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`IN CLERK'S OFFICE
`US DISTRICT COURT E.D.N.Y.
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`★ AUGjfi 2018
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`*
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`BROOKLYN OFFICE
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`11 CV 2122 (SJ)(RLM)
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`MEMORANDUM AND
`ORDER
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`-X
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`-X
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`JEAN ROBERT SAINT-JEAN, et al,
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`Plaintiffs,
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`-against-
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`EMIGRANT MORTGAGE
`COMPANY, etal..
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`Defendants.
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`APPEARANCES
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`SOUTH BROOKLYN LEGAL SERVICES
`Foreclosure Prevention Project
`105 Court Street
`Brooklyn, NY 11201
`By:
`Jennifer Sinton
`Meghan Faux
`Rachel Geballe
`Attorneys for Plaintiffs
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`RELMAN DANE & COLFAX, PLLC
`1225 19th St., NW, Suite 600
`Washington, DC 20036
`By:
`John P. Relman
`Glenn Schlactus
`Tara Ramchandani
`Attorneys for Plaintiffs
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`PROSKAUER ROSE LLP
`Eleven Times Square
`New York, NY 10036
`By:
`Bettina B. Plevan
`Evandro Cristiano Gigante
`Keisha-Ann G. Gray
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`P-049
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 2 of 42 PageID #: 42857
`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 2 of 42 PageID #: 42857
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`Jeffrey B. Wall
`Attorneys for Defendants
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`SULLIVAN & CROMWELL LLP
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`125 Broad Street
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`New York, NY 10004
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`By:
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`John P. Collins, Jr.
`Richard H. Klapper
`Attorneys for Defendants
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`DORSEY & WHITNEY LLP
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`51 West 52nd Street
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`New York, NY 10019-61 19
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`By:
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`David A. Scheffel
`Eric B. Epstein
`Gina Susan Spiegelman
`Attorneys for Defendant
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`JOHNSON, Senior District Judge:
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`The facts and circumstances surrounding this action have been set forth in
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`two previous orders and in the transcript of the February 26, 2016 oral argument after
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`which the Court denied defendants Emigrant Mortgage Company’s, and defendant
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`Emigrant Bank’s (“Emigrant” or “Defendants”) motion for summary judgment. (fig
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`Dkt. Nos. 206, 258; see generally Tr. of 2/26/ 16.) Familiarity therewith is assumed.
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`However, due to both the voluminous nature of the record since developed in this
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`case and the verdict entered on June 27, 2016 against Defendants in the amount of
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`$950,000 following a jury trial, the following additional summary is in order.
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`The plaintiffs (“Plaintiffs”) are Black property owners or former property
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`owners living in various parts ofNew York City who, prior to the subprime mortgage
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`meltdown of the late 20005, applied for and received “STAR NINA” loans from
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`2
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 3 of 42 PageID #: 42858
`Case 1:1l-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 3 of 42 PageID #: 42858
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`Emigrant, loans for which Emigrant did not require proof of income or assets.
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`Plaintiffs claim those loans were predatory and targeted certain minority
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`communities (particularly Black and Hispanic), designed specifically to strip the
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`equity from their homes by imposing an onerous 18% interest rate upon the
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`occurrence of one late payment. They argue that the one late payment triggering the
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`18% interest rate was a calculated plan by Emigrant to so deprive them of that home
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`equity, given Plaintiffs’ 600 or below credit scores; their payment histories on prior
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`mortgages; the fact that Emigrant’s advertising and mortgage closing practices were
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`designed to obscure the likelihood of default (such as allegedly “burying” the rider
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`disclosing the default interest rate in stacks of closing documents); and Plaintiffs’
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`lack of sophistication. Additionally, it is undisputed that none of the Plaintiffs had
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`salaries equaling or exceeding that which would be otherwise required by Emigrant
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`for loans of the amounts disbursed. According to Plaintiffs, Emigrant attempted to
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`avoid responsibility for the inevitable default by having the homeowners sign
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`“Resource Letters” drafted by Emigrant which stated, m get, that Plaintiffs had
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`that Plaintiffs understood they would have to be willing to sell their homes to foot
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`the bill in the event of default.
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`access to funds from family and friends to repay the loans in the event of default, and
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`Eight Plaintiffs are involved in this suit, all of whom had significant equity
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`in their homes prior to borrowing from Emigrant, and all of whom have either been
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`forced to sell their homes or live in homes that, pursuant to the terms of their
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 4 of 42 PageID #: 42859
`Case 1:1l-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 4 of 42 PageID #: 42859
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`respective STAR NINA loans, were secured by mortgages that applied an 18%
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`interest rate once each of the Plaintiffs made a late payment, which each of the
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`Plaintiffs did.
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`Jean Robert Saint-Jean and his wife Edith Saint-Jean (the “Saint-Jeans”) live
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`in a Canarsie home subject to a foreclosure action. At the relevant time, Jean Robert
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`Saint-Jean had a credit score of 540 and Edith Saint-Jean had a credit score of 545.
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`They were approved for a $370,000 loan with an interest rate of 11.75%. Pursuant
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`to their loan, the mortgage payment was $4,174, about $2,000 more per month than
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`their previous mortgage. After they fell behind on their payments and the 18%
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`default interest rate was applied, their monthly payment became $6,130. During the
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`suffered during the pendency of this action, worked as a home health aide. The
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`monthly payment of $3,145.85. They never earned the approximately $94,000
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`ballooned to over $4,000 per month by 2007. The Saintils made several unsuccessful
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`relevant time period, Mr. Saint-Jean worked as a paraprofessional for the New York
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`City Department of Education, and Mrs. Saint-Jean as a home health aide. They
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`never earned the required $102,000 per year otherwise required to obtain this loan.
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`Felex and Yanick Saintil (the “Saintils”) also live in a forecloseable Canarsie
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`home. Mr. Saintil works as a truck driver and Mrs. Saintil, prior to the stroke she
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`Saintils closed on a $325,000 STAR loan with an initial interest rate of 9.65% and a
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`otherwise required for their loan, and their approximately $3,000 per month payment
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`attempts to modify their loan. By March 2010, Emigrant approved a loan
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 5 of 42 PageID #: 42860
`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 5 of 42 PageID #: 42860
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`modification for the Saintils, waived both the default
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`interest provision and
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`approximately $14,000 in “unpaid charges” and reduced their monthly payments to
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`$2,804.38 and their interest rate to 6% for five years. As part of the modification,
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`the Saintils signed a document intended to waive and release all claims they may
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`have had up to the date of the modification. The Saintils were unable to keep up with
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`the $2,804.38 monthly payment and remain in several years’ worth of arrears.
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`Jeanette and Beverley Small
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`(the “Smalls”), a mother and daughter,
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`refinanced their home with Emigrant in August of 2006. They borrowed $330,000
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`with an interest rate of 9.875%, and a monthly payment of $3,261. After one late
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`payment, their monthly payment shot up to $5,480. The Smalls never earned the
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`approximately $82,000 required for their loan. The Smalls eventually sold their
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`repaid the amounts then-owed Emigrant in full.
`refinanced the mortgage on her
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`Manhattan co-op in 2004 through Emigrant’s STAR NINA program, and received
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`the opportunity to make a late payment and, like the Smalls, also sold her home to
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`home to avoid foreclosure. The parties dispute the extent of the financial loss the
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`Smalls suffered from their STAR NINA loan, but it is undisputed that the Smalls
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`Linda Commodore (“Commodore”)
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`$125,000. Commodore did not earn the annual income of $54,792 required for the
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`loan and her credit score was 553. Her payments ballooned fi'om $983.38 to almost
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`double that amount after a missed payment. Like other Plaintiffs, she too was denied
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`avoid foreclosure. Indeed, Commodore sold her home for $40,000 less than its value.
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 6 of 42 PageID #: 42861
`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 6 of 42 PageID #: 42861
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`Finally, Felipe Howell owned his Queens property outright and did not work.
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`He took out a STAR NINA loan from Emigrant requiring a $2,100 monthly payment
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`in order to finance the construction of a rental property on the same lot with the
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`residence that secured the mortgage. Howell’s construction project failed, he was
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`unable to make a single payment, and his mortgage increased to $3,378 per month.
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`As he was unemployed, he did not earn the $51,527 annually that would have been
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`required for him to obtain a full-documentation loan or the amount necessary to make
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`purchased at auction by Emigrant for $1,000.
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`Howell’s property was foreclosed upon and
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`his monthly mortgage payments.
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`Plaintiffs filed suit pursuant to following anti-discrimination statutes: the Fair
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`predatory, were not targeting minority communities but simply those who could not
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`On May 23, 2016, a jury trial commenced. The jury determined that
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`Emigrant violated the Federal Fair Housing Act, Equal Credit Opportunity Act and
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`apiece in compensatory damages, the Smalls were awarded $70,000 (to Beverley)
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`Housing Act, 42 U.S.C. §§ 3604, 3605 (“FHA”); the Equal Credit Opportunity Act,
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`15 U.S.C. § 1691, et seq.; and of New York City Human Rights Law. Additionally,
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`Edith Saint-Jean asserts a fifth cause of action under the Truth in Lending Act, 15
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`U.S.C. §1601 et seq. (“TILA”). Emigrant argues, m, that the loans were not
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`otherwise obtain loans; and that the claims are time-barred.
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`the New York City Human Rights Law. The Saint-Jeans were awarded $180,000
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`and $110 (to Jeanette), Commodore was awarded $185,000 and Howell was awarded
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 7 of 42 PageID #: 42862
`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 7 of 42 PageID #: 42862
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`$225,000. On June 27, 2016, the jury found that the Saintils were not entitled to any
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`compensatory damages because they knowingly and voluntarily a 2010 loan
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`modification that purported to release all existing claims against Emigrant. None of
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`Defendants’ proffered FDIC expert should have been permitted to testify; (D) the
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`jury award is excessive; (E) Plaintiffs’ claims are time-barred; and (F) a juror should
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`predatory behavior, including the appointment a monitor to oversee Emigrant’s
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`lending practices, and that the Court should retain jurisdiction over the action for a
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`the parties were awarded punitive damages.
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`Following the trial, both Plaintiffs and Emigrant filed post-trial motions
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`pursuant to Federal Rule of Civil Procedure (“Rule”) 50. Defendants take issue with
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`several provisions in the instructions read to the jury by the Court and demand a new
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`trial. They also believe they are entitled to a new trial because (A) Plaintiffs failed
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`to present sufficient evidence of discrimination, either through their own testimony
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`or their experts; (B) certain expert testimony by Plaintiffs was impermissible; (C)
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`not have been excused mid-trial. They also argue that are entitled to judgment as a
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`matter of law as to the Truth in Lending Act claim brought by the Saint-Jeans.
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`Plaintiffs’ Rule 50 motion seeks a new trial for the Saintil’s, arguing that the 2010
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`loan modification entered into between Emigrant and the Saintil’s is unenforceable.
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`Plaintiffs also argue that, in light of the jury finding that Emigrant violated the FHA,
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`ECOA and NYCHRL, the Court should issue an injunction against certain allegedly
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`period of three years while such monitoring is conducted.
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 8 of 42 PageID #: 42863
`Case 1:1l-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 8 of 42 PageID #: 42863
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`Based on the submission of the parties, the oral argument held before this
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`Court on June 28, 2017, and for the reasons stated below Defendants’ motion is
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`GRANTED IN PART AND DENIED IN PART, and Plaintiffs’ motion is
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`GRANTED IN PART AND DENIED IN PART.
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`DISCUSSION
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`Standard of Review under Rules 50 and 59
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`A. M
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`conjecture, or the evidence in favor ofthe movant is so overwhelming that reasonable
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`Rule 50(b) permits the Court to enter a judgment as a matter of law and/or
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`[persons] could have reached.” Cruz v. Local Union No. 3 of Int‘l Bhd. of Elec.
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`order a new trial when there is “such a complete absence of evidence supporting the
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`verdict that the jury's findings could only have been the result of sheer surmise and
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`and fair minded [person] could not arrive at a verdict against [it].” Canjura v. Laschet,
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`No. 12 CIV. 1524 (JCM), 2016 WL 2755920, at *3 (S.D.N.Y. May 10, 2016)
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`(quoting Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 112 (2d Cir. 2015) (citations
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`omitted) (alterations in original).
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`“A district court must deny a motion for judgment as a matter of law unless,
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`viewed in the light most favorable to the nonmoving party, ‘the evidence is such that,
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`without weighing the credibility of the witnesses or otherwise considering the weight
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`of the evidence, there can be but one conclusion as to the verdict that reasonable
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`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 9 of 42 PageID #: 42864
`Case 1:11-cv-02122-SJ-RLM Document 618 Filed 08/30/18 Page 9 of 42 PageID #: 42864
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`mm, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427
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`F.2d 1, 4 (2d Cir. 1970)); accord Vasbinder v. Ambach, 926 F .2d 1333, 1339 (2d Cir.
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`1991).
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`“A party is generally entitled to a new trial if the district court committed
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`errors that were a ‘clear abuse of discretion’ that were ‘clearly prejudicial to the
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`outcome of the trial’...Prejudice is measured by assessing the error in light of the
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`record as a whole.” Marcie v. Reinauer Transp. Companies, 397 F.3d 120, 124 (2d
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`Cir. 2005) (quoting Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d
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`Cir.1996)).
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`B. Rule 59
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`evidence of any type of discrimination.” This argument fails because the jury verdict
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`Rule 59 permits the Court to grant a new trial “on some or all of the issues”
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`and to do so for “any reason a new trial has been heretofore granted in an action in
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`federal court.” Fed. R. Civ. P. 59(a)(1)(A).
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`II.
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`Sufficiency of the Evidence
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`Sweepingly, Emigrant argues that Plaintiffs failed to present “sufficient
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`indicates that they credited the testimony and/or evidence of the Plaintiffs and/or
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`their witnesses over the testimony and/or evidence presented by Defendants, and the
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`jury was entitled to do so, as Plaintiffs offered over a dozen witnesses. The following
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`brief summary of Plaintiffs’ key witnesses provides sufficient evidence from which
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`a jury could find against Emigrant on liability.1
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`A. Plaintiffs’ Witnesses
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`quality assurance, underwriting guidelines, monitoring and managing brokers and
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`1. Rebecca Walzak
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`lenders, analyzing information from servicing groups. The holder of a Master’s in
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`Business Administration from the University of Maryland with a Certification in
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`' As discussed, supra, much of the factual background involving the individual plaintiffs is
`incorporated by reference herein and/or is not in dispute. Therefore, this summary is intended to
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`supplement the backdrop of the loan process beyond the particulars of each Plaintiff‘s loans.
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`Plaintiffs called Rebecca Walzak (“Walzak”) as an expert witness. Walzak
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`is a mortgage consultant who testified that she has worked in “all aspects ofmortgage
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`lending,” including overseeing loan closings in all 50 states, evaluating, reviewing
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`and training lenders on various loan products, working in risk management and
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`Quality Management from George Washington University, Walzak testified that she
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`has underwritten or reviewed over 100,000 loans during the course of her career and
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`that the STAR NINA loan “contained numerous predatory loaning aspects that .
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`were the worst [she] had ever seen in a mortgage loan.”
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`Specifically, Walzak testified that STAR NINA’s focus on credit scores
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`under 600 indicated that Emigrant was “looking for the borrowers that had the least
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`likelihood to be able to repay the debt.” Further, Walzak stated that “No Income No
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`Asset” (“NINA”) loans are typically extended to people with credit scores in the 800
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`range — not the 5003 — and that she was unfamiliar with any residential loan product
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`that provided for an 18% interest rate in the event of default. These reasons, along
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`involved the use of insufficiently monitored brokers, suffered from risk management
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`deficits and “focused on people in situations where they were desperate” through
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`advertising designed to allay the borrowers’ fears, led Walzak to conclude that the
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`loans were predatory. Walzak also found that the loans were not actually risky given
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`the equity in the collateral (i.e., Plaintiffs’ homes) and believed that Emigrant
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`expected a large tranche of these loans to fail, resulting in its collection of an
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`inordinate amount of interest and/or its successful foreclosure of the homes. Walzak
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`with Walzak’s observation that the STAR NINA product contained excessive fees,2
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`These loans were targeted to some of the most vulnerable individuals in the
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`[The loans] were identified as a solution to their financial
`problems, but instead, simply put them further behind into payments that they
`could not possibly pay, and it was a foregone conclusion that they would end
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` 2 As to broker’s fees alone, Walzak testified that “the typical broker fee is probably 32000-3000,”
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`but that Emigrant’s “started out as $20,000 and they raised it later to $35,000.”
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`made these observations after reviewing both the terms of the loan product and
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`minutes from meetings of Emigrant’s Board of Directors which evinced the
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`profitability of these high interest loans notwithstanding the incidence of foreclosure.
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`‘Walzak also found the default rate of the STAR NINA product to reach as high as
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`50%, whereas with a prime loan, delinquency rates were about 3—4%, with subprime
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`loans averaging 6% delinquency. In sum, Walzak testified that
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`(Tr. at 128.)
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`2.
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`Ian Ayres
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`Professor Ian Ayres also testified for Plaintiffs. Ayres holds a doctorate in
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`Economics from the Massachusetts Institute of Technology and a degree from Yale
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`Law School, where for 23 years he has taught and studied statistical tests of race and
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`gender discrimination, including mortgage lending. He was offered as and permitted
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`to testify as an expert in statistical tests of predatory lending and discrimination.
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`Ayres defined “predatory [lending] terms” as “terms in a mortgage that artificially
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`increase the chance that the mortgage will fail,” such as pre-payment penalties and
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`default interest, both of which were present in the STAR NINA program.
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`particular, Ayres testified that in Emigrant’s STAR NINA program, the default
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`interest provision made the loans more profitable in that the loans were “issued
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`primarily on the basis of the equity that was built up in the house and not on the credit
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`characteristics of the borrow,” which he referred to as “perverse” and unlike any of
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` up paying the 18 percent default interest and eventually would lose their
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`homes to foreclosure.
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`In
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`STAR NINA loans constituted 23% of their refinance loans. However, Ayres
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`testified that as the percentage of African-American and Latino residents increased
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`the other mortgage portfolios he reviewed.
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`Ayres also compared the census track of communities in relation to the
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`number of STAR NINA borrowers in that community. According to Ayres, in
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`communities with 10% or less African-American or Latino residents, Emigrant’s
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`12
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`upwards of 80% of a given community, Emigrant’s STAR NINA loans comprised
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`45% of those offered in the area.
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`3. Holly Perlowitz
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`Holly Perlowitz (“Perlowitz”), former Senior Vice President at Emigrant
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`Mortgage Company, and former Co-President of Emigrant Mortgage Company,
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`testified as to the structure of Emigrant’s broker program. She at one point managed
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`both the broker and sales programs.
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`salespeople and sales managers, who in turn managed Emigrant’s Broker Direct
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`Rizzo, an individual who Emigrant cited as having “recruited and developed several
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`ethnic BDAMs that consistently produce 2-4 mill [sic] a month each.”
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`Perlowitz admitted that after
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`the STAR program was discontinued,
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`Emigrant’s salesforce saw a sharp decrease in “enhanced incentives” that Emigrant
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`offered them for closing on STAR NINA loans. Moreover, Perlowitz admitted that
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`Emigrant did not wish to work with brokers who could not find potential “no doc”3
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`Indeed, Plaintiffs elicited through Perlowitz that
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`Perlowitz testified that she supervised
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`Account Managers (“BDAMs”). According to Perlowitz, BDAMs are loan
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`originators employed by Emigrant who were given a higher rate of compensation for
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`closing on STAR NINA loans than other loans. Perlowitz testified that Emigrant’s
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`BDAMs in New York City (minus the borough of Manhattan) were managed by Paul
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`borrowers with low credit scores.
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`3 A “no doc” loan was defined by Ayres as one in which the lender does not verify the borrower’s
`ability to pay, a “red flag for something that might artificially increase the chance that [the borrower]
`won’t be able to repay.”
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`l3
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`Black STAR NINA borrowers increased from 50% of borrowers in 2004 to 70% in
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`2006.
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`4. Howard Milstein
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`Emigrant since 2004 testified that STAR NINA loans were nonperforming at a rate
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`of up to 20%, but such failure rate did not result in losses to the bank and he was “not
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`Milstein, he testified, that the Board of Directors (chaired by Milstein) approved an
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`increase in the amount of STAR NINA lending that Emigrant would undergo.
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`Milstein testified that he was aware that
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`the bank was developing
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`Howard Milstein (“Milstein”), the Chief Executive Officer (“CEO”) of
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`especially” concerned about the level of delinquencies.
`So unconcerned was
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`relationships with brokers of color or with ties to communities of color, comparing
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`those relationships to the bank’s need for Korean-speaking brokers if he wished the
`bank to do business among Korean-Americans. Specifically, Milstein was asked
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`whether be “targeted particular ethnic groups who were not in the mainstream so that
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`[Emigrant’s]
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`loan products.” Milstein
`they would receive information about
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`answered “[w]ell, they would be groups considered underserved by our regulators.”
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`Dr. Charlton McIlwain (“McIlwain”) is the Associate Dean of Faculty
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`5. Charlton McIlwain
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`Development at New York University. There, he is also a Professor of Media, Culture and Communications. McIlwain holds a doctorate in Communication from
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`the University of Oklahoma and in addition to teaching, has for at least 18 years
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`conducted research on areas of race and media, “particularly studying racial queuing,
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`racial
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`targeting,
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`the ways that racial messages and other forms of racial-ized
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`communication advance certain ends and the way they affect both our attitudes and
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`behavior.” McIlwain was permitted by the Court to testify as an expert in marketing
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`advertising. Mchain testified that he reviewed Emigrant’s advertising budget
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`between 2005 and 2008 and found that 76% of its advertising went into four
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`publications: Caribbean Life newspaper, Black Star News, Hoy (a Spanish-language
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`newspaper) and Mizona (another Spanish-language newspaper). McIlwain also
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`testified that 82% of Emigrant’s overall advertising was in newspapers circulated in
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`areas with a combined Black and Latino population of greater than 80%. Finally,
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`McIlwain took into account that that 96% of the human images in the advertisements
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`were of Black or Latino individuals. With these three criteria, McIlwain concluded
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`that Emigrant’s advertising was unethical, in that the STAR NINA product was a
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`“high-interest, low-income product that is predatory and has adverse effects” to the
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`Accordingly,
`this Court finds that Emigrant has not met its burden of
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`market form which it heavily recruited.
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`demonstrating that the jury verdict on liability was the result of “surmise” or
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`“conjecture,” or was otherwise unreasonable.
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`Emigrant’s Objection to the Court’s Jm Instructions
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`Emigrant argues that the jury instructions on intentional discrimination,
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`disparate impact and gross unfavorability misstated the law and warrant a new trial.
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`They also argue that certain instructions they proffered were incorrectly altered or
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`incorrectly omitted altogether.
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`On June 20, 2016, the Court held a charge conference at which Emigrant
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`made the same or similar arguments, all of which were rejected. On Emigrant’s Rule
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`50 motion, the Court again rejects Emigrant’s arguments following reasons.
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`III.
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`The Court charged the jury that if it believed that that the evidence
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`A. Intentional Discrimination
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`demonstrated that the STAR NINA loans were grossly unfavorable and intentionally
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`targeted certain groups based in part on race, color or national origin, it could find
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`discrimination under the FHA, ECOA and NYCHRL. The plain words of the
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`instruction are as follows:
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`
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`In order to prevail on their claim that Defendants intentionally engaged in
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`lending practices that violated the Fair Housing Act, Equal Credit
`Opportunity Act, and New York City Human Rights Law, Plaintiffs must
`establish that:
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`
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`(1) the STAR NINA loan product was grossly unfavorable to the
`borrower; and
`to make STAR NINA loans in certain
`(2) Defendants’ effort
`communities was motivated, at least in part, by race, color, or
`national origin.
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` If you find Plaintiffs have established these elements by a preponderance of
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`the evidence, then you must find that Defendants violated the Fair Housing
`Act, Equal Credit Opportunity Act, and the New York City Human Rights
`Law.
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`
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`Plaintiffs are not required to show that Defendants acted with racial animus,
`which means hatred or dislike for particular racial or ethnic group. Nor do
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`they need to prove that race, color or national origin was the only reason for
`Defendants’ conduct. Rather, they are only required to show that race, color,
`or national origin was one motivating factor. This means that in order for
`Defendants to be found liable for violating the Fair Housing Act, Equal Credit
`Opportunity Act, and the New York City Human Rights Law, race, color, or
`national origin need only have played some role in Defendants’ conduct.
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`(Dkt. No. 522 at 33.) Emigrant presents three arguments that this instruction requires
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`the Court to grant them a new trial. They argue that “the jury was not instructed in
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`any way on Plaintiffs’ intentional-targeting theory;” that evidence of animus is a
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`necessary component of intentional discrimination and that it was improper to
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`reference Hispanic borrowers when none of the Plaintiffs are Hispanic.
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`Emigrant’s argument that the charge fails to take into account Plaintiffs’
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`theory of targeting is plainly specious and semantic: the intentional offering of
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`“grossly unfavorable loans” to members of “certain communities” with “race, color,
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`or national origin” in mind is, in fact, targeting. That the court did not use the precise
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`word “target” in this instruction does not warrant a new trial when the evidence is
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`viewed as a ' whole. The charge requires the jury to find that Emigrant was
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`“motivated, at least in part” by the impermissible factors of race, color or national
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`original.
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`It strains logic to imagine that the jury based its verdict on intentional
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`discrimination, found that Emigrant was motivated at least in part by race, color or
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`national origin, did in fact obtain grossly unfavorable loans
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`from certain
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`communities, but that these communities were not targeted. m, Barkley v.
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`Olmpia Mortg. Co., 2007 WL 2437810, at *11 (E.D.N.Y. Aug. 22, 2007) (finding
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`an example of targeting to be the placement of advertisements in Caribbean Life, a
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`“community newspaper that serves the West Indian immigrant community, while not
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`advertising in community papers that are part of the same newspaper chain but serve
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`primarily white neighborhoods”).
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`Next, Emigrant argues that Plaintiffs were required to show discriminatory
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`animus, and that the instructions failed to inform them of that. This Court disagrees.
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`In Village of Arlington Heights v. Metropolitan Hous., 97 U.S. 555 (1977), the
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`Supreme Court summarizes “without purporting to be exhaustive, subjects of proper
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`inquiry in determining whether racially discriminatory intent existed.” Id, at 565
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`(emphasis added).
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`Those subjects include “sensitive inquir[ies]
`into such
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`circumstantial and direct evidence of intent[,]...[t]he historical background of the
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`action.” Li; see also Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581 (2d Cir.
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`decision,” and “[t]he specific sequence of events leading up to the challenged
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`2015) (“[W]hen Congress amended the FHA in 1988, the circuits were largely in
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`agreement that if one of the factors for an act was unlawful, the act violated the
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`FHA.”) (collecting cases); Robinson v. 12 Lofts Realm, Inc., 610 F.2d 1032, 1042
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`(2d. Cir. 1979) (“[W]hile [the court] did not doubt that the defendant’s primarily goal
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`was to make money. .
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`. [the court] need not and [did] not find that racial prejudice
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`dominated defendant’s mind during the negotiations. It is enough that race was one
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`significant factor he considered in his dealings with the men”) (quoting mg
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`States v. Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir. 1973) (internal quotation
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`marks omitted)); mrk—ley, 2007 WL 2437810, at *11 (“[A]
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`factfinder might
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`determine that defendants had harbored ill will toward racial minorities, or that they
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`had used race as a proxy, doing business exclusively with minorities out of the biased
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`perception that
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`those individuals would be especially vulnerable to fraud”)
`(emphasis in original).) Accordingly, this Court finds the word “animus” need not
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`appear in a charge on intentional discrimination and that the charge read was correct.4
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`B. Pretext
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`The Court’s charge on pretext was as follows:
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`The fact that Defendants offer explanations for their actions does not
`mean that they are not liable for intentional discrimination.
`If you
`conclude that the explanations are false or unworthy of credence, you
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`may infer that Defendants’ actions were motivated by discrimination
`