Wells Fargo Bank, N.A., v. LaSalle Bank National Association
Filing
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ORDER Granting in Part and Denying in Part 182 Motion in Limine. Signed by Judge James C. Mahan on 12/15/11. (Copies have been distributed pursuant to the NEF - ASB)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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WELLS FARGO BANK, N.A.,
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2:08-CV-1448 JCM (RJJ)
Plaintiff,
v.
LaSALLE BANK NATIONAL
ASSOCIATION,
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Defendant.
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ORDER
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Presently before the court is defendant LaSalle Bank National Association’s consolidated
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motion in limine. (Doc. #182). Plaintiff Wells Fargo Bank, N.A. filed an opposition. (Doc. #187).
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Defendant then filed a reply. (#192).
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Legal Standard
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Pursuant to Federal Rule of Evidence 402, only relevant evidence is admissible at trial.
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Evidence is relevant if “it has any tendency to make a fact more probable or less probable than it
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would be without the evidence.” FED. R. EVID. 401; M2 Software, Inc. v. Madacy Entm’t, 421 F.3d
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1073, 1088 (9th Cir. 2005). Courts in the Ninth Circuit routinely grant motions in limine seeking
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to exclude evidence that is irrelevant to the claims and defenses at issue. See, e.g., M2 Software, 421
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F.3d at 1087-88.
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Federal Rule of Evidence 403 provides that evidence, although relevant, may be excluded
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“if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
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issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative
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James C. Mahan
U.S. District Judge
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evidence.” FED. R. EVID. 403. This is a balancing test left to the sound discretion of the trial court.
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See, e.g., Maddox v. City of L.A., 792 F.2d 1408, 1417-18 (9th Cir. 1986).
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A.
Documents and testimony concerning the overall performance of the program or
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securitization
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Defendant first moves to limit evidence of the overall performance of the MFG program or
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the MF2 securitization. Defendant argues that the overall performance, which pertains to nearly 500
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loans not in issue, is immaterial to the instant breach of representations and warranties claims for the
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14 Palm Terrace loans. According to defendant, conflating the overall performance with the specific
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loans at issue “create[s] the significant potential for juror confusion and unfair prejudice.” (Doc.
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#182).
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In response, plaintiff argues that the overall performance is important because it demonstrates
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certain “systemic flaws” in defendant’s origination practices. These flaws allegedly impacted all of
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defendant’s loans and are, therefore, relevant to the loans at issue. For this particular motion in
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limine, plaintiff asserts that it should be allowed to introduce evidence, produced internally by
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defendant, showing that the quality of defendant’s origination practices suffered following
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defendant’s conversion of MFG from a “portfolio” to a “for sale” program.
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Pursuant to Rule 401, evidence is relevant if “it is has any tendency to make a fact more or
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less probable than it would be without the evidence.” Here, systemic flaws in the defendant’s
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origination practices would tend to make plaintiff’s allegations more probable than they would be
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without the evidence. The court further finds that the probative value of this relevant evidence is not
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substantially outweighed by unfair prejudice, confusing the issues, or misleading the jury. FED. R.
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EVID. 403. Thus, the evidence is relevant and admissible pursuant to Rules 401 and 402.
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Accordingly, the monthly delinquency reports for the MF2/MF3 securitizations and Mr. Gambara’s
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delinquent loan analysis are admissible.
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B.
Trepp report
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Defendant moves to exclude a report purporting to analyze delinquency rates of defendant’s
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loans in comparison to other commercial loans. Defendant’s motion is based on three grounds: (1)
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James C. Mahan
U.S. District Judge
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evidence of the overall performance would mislead the jury, confuse issues, and create unfair
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prejudice, (2) pursuant to Federal Rule of Evidence 802, it is hearsay for which no exception exists,
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and (3) pursuant to Federal Rule of Evidence 403, it is inherently unreliable and misleading and is
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likely to cause jury confusion and unfairly prejudice defendant.
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The court excludes the Trepp report pursuant to Federal Rule of Evidence 403; the probative
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value of the report is substantially outweighed by the danger of unfair prejudice, confusion of the
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issues or misleading the jury. As the Oklahoma court held on a related motion in limine, “this
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evidence has great potential to mislead the jury to decide liability based on the alleged poor
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performance of the security” rather than whether defendant breached its warranty as to the 14 Palm
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Terrace loans. (Ex. 1, Okla. memorandum opinion and order, p. 2-3).
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C.
Documents and testimony concerning Bank of America’s evaluation and subsequent
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actions
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Next, defendant moves to exclude evidence of Bank of America’s evaluation of the MFG
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program, arguing that these analyses are irrelevant to whether defendant breached any
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representations and warranties with respect to the 14 Palm Terrace loans. Plaintiff agrees not to
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introduce evidence of Bank of America’s discontinuance of the MFG program, but argues that Bank
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of America’s evaluation of the program is admissible to prove systemic origination flaws.
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Again, the court finds this evidence admissible pursuant to Federal Rule of Evidence 401.
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Evidence demonstrating systemic flaws in the origination process tends to make plaintiff’s
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allegations more probable. FED. R. EVID. 401. The court further finds that the probative value of
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this relevant evidence is not substantially outweighed by unfair prejudice, confusing the issues, or
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misleading the jury. FED. R. EVID. 403. Accordingly, evidence of Bank of America’s evaluation of
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the program is admissible pursuant to Rules 401 and 402.
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D.
Internal audits and reviews
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Defendant moves to exclude internal audits and reviews of the MFG program in general.
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Defendant asserts that there is no evidence that these internal audits and reviews specifically
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addressed the Palm Terrace loans. Therefore, this evidence is not pertinent to the claims at issue
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James C. Mahan
U.S. District Judge
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here.
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The court agrees with the Oklahoma court’s ruling on this issue: “the relevance, if any, of this
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review on whether [d]efendant breached warranties regarding the . . . underlying loans is
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substantially outweighed by the confusion of the issues and unfair prejudice caused to [d]efendant.”
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(Ex. 1, Okla. memorandum opinion and order, p. 4). The court excludes this evidence pursuant to
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Federal Rule of Evidence 403.
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E.
Office of the Comptroller of the Currency (“OCC”) audit
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Defendant’s next motion in limine seeks to exclude evidence referring to or relating to any
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OCC audit. Defendant asserts that any such evidence is irrelevant because the audit did not involve
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the MFG program at issue here.
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The audit admittedly does not encompass the program at issue here. Therefore, the court
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finds that this evidence is not relevant pursuant to Federal Rule of Evidence 401. Further, its
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probative value is substantially outweighed by the confusion of the issues and the prejudice it would
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cause against defendant. FED. R. EVID. 403.
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F.
Broker-ordered appraisals
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Defendant moves to exclude testimony and portions of documents discussing and referencing
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broker-ordered appraisals. Defendant argues that this evidence is completely irrelevant to the claims
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here because the Palm Terrace loans did not involve broker-ordered appraisals. Plaintiff argues that
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this evidence is relevant and admissible because it displays a “general lack of independence of the
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appraisal ordering function.” (Doc. #187).
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The court finds that any testimony and portions1 of documents discussing broker-ordered
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appraisals is irrelevant to the claims here. FED. R. EVID. 401. The Palm Terrace loans did not
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include broker-ordered appraisals, and any “general lack of independence” is not sufficiently
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James C. Mahan
U.S. District Judge
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Defendant’s motion is specifically limited to “portions” of documents discussing brokerordered appraisals. (Doc. #182). Accordingly, defendant does not seek to eliminate otherwise
relevant and admissible evidence simply because it is contained in a document referencing brokerordered appraisals. (See also Doc. #192 n.12). The proper balance between the admissible and
inadmissible appraisal-related evidence can be accomplished by redacting the documents, where
necessary.
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connected to the claims at issue to be relevant. Additionally, even if this evidence were relevant
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under Rule 401, the court finds that it is inadmissible pursuant to Rule 403 because its probative
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value is substantially outweighed by the confusion of issues and likelihood of prejudice.
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G.
Project 30 and shortening loan processing times
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Defendant seeks to limit evidence concerning “Project 30” and other efforts to shorten loan
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processing times. Defendant argues that Project 30 is irrelevant to the claims here because it was
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rolled out more than one year after the Palm Terrace loans closed. Therefore, it allegedly had no
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influence over the claims at issue. Plaintiff opposes this motion, asserting that the efforts to shorten
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loan processing times is highly relevant evidence that defendant failed to underwrite the Palm
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Terrace loans in accordance with customary industry standards.
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Pursuant to Federal Rule of Evidence 403, the court excludes any evidence referencing
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Project 30 because its probative value, if any, is outweighed by the confusion of issues and
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likelihood of prejudice. Project 30 was not instituted until after the Palm Terrace loans closed, so
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this evidence is irrelevant to the claims at bar. FED. R. EVID. 401.
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However, the court will admit evidence that demonstrates shortened loan processing times
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had an impact specifically on the Palm Terrace loans. Any such evidence would be relevant, and its
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probative value would not be substantially outweighed by confusion of the issues or prejudice to
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defendant.
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H.
Dysfunctional relationship between departments
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Defendant’s next motion in limine attempts to limit any evidence of an alleged
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“dysfunctional” or “strained” relationship between the underwriting and origination departments.
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Defendant alleges that plaintiff will suggest that the strained relationship between the departments
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led to errors in underwriting loans. Plaintiff responds that the conflicting operational goals and
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incentive structure of these two departments are probative of systemic flaws within the program that
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led to substandard underwriting decisions. Thus, the poor relationship between the sales and
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underwriting departments “is strong evidence that the underwriting of the [l]oans did not meet
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customary industry standards.” (Doc. #187).
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James C. Mahan
U.S. District Judge
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The court denies defendant’s motion without prejudice because this issue is not sufficiently
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presented to the court in this motion in limine. The court is skeptical that a strained relationship
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between departments is “strong evidence” of a failure to meet customary industry standards.
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However, the court is not prepared to find, based on this motion in limine, that this evidence is either
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irrelevant pursuant to Rule 401 or that its relevance is substantially outweighed by a danger of
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confusion of the issues or prejudice pursuant to Rule 403. Defendant may renew this challenge at
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trial, when the court has a better understanding of the relevant issues.
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I.
Top ten brokers
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Defendant moves to limit any evidence and testimony relating to “top ten” brokers. Plaintiff
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may argue that defendant had a policy of reviewing loans introduced by brokers with whom
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defendant did a lot of business more leniently than other loans. Allegedly, this leniency policy will
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be used to indicate that defendant made loans that fell below the customary industry standards.
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Defendant moves to limit this evidence, arguing that any policy of leniency towards certain favored
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brokers is not relevant to the more specific issue of whether defendant breached representations and
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warranties on these specific loans.
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Pursuant to Rule 401, evidence is relevant if “it is has any tendency to make a fact more or
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less probable than it would be without the evidence.” Here, a policy of leniency towards top ten
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brokers would tend to make plaintiff’s allegations of a breach of customary industry standards more
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probable. Thus, the evidence is relevant and admissible pursuant to Rules 401 and 402.
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J.
National field representative reports and loans not at issue
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Defendant’s next motion in limine seeks to prohibit any documents and testimony about
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alleged complaints by loan brokers and others about property inspections performed by national field
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representatives. Defendant argues that (1) there is no deposition testimony that there were problems
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with the national field representative reports for the Palm Terrace properties, and (2) there is no
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allegation that the quality of the reports is relevant to the breach of representations and warranties
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claims at issue here.
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In response, plaintiff asserts that an expert has made allegations that the 2005 inspection
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James C. Mahan
U.S. District Judge
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report was defective. Further, the errors in the report are directly attributable to the general
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sloppiness of the inspections, which is evidence that the loans did not meet customary industry
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standards.
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The court finds that alleged deficiencies in the national field reports on the Palm Terrace
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properties are relevant and admissible pursuant to Rules 401 and 402.
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K.
Defendant’s underwriting and appraisal practices at times other than when the Palm
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Terrace loans were written
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Defendant moves to prohibit evidence of underwriting and appraisal guidelines that existed
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outside of the time frame in which the Palm Terrace loans were ordered. Defendant offers multiple
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grounds for limiting this evidence: (1) it is not relevant pursuant to Rule 401; (2) it is inadmissible
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pursuant to Rule 403; and (3) it is inadmissible pursuant to Rule 407 as evidence of a subsequent
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remedial measure.
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In response, plaintiff concedes that underwriting guidelines implemented after the Palm
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Terrace loans were ordered are not relevant and should be excluded. However, plaintiff argues that
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evidence of defendant's later appraisal ordering procedures is relevant, admissible, and not barred
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by Rule 407. According to plaintiff, changes in defendant's appraisal ordering procedures is highly
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relevant to the claim that the Palm Terrace loan appraisals were not FIRREA compliant.
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The court grants defendant's motion to the extent that subsequently implemented
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underwriting guidelines are not relevant and, thus, inadmissible. FED. R. EVID. 401. The court
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further finds that evidence of underwriting and appraisal ordering guidelines in existence at times
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other than when the Palm Terrace loans were written is not relevant to the ultimate issue here,
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whether defendant breached warranties and representations on the Palm Terrace loans. Pursuant to
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Rule 401, this evidence is not admissible.
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L.
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program
Bank of America's guidelines and testimony about its conduit and/or business banking
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Defendant's next motion in limine seeks to limit evidence that relates to Bank of America's
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large loan conduit program and/or its business banking program. Defendant asserts that these
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James C. Mahan
U.S. District Judge
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programs are allegedly significantly different from LaSalle's program, and any probative value that
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these programs may have would be substantially outweighed by the danger of confusing the issues
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and prejudice to the defendant.
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Plaintiff agrees that Bank of America's underwriting guidelines may be excluded as a general
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matter. However, plaintiff asserts that evidence of Bank of America's business banking program
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should be admissible to “provide a relevant metric for whether LaSalle's underwriting guidelines .
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. . met customary industry standards.” (Doc. #187).
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The court finds that evidence of Bank of America’s business banking program is relevant and
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admissible. FED. R. EVID. 401, 402. Defendant is free to distinguish these programs before the jury.
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The probative value of this evidence is not substantially outweighed by any danger of confusion of
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issues or prejudice. FED. R. EVID. 403.
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M.
Performance reviews of employees
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Defendant moves to exclude all performance reviews of former LaSalle employees, arguing
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that (1) this evidence is inadmissible pursuant to Rule 402 because it is not probative of whether
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defendant breached any representations and warranties in connection with the Palm Terrace loans,
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and (2) this evidence would prejudice defendant because defendant did not have an opportunity to
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cross-examine the author or subjects.
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The court finds that this evidence is relevant and admissible during the time period for the
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Palm Terrace loans.
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N.
Legal conclusions or opinions
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Defendant’s next motion in limine seeks to redact portions of documents and testimony that
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express legal conclusions or opinions. Defendant wants to exclude the portions of documents and
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testimony by former LaSalle employees that allegedly offer legal opinions about whether LaSalle
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violated FIRREA standards. Defendant argues that well-established Ninth Circuit law holds that
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neither lay witnesses nor experts are permitted to offer legal opinions. See, e.g., Nationwide Transp.
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Fin. v. Cass Info Sys., 523 F.3d 1051, 1058-60 (9th Cir. 2008). Defendant further argues that
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excluding this evidence would be consistent with this court’s February 9, 2011, Daubert order in this
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James C. Mahan
U.S. District Judge
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case.
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In response, plaintiff argues that this evidence should be admissible pursuant to Federal Rule
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of Evidence 801(d)(2), as an admission by party-opponent. Plaintiff notes that all of the potentially
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objectionable evidence was produced by defendant’s former employees.
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Pursuant to Rule 801(d)(2), a statement is not hearsay if it is offered against a party and is
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the party’s own statement or a statement by the party’s agent. “Admissions in the form of an opinion
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are competent, even if the opinion is a conclusion of law.” GRAHAM, 30B FEDERAL PRACTICE &
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PROCEDURE § 7015.
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The court finds that this evidence is admissible because it is proffered to prove that the MFG
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Program’s appraisal process was not sufficiently independent. To the extent the proffered evidence
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constitutes admissions by a party-opponent, this evidence is relevant and admissible pursuant to
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Rules 401 and 801(d)(2).
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O.
Tom Watson’s draft reports
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Defendant moves to exclude all draft reports prepared by Tom Watson. In 2006, LaSalle
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hired Tom Watson as an independent consultant to provide opinions and advice on LaSalle’s various
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lending programs. As part of his position, Mr. Watson produced a final report and several draft
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reports. Plaintiff alleges that the draft reports were reviewed and edited by LaSalle management.
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Defendant argues that the draft reports are not admissible because: (1) they are irrelevant, and
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(2) draft reports do not qualify under the business records exception to the hearsay rule. In contrast,
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plaintiff asserts that the draft reports are relevant and admissible in this case because they
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demonstrate that the final report was “substantially different or diluted from initial findings . . . .”
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(Doc. #187).
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The court finds that the draft reports are inadmissible hearsay. Lloyd v. Professional Realty
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Servs., Inc., 734 F.2d 1428, 1433 (11th Cir. 1984) (finding that draft minutes did not qualify as
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business records because they were prepared “quite different[ly] from the final copy” and “were not
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trustworthy”). Plaintiff’s assertion that the revisions themselves are what make the draft reports
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relevant is not availing because, as defendant points out, “the differences between final and draft
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U.S. District Judge
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documents are precisely why draft documents are not business records.” (Doc. #192, n.22).
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Finally, the court declines to make any ruling on the admissibility of other evidence
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pertaining to Tom Watson’s FIRREA compliance consulting assignment as a lay witness. Plaintiff
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expends several pages in its opposition arguing that Mr. Watson’s reports and correspondence are
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admissible as factual observations. Plaintiff’s arguments on this topic are outside of the scope of
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defendant’s motion in limine. Defendant’s motion seeks only to limit initial drafts of Mr. Watson’s
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final report. The admissibility of other reports and correspondence by Mr. Watson is not currently
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before the court. Therefore, the court declines to make any ruling on this issue.
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P.
Defense counsel’s representation of former and current LaSalle employees
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Defendant seeks to prevent plaintiff from referencing defense counsel’s representation of
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potential witnesses in this case, including: (1) “the fact of or circumstances surrounding the initiation
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of the representation,” (2) whether witnesses are paying for their representation, and (3) defense
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counsel’s preparation of the witnesses for their depositions. (Doc. #182). Defendant asserts that this
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evidence is clearly irrelevant to the claims in this action.
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In response, plaintiff argues that evidence of defense counsel’s representation of witnesses
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is admissible at trial to show potential bias on the part of the witness. According to plaintiff,
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defendant’s “comprehensive deposition preparation sessions and free representation of each witness
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are extremely pertinent on the issue of bias and witness credibility.” (Doc. #187).
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The credibility and potential bias of a witness are relevant. See United States v. Abel, 469
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U.S. 45, 51 (1984); United States v. Rodriguez, 439 F.2d 782, 783 (9th Cir. 1971). Accordingly, this
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evidence is admissible for impeachment purposes.
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Q.
Borrower lawsuit information
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Defendant next moves to limit all information and evidence relating to a lawsuit brought by
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some of the Palm Terrace Loan borrowers against the property sellers. Alternatively, defendant
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moves to limit any reference to this lawsuit to the fact that a lawsuit was filed and exclude the
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allegations raised in the lawsuit. Defendant asserts that this evidence is not relevant to whether a
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breach of representation and warranty 13 occurred because paragraph 6(h) of the mortgage
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U.S. District Judge
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documents does not apply to the current dispute. Further, even assuming that the evidence is
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relevant, it should be excluded because: (1) it contains inadmissible hearsay pursuant to Rule 801(c),
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and (2) the probative value is substantially outweighed by the danger of unfair prejudice and
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confusion of the issues pursuant to Rule 403.
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During the summary judgment proceedings, the court declined to find, as a matter of law, that
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paragraph 6(h) is inapplicable to the case at bar. Accordingly, the court again declines to exclude
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this evidence as irrelevant in this motion in limine.
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R.
LaSalle’s contact with borrowers after the loans were closed
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Defendant moves to exclude evidence of contact between defendant and Albert Lee, one of
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the borrowers. After the loans had closed, Mr. Lee contacted defendant with allegations that USA
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Commercial, the broker, had misrepresented occupancy rates, rents, and deferred maintenance issues.
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Defendant states that these communications occurred after the loans had closed. Thus, Mr. Lee’s
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allegations are irrelevant to whether defendant’s underwriting and closing actions constituted a
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breach of representation and warranty 23. Further, defendant argues that this evidence should be
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excluded pursuant to Rule 403 because its probative value is substantially outweighed by the danger
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of prejudice and confusion of the issues.
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Plaintiff responds that representation and warranty 23 provides that both the origination and
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servicing of the loans met customary industry standards. Mr. Lee’s allegations were communicated
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to defendant after the closing date but before the loans were securitized. Plaintiff further asserts that
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Mr. Lee’s testimony is highly relevant evidence that defendant’s underwriting actions did not meet
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customary industry standards.
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The court finds this evidence relevant and admissible pursuant to Rules 401 and 402. In the
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court’s order on plaintiff’s consolidated motion in limine, the court found that a breach of
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representation and warranty 23 does not require defendant to have actual knowledge at the time of
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the breach. (Doc. #209). Therefore, it is immaterial whether defendant was aware of Mr. Lee’s
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allegations before or after the closing date; defendant may be liable under representation and
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warranty 23 regardless of when it became aware of Mr. Lee’s allegations. Mr. Lee’s allegations are
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U.S. District Judge
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relevant to whether defendant’s actions fell below customary industry standards.
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The court further finds that the probative value of this evidence is not substantially
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outweighed by a danger of prejudice or confusion of the issues. See FED. R. EVID. 403.
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S.
Characterizing multiple sales of Palm Terrace apartments as a “flip” transaction
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Defendant acknowledges that Palm Terrace, LLC purchased the Palm Terrace apartments for
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$7,000,000 in November 2004, and then sold the Palm Terrace apartments in less than a year in
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separate transactions totaling $8,548,000. However, defendant objects to any evidence or testimony
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referencing these sales as a “flip” transaction. Defendant argues that “flip” is a pejorative term that
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can be understood to refer to improper or even fraudulent activity and, thus, should be excluded
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pursuant to Rule 403.
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The court is not inclined to agree with defendant that the term “flip” is unfairly prejudicial.
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The term “flip” encompasses many shades of meaning, and the court is not prepared to find that its
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use is per se prejudicial.
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T.
Crime statistics
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Finally, defendant moves to exclude any evidence of crime or crime statistics at the Palm
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Terrace apartments or the surrounding neighborhood. Defendant argues that appraisers are not
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required to refer to crime statistics during their appraisal, so this evidence is irrelevant to any alleged
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breach of representation or warranty. Thus, the evidence could only be used to place the Palm
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Terrace apartments in a harsh light and would be unfairly prejudicial.
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Plaintiff responds that in underwriting the loans, LaSalle overlooked basic information about
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the Palm Terrace property and surrounding area. The Palm Terrace borrowers were told that Palm
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Terrace was closed for renovations. Instead, the property had previously been closed by the Las
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Vegas Metropolitan Police Department due to criminal activity. Plaintiff argues that the failure to
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consider crime and crime statistics in an appraisal under these circumstances “is nothing short of
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misleading.” (Doc. #187). Further, plaintiff asserts that the failure to consider crime statistics is
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probative evidence of a breach of warranty and representation 23 because it demonstrates: (1) that
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the lender did not understand the market; (2) that the lender used a deficient site inspection firm; and
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U.S. District Judge
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(3) that the lender failed to reconcile conflicting pieces of information such as occupancy rates.
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Plaintiff seeks to use evidence of crime and crime statistics “to demonstrate the depth and breadth
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of [LaSalle’s] breach.” (Doc. #187).
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The court finds that this information is both relevant and admissible pursuant to Rules 401
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and 402. Further, the probative value of this evidence is not substantially outweighed by a danger
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of prejudice. Therefore, plaintiff may introduce evidence of crime and crime statistics.
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant LaSalle Bank
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National Association’s motion in limine (doc. #182) be, and the same hereby is, GRANTED in part
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and DENIED in part.
DATED December 15, 2011.
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UNITED STATES DISTRICT JUDGE
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