Cynthiа BROWN, Plaintiff-Counter Defendant-Appellant, v. John C. MORRIS, III, Etc.; et al., Defendants, John C. Morris, III, also known as Jay, Both in his individual and official capacity; Morris and Associates, Defendants-Appellees, ABN Amro Mortgage Group Inc., Defendant-Counter Claimаnt-Appellee.
No. 04-60526.
United States Court of Appeals, Fifth Circuit.
June 28, 2007.
3.
Finally, Cincinnati contends, particularly in the light of the above-discussed question by James’ counsel, that the jury award was against the overwhelming еvidence and indicated speculation, passion, and confusion.
In reviewing a jury award, we are reviewing the denial of a motion for a new trial or remittitur. E.g., Green v. Adm‘rs of the Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002). “A jury award is entitled to great deference and should not be disturbed unless it is entirely disproportionate to the injury sustained.” Id.
The award was supported by adequate evidence. The jury was presented with: medical-expenses and lost-wages evidence; and evidence that James’ injury resulted in a permanent impairment to his dominant hand. Further, the jury was instructed to consider, inter alia, James’ pain and suffering, mental anguish, and loss of enjoyment of life.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
Emily Kaye Courteau, Morris & Associates, Monroe, LA, for Defendant-Counter Claimant-Appellee.
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury found against Cynthia Brown on her claims agаinst ABN AMRO Mortgage Group, Inc., and John Morris and his law firm, Morris & Associates (collectively, Morris), for, inter alia, violation of the Fair Debt Collection Practices Act,
I.
In 1993, Brown executed a promissory note and deed of trust to finance her home in Gulfport, Mississippi. The note was for $72,350 (payable monthly, with a final payment due 1 January 2001); it was eventually assigned to Atlantic Mortgage & Investment Corporation (AMIC). On 18 November 1999, ABN AMRO purchased all of AMIC‘s stock; the two corporations merged on 14 January 2000. ABN AMRO, as the surviving corporation, became the holder and servicer of Brown‘s note.
Between 1998 and 2000, Brown was frequently late with her monthly note payments; she made none after the payment due 1 February 2000. Accordingly, in August 2000, ABN AMRO engaged Morris to foreclose on Brown‘s home. Morris took steps toward completing a non-judicial foreclosure, and a foreclosure sale was scheduled for 27 October 2000. Defendants, however, voluntarily ceased foreclosure efforts on that date.
Brown filed this action that October. At trial in 2004 she asserted, inter alia: claims under the FDCPA and Real Estate Settlement Procedures Act,
At the close of the evidence, the district court granted JMOL: in favor of ABN AMRO and Morris on Brown‘s intentional-infliction-of-emotional-distress claim; and in favor of ABN AMRO on the FDCPA claim, some of the RESPA claims, and its сounterclaim, subject to the jury‘s finding the amount owed.
Subsequently, for all remaining claims, including under the FDCPA against Morris, the jury found for defendants and awarded ABN AMRO approximately $97,000 on its counterclaim. Brown‘s post-trial motions for JMOL, or in the alternative, а new trial and remittitur, were denied.
II.
Primarily at issue are the district court‘s JMOL rulings. In the light of these rulings’ not being erroneous, the denial of the alternative motion for a new trial or remittitur is also upheld.
A.
Brown contests the district court‘s close-of-the-evidence and post-verdict JMOL rulings. A JMOL ruling is reviewed de novo. E.g., Huss v. Gayden, 465 F.3d 201, 205 (5th Cir. 2006). JMOL is proper when “a party has been fully heard on an issue during а jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue“.
1.
For her FDCPA claims, Brown contests: the close-of-the-evidence JMOL for ABN AMRO; and the post-verdict JMOL-denial.
a.
In granting JMOL to ABN AMRO on Brown‘s FDCPA claims at the close of the evidence, the district court held: ABN AMRO acquired Brown‘s mortgage by merger, rather than by transfer or assignment; and, accordingly, it was not an FDCPA debt collector, pursuant to
Because the FDCPA does not define the term “obtained“, wе may look to the act‘s legislative history in interpreting it. See, e.g., Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 492-93 (5th Cir. 2004). “The Senate Report accompanying the FDCPA explained that the purpose of the act was ‘to protect consumers from a host of unfair, harassing, and dеceptive debt collection practices without imposing unnecessary restrictions on ethical debt collectors.‘” Peter v. GC Servs. L.P., 310 F.3d 344, 351-52 (5th Cir. 2002) (quoting S. REP. No. 95-382 (1977), at 1-2, reprinted in 1977 U.S.C.C.A.N. 1695, 1696). That report, inter alia: “intend[ed] the term ‘debt collector[]’ ... to cover all third persоns who regularly collect debts for others“, S. REP. No. 95-382, at 3; and stated “[t]he primary persons intended to be covered are independent debt collectors“, id.
Along that line, our court has at least implicitly interpreted “obtained” to bе synonymous with “assigned“. See Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (“The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer‘s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.“).
ABN AMRO, a mortgage company, was not specifically assigned Brown‘s mortgage for debt-collection purposes. Rather, ABN AMRO acquired it through its merg-
b.
The jury found Morris was not a “debt collector” pursuant to the FDCPA. It defines a “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in аny business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another“.
Morris testified he is involved primarily in non-judicial foreclosures. Brown contends: a non-judicial foreclosure is per se FDCPA debt collection; and, accordingly, Morris is per se an FDCPA debt collector.
Brown‘s contention, however, ignores
2.
Brown challenges the JMOL rulings against her remaining RESPA, negligence, and breach-of-contract claims. Regarding the close-of-the-evidence JMOL for ABN AMRO on sоme of her RESPA claims, Brown does not show the district court erred in concluding, pursuant to
B.
Next, Brown maintains the district court erred in granting ABN AMRO leave to amend to pursue its counterclaim because, inter alia, the district cоurt lacked jurisdiction over it. Challenges to subject-matter jurisdiction are reviewed de novo, e.g., Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531 (5th Cir.), cert. denied, 126 S. Ct. 2945 (2006); leave-to-amend rulings, for abuse of discretion, e.g., Triad Elec. & Controls, Inc. v. Power Sys. Eng‘g, Inc., 117 F.3d 180, 192 (5th Cir. 1997).
Needless to say, ABN AMRO‘S counterclaim involves many of the facts relevant to Brown‘s other claims, inсluding: Brown‘s rights and obligations under the note; her failure to make payments; and defendants’ efforts to obtain payment. Accordingly, the district court had supplemental jurisdiction over the counterclaim and did not abuse its discretion in allowing
C.
Brown next challenges the jury instructions. Properly challenged instructions are reviewed for abuse of discretion. E.g., Fiber Sys. Int‘l, Inc. v. Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006). To establish error, the challenging party must first show the instruction as a whole “creates substantial doubt as to whether the jury was properly guided“. Green v. Adm‘rs of the Tulane Educ. Fund, 284 F.3d 642, 659 (5th Cir. 2002). Even if the instruction was erroneous, we will not reverse if it “could not have affected the outcome of the case“. Id. Further, a pаrty challenging the failure to include a requested instruction must show it properly states the law. E.g., Russell v. Plano Bank & Trust, 130 F.3d 715, 719 (5th Cir. 1997).
For the first time on appeal (mandating plain-error review), Brown asserts error in the jury‘s being instructed that, “[o]rdinarily, the mere activity of foreclosing ... under a deed of trust is not the collection of a debt within the meaning of the [FDCPA] unless other actions are taken beyond those necessary to foreclose under the deed of trust, and were taken in an effort to collect a debt“. As discussed supra, a non-judicial foreclosure is not per se FDCPA debt collection. Brown fails to show this instruction “creates substantial doubt as to whether the jury was properly guided“. Green, 284 F.3d at 659. There was no reversible plain error. See Fiber Sys., 470 F.3d at 1158.
Brown next maintains the district court erred in refusing her requested FDCPA instructions. As discussed supra, Brown has not established that a reasonable jury could not have found that Morris was not an FDCPA debt collector. Accordingly, Brown‘s requested instructions, which did not pertain to that threshold determination, “could not have affected the outcome of the case“. Green, 284 F.3d at 659.
Further, Brown contends the jury should have been instructed that, under Mississippi law, Morris owed her a trustee‘s heightened duty of care as to all foreclosure-related matters. Brown fails, however, to provide relevant authority for such an instruction.
Finally, Brоwn asserts the contributory-negligence and mitigation-of-damages instructions were erroneous. These instructions, however, “could not have affected the outcome of the case“, id., because the jury found no negligence, оr FDCPA or RESPA violations, by defendants.
D.
Brown contends the trial court improperly permitted Morris to testify about settlement discussions, in violation of Federal Rule of Evidence 408. Evidentiary rulings are reviewed for an abuse of discretion. E.g., Hodges v. Mack Trucks, Inc., 474 F.3d 188, 198 (5th Cir. 2006); see
Morris’ testimony was: “[T]o this day in every discussion I have had with Ms. Brown she has insisted either through her attorneys or personally that she was not going to pay for this housе“. Brown fails
III.
For the foregoing reasons, the judgment is
AFFIRMED.