Indeed, Commodore sold her home for
and the 18% default interest rate was applied, their monthly $40,000 less than its value.
payment became $6,130. During the relevant time period, Mr.
Saint-Jean worked as a paraprofessional for the New York Finally, Felipe Howell owned his Queens property outright
City Department of Education, and Mrs. Saint-Jean as a home and did not work. He took out a STAR NINA loan from
health aide. They never earned the required $102,000 per year Emigrant requiring a $2,100 monthly payment in order
otherwise required to obtain this loan. to finance the construction of a rental property on the
same lot with the residence that secured the mortgage.
Felex and Yanick Saintil (the “Saintils”) also live in a Howell's construction project failed, he was unable to make
forecloseable Canarsie home. Mr. Saintilworks as a truck a single payment, and his mortgage increased to $3,378
driver and Mrs. Saintil, prior to the stroke she suffered per month. As he was unemployed, he did not earn the
during the pendency of this action, worked as a home health $51,527 annually that would have been required for him to
aide. The Saintils closed on a $325,000 STAR loan with obtain a full-documentation loan or the amount necessary to
an initial interest rate of 9.65% and a monthly payment of make his monthly mortgage payments. Howell's property was
$3,145.85. They never earned the approximately $94,000 foreclosed upon and purchased at auction by Emigrant for
otherwise required for their loan, and theirapproximately $1,000.
$3,000 per month payment ballooned to over $4,000 per
month by 2007. The Saintils made several unsuccessful Plaintiffs filed suit pursuant to following anti-discrimination
attempts to modify their loan. By March 2010, Emigrant statutes: the Fair *193 Housing Act, 42 U.S.C. §§ 3604,
approved a loan modification for the Saintils, waived both 3605 (“FHA”); the Equal Credit Opportunity Act, 15 U.S.C.
the default interest provision and approximately $14,000 in § 1691, et seq.; and of New York City Human Rights Law.
“unpaid charges” and reduced their monthly payments to Additionally, Edith Saint-Jean asserts a fifth cause of action
$2,804.38 and their interest rate to 6% for five years. As part under the Truth in Lending Act, 15 U.S.C. § 1601 et seq.
of the modification, the Saintils signed a document intended (“TILA”). Emigrant argues, interalia, thatthe loans were
to waive and release all claims they may have had up to the not predatory, were not targeting minority communities but
date of the modification. The Saintils were unable to keep up simply those who could not otherwise obtain loans; and that
with the $2,804.38 monthly payment and remain in several the claims are time-barred.
years' worth of arrears.
On May 23, 2016, a jury trial commenced. The jury
Jeanette and Beverley Small (the“Smalls”), a mother and determined that Emigrant violated the Federal Fair Housing
daughter, refinanced their home with Emigrant in August Act, Equal Credit Opportunity Act and the New York City
of 2006. They borrowed $330,000 with an interest rate of Human Rights Law. The Saint-Jeans were awarded $180,000
9.875%, and a monthly payment of $3,261. After one late apiece in compensatory damages, the Smalls were awarded
payment, their monthly payment shot up to $5,480. The $70,000 (to Beverley) and $110 (to Jeanette), Commodore
Smalls never earned the approximately $82,000 required for was awarded $185,000 and Howell was awarded $225,000.
their loan. The Smalls eventually sold their home to avoid On June 27, 2016, the jury found that the Saintils were
foreclosure. The partiesdispute the extent of the financial not entitledto any compensatory damages because they
loss the Smalls suffered from their STAR NINA loan, but it knowingly and voluntarily a 2010 loan modification that
is undisputed that the Smalls repaid the amounts then-owed purported to release all existing claims against Emigrant.
Emigrant in full. None of the parties were awarded punitive damages.
Linda Commodore (“Commodore”) refinanced the mortgage Following the trial, both Plaintiffs and Emigrant filed post-
on her Manhattan co-op in 2004 through Emigrant's STAR trialmotions pursuant to Federal Rule of Civil Procedure
NINA program, and received $125,000. Commodore did not (“Rule”) 50. Defendants take issue with several provisions in
earn the annual income of $54,792 required for the loan the instructions read to the jury by the Court and demand a
and her credit score was 553. Her payments ballooned from new trial. They also believe they are entitled to a new trial
$983.38 to almost double that amount after a missed payment. because (A) Plaintiffs failedto present sufficient evidence
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 6
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
of discrimination, either through their own testimony or conclusion as to the verdict that reasonable [persons] could
their experts; (B) certain expert testimony by Plaintiffs have reached.’ ” Cruz v. Local Union No. 3 of Int'l Bhd. of
was impermissible; (C) Defendants' proffered FDIC expert Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting
should have been permitted to testify;(D) the jury award Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970) ); accord
is excessive; (E) Plaintiffs' claims are time-barred; and (F) Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991).
a juror should not have been excused mid-trial. They also
argue thatare entitledto judgment as a matter of law as [3] [4] “A party is generally entitled to a new trial if the
to the Truth in Lending Act claim brought by the Saint- districtcourt committed errors thatwere a ‘clear abuse of
Jeans. Plaintiffs'Rule 50 motion seeks a new trialfor the discretion’ that were ‘clearly prejudicial to the outcome of
Saintil's,arguing thatthe 2010 loan modification entered the trial’...Prejudice is measured by assessing the error
into between Emigrant and the Saintil'sis unenforceable. in light of the record as a whole.” Marcic v. Reinauer
Plaintiffsalso argue that,in lightof the jury finding that Transp. Companies, 397 F.3d 120, 124 (2d Cir. 2005) (quoting
Emigrant violated the FHA, ECOA and NYCHRL, the Court Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d
should issue an injunction against certain allegedly predatory Cir. 1996) ).
behavior, including the appointment a monitor to oversee
Emigrant's lending practices, and that the Court should retain
jurisdiction over the action for a period of three years while
B. Rule 59
such monitoring is conducted.
Rule 59 permits the Court to grant a new trial “on some or
Based on the submission of the parties, the oral argument held all of the issues” and to do so for “any reason a new trial has
before this Court on June 28, 2017, and for the reasons stated been heretofore granted in an action in federal court.” Fed. R.
below Defendants' motion is GRANTED IN PART AND Civ. P. 59(a)(1)(A).
DENIED IN PART, and Plaintiffs' motion is GRANTED IN
PART AND DENIED IN PART.
II. Sufficiency of the Evidence
[5] Sweepingly, Emigrant argues that Plaintiffsfailed to
present “sufficient evidence of any type of discrimination.”
DISCUSSION
This argument fails because the jury verdict indicates that they
I. Standard of Review under Rules 50 and 59 credited the testimony and/or evidence of the Plaintiffs and/or
their witnesses over the testimony and/or evidence presented
by Defendants, and the jury was entitled to do so, as Plaintiffs
A. Rule 50 offered over a dozen witnesses. The following brief summary
of Plaintiffs' key witnesses provides sufficient evidence from
[1] Rule 50(b) permits the Court to enter a judgment as a
matter of law and/or order a new trial when there is “such which a jury could find against Emigrant on liability.1
a complete absence of evidence supporting the verdict that
the jury's findings could only have been the result of sheer
A. Plaintiffs' Witnesses
surmise and conjecture, or the evidence in favor of the movant
is so overwhelming that reasonable and fair minded [person]
could not arrive at a verdict against [it].” Canjura v. Laschet, 1. Rebecca Walzak
No. 12 CIV. 1524 (JCM), 2016 WL 2755920, at *3 (S.D.N.Y.
May 10, 2016) (quoting Wiercinski v. Mangia 57, Inc., 787 Plaintiffscalled Rebecca Walzak (“Walzak”) as an expert
F.3d 106, 112 (2d Cir. 2015) ) (citations omitted) (alterations witness. Walzak is a mortgage consultant who testified
in original). that she has worked in “all aspects of mortgage lending,”
including overseeing loan closings in all 50 states,
*194 [2] “A district court must deny a motion for judgment evaluating, reviewing and training lenders on various loan
as a matter of law unless, viewed in the light most favorable products, working in risk management and quality assurance,
to the nonmoving party, ‘the evidence is such that, without underwriting guidelines, monitoring and managing brokers
weighing the credibility of the witnesses or otherwise and lenders, analyzing information from servicing groups.
considering the weight of the evidence, there can be but one The holder of a Master's in Business Administration from
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 7
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011
NYSCEF Saint-Jean
DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022
the University of Maryland with a Certification in Quality Professor Ian Ayres also testified for Plaintiffs. Ayres holds
Management from George Washington University, Walzak a doctorate in Economics from the Massachusetts Institute
testified that she has underwritten or reviewed over 100,000 of Technology and a degree from Yale Law School, where
loans during the course of her career and that the STAR NINA for 23 years he has taught and studied statistical
tests of
loan “contained numerous predatory loaning aspects that ... race and gender discrimination, including mortgage lending.
were the worst [she] had ever seen in a mortgage loan.” He was offered as and permitted to testify as an expert in
statistical tests of predatory lending and discrimination. Ayres
Specifically,Walzak testifiedthat STAR NINA's focus on defined “predatory [lending] terms” as “terms in a mortgage
credit scores under 600 indicated that Emigrant was “looking that artificially
increase the chance thatthe mortgage will
for the borrowers that had the least likelihood to be able fail,”such as pre-payment penalties and default interest,
Preview
FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 [6] concerns about juror's commitment to serve constituted sufficient good cause for her dismissal prior to deliberation; 337 F.Supp.3d 186 and United States District Court, E.D. New York. [7] jury's damage awards were against weight of evidence, Jean Robert SAINT-JEAN, et al., Plaintiffs, warranting new trial on damages. v. EMIGRANT MORTGAGE Motions granted in part and denied in part. COMPANY, et al., Defendants. 11 CV 2122 (SJ) (RLM) | West Headnotes (20) Signed 08/20/2018 | [1] Federal Civil Procedure Weight of Filed 08/30/2018 evidence Synopsis Federal Civil Procedure Evidence Background: African-American homeowners and former A court is permitted to enter a judgment as a homeowners brought action against bank alleging that it matter of law and/or order a new trial following engaged in predatory practice of originating discriminatory a jury verdict when there is such a complete and abusive mortgage refinance instruments through equity- absence of evidence supporting the verdict that stripping “no income, no assets” (NINA) loan program, the jury's findings could only have been the result in violation of Fair Housing Act (FHA), Equal Credit of sheer surmise and conjecture, or the evidence Opportunity Act (ECOA), Truth in Lending Act (TILA), and in favor of the movant is so overwhelming that New York City Human Rights Law. Following jury verdict in a reasonable and fair minded person could not favor of homeowners, both parties moved for new trial and arrive at a verdict against it. Fed. R. Civ. P. 50(b). for judgment as a matter of law. [2] Federal Civil Procedure Evidence Holdings: The District Court, Johnson, Senior District Judge, Federal Civil Procedure Construction of held that: evidence A district court must deny a motion for judgment [1] sufficientevidence supported jury'sfinding thatbank's as a matter of law following a jury verdict predatory mortgage refinancing program was discriminatory; unless, viewed in the light most favorable to the nonmoving party, the evidence is such that, [2] intentional discrimination jury instruction did not fail to without weighing the credibility of the witnesses take into account concept of “targeting”; or otherwise considering the weight of the evidence, there can be but one conclusion as to [3] disparate impact jury instruction did not relieve the verdict that reasonable persons could have homeowners of their burden to identify specific reached. Fed. R. Civ. P. 50(b). discriminatory practice or policy that caused disparity; [4] waiver jury instruction did not shift burden to homeowner [3] Federal Civil Procedure Trial Errors to prove all six factors; A party is generally entitled to a new trial if the [5] waiver signed by homeowners was void as against public district court committed errors that were a clear policy; abuse of discretion that were clearly prejudicial to the outcome of the trial. Fed. R. Civ. P. 50(b). © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 refinance instruments in violation of Fair Housing Act (FHA), Equal Credit Opportunity [4] Federal Civil Procedure Trial Errors Act (ECOA), and New York City Human Rights Law, where instruction required jury to find Prejudice to the outcome of a trial, as required that loan product was “grossly unfavorable” for a new trial, is measured by assessing the error to borrower and that bank's effort to make in light of the record as a whole. Fed. R. Civ. P. such loans was “motivated, at least in part” by 50(b). impermissible factors of “race, color, or national origin.” Consumer Credit Protection Act § 701 et seq., 15 U.S.C.A. § 1691 et seq.; 42 U.S.C.A. [5] Civil Rights Property and housing §§ 3604, 3605; New York City Administrative Civil Rights Evidence Code, § 8-107. Finance, Banking, and Credit Credit discrimination; equal credit opportunity Sufficient evidence supported jury's finding that [7] Civil Rights Loans and financing bank's predatory mortgage refinancing program Finance, Banking, and Credit Redlining, was discriminatory, as required for liability reverse redlining, and targeting under Fair Housing Act (FHA), Equal Credit Discriminatory animus in connection with a Opportunity Act (ECOA), and New York City predatory loan program is not required for Human Rights Law, including evidence that liability based on intentional discrimination bank's “no income, no asset” (NINA) loans under the Fair Housing Act (FHA), the Equal focused on homeowners with credit scores Credit Opportunity Act (ECOA), and the New under 600, that default interestrate on loans York City Human Rights Law. Consumer Credit was 18% after one missed payment, that as Protection Act § 701 et seq., 15 U.S.C.A. § 1691 percentage of African-American and Latino et seq.; 42 U.S.C.A. §§ 3604, 3605; New York residents increased in a community, percentage City Administrative Code, § 8-107. of bank's refinance loans that were NINA loans increased, that bank recruited minority brokers to sell NINA loans, and that 82% of bank's overall [8] Civil Rights Property and housing advertising was in newspapers circulated in areas with combined African-American and Latino Civil Rights Evidence population of greater than 80%. Consumer Credit Finance, Banking, and Credit Credit Protection Act § 701 et seq., 15 U.S.C.A. § 1691 discrimination; equal credit opportunity et seq.; 42 U.S.C.A. §§ 3604, 3605; New York It is permissible for the trierof fact to infer City Administrative Code, § 8-107. the ultimate fact of intentional discrimination from the falsityof the defendant's explanation for its actions, as a basis for liability under [6] Civil Rights Property and housing the Fair Housing Act (FHA), the Equal Credit Civil Rights Instructions Opportunity Act (ECOA), and the New York City Human Rights Law in connection with Finance, Banking, and Credit Credit a predatory loan program. Consumer Credit discrimination; equal credit opportunity Protection Act § 701 et seq., 15 U.S.C.A. § 1691 Jury instruction on intentional discrimination et seq.; 42 U.S.C.A. §§ 3604, 3605; New York did not fail to take into account concept City Administrative Code, § 8-107. of “targeting,” even though it did not use word “target,” in action by African-American homeowners and former homeowners alleging [9] Civil Rights Property and housing that bank engaged in predatory practice of originating discriminatory and abusive mortgage Civil Rights Instructions © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 Federal Civil Procedure Evidence and matters of fact Disparate impact jury instruction did not relieve [11] Federal Civil Procedure Evidence and African-American homeowners and former matters of fact homeowners of their burden to identify specific Jury instruction on waiver, which stated that discriminatory practice or policy by bank and there was “no particular factor” out of six listed that such practice or policy caused disparity, factors that had to be in bank's favor for jury in homeowners' action alleging that bank to find that release executed by homeowner was engaged in predatory practice of originating knowing and voluntary, did not shift burden to discriminatory and abusive mortgage refinance homeowner to prove allsix factors,in action instruments in violation of Fair Housing Act by African-American homeowners and former (FHA), Equal Credit Opportunity Act (ECOA), homeowners alleging that bank engaged in and New York City Human Rights Law, where predatory practice of originating discriminatory instruction stated that homeowners were alleging mortgage refinance instruments in violation that bank's practice of making “no income, of Fair Housing Act (FHA), Equal Credit no asset” (NINA) loans had discriminatory Opportunity Act (ECOA), and New York City effect, and homeowners offered evidence at trial Human Rights Law, where instruction stated that that such loans had substantial adverse impact burden of proof was on bank to establish that on African-American or Hispanic borrowers. waiver was knowing and voluntary. Consumer Consumer Credit Protection Act § 701 et seq., 15 Credit Protection Act § 701 et seq., 15 U.S.C.A. U.S.C.A. § 1691 et seq.; 42 U.S.C.A. §§ 3604, § 1691 et seq.; 42 U.S.C.A. §§ 3604, 3605; New 3605; New York City Administrative Code, § York City Administrative Code, § 8-107. 8-107. [12] Limitation of Actions Suspension or stay [10] Federal Civil Procedure Evidence and in general; equitable tolling matters of fact The requirements for equitable tolling of a Jury instruction on waiver, which stated that limitations period are (1) that the defendant there was “no particular factor” out of six listed concealed the existence of a cause of action; factors that had to be in bank's favor for jury (2) the action commenced within the applicable to find that release executed by homeowner was limitations period; and (3) the plaintiffs' failure to knowing and voluntary, did not create incorrect bring the action sooner was not from the absence assumption that one factor in favor of bank of due diligence. was enough for jury to find waiver, in action by African-American homeowners and former homeowners alleging that bank engaged in [13] Limitation of Actions Concealment of predatory practice of originating discriminatory Cause of Action mortgage refinance instruments in violation Where fraudulent concealment of the existence of Fair Housing Act (FHA), Equal Credit of a cause of action can be demonstrated, a Opportunity Act (ECOA), and New York City defendant may not present a statute of limitations Human Rights Law, where instruction provided defense as to any such claim. jury with non-exhaustive list and mandate to consider six factors given, and instruction stated that jury was to consider factors under “totality” of circumstances. Consumer Credit Protection [14] Compromise, Settlement, and Act § 701 et seq., 15 U.S.C.A. § 1691 et seq.; Release Finance, banking, and credit 42 U.S.C.A. §§ 3604, 3605; New York City Federal Civil Procedure Damages Administrative Code, § 8-107. Federal Civil Procedure Trial Errors © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 Finance, Banking, and Credit Waiver of U.S.C.A. § 1691 et seq.; 42 U.S.C.A. §§ 3604, rights or remedies 3605; New York City Administrative Code, § Waiver signed by African-American 8-107; Fed. R. Civ. P. 47(c). homeowners releasing and discharging bank from all claims and demands, including claims related to their mortgage loan, was void as [17] Damages Questions for Jury against public policy,warranting new trialon The calculation of damages is the province of the issue of damages from bank's violation of Fair jury. Housing Act (FHA), Equal Credit Opportunity Act (ECOA), and New York City Human Rights Law in connection with its discriminatory “no [18] Federal Civil Procedure Weight of income, no asset” (NINA) mortgage loans, even evidence though bank modified homeowners' loan to Federal Civil Procedure Presumptions; terms not subject to FHA, ECOA, and New York construction of evidence City Human Rights Law, since homeowners were back in default within five months of Unlike judgment as a matter of law following a loan modification due to reduced incomes, and jury verdict, a new trial may be granted even if bank's motivations to make modification were there is substantial evidence supporting the jury's concerning, given that modification did little verdict, and a trialjudge is free to weigh the to bring homeowners within reach of making evidence himself, and need not view it in the light regular payments. Consumer Credit Protection most favorable to the verdict winner. Fed. R. Civ. Act § 701 et seq., 15 U.S.C.A. § 1691 et seq.; P. 50(b), 59. 42 U.S.C.A. §§ 3604, 3605; New York City Administrative Code, § 8-107. [19] Federal Civil Procedure Verdict or Findings Contrary to Law or Evidence [15] Contracts Public Policy in General A motion for a new trial ordinarily should not be There is no magic formula for determining when granted unless the trial court is convinced that the a contract is void as against public policy. jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice. Fed. R. Civ. P. 59. [16] Jury Discharge of juror or jury pending trial [20] Civil Rights Measure and amount Concerns about juror's commitment to serve constituted sufficient “good cause” for her Civil Rights Monetary Relief dismissal prior to deliberation, in action by Federal Civil Procedure Amount of African-American homeowners and former recovery in general homeowners alleging that bank engaged in Finance, Banking, and Credit Measure predatory practice of originating discriminatory and amount mortgage refinance instruments in violation Jury's damage awards were against weight of of Fair Housing Act (FHA), Equal Credit evidence, warranting new trial on damages, Opportunity Act (ECOA), and New York City in action by African-American homeowners Human Rights Law, where juror expressed and former homeowners alleging that bank desire to hasten deliberation in order to avoid engaged in predatory practice of originating returning for even second day of deliberation discriminatory mortgage refinance instruments due to personal planned event, and such attitude in violation of Fair Housing Act (FHA), Equal had potential to negatively impact deliberations. Credit Opportunity Act (ECOA), and New York Consumer Credit Protection Act § 701 et seq., 15 City Human Rights Law; source of damages © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 assessed by jury was not clear, jury found that generally Tr. of 2/26/16.) Familiarity therewith is assumed. bank violated allthree laws, damage awards However, due to both the voluminous nature of the record to separate homeowners fell short of what since developed in this case and the verdict entered on June they owed bank, awards did not address any 27, 2016 against Defendants in the amount of $950,000 losses due to emotional or mental anguish, following a jury trial, the following additional summary is in and awards did not account for differences order. among homeowners, some who still owed bank and others who had lost their homes through The plaintiffs(“Plaintiffs”)are Black property owners or foreclosure. Consumer Credit Protection Act former property owners living in various parts of New York § 701 et seq., 15 U.S.C.A. § 1691 et seq.; City who, prior to the subprime mortgage meltdown of 42 U.S.C.A. §§ 3604, 3605; New York City the late 2000s, applied for and received “STAR NINA” Administrative Code, § 8-107; Fed. R. Civ. P. 59. loans from Emigrant, loans for which Emigrant did not require proof of income or assets. Plaintiffs claim those loans were predatory and targeted certain minority communities (particularlyBlack and Hispanic), designed specifically to strip the equity from their homes by imposing an onerous 18% Attorneys and Law Firms interest rate upon the occurrence of one late payment. They argue that the one late payment triggering the 18% interest *190 SOUTH BROOKLYN LEGAL SERVICES, rate was a calculated plan by Emigrant to so deprive them Foreclosure Prevention Project, 105 Court Street, Brooklyn, of that home equity,given Plaintiffs'600 or below credit NY 11201, By: Jennifer Sinton, Meghan Faux, Rachel scores; their payment histories on prior mortgages; the fact Geballe, Attorneys for Plaintiffs. that Emigrant's advertising and mortgage closing practices were designed to obscure the likelihood of default (such as RELMAN DANE & COLFAX, PLLC, 1225 19th St., NW, allegedly “burying” the rider disclosing the default interest Suite 600, Washington, DC 20036, By: John P. Relman, Glenn rate in stacks of closing documents); and Plaintiffs' lack of Schlactus, Tara Ramchandani, Attorneys for Plaintiffs. sophistication. Additionally, it is undisputed that none of the PROSKAUER ROSE LLP, Eleven Times Square, New Plaintiffs had salaries equaling or exceeding that which would York, NY 10036, By: Bettina B. Plevan, Evandro Cristiano be otherwise required by Emigrant for loans of the amounts Gigante, Keisha-Ann G. Gray, Jeffrey B. Wall, Attorneys for disbursed. According to Plaintiffs,Emigrant attempted to Defendants. avoid responsibility for the inevitable default by having the homeowners sign “Resource Letters” drafted by Emigrant SULLIVAN & CROMWELL LLP, 125 Broad Street, New which stated, inter alia, that Plaintiffs had access to funds from York, NY 10004, By: John P. Collins, Jr., Richard H. Klapper, family and friends to repay the loans in the event of default, Attorneys for Defendants. and that Plaintiffs understood they would have to be willing to sell their homes to foot the bill in the event of default. DORSEY & WHITNEY LLP, 51 West 52nd Street, New York, NY 10019-6119, By: David A. Scheffel, Eric B. Eight Plaintiffs are involved in this suit,all of whom had Epstein, Gina Susan Spiegelman, Attorneys for Defendant. significant equity in their homes prior to borrowing from Emigrant, and all of whom have either been forced to sell their homes or live in homes that, pursuant to the terms of their MEMORANDUM AND ORDER respective STAR NINA loans, were secured by mortgages that applied an 18% interest rate once each of the Plaintiffs JOHNSON, Senior District Judge: made a late payment, which each of the Plaintiffs did. *191 The facts and circumstances surrounding this action have been set forth in two previous orders and in the transcript Jean Robert Saint-Jean and his wife Edith Saint-Jean (the of the February 26, 2016 oral argument after which the “Saint-Jeans”) live in a Canarsie home subject to a foreclosure Court denied defendants Emigrant Mortgage Company's, and action. At the relevant time, Jean Robert Saint-Jean had a defendant Emigrant Bank's (“Emigrant” or “Defendants”) credit score of 540 and Edith Saint-Jean had a credit *192 motion for summary judgment. (See Dkt. Nos. 206, 258; see score of 545. They were approved for a $370,000 loan with an © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 interest rate of 11.75%. Pursuant to their loan, the mortgage Like other Plaintiffs, she too was denied the opportunity to payment was $4,174, about $2,000 more per month than their make a late payment and, like the Smalls, also sold her home previous mortgage. After they fell behind on their payments to avoid foreclosure. Indeed, Commodore sold her home for and the 18% default interest rate was applied, their monthly $40,000 less than its value. payment became $6,130. During the relevant time period, Mr. Saint-Jean worked as a paraprofessional for the New York Finally, Felipe Howell owned his Queens property outright City Department of Education, and Mrs. Saint-Jean as a home and did not work. He took out a STAR NINA loan from health aide. They never earned the required $102,000 per year Emigrant requiring a $2,100 monthly payment in order otherwise required to obtain this loan. to finance the construction of a rental property on the same lot with the residence that secured the mortgage. Felex and Yanick Saintil (the “Saintils”) also live in a Howell's construction project failed, he was unable to make forecloseable Canarsie home. Mr. Saintilworks as a truck a single payment, and his mortgage increased to $3,378 driver and Mrs. Saintil, prior to the stroke she suffered per month. As he was unemployed, he did not earn the during the pendency of this action, worked as a home health $51,527 annually that would have been required for him to aide. The Saintils closed on a $325,000 STAR loan with obtain a full-documentation loan or the amount necessary to an initial interest rate of 9.65% and a monthly payment of make his monthly mortgage payments. Howell's property was $3,145.85. They never earned the approximately $94,000 foreclosed upon and purchased at auction by Emigrant for otherwise required for their loan, and theirapproximately $1,000. $3,000 per month payment ballooned to over $4,000 per month by 2007. The Saintils made several unsuccessful Plaintiffs filed suit pursuant to following anti-discrimination attempts to modify their loan. By March 2010, Emigrant statutes: the Fair *193 Housing Act, 42 U.S.C. §§ 3604, approved a loan modification for the Saintils, waived both 3605 (“FHA”); the Equal Credit Opportunity Act, 15 U.S.C. the default interest provision and approximately $14,000 in § 1691, et seq.; and of New York City Human Rights Law. “unpaid charges” and reduced their monthly payments to Additionally, Edith Saint-Jean asserts a fifth cause of action $2,804.38 and their interest rate to 6% for five years. As part under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. of the modification, the Saintils signed a document intended (“TILA”). Emigrant argues, interalia, thatthe loans were to waive and release all claims they may have had up to the not predatory, were not targeting minority communities but date of the modification. The Saintils were unable to keep up simply those who could not otherwise obtain loans; and that with the $2,804.38 monthly payment and remain in several the claims are time-barred. years' worth of arrears. On May 23, 2016, a jury trial commenced. The jury Jeanette and Beverley Small (the“Smalls”), a mother and determined that Emigrant violated the Federal Fair Housing daughter, refinanced their home with Emigrant in August Act, Equal Credit Opportunity Act and the New York City of 2006. They borrowed $330,000 with an interest rate of Human Rights Law. The Saint-Jeans were awarded $180,000 9.875%, and a monthly payment of $3,261. After one late apiece in compensatory damages, the Smalls were awarded payment, their monthly payment shot up to $5,480. The $70,000 (to Beverley) and $110 (to Jeanette), Commodore Smalls never earned the approximately $82,000 required for was awarded $185,000 and Howell was awarded $225,000. their loan. The Smalls eventually sold their home to avoid On June 27, 2016, the jury found that the Saintils were foreclosure. The partiesdispute the extent of the financial not entitledto any compensatory damages because they loss the Smalls suffered from their STAR NINA loan, but it knowingly and voluntarily a 2010 loan modification that is undisputed that the Smalls repaid the amounts then-owed purported to release all existing claims against Emigrant. Emigrant in full. None of the parties were awarded punitive damages. Linda Commodore (“Commodore”) refinanced the mortgage Following the trial, both Plaintiffs and Emigrant filed post- on her Manhattan co-op in 2004 through Emigrant's STAR trialmotions pursuant to Federal Rule of Civil Procedure NINA program, and received $125,000. Commodore did not (“Rule”) 50. Defendants take issue with several provisions in earn the annual income of $54,792 required for the loan the instructions read to the jury by the Court and demand a and her credit score was 553. Her payments ballooned from new trial. They also believe they are entitled to a new trial $983.38 to almost double that amount after a missed payment. because (A) Plaintiffs failedto present sufficient evidence © 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 of discrimination, either through their own testimony or conclusion as to the verdict that reasonable [persons] could their experts; (B) certain expert testimony by Plaintiffs have reached.’ ” Cruz v. Local Union No. 3 of Int'l Bhd. of was impermissible; (C) Defendants' proffered FDIC expert Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting should have been permitted to testify;(D) the jury award Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970) ); accord is excessive; (E) Plaintiffs' claims are time-barred; and (F) Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991). a juror should not have been excused mid-trial. They also argue thatare entitledto judgment as a matter of law as [3] [4] “A party is generally entitled to a new trial if the to the Truth in Lending Act claim brought by the Saint- districtcourt committed errors thatwere a ‘clear abuse of Jeans. Plaintiffs'Rule 50 motion seeks a new trialfor the discretion’ that were ‘clearly prejudicial to the outcome of Saintil's,arguing thatthe 2010 loan modification entered the trial’...Prejudice is measured by assessing the error into between Emigrant and the Saintil'sis unenforceable. in light of the record as a whole.” Marcic v. Reinauer Plaintiffsalso argue that,in lightof the jury finding that Transp. Companies, 397 F.3d 120, 124 (2d Cir. 2005) (quoting Emigrant violated the FHA, ECOA and NYCHRL, the Court Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d should issue an injunction against certain allegedly predatory Cir. 1996) ). behavior, including the appointment a monitor to oversee Emigrant's lending practices, and that the Court should retain jurisdiction over the action for a period of three years while B. Rule 59 such monitoring is conducted. Rule 59 permits the Court to grant a new trial “on some or Based on the submission of the parties, the oral argument held all of the issues” and to do so for “any reason a new trial has before this Court on June 28, 2017, and for the reasons stated been heretofore granted in an action in federal court.” Fed. R. below Defendants' motion is GRANTED IN PART AND Civ. P. 59(a)(1)(A). DENIED IN PART, and Plaintiffs' motion is GRANTED IN PART AND DENIED IN PART. II. Sufficiency of the Evidence [5] Sweepingly, Emigrant argues that Plaintiffsfailed to present “sufficient evidence of any type of discrimination.” DISCUSSION This argument fails because the jury verdict indicates that they I. Standard of Review under Rules 50 and 59 credited the testimony and/or evidence of the Plaintiffs and/or their witnesses over the testimony and/or evidence presented by Defendants, and the jury was entitled to do so, as Plaintiffs A. Rule 50 offered over a dozen witnesses. The following brief summary of Plaintiffs' key witnesses provides sufficient evidence from [1] Rule 50(b) permits the Court to enter a judgment as a matter of law and/or order a new trial when there is “such which a jury could find against Emigrant on liability.1 a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer A. Plaintiffs' Witnesses surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded [person] could not arrive at a verdict against [it].” Canjura v. Laschet, 1. Rebecca Walzak No. 12 CIV. 1524 (JCM), 2016 WL 2755920, at *3 (S.D.N.Y. May 10, 2016) (quoting Wiercinski v. Mangia 57, Inc., 787 Plaintiffscalled Rebecca Walzak (“Walzak”) as an expert F.3d 106, 112 (2d Cir. 2015) ) (citations omitted) (alterations witness. Walzak is a mortgage consultant who testified in original). that she has worked in “all aspects of mortgage lending,” including overseeing loan closings in all 50 states, *194 [2] “A district court must deny a motion for judgment evaluating, reviewing and training lenders on various loan as a matter of law unless, viewed in the light most favorable products, working in risk management and quality assurance, to the nonmoving party, ‘the evidence is such that, without underwriting guidelines, monitoring and managing brokers weighing the credibility of the witnesses or otherwise and lenders, analyzing information from servicing groups. considering the weight of the evidence, there can be but one The holder of a Master's in Business Administration from © 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 FILED: KINGS COUNTY CLERK 04/01/2022 05:17 PM INDEX NO. 15896/2011 NYSCEF Saint-Jean DOC. NO.v.41Emigrant Mortgage Company, 337 F.Supp.3d 186 (2018) RECEIVED NYSCEF: 04/01/2022 the University of Maryland with a Certification in Quality Professor Ian Ayres also testified for Plaintiffs. Ayres holds Management from George Washington University, Walzak a doctorate in Economics from the Massachusetts Institute testified that she has underwritten or reviewed over 100,000 of Technology and a degree from Yale Law School, where loans during the course of her career and that the STAR NINA for 23 years he has taught and studied statistical tests of loan “contained numerous predatory loaning aspects that ... race and gender discrimination, including mortgage lending. were the worst [she] had ever seen in a mortgage loan.” He was offered as and permitted to testify as an expert in statistical tests of predatory lending and discrimination. Ayres Specifically,Walzak testifiedthat STAR NINA's focus on defined “predatory [lending] terms” as “terms in a mortgage credit scores under 600 indicated that Emigrant was “looking that artificially increase the chance thatthe mortgage will for the borrowers that had the least likelihood to be able fail,”such as pre-payment penalties and default interest,