Denise Minter v. Wells Fargo Bank, N.A.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:07-cv-03442-WMN. [999409729]. [13-2131]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2131

DENISE MINTER, Individually and on behalf of a class of
consumers similarly situated; JASON ALBOROUGH; RACHEL
ALBOROUGH; LIZBETH T. BINKS,
Plaintiffs – Appellants,
and
FRANK LAROCCA; CATHERINE LAROCCA; MEHDI
IRANPOUR; KENNETH PFEIFER; ANGELA PFEIFER,

NAFISI;

FOROUGH

Intervenors/Plaintiffs,
v.
WELLS FARGO
PROSPERITY
CORPORATION,
Corporation;

BANK, N.A.; LONG & FOSTER REAL ESTATE, INC.;
MORTGAGE
COMPANY;
WALKER
JACKSON
MORTGAGE
formerly doing business as Prosperity Mortgage
WELLS FARGO VENTURES, LLC,
Defendants – Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William M. Nickerson, Senior District
Judge. (1:07-cv-03442-WMN)

Argued:

May 14, 2014

Decided:

August 5, 2014

Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.

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Affirmed by published opinion.
Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Conrad joined.

ARGUED: Cyril Vincent Smith, ZUCKERMAN SPAEDER LLP, Baltimore,
Maryland, for Appellants. William M. Jay, GOODWIN PROCTER LLP,
Washington, D.C., for Appellees.
ON BRIEF: William K. Meyer,
ZUCKERMAN SPAEDER LLP, Baltimore, Maryland; Richard S. Gordon,
Benjamin H. Carney, GORDON, WOLF & CARNEY CHTD., Baltimore,
Maryland, for Appellants.
Irene C. Freidel, Brian M. Forbes,
K&L GATES LLP, Boston, Massachusetts; Andrew Jay Graham, John A.
Bourgeois, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for
Appellees Wells Fargo Bank, N.A., and Wells Fargo Ventures, LLC.
David L. Permut, Sabrina M. Rose-Smith, GOODWIN PROCTER LLP,
Washington, D.C., for Appellee Prosperity Mortgage Company. Jay
N. Varon, Jennifer M. Keas, FOLEY & LARDNER LLP, Washington,
D.C., for Appellees Long & Foster Real Estate, Incorporated, and
Walker Jackson Mortgage Corporation.

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WYNN, Circuit Judge:
In this class action suit, Plaintiffs Denise Minter, Jason
and Rachel Alborough, and Lizbeth Binks brought suit on behalf
of a group of consumers alleging that Wells Fargo and Long &
Foster Real Estate (collectively, “Defendants”) violated Section
8 of the Real Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. § 2607.
created

a

Specifically, Plaintiffs allege that Defendants

joint

venture,

Prosperity

Mortgage

Company

(“Prosperity”), to skirt RESPA’s prohibition on kickbacks while
failing to disclose this business arrangement to its customers.
After a trial on a portion of Plaintiffs’ claims, the jury
returned a verdict that foreclosed Plaintiffs’ untried kickback
claims.

Plaintiffs moved for a new trial on the kickback claims

but were denied.

Due in large part to Plaintiffs’ failure to

move for judgment as a matter of law before the jury reached its
verdict, as well as the highly deferential lenses through which
we

must

district

review
court

the
did

issues
not

Plaintiffs’ challenges.

before

abuse

its

us,

we

conclude

discretion

as

that

to

the

any

of

Accordingly, we affirm.

I.
In

1993,

Wells

Corporation,

a

Foster

Estate,

Real

Fargo

subsidiary

and

formed

and

Walker

affiliate

Prosperity
3

of

Jackson
Defendant

Mortgage

Mortgage
Long

Company

as

&
a

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joint venture.1

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Prosperity was created as “a mortgage lender

that funded its loans via a wholesale line of credit provided by
Wells Fargo[.]”

J.A. 205.

Plaintiffs Denise Minter and Jason and Rachel Alborough,
along with a class of similarly situated consumers, purchased
their homes with a Long & Foster realtor and obtained mortgages
through Prosperity in 2006 and 2007.

In late 2007, Plaintiffs

brought this class action suit alleging that Wells Fargo and
Long

&

Foster

organization

created

formed

to

Prosperity
facilitate

as

a

unlawful

“sham”

or

referral

a

front

fees

and

kickbacks in violation of RESPA, as well as a variety of other
state and federal law claims.2

In particular, Plaintiffs alleged

that Defendants created Prosperity to allow Long & Foster to
refer mortgage clients to Wells Fargo in exchange for kickbacks.
Plaintiffs also alleged that Prosperity performed little to no
1

At that time, the parties to the joint venture were
Norwest Mortgage, Inc. and Walker Jackson Mortgage Corporation,
which was then known as Prosperity Mortgage Corporation.
Norwest Mortgage later became Wells Fargo. For the purposes of
this opinion, the companies’ current names, Wells Fargo and Long
& Foster, will be used.
2
Plaintiffs also alleged violations of the Racketeer
Influenced and Corrupt Organizations Act, the Maryland Consumer
Protection Act, and derivative tort claims, but none of these
are the subject of this appeal.
Before trial, the parties
stipulated to dismiss most of the counts in the complaint, and
Plaintiffs proceeded only on their RESPA and
RESPA conspiracy
claims.
Later, the district court found that RESPA does not
support a cause of action for conspiracy and granted Defendants
summary judgment on the conspiracy claim.
Thus, the only
remaining claims on appeal are the three RESPA claims.
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real work in connection with the mortgage transactions and that
Wells

Fargo

was

the

real

lender.

Plaintiffs

asserted

three

RESPA violations:
1. The Section 8(a) claim alleged that Wells Fargo paid
kickbacks to Long & Foster in exchange for settlement
services.
2. The Section 8(c) claim alleged that Wells Fargo and
Long & Foster operated Prosperity as a “sham” lender,
i.e., not a bona fide provider of settlement services,
to funnel Long & Foster real estate customers to Wells
Fargo for mortgage products.
3. The Section 8(c)(4) claim alleged that Defendants, as
members of an affiliated business arrangement as
defined by RESPA, did not comply with RESPA’s
requirement to provide borrowers with valid affiliated
business arrangement disclosures.
J.A. 206, 250, 292-301, 1036-37, 1095-97.3
Plaintiffs
claims.

The

moved
district

to

certify

court

a

class

bifurcated

for

all

Plaintiffs’

of

their

proposed

class into two separate classes: (1) the Timely Class, including
all the class members whose claims were brought within RESPA’s
one-year statute of limitations, and (2) the Tolling Class, for

3

The district court and the parties refer to the claims as
Section 8 claims in light of the Section’s location in the
statute as enacted by Congress, RESPA, Pub. L. No. 93533, 88
Stat. 1724, but these references correspond to subsections of 12
U.S.C. § 2607.
Section 8(a) sets out RESPA’s prohibition on
kickbacks while Section 8(c) provides exemptions from that
prohibition. In this case, Plaintiffs alleged direct violations
of Section 8(a)’s prohibition as well as Section 8(c) claims,
which assert that Defendants failed to meet the requirements for
the Section 8(c) exemptions from Section 8(a). In this appeal,
we are not asked to decide whether Section 8(a) and Section 8(c)
provide separate claims, and we therefore take no position on
that issue.
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all class members whose claims were brought after the statute of
limitations period expired.
Thereafter,

the

district

court

certified

Plaintiffs’

Section 8(c) and 8(c)(4) claims, but did not certify the Section
8(a)

claims

because

“only

those

Prosperity

clients

who

were

referred [to Prosperity] by Long & Foster may proceed under [the
Section

8(a)]

particular

claim”

sub-set

of

and

certifying

members

would

a

sub-class

“unnecessarily

for

that

complicate

and obscure” the central inquiry into Prosperity’s legitimacy as
a lender.

J.A. 260-61.

The district court noted that “[s]hould

Plaintiffs fail under their Section 8(c) claims, the Court may
entertain

further

theory.”

J.A.

briefing

261.

The

with

respect

district

to

court

the
also

Section
chose

8(a)

not

to

certify the Tolling Class on any of the claims because it did
not have a representative member.
In response, Plaintiffs amended their complaint to include
a new named plaintiff, Lizbeth Binks, as a representative of the
Tolling Class, and renewed their motion to certify the Tolling
Class on all their claims.

The district court reiterated that

it would not certify the Section 8(a) claims for either the
Tolling

or

the

Timely

Class.

After

completing

a

class

certification analysis, the district court certified the Tolling
Class on its Section 8(c) and 8(c)(4) claims only.

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Defendants then moved for summary judgment on the Timely
and Tolling Classes’ claims.

The district court denied their

motions due to factual disputes that could not be resolved at
the summary judgment stage.4
and

8(c)(4)

claims,

Before trial on the Section 8(c)

Plaintiffs

suggested

that

the

individual

Section 8(a) claims, although not certified as a class, should
be tried in the same trial.

The district court rejected that

request, stating that “[f]ollowing the upcoming trial, the Court
will solicit proposals from the parties related to scheduling a
trial of Plaintiffs’ individual § 8(a) claims.”

J.A. 1097.

See

also J.A. 1100 n.2 (“Plaintiffs’ individual claims under § 8(a)
will be tried at a later date.”).
Before trial, Defendants moved to decertify both the Timely
and the Tolling Classes.

The district court decertified the

Tolling

court’s

Class

due

to

the

4

concerns

about

the

tolling

However, the district court noted that it would consider
decertifying the Tolling Class at a later point:
While the Court concludes that summary judgment should
be denied . . . as to Binks’ claim, after delving into
the arguments regarding tolling, . . . the Court finds
it must at least consider the option to which it
alluded when certifying the Tolling Class, i.e.,
exercising its discretion to decertify that class
should issues of manageability begin to overwhelm the
advantages of certification.
The Court will delay
that
determination,
however,
until
after
the
completion of the Petry trial.
J.A. 780 (citation omitted).
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doctrine’s individualized application.5

The district court also

amended the Timely Class by limiting it to class members who
were referred to Prosperity by Long & Foster and excluding any
class members whose loans were not transferred to Wells Fargo
but were instead sold to others.
Also before trial, Plaintiffs moved to exclude evidence and
argument about whether Plaintiffs had suffered economic injury,
including testimony from one of Defendants’ experts, Dr. Marsha
Courchane.

The

district

court

agreed,

ruling

that

Dr.

Courchane’s testimony and other “evidence of a lack of economic
damages” was minimally relevant and deemed the probative value
of the expert testimony “substantially outweighed by a danger of
unfair
J.A.

prejudice,
1119-20.

reconsider

that

confusion,
However,
ruling

if

misleading

the

court

Plaintiffs

the
stated

jury,

or

that

“open[ed]

the

delay.”

it

door

evidence of economic injury during their case-in-chief[.]”
1120.

would
to

J.A.

Later, the district court ruled that Defendants would be

allowed to ask about whether Plaintiffs “shopp[ed] around for
their mortgages and whether they chose Prosperity because it was
5

After the trial, the district court entered Administrative
Order Number 5.
That order explained the re-definition of the
classes, stayed the decertification of the classes until notice
was provided, and severed the individual 8(a) claims of the
Timely Class representatives, Minter and the Alboroughs, from
the individual Section 8(a) claims of the Tolling Class
representative, Binks, and ordered “that those claims shall be
subject to separate proceedings, if necessary.” J.A. 1267-69.
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offering better rates[,] lower costs, or better service.”
1162 (quotation marks omitted).
evidence

“is

relevant

J.A.

The court explained that this

background

on

the

Named

Plaintiffs’

claims[,]” distinct from unfairly prejudicial evidence of their
lack of economic harm.

Id.

After resolving these motions, the district court held the
trial on Plaintiffs’ Section 8(c) and Section 8(c)(4) claims.
During this trial, several matters arose to become the bases for
the

issues

now

on

appeal.

First,

throughout

the

trial,

Plaintiffs objected to Defendants’ questions regarding whether
Plaintiffs suffered economic harm from using Prosperity, whether
Prosperity’s loans were competitive in the market, and whether
Prosperity gave the named Plaintiffs the best deal.

Second,

during closing arguments, Long & Foster’s counsel stated that “I
think the only thing I agree [with] for sure is that Long &
Foster did refer the named plaintiffs to Prosperity.
dispute about that.”
and

Wells

financially

Fargo

J.A. 1686.

stated

beneficial

that

deals

There’s no

Third, counsel for Prosperity
the

in

named

their

Plaintiffs

loans.

And

received
finally,

during his closing argument, Wells Fargo’s counsel implied that
Plaintiffs’ attorney had a financial interest in the case.
After

the

district

court

instructed

the

jury

and

deliberations concluded, the jury returned a verdict in favor of
Defendants.

Specifically, the jury decided that Plaintiffs did
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not prove by a preponderance of the evidence that Prosperity was
a sham and not a bona fide provider of settlement services.

In

addition, the jury decided that Plaintiffs did not prove that
Long & Foster referred or affirmatively influenced Plaintiffs to
use

Prosperity

influenced
services.

or

that

Plaintiffs

Prosperity
to

use

referred

Wells

or

Fargo

affirmatively

for

settlement

Accordingly, the district court entered judgment in

favor of Defendants.6
Thereafter, Plaintiffs moved for a new trial under Federal
Rule of Civil Procedure 59(a).
motion

and

Defendants
claims

issued
and

under

§

an

order

against
8(a)

of

Named

The district court denied the

entering

judgment

Plaintiffs

[RESPA],

12

on

“in

Named

U.S.C.

§

favor

of

Plaintiffs’

2607[,]”

i.e.,

claims that had not yet been tried (as opposed to the Section
8(c) claims, which had been tried).
31.

Appellants’ Br. at Addendum

Plaintiffs timely appealed.

II.
Plaintiffs first challenge the district court’s rejection
of their Rule 59(a) motion for a new trial.

“A district court’s

denial of a motion for a new trial is reviewed for abuse of

6

The district court later entered an amended judgment that
reflected the exclusions from the class that were discussed
above.
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discretion,

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and

will

not

exceptional circumstances.’”

be

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reversed

‘save

in

the

most

FDIC v. Bakkebo, 506 F.3d 286, 294

(4th Cir. 2007) (quoting Figg v. Schroeder, 312 F.3d 625, 641
(4th Cir. 2002)).
Rule 59 states that “[t]he court may, on motion, grant a
new trial on all or some of the issues . . . after a jury trial,
for any reason for which a new trial has heretofore been granted
in

an

action

59(a)(1).

at

We

law
have

in

federal

recognized

court[.]”
that,

Fed.

under

this

R.

Civ.

rule,

P.
the

district court must
“set aside the verdict and grant a new trial[] if . .
. (1) the verdict is against the clear weight of the
evidence, or (2) is based upon evidence which is
false, or (3) will result in a miscarriage of justice,
even though there may be substantial evidence which
would prevent the direction of a verdict.”
Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001) (quoting
Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99
F.3d 587, 594 (4th Cir. 1996)).
Plaintiffs

brought

three

RESPA

claims:

Section 8(c) and Section 8(c)(4) claims.

Section

8(a),

The Section 8(c) and

Section 8(c)(4) claims proceeded to trial, but the Section 8(a)
claims

did

not

but

were

instead

adjudicated

after

trial.

Appellants’ Rule 59 motion is unusual in that Plaintiffs are not
seeking a new trial for the purpose of re-trying their Section

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8(c) claims.

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Instead, they are seeking “only a first trial on

their [Section] 8(a) claims[.]”

Appellants’ Br. at 49.

Plaintiffs’ Rule 59(a) motion specifically challenged the
jury’s negative answer to Question Three of the verdict form:
“Have Plaintiffs proved, by a preponderance of the evidence,
that Long & Foster Real Estate, Inc. referred or affirmatively
influenced the Plaintiffs to use Prosperity Mortgage Company for
the

provision

of

settlement

services?”

J.A.

1212.

Because

Plaintiffs’ Section 8(a) claim also required Plaintiffs to prove
that

Long

district

&

Foster

court

referred
that

held

Plaintiffs
jury’s

the

to

Prosperity,

finding

on

this

the
issue

undermined both the Plaintiffs’ tried and untried RESPA claims.
Plaintiffs

thus

seek

to

overturn

the

jury’s

finding

on

this

question and attain a trial on the Section 8(a) claims.
On appeal, Plaintiffs make two arguments for reversal of
the district court’s denial of their Rule 59 motion: 1) Long &
Foster’s

counsel

referral

issue

made

from

a

judicial

dispute,

and

admission
2)

against the clear weight of evidence.

the

that

removed

the

jury’s

verdict

was

We disagree with both.

A.
First, Plaintiffs argue that the district court abused its
discretion by finding that Long & Foster’s counsel’s statement

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in

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closing

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argument

that

Long

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&

Foster

referred

the

named

Plaintiffs to Prosperity was not a judicial admission.
A

judicial

admission

is

a

representation

that

is

“‘conclusive in the case’” unless the court allows it to be
withdrawn.

Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264

(4th Cir. 2004) (quoting Keller v. United States, 58 F.3d 1194,
1198 n.8 (7th Cir. 1995) (further defining judicial admissions
as “formal concessions in the pleadings, or stipulations by a
party or its counsel, that are binding upon the party making
them”)).

Judicial

admissions

include

“intentional

and

unambiguous waivers that release the opposing party from its
burden

to

prove

the

conclusion of law.”
may

constitute

statements

a

are

facts

necessary

Id. at 264-65.
binding

to

the

waived

“[A] lawyer’s statements

admission

“‘deliberate,

establish

of

clear,

a
and

party[]”

if

the

unambiguous[.]’”

Fraternal Order of Police Lodge No. 89 v. Prince George’s Cnty.,
Md., 608 F.3d 183, 190 (4th Cir. 2010) (quoting Meyer, 372 F.3d
at 265 n.2).
to

whether

“We review the district court’s determination as
a

particular

statement

constitute[d]

admission . . . [for] abuse of discretion.”

a

judicial

Meyer, 372 F.3d at

264 (quotations omitted) (alterations in original).
In this case, during closing arguments, Long & Foster’s
counsel stated:

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First of all, at the outset, I would just ask you to
ask yourselves if your assessment of the witnesses, of
the documents, of their credibility, of what you heard
in this case really matches what [Plaintiffs’ counsel]
told you. It’s your job to weigh what occurred here.
And frankly, I’m sure you won’t be surprised, I
have a lot of differences, and differences of
recollection, differences in what was said.
I think the only thing I agree way [sic] for sure
is that Long & Foster did refer the named plaintiffs
to Prosperity. There’s no dispute about that.
J.A. 1686.

Plaintiffs did not object, move for judgment as a

matter of law, or seek to amend the jury verdict form after this
alleged admission.

After deliberations, the jury found that

Plaintiffs

proven

had

affirmatively

not

influenced

that

Long

Plaintiffs

&
to

Foster
use

referred

or

Prosperity.

Plaintiffs then moved for a new trial, arguing for the first
time after the jury’s verdict, that counsel’s statement during
argument had constituted a judicial admission that Long & Foster
had referred the plaintiffs to Prosperity.
The district court recognized that “[t]aken alone, [Long &
Foster’s counsel’s] statement could possibly be considered an
admission[,]” but rejected the motion for a new trial.
1353.

The district court explained that

giving due regard to the context of this litigation
and considerations of fairness, the Court is troubled
by the fact that the supposed admission is being
raised for the first time post-verdict.
While the
time between [Long & Foster counsel’s] statement and
submission of the case to the jury was indeed short,
the Court believes it was a sufficient amount of time
for Plaintiffs to reconsider the task with which the
jury would be charged in light of counsel’s statement,
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and to raise the supposed admission with the Court and
with counsel. Obviously, Plaintiffs did not and, . .
. the conclusion which urges itself at this time is
that it occurred to no one at the trial that the
remarks in question constituted an admission of the
nature here urged. As a result, the Court believes it
would be decidedly unfair and inconsistent with the
purpose of motions under Rule 59 to allow Plaintiffs
to do now, what they failed to do at trial.
J.A. 1353-54 (quotation marks, citations, and footnote omitted).
On appeal, Plaintiffs claim that this ruling was an abuse
of

discretion.

We

disagree.

The

record

reflects

that

Plaintiffs had ample opportunity to raise the alleged admission
but failed to do so.

And the fact that it occurred to no one at

trial that this isolated remark constituted a binding admission
undercuts

the

notion

that

the

statement

was

sufficiently

deliberate and clear so as to have preclusive effect.

In the

face of Plaintiffs’ failure to undertake any steps whatsoever at
trial to have the statement deemed an admission or have the
issue removed from the jury’s province, it simply cannot be said
that “an error occurred in the conduct of the trial that was so
grievous as to have rendered the trial unfair.”

Bristol Steel &

Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.
1994) (quotation marks omitted).

Accordingly, we conclude that

the district court did not abuse its discretion on this issue.

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B.
Second, Plaintiffs contend that the district court abused
its discretion by denying their motion for a new trial because
the jury’s verdict was against the clear weight of the evidence.
While a party is not required to make a Rule 50 motion for
judgment as a matter of law before moving for a new trial, when,
as

here,

a

party

does

not

do

so,

“our

scope

of

review

is

exceedingly confined, being limited to whether there was any
evidence

to

support

the

jury’s

verdict,

irrespective

of

its

sufficiency, or whether plain error was committed which, if not
noticed, would result in a manifest miscarriage of justice.”
Bristol Steel, 41 F.3d at 187 (quotation marks and citations
omitted); accord Nichols v. Ashland Hosp. Corp., 251 F.3d 496,
502 (4th Cir. 2001).
In other words, when “reviewing the evidence through the
medium of a motion for a new trial after failure to move for
judgment as a matter of law, we do not review sufficiency in its
technical sense.

What is at issue is whether there was an

absolute absence of evidence to support the jury’s verdict.”
Bristol Steel, 41 F.3d at 187 (quotation marks and citations
omitted).
decision

Therefore,
unless

there

we
was

must
“an

affirm
absolute

the

district

absence

of

court’s
evidence”

supporting the jury’s finding that Plaintiffs did not prove by a
preponderance of the evidence that Long & Foster referred or
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affirmatively influenced them to use Prosperity for settlement
services.

Id.

Under RESPA’s regulations,
[a] referral includes any oral or written action
directed to a person which has the effect of
affirmatively influencing the selection by any person
of a provider of a settlement service or business
incident to or part of a settlement service when such
person will pay for such settlement service or
business incident thereto or pay a charge attributable
in whole or in part to such settlement service or
business.
12 C.F.R. § 1024.14(f)(1) (2011).

The district court provided

this definition to the jury during its final instructions.
We

cannot

say

that

there

is

an

“absolute

absence

of

evidence” supporting the jury’s determination that Long & Foster
did not refer the plaintiffs to Prosperity.

For example, Long &

Foster executive George Eastment testified that it was Long &
Foster’s independently contracted real estate agents who were
responsible for referring Plaintiffs to Prosperity, not Long &
Foster itself.
“contact

is

not

Specifically, he stated that Long & Foster’s
with

the

buyers

and

sellers,”

rather

the

“independent contractors who are agents . . . have the contact
with the buyers and sellers[.]”

J.A. 1495.

He later reiterated

that “[a]gents who were affiliated with Long & Foster made the
referral.

The company itself did not make the referral.”

1511.

17

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evidence

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supported

Defendants’

theory

that

the

actions of Long & Foster real estate agents did not qualify as a
referral under RESPA because Long & Foster’s agents’ actions did
not “affirmatively influenc[e]” Plaintiffs to choose Prosperity.
12 C.F.R. § 1024.14(f)(1).

For example, Long & Foster real

estate agent Konstantino Tsamouras testified that Prosperity was
not the only lender he recommended to Plaintiffs.

The record

supports this testimony, reflecting that Tsamouras recommended
loan officers from both Prosperity and Bank of America to the
Alboroughs,

and

First Mortgage.

that

Tsamouras

referred

other

individuals

to

Further, the named Plaintiffs testified that

they shopped around and conducted an independent search for a
lender before deciding to use Prosperity and selected Prosperity
because it offered the best deal.

See J.A. 1526-30, 1563-69,

1570-71.
Undoubtedly, the evidence would have supported a verdict
going the other way.

But in light of Plaintiffs’ failure to

move for judgment as a matter of law before the jury did its job
and the ensuing high bar Plaintiffs face, we cannot conclude
that there was an “absolute absence of evidence” supporting the
jury’s verdict.
must

affirm

the

Bristol Steel, 41 F.3d at 187.
district

court’s

motion for a new trial.

18

denial

of

the

We therefore
Plaintiffs’

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III.
Plaintiffs also challenge the district court’s decision to
admit testimony regarding the economic harm, or lack thereof,
that

they

suffered

services.

“We

due

review

to
a

using
trial

Prosperity's
court’s

settlement

rulings

on

the

admissibility of evidence for abuse of discretion, and we will
only

overturn

irrational.”
2011)

an

evidentiary

ruling

that

is

arbitrary

and

United States v. Cole, 631 F.3d 146, 153 (4th Cir.

(quotation

marks

omitted).

See

also

Myers, 589 F.3d 117, 123 (4th Cir. 2009).

United

States

v.

To be admissible,

evidence must be relevant – a “low barrier” requiring only that
evidence be “worth consideration by the jury[.]”

United States

v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (quotation marks
omitted).
Under Federal Rule of Evidence 403, determining whether the
probative value of evidence is substantially outweighed by the
danger of unfair prejudice, misleading the jury, or confusion of
the

issues

is

within

the

district

court’s

broad

discretion.

United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).

We

will not overturn a Rule 403 decision “except under the most
extraordinary
discretion

has

of

circumstances,

been

plainly

where

abused.”

omitted) (alteration in original).

[a
Id.

trial

court’s]

(quotation

marks

When reviewing the district

court’s decision to admit evidence under Rule 403, “we must look
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at the evidence in a light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial
effect.”

United States v. Udeozor, 515 F.3d 260, 265 (4th Cir.

2008) (quotation marks omitted).
Before trial, the district court excluded Dr. Courchane’s
expert

testimony

regarding

Prosperity’s

loan

prices

and

all

other testimony, evidence, or argument about whether Plaintiffs
suffered economic injury.

The district court explained that

Plaintiffs were not required to establish economic injury to
prove their RESPA claims and that the probative value of such
evidence would be minimal.

The district court warned that “if

Plaintiffs open the door to evidence of economic injury during
their case-in-chief, [the court] will reconsider this decision.”
J.A. 1120.
During trial, however, the district court ruled that it
would allow Defendants to question Plaintiffs about whether they
“shopp[ed] around for their mortgages” and whether they chose
Prosperity because it offered “better rates[,] lower costs, or
better

service”

marks

omitted).

questioning

was

than

its

The

competitors.

district

relevant

as

court

background

J.A.

1162

explained

(quotation
that

information

on

such
the

Plaintiffs’ claims, but it cautioned that Defendants would not
be allowed to suggest from the Plaintiffs’ “decisions to shop
around or their decision to choose Prosperity because of its
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rates and/or fees” that Plaintiffs consequently did not suffer
any economic harm.
At

trial,

witnesses

Id.

over

about

how

lenders.

See

Defendants’

Plaintiffs’

objections,

Prosperity’s

J.A.

witnesses

1538,

prices

compared

1568-1571,

testified

that,

Defendants

1586-92,

generally,

offered lower prices on loans than Wells Fargo.
1638-39.
ask

with

asked
other

1638-39.
Prosperity

See J.A. 1592,

In addition, the district court allowed Defendants to

whether

Plaintiffs

involvement

with

Specifically,

suffered

Prosperity.

during

counsel asked Minter:

financial
See

harm

due

to

J.A.
Wells

cross-examination,

1536-38,
Fargo’s

their
1570.

defense

“You have absolutely no evidence that by

doing your loan with Prosperity, and having Prosperity sell its
loan on the secondary market to Wells Fargo, that you incurred
any financial consequence one way or the other, negatively?”
J.A. 1538.

Minter responded that she did not know and had not

looked at Wells Fargo’s rates.

Id.

Likewise, during cross-

examination, Prosperity’s defense counsel asked Jason Alborough
if he decided to use Prosperity because he thought Prosperity
was “giving [him] the best deal[,]” to which Jason Alborough
responded that Prosperity’s pricing was “[o]ne of the factors”
that led him to use Prosperity.
During
distinguished

Minter’s
between

J.A. 1570.

cross-examination,
allowing
21

such

the

district

questioning

on

court
direct

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examination and allowing it on cross-examination, stating “the
fact of whether she has or has not suffered any economic damage
is not off the table with respect to cross-examining her[,]”
although “[i]t’s off the table with respect to any element to be
required to prove the plaintiffs’ case, and I’ll instruct the
jury in that respect.”

J.A. 1536.

During Alborough’s cross-

examination, the district court allowed questioning on whether
Alborough had received the “best deal for [his] loan[,]” saying
“He

says

he

felt

appropriate.”

cheated,

J.A. 1570.

I

think

this

cross-examination

is

The district court later explained

that:
From
my
perspective,
the
evidence
has
not
indicated from individual plaintiffs any financial
loss.
To the contrary, particularly with regard to
Mr. Alborough, who was grilled at length as to why
he’s here as a plaintiff and never uttered a word that
sounded to me as though there was any financial loss
involved.
Nor did that come from Miss Minter, in addition
to which, as I’ve already indicated, the jury’s going
to be instructed that financial loss is not an issue
for them to be concerned about.
So simply put, the door has not been opened, in
my view.
The ruling will be as before.
Motion in
limine sustained.
J.A. 1640.
The district court’s decision to allow Defendants to adduce
general testimony from their own witnesses and cross-examination
testimony about Prosperity’s competitive loan pricing did not
constitute

an

abuse

of

discretion.

22

In

particular,

that

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testimony was relevant to determining whether Prosperity was a
sham business and whether Prosperity independently priced its
loans

to

be

competitive

in

the

market

rather

than

being

exclusively controlled by Wells Fargo and Long & Foster.
Moreover, any potential prejudicial impact was mitigated by
the district court’s jury instructions that stated:
[P]laintiffs are not required to prove they were
overcharged by any of the defendants in connection
with their loans, or that they incurred any financial
detriment, or that they’ve suffered any poor service
as a result of their dealings with the defendants.
Instead, for the plaintiffs to succeed on their
claims, they’re only required to prove that Prosperity
was a sham because it was not a bona fide provider of
settlement services.
J.A. 1733.
Given

the

Plaintiffs’

relevance

claims

and

of

this

the

line

of

district

questioning
court’s

to

the

mitigating

instructions to the jury in the context of the trial as a whole—
which lasted seventeen days and had over twenty witnesses—the
district

court’s

decision

to

allow

this

limited

questioning

about Plaintiffs’ economic harm was not an abuse of discretion.
We therefore affirm these evidentiary rulings.

IV.
Finally,

Plaintiffs

contend

that

the

district

court

erroneously failed to strike, or instruct the jury to disregard,
Defendants’ improper statements during closing arguments.
23

We

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review

this

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issue

for

abuse

Pg: 24 of 26

of

discretion.

See

Arnold

v.

Eastern Air Lines, Inc., 681 F.2d 186, 195, 197 (4th Cir. 1982),
rev’d on other grounds, 712 F.2d 899 (1983) (en banc); see also
United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010).
This

standard

is

met

only

where

there

is

a

“reasonable

probability” that the conduct improperly influenced the jury in
reaching

its

verdict,

i.e.,

the

conduct

“effective[ly]

subver[ted] . . . the jury’s reason or . . . its commitment to
decide the issues on the evidence received and the law as given
it by the trial court.”

Arnold, 681 F.2d at 197.

In analyzing this issue, we recognize that this question is
“one of judgment to be exercised in review with great deference
for the superior vantage point of the trial judge and with a
close

eye

review[.]”

to
Id.

the

particular

context

of

the

trial

under

On appeal, we must consider the “‘totality of

the circumstances, including the nature of the comments, their
frequency, their possible relevancy to the real issues before
the jury, the manner in which the parties and the court treated
the comments, the strength of the case (e.g. whether it is a
close case), and the verdict itself.’”

Id. (quoting City of

Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir.
1980)).
Courts have found that the abuse of discretion standard was
met where attorney misconduct permeated the trial and repeatedly
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exposed the jury to improper comments.
Cos.,

Inc.,

Cleveland,

994

F.2d

permeated

624

155,

F.2d

the

at

entire

closing argument”).

157

758

trial,

See Bufford v. Rowan

(5th

Cir.

(finding
from

1993);

that

opening

City

of

“improprieties

statement

through

By contrast, where the improper comments

were an isolated occurrence during an opening statement in the
course

of

a

three-week

trial,

this

Court

the

absence

of

described

found

no

prejudice

abuse
as

of

discretion

and

“self-

evident.”

Ins. Co. of N. Am., Inc. v. U.S. Gypsum Co., Inc.,

870 F.2d 148, 154 (4th Cir. 1989).
In this case, defense counsel’s remarks that Plaintiffs’
counsel was putting on a “sham lawsuit” and had “an interest in
the

outcome

Arnold,

of

681

this

F.2d

at

case”

were

196-97

inappropriate.

(finding

that

J.A.

1700;

“tasteless

and

irrelevant” comments about opposing counsel “were improper under
applicable professional standards and justified censure if for
no other reason than to preserve some degree of respect among
the

attending

public

for

the

profession

and

the

process”).

However, these improper remarks about Plaintiffs’ counsel were
made during closing argument only, rather than throughout the
course of the seventeen-day trial.

In the context of the full

trial, it is unlikely that these comments alone influenced the
jury

in

reaching

disparaging

its

reference

verdict.
to

Moreover,

Plaintiffs’
25

counsel

defense

counsel’s

did

have

not

a

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direct bearing on the real issues before the jury:
Prosperity

was

a

sham

provider

of

settlement

whether

services

and

whether Long & Foster referred Plaintiffs to Prosperity.
The district court charged the jury that the “statements,
the objections, or the arguments that were made by counsel are
not evidence in the case.”

J.A. 1731.

Further, the improper

comments did not permeate the trial, but rather were isolated,
mildly offensive remarks made during closing arguments.

Thus,

it is not reasonably probable that such comments subverted the
jury’s commitment “to decide the issues on the evidence received
and the law as given it by the trial court.”
at 197.

Arnold, 681 F.2d

Accordingly, we conclude that the district court did

not abuse its discretion in refusing to strike, or instruct the
jury to disregard, the statements.

V.
For the foregoing reasons, we affirm the judgment of the
district court.7
AFFIRMED
7

Plaintiffs also challenge the district court’s decision to
dismiss Binks’s Section 8(a) claims along with Minter’s and the
Alboroughs’ claims.
In response, Defendants contend that
Plaintiffs abandoned Binks’ Section 8(a) claims. Plaintiffs did
not challenge this dismissal below, and the district court had
no opportunity to rule on it. Such a decision should have been
made in the district court in the first instance, and we
therefore do not address it.
26