MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Renewed Motion for Judgment as a Matter of Law, Motion to Alter or Amend Judgment, and Alternatively, Motion for New Trial (Dkt. #89). After considering the relevant pleadings and the relevant trial testimony and evidence, the Court finds that Defendant’s motion for judgment as a matter of law is denied.
PROCEDURAL BACKGROUND
In the parties’ Joint Final Pretrial Order, Plaintiffs Danielle Geoffrion (“Geof-frion”) and Darren Kasmir (“Kasmir”) (together, “Plaintiffs”) accuse Defendant Nationstar Mortgage LLC (“Defendant” or “Nationstar”) of violating the Real Estate Settlement Procedures Act 12 U.S.C. ¶ 2605(e) (“RESPA”) (Dkt. #64 at p. 2). Plaintiffs allege that they sent Defendant Qualified Written Requests (“QWRs”) for information regarding their Nationstar Mortgage Account (the “Account”) on at least six occasions (Dkt. # 64 at p. 3 n. 3). Plaintiffs allege that Defendant “failed to provide information required by federal law.” (Dkt. # 64 at p. 2). Plaintiffs “also sued in equity to receive [an] accounting from Defendant.” (Dkt. # 64 at p. 2).
Defendant maintains that Plaintiffs’ letter to Defendant “did not trigger any obligation under the law[.]” (Dkt. # 64 at p. 3). Defendant contends that “the communications Plaintiffs sent do not meet the statutory definition of QWRs, were not sent to the address to which such requests must be sent to trigger an obligation to respond,
The trial began on September 9, 2015. On September 10, 2015, Defendant moved for judgment as a matter of law as to the RESPA claim after Plaintiffs rested (Trial Tr. 9/10/15 at 92:6-94:10).
Defendant based the motion on its contention that the letters to which Defendant did not respond did not constitute QWRs and that Defendant adequately responded to the December 16, 2013 communication that Plaintiffs sent (Trial Tr. 9/10/15 at 92:7-93:3). Defendant also asserted that Plaintiffs failed to establish actual damages, and that mental anguish damages are not recoverable under RESPA (Trial Tr. 9/10/15 at 93:4-94:10). Plaintiffs asserted that there was adequate evidence for the jury to determine that the relevant communications constituted QWRs (Trial Tr. 9/10/15 at 94:12-95:2). Plaintiffs also maintained that there was sufficient evidence upon which a jury could base findings of actual damages and that RESPA provides for the recovery of mental anguish damages (Trial Tr. 9/10/15 at 95:3-96:16).
On September 10, 2015, the jury rendered a verdict finding that Plaintiffs submitted QWRs to Defendant on December 16, 2013 (the “December 16 Communication”), and on January 3, 2014 (the “January 3 Communication”) (Dkt. # 76 at p. 1). The jury also found that Defendant failed to respond or provided an inadequate response to the January 3 Communication (Dkt. # 76 at p. 2). The jury found that Plaintiffs were entitled to recover damages caused by Defendant’s failure to respond to Plaintiffs’ written inquiry, in the amounts of $23,500 for pecuniary loss and $151,500 for mental anguish that Plaintiffs suffered in the past (Dkt. # 76 at p. 3). The jury verdict also stated that Defendant engaged in a pattern or practice of noncompliance with the requirements of RESPA and that Plaintiffs were entitled to an accounting of the Account (Dkt. # 76 at pp. 4-5).
On October 12, 2015, Defendant filed its Renewed Motion for Judgment as a Matter of Law, Motion to Alter or- Amend Judgment, and Alternatively, Motion for New Trial (Dkt. #89). On October 26, 2015, Plaintiffs filed their response (Dkt. #91). On October 30, 2015, Defendant filed its reply (Dkt. # 94).
FACTUAL BACKGROUND
At trial, Kasmir testified that he and Geoffrion moved to Los Angeles to pursue his career in film (Trial Tr. 9/9/15 at 17:16-18:21). After about five years in the area, Plaintiffs began looking to buy a home (Trial Tr. 9/9/15 at 18:22-19:3). Plaintiffs bought a house through a conservatorship sale and then spent a considerable amount of time updating the home (Trial Tr. 9/9/15 at 19:7-22:24). In 2004, Plaintiffs refinanced the house because the property value had increased and they wanted to put more finances into home improvements (Trial Tr. 9/9/15 at 22:25-23:8). In 2012, Plaintiffs moved to Houston because their niece was seriously ill (Trial Tr. 9/9/15 at 25:4-27:12, 82:22-84:1). The mortgage was assigned to a variety of companies over several years, but it was eventually assigned from Bank of America to Defendant on July 1, 2013 (Trial Tr. 9/9/15 at 23:9-19).
Plaintiffs continued to make automatic payments to Bank of America until pay
Plaintiffs were assured that research was being done and that they would hear from Defendant about the matter, only to hear nothing (Trial Tr. 9/9/15 at 33:6-36:2). Plaintiffs were also told, by different people within Nationstar, that they were behind on their payments by vastly different amounts. See Trial Tr. 9/9/15 at 44:13-45:4 (Kasmir stating that they were initially told by Carla or Adrian that they were approximately $40,000 behind on payments); Trial Tr. 9/9/15 at 43:15-44:12 (Kasmir explaining that Garrett told him that Plaintiffs were $76,000 behind on their mortgage); Trial Tr. 9/9/15 at 44:10-13 (Kasmir testifying that Plaintiffs received a demand letter that stated that they owed $44,000). At one point Kasmir was informed that an escrow account was attached to Plaintiffs’ mortgage because of property taxes, but Plaintiffs were not given details about the escrow account (Trial Tr. 9/9/15 at 47:25-50:19).
Kasmir stated that Plaintiffs hired an attorney, Sara Fendia (“Fendia”), to help them get an answer about the amount that they owed on the mortgage, and why (Trial 'Tr. 9/9/15 at 52:23-53:10). Fendia sent the December 16 Communication to Defendant, requesting an accounting of the mortgage (Trial Tr. 9/9/15 at 53:17-55:19). Fendia then got a response in the form of a packet of information (Trial Tr. 9/9/15 at 55:20-25).
Kasmir testifiéd that the packet did not explain why Plaintiffs owed between $40,000 and $75,0000, and it did not explain what happened with the escrow account and taxes (Trial Tr. 9/9/15 at 58:1-59:6). In fact, Kasmir stated that “this package led to more questions than it answered.” (Trial Tr. 9/9/15 at 59:7-9). Even after meeting with Fendia, and going through the packet with her, Plaintiffs still did not understand the contents of it (Trial Tr. 9/9/15 at 62:13-21). Therefore, Fendia sent the January 3 Communication to Defendant (Trial Tr. 9/9/15 at 62:22-64:19). Fendia continued to try to communicate with Defendant, but Defendant only responded by sending Fendia refinance applications (Trial Tr. 9/9/15 at 65:23-70:11).
Plaintiffs testified that they would have leased the house while they were staying in Houston to be with their niece, but that
Later in the trial, Fay Janati (“Janati”), Defendant’s corporate representative, testified. Janati testified that when she was deposed in April 2015, she was not aware of written policies and procedures for determining whether a borrower’s letter qualified as a QWR (Trial Tr. 9/10/15 at 7:18-8:2). She also testified that she did not know the details of Defendant’s QWR policy during her deposition, nor did she know if Defendant even had a written policy (Trial Tr. 9/10/15 at 8:13-20). She then said that since her deposition, she had done research and found out that Defendant did have a policy for determining whether or not a letter qualifies as a QWR (Trial Tr. 9/10/15 at 9:3-9:18). Janati conceded that the communications at issue in the current case were sent in the fall of 2013, with the exception of one or two that were sent in January of 2014 (Trial Tr. 9/10/15 at 10:17-11:6). Janati also conceded that the written policy that Defendant eventually produced to Plaintiffs was published on April 6, 2015 (Trial Tr. 9/10/15 at 11:7-15). When asked whether she had previously stated that the policy was in effect in 2013, Janati testified that during her deposition she was confused between “written policies” and “not written policies” (Trial Tr. 9/10/15 at 11:16-13:1). Janati then read from the transcript of her deposition and conceded that when she was asked whether Defendant had a written policy in place in December of 2013, she answered yes (Trial Tr. 9/10/15 at 13:2-6). Janati then testified that Defendant- had about 7,000 employees, that it was her job to attend the deposition, and that Defendant had been aware of this ■lawsuit for almost a year and a half (Trial Tr. 9/10/15 at 13:14-24).
Janati went on to testify that during her deposition, she did not know whether or not Defendant responded to the January 3 Communication (Trial Tr. 9/10/15 at 15:6-17). After reading aloud her deposition testimony where she had previously stated that she did not know the total amount of the. loan as of November 25, 2013, Janati stated that there was too much for her to remember (Trial Tr. 9/10/15 at 18:2-19:9).
Janati continued to discount her previous deposition testimony by arguing that there was too much information for her to know the answers to several questions without reviewing the relevant documentation, and that she was not sure she reviewed the necessary documentation during the deposition (Trial Tr. 9/10/15 18:2-19:9, 20:5-22:8). Janati also testified that her testimony was changing as a result of new information she had learned since her deposition (Trial Tr. 9/10/15 at 9:3-18, 22:9-22:23, 58:21-59:15). Janati also asked to re-review documentation so she could determine if her answers during the deposition were right or wrong (Trial Tr. 9/10/15 at 24:9-26:7). Janati’s testimony revealed that she could have accessed or brought the documents that she was requesting to trial (Trial Tr. 9/10/15 at 27:23-34:1).
Upon further questioning, Janati stated that while she had been unsure during her deposition about whether, the January 3 Communication was a QWR, she was now sure that it was not a QWR because she had done further research (Trial Tr.
LEGAL STANDARD
“A motion for judgment as a matter of law.. .in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Ford v. Cimarron Ins. Co., Inc.,
“A court reviews all evidence in the record and must draw all reasonable inferences in favor of the nonmoving party; however, a court may not make credibility determinations or weigh the evidence, as those are solely functions of the jury.” Fractus,
“The court may, on motion, grant a new trial on all or some of the issuesf.]” Fed. R. Civ. P. 59(a)(1). “[I]f the trial judge is not satisfied with the verdict of a jury, he has the right—and indeed the duty—to set the verdict aside and order a new trial.” Smith v. Transworld Drilling Co.,
A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v. HydroChem Inc.,
ANALYSIS
The January 3 Communication
In its motion, Defendant seeks judgment as a matter of law because,
[t]he sole violation of the Real Estate Settlement Procedures Act (“RESPA”) upon which the Court’s judgment against Nationstar rests is refuted by the plain language of the statute and undisputed evidence; and [e]ven accepting the jury’s finding of a RESPA violation, Plaintiffs failed to present any competent evidence of damages resulting from that single violation.
(Dkt. # 89 at p. 1). Defendant maintains that “[tjhese two independent grounds require entry of a take-nothing judgment in favor of Nationstar.” (Dkt. # 89 at p. 1).
Defendant claims that the January 3 Communication is not a QWR under RES-PA because it was faxed and because it was not sent by mail to the QWR office and address that were clearly and properly designated (Dkt. # 89 at p. 10). A QWR is defined as,
a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that—(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.
12 U.S.C. § 2605(e)(1)(B). A loan servicer must respond to a QWR only if it seeks “information relating to the servicing of [the] loan.” 12 U.S.C. § 2605(e)(1)(A). The term “servicing” is defined as “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts ... and making the payments of principal and interest and such other payments with respect to the amounts received" from the borrower as may be required pursuant to the terms of loan.” 12 U.S.C. § 2605(i)(3).
In order to protect consumers, RESPA imposes limited timeframes for loan servicers to respond to inquiries from borrowers. Therefore, “[t]o aid servicers with this task of providing consumers with timely information, RESPA’s implementing regulations allow (but do not require) servicers to establish a designated address for QWRs.” Roth v. CitiMortgage Inc.,
Defendant argues that the January 3 Communication is not a QWR because it was faxed and not sent by mail (Dkt. # 89 at p. 5). Defendant argues that faxing a letter to a servicer that has properly designated a QWR office and mailing address does not trigger the servicer’s RESPA duties, even if the servicer actually received the fax. Berneike,
Plaintiffs point out that “[Plaintiffs] mailed another copy of the [January 3 Communication] to Nationstar’s ‘exclusive address’ via certified mail on January [18], 2014 in compliance with RESPA.” (Dkt. # 91 at p, 4). A copy of the certified mail envelope that is dated January 18, 2014 (the “January. 18 Envelope”), was admitted into evidence (Dkt. # 91 at p. 4; Plaintiffs’ Ex. 16). Defendant responds that there is not sufficient evidence to support a jury finding that the January 3 Communication was enclosed in the January 18 Envelope (Dkt. # 94 at p. 4-5).
Defendant relies solely on testimony from Fendia’s examination in support of its contention that “the record is less than clear that the [January 3 Communication] was in fact included in [the January 18 Envelope].” (Dkt. # 94 at p. 4).
Defendant argues that even if the January 3 Communication was included with the January 17 Communication and was sent via certified mail, “the jury expressly found that the [January 17 Communication] was not a QWR.” (Dkt. # 94 at p. 4). However, it is important to note that the January 17 Communication was considered separately and distinctly from the January 3 Communication. Therefore, it is likely that the jury found that the January 17 Communication was repetitive of the January 3 Communication and therefore only the January 3 Communication constituted a QWR. Although the evidence could support a finding that the January 3 Communication was sent with the January 17 Communication, that does not mean, and Defendant does not argue, that it was improper for the jury to consider the two communications enclosed in the certified envelope as separate communications.
Defendant also argues that the January 3' Communication is not a QWR because it wás addressed and sent to an individual instead of being addressed and sent to “Attn: Customer Relations Officer” (Dkt. # 89 at p. 6). The January 3 Communication was addressed to and faxed to “Michael Ferrera” (Dkt. # 89 at p. 6). Defendant asserts that even accepting Plaintiffs’ testimony that they were informed to communicate with Michael Ferrera, it is undisputed that Defendant never indicated that it would receive QWRs at any office or address other than those designated on the mortgage statements (Dkt. #89 at p. 6).
Defendant argues that the current case is similar to Steele.
Furthermore, it certainly would have been reasonable for the-jury to find that the January 3 Communication was a QWR given its similarity to the December 16 Communication, which' Defendant’s corporate representative repeatedly said was a QWR. See Trial Tr. 9/10/15 at 15:18-23 (stating that the December 16 Communication .was “treated” as a QWR); Trial Tr. 9/10/15 at 47:12-16 (testifying that the December 16 Communication “from the attorney fit into the QWR”); Trial Tr. 9/10/15 at 59:1-4 (referring to the December 16 Communication and then saying that “one letter was QWR”). Both the December 16 Communication and the January 3 Communication were sent to the same physical address, via fax and certified mail, and both were sent to an individual (Plaintiffs’ Exs. 12-14, 16). Although Janati stated repeatedly that Defendant’s procedures required the letters to include “Attention Customer Relation Officer,” she also repeatedly stated that Plaintiffs’ December 16 Communication was treated as a QWR (Trial Tr. 9/10/2015 at 15:22-23, 48:12, 48:17-18). In fact, Janati even stated that the December 16 Communication went “to the Customer Relation Officer” (Trial Tr. 9/10/2105 at 47:12-15). Weighing the evidence in favor of the nonmovant, there is certainly enough evidence to support the jury’s determination that the January 3 Communication was addressed with a sufficient level of particularity to meet the requirements of being sent to the proper address and office.
[a] full and detailed accounting of all payments made to you and Bank of America from the beginning of the loan to the present date.. .a full and complete accounting of the escrow account for this loan from its inception to the present.. .copies of all notice letters, including without limitation, notice of your intent to pay property taxes[J
(Dkt. # 89 at pp. 14-15; Plaintiffs’ Ex. 14).
Defendant argues that it was not required to respond to the January 3 Communication because, “RESPA does not require a loan servicer to respond to a borrower’s numerous, subsequent requests if the subsequent letters raise essentially the same dispute described in borrower’s initial letter and servicer has already adequately responded.” (Dkt. # 89 at p. 14). Defendant asserts that the January 3 Communication was essentially raising the same dispute described in the December 16 Communication and that the January 3 Communication was merely following up to Defendant’s December 24, 2013 response (Dkt. # 89 at p. 8). Defendant argues that “Plaintiffs’ disagreement or dissatisfaction with [Defendant’s] December 24, 2013 response does not constitute a new QWR in and of itself.” (Dkt. # 89 at pp. 8-9). Furthermore, Defendant claims that “[b]ecause the jury found that [Defendant] adequately responded to the [December 16 Communication], and the [January 3 Communication] was merely a repetitious follow-up letter raising the same dispute, [Defendant] was not required under RESPA to respond as a matter of law.” (Dkt. # 89 at p. 9).
Plaintiffs argue that the January 3 Communication, “clearly raises new issues, requests additional information, and seeks clarification of the previous response provided by [Defendant].” (Dkt. # 91 at p. 5). Specifically, Plaintiffs contend that the letter lists “eleven different, separate, and new issues” (Dkt. # 91 at p. 5). The January 3 Communication clearly contains new inquiries about specific payments that were made, specific late payments charges, numbers not adding up to reflect payment totals, and other new inquiries. (Plaintiffs’ Ex. 14). This looks vastly different from the December 16 Communication, which generally asked for a full accounting of the “charges to and payments against the referenced loan” (Plaintiffs’ Ex. 12). The evidence presented at trial establishes that
Defendant argues that the January 3 Communication was not á QWR because it was “overbroad and unduly burdensome” (Dkt. #89 at p. 7). Defendant cites two cases in support of this argument. Defendant relies on Ekundayo v. PNC Bank, National Ass’n, which stated that an eleven-page letter that contained “discovery-style document demands and interrogatories” was not a QWR. A-14-CA-142-SS,
Damages
Pecuniary Loss
RESPA provides that servicers who fail to comply with the provisions of the statute shall be liable to borrowers for any actual damages incurréd by borrowers as a result of such failure. 12 U.S.C. § 2605(f)(1)(A). The burden is on the borrower to prove that he or she incurred actual damages in order to substantiate a RESPA claim. See Caballero v. Wells Fargo Bank, N.A., No. 3-11-CV-1385-O-BD,
Defendant argues that there is no legally or factually sufficient evidence that Plaintiffs suffered any damages as a result of Defendant’s alleged failure to adequately respond to the January 3 Communication (Dkt. # 89 at p. 9). Defendant argues that the jury’s finding of $23,500 in pecuniary loss should be set aside because there is no evidence to support such a finding, because the only evidence supporting Plaintiffs’ claim of pecuniary loss was speculative, and therefore legally insufficient to support a RESPA claim (Dkt. # 89 at pp. 9-10). Defendant cites McLean v. GMAC Mortgage Corp., in support of this contention.
However, McLean involved a very different set of facts. In McLean, the court found that damages arising from the mortgagor’s unfulfilled professional opportunities, which allegedly resulted from time spent prosecuting RESPA claim violations, were speculative. Id. at 1370. However, the mortgagor in McLean had not been working for several years due to an injury. Id. The damages that Plaintiffs seek in the current ease are much less speculative than the damáges at issue in McLean. See Trial Tr. 9/9/15 at 85:24-90:14 (Kasmir
Given the facts stated above, it would have been reasonable for the jury to find that Plaintiffs would have received rental income for up to eight months of the last year. 'Renting the house for eight months would have resulted in rental income of $36,000-$44,000 if the range that the real estate agent told Plaintiffs was reasonable was accurate. The evidence presented during trial was sufficient to support an award of $23,500 for pecuniary loss.
Mental Anguish
Recoverable Under. RESPA
Defendant argues that the jury’s award of $151,500 in mental anguish should be set aside because mental anguish damages are not recoverable under RESPA (Dkt. # 89 at pp. 10-11). The Fifth Circuit and the Supreme Court have not yet addressed whether mental anguish damages are recoverable under RESPA.
Of the circuits that have addressed the issue, two have indicated that emotional distress damages should be allowed, while no circuit appears to have ruled that emotional damages are not allowed. See Houston v. U.S. Bank Home Mortg. Wisconsin Servicing,
The two district courts within the Fifth Circuit that have addressed this issue have concluded that mental, anguish damages are not permitted under RE SPA (Dkt. #89 at p. 11). See Steele v. Quantum Servicing Corp., No. 3:12-CV-2897-L,
All of the cases that have allowed for the recovery of mental anguish dam
The first step for the Court in construing a statute is to interpret the statutory language. Section 2605 of RES-PA provides for the recovery of “any actual damages to the borrower” as a result of a servicer’s failure to comply with said section. 12 U.S.C. § 2605(f)(1)(A). “A basic canon of statutory construction is that words should be interpreted as taking their ordinary and plain meaning.” United States v. Yeatts,
First, the Court finds that the statutory language of RÉSPA demonstrates Congress’ intent that RESPA be a remedial consumer-protection statute. Indeed, RESPA states its purpose clearly when it says,
Congress finds that significant reforms in the real estate settlement process are needed to insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country.
12 U.S.C. § 2601(a) (emphasis added). Additionally, the Court agrees with the analysis in Rawlings that found that RESPA’s legislative history demonstrates that it was designed to be remedial in nature, and that it was intended to protect consumers.
The Court also agrees with the line of cases that has determined that RESPA is a remedial consumer-protection statute. See Medrano v. Flagstar Bank, FSB,
In reaching this conclusion, the Court is also persuaded by Fifth Circuit cases addressing other consumer-protection statutes that are remedial in nature, wherein the Fifth Circuit has found “actual damages” provisions to include damages for mental anguish. See, e.g., Stevenson v. TRW, Inc.,
Sufficiency of the Evidence
Defendant also argues that Plaintiffs failed to present any legally or factually sufficient evidence of any mental anguish damages caused by Defendant’s failure to respond to the January 3 Communication (Dkt. #89 at pp. 12-13).
Defendant contends that “Plaintiffs failed to establish any causal link between their claimed mental anguish and the only misconduct found by the jury—Nations-tar’s failure to respond to the [January 3 Communication]” (Dkt. # 89 at pp. 13-14). Defendant states that because most, if not all, of the anguish Plaintiffs felt was
Defendant relies upon Gunn Infiniti, Inc. v. O’Byrne, a case that reversed an award of mental anguish damage's because “[m]any of the feelings [the plaintiff] described were unrelated to [the defendant’s] DTPA violations.”
Defendant goes on to argue that, “[t]o the extent that Plaintiffs attempted to connect their alleged mental anguish to their frustration with [Defendant] generally, this presents a problem because all but one of Plaintiffs’ RESPA claims was rejected by the jury.” (Dkt. # 89 at p. 14). Defendant maintains that since Plaintiffs did not offer an “evidentiary basis for differentiating or segregating between” the mental anguish caused by their niece’s illness, the anguish caused by Defendant’s failure to respond to the letters that were not QWRs, and the anguish specifically caused by Defendant’s failure to respond to the January 3 Communication, they should not be able to receive' • mental anguish damages (Dkt. # 89 at p. 14).
However, Kasmir specifically differentiated between the stress he experienced from his niece’s illness and eventual death and the stress that he experienced as a result of Defendant’s failure to answer their QWR. During trial, Kasmir stated,
Obviously we’ve had our own stresses to deal with outside of Nationstar that coincide with this, but the idea that we can’t get something which should be very clear—I mean, there are numbers. This is something that could be represented on a spreadsheet. And the fact that it has taken all of this, and even now we don’t know. I couldn’t tell you exactly where we are or what they say we owe or how to substantiate any of that. It’s draining emotionally.
(Trial Tr. 9/9/15 at 92:24-93:7). Likewise, Geoffrion also differentiated the emotional distress she experienced from the illness and death of her niece from the stress that was caused by Defendant’s failure to respond to Plaintiffs’ request for information.
It is true that Plaintiffs are not permitted to' recover for mental anguish allegedly caused by claims for which they did not recover at trial. See City of Dall. v. Rodriguez, No. 05-97-00280-CV,
Statutory Damages
Defendant also argues that Plaintiffs are not entitled to statutory damages because there is no legally or factually sufficient evidence that Defendant engaged in a pattern or practice of noncompliance with the requirements of RE SPA (Dkt. # 89 at p. 14). RESPA permits an award of up- to $2,000 “in the case óf a pattern or practice of noncompliance with the requirements of this section.” 12 U.S.C. § 2605(f)(1)(B). Although there is no particular number 'of violations that create a “pattern or practice of noncompliance,” federal courts have consistently held that two violations of RESPA are insufficient to support a claim for statutory damages. See, e.g., Kapsis v. American Home Mortg. Servicing Inc.,
Kasmir’s Standing
Defendant argues that it is entitled to judgment against Kasmir because he lacks standing to bring a RESPA claim against Defendant because he is not a “borrower” under RESPA (Dkt. # 89 at p. 15). Defendant argues that Kasmir is not a borrower because he did not sign the promissory note and thus was not required to make payments on the note (Dkt. # 89 at pp. 15-18). Plaintiffs argue that Kasmir is a borrower with standing under RESPA because he signed the Deed of Trust (Dkt. # 91 at p. 8). Plaintiffs maintain that the Deed of Trust expressly incorporates RE SPA and “expressly extends rights granted by RESPA to the ‘Borrowers’ named in the Deed of Trust, which includes ... Kasmir” (Dkt. # 91 at p. 8). However, Defendant points out that the Deed of Trust specifically states- that “[A]ny Borrower who co-signs this Security Instrument but does not execute the Note.. .is not personally obligated to pay the sums secured by this Security Instrument.” (Plaintiffs’ Ex. 19 at p. 9). However, Plaintiffs -note that RESPA does not define ‘borrower’ and that Defendant is relying on non-binding case law for its more limited definition of ‘borrower’ (Dkt. # 91 at p. 8). While the Court was unable to locate any judicial authority that found that a party who did not sign the note was a “borrower” under RESPA, it need not decide the issue today.
The Court need not decide the issue, because Defendant failed to raise the issue of Kasmir’s standing in its original Rule 50 motion (Dkts. # 89 at p. 18, # 91 at p. 8). Defendant acknowledges that it is raising Kasmir’s lack of standing for the first time and points out that Kasmir was bringing a breach of contract claim until the morning of the trial (Dkt. # 89 at p. 18). Defendant argues that standing is a component of subject matter jurisdiction, which cannot be waived (Dkt. # 89 at p. 24).
Usually, an issue that is raised for the first time on a motion for new trial or renewed motion for judgment as a matter of law is waived. See WesternGeco L.L.C. v. ION Geophysical Corp.,
However, the Fifth Circuit has made an important distinction between “prudential standing” and constitutional standing. In Ensley v. Cody Resources, Inc., the defendant moved for judgment as a matter of law at the close of the plaintiffs case-in-chief, in part, on the grounds that the plaintiff lacked standing to recover individually as a shareholder.
The case at hand is strikingly similar to Ensley. In Ensley, the defendant relied on “caselaw holding that a shareholder lacks standing to pursue the corporation’s causé of action.” Id. at 319. In the current case, Defendant relies on case law that states that Kasmir is not a “borrower” under the statute, and thus lacks standing to pursue a cause of action against the Defendant (Dkt. # 89 at p. 15). Likewise, in Ensley, the defendant neglected to address the distinction between constitutional and “prudential” limitations on standing. Id. The Ensley court held that cases on shareholders’ lack of standing do not address injury in fact, and the real objection, since injury was obvious, was to the real party in interest. Id. at 320. Reasoning thus, the court found that the “prudential” standing argument was waived, and affirmed the denial of judgment as a matter of law. Id.
The Supreme Court has made clear that Article Ill’s standing requirements are separate and distinct from statutory interpretation considerations which determine whether a “particular class of persons ha[s] a right to sue under this substantive statute.” Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -,
However, Defendant also appears to suggest that Kasmir lacks Article III standing.
Defendant goes on to argue that because the questions in the jury charge were not segregated between the two Plaintiffs, no judgment can be formed as to Geoffrion. Defendant claims that because Plaintiffs had the burden to obtain individual findings on -both liability and damages as to each of the Plaintiffs, it is not possible for the Court to enter judgment for Geoffrion (Dkt. #89 at p. 24). Defendant cites Decorte v. Jordan in support of its contention that Plaintiffs had the burden to obtain individual findings on both liability and damages as to each of them.
Plaintiffs assert that any error in the collective submission of “Plaintiffs” has been waived because there was no objection to the jury charge (Dkt # 91 at p. 10) (citing Fed. R. Civ. P. 51(d)(1); Crist v. Dickson Welding, Inc.,
New Trial
Alternatively, Defendant seeks a new trial, alleging that there is no factually sufficient evidence to support the jury findings, and the jury’s damages are excessive for the reasons discussed above (Dkt. # 89 at p. 18). Defendant also seeks a new trial for the following reasons: (1) jury charge error in submitting “Plaintiffs” collectively; (2) evidentiary error in admitting evidence regarding the illness and death of Plaintiffs’ juvenile niece; (3) improper jury argument regarding “eggshell plaintiff’ doctrine; and (4) the Court’s questioning of Janati (Dkt. # 89 at pp. 18-22).
“If the court does not grant a motion for judgment as a matter, of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.” Fed. R. Crv. P. 50(b). Therefore, a movant may file a renewed judgment as a matter of law, which may include an alternative or joint request for-a new trial,-under Rule . 59, “[n]o later than 28 days after the entry of judgment,” Id. “[A] jury verdict must be upheld, and judgment as a matter of law may not be granted, unless ‘there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.’ ” Fractus,
“A court reviews all evidence in the record and must draw all reasonable inferences in favor of the nonmoving party; however, a court may not make credibility determinations or weigh the evidence, as those are solely functions of the jury.” Fractus,
“The Court may, on motion, grant a new trial on all or some of the issues[.]” Fed, R. Civ. P. 59(a)(1). “[I]f the trial judge is not satisfied with the verdict of a jury, he has the fight—and indeed the duty—to set the verdict aside and order a new trial.” Transworld Drilling Co.,
Individualized Damages
In the alternative, Defendant seeks a new trial on various grounds. Defendant argues that “Plaintiffs were required to obtain individual, rather than collective, findings for claimed pecuniary loss and mental anguish damages.” (Dkt. # 89 at p. 19). Defendant asserts that because the jury findings are not' separated out between the individual claims, Plaintiffs are not entitled to any recovery as a matter of law (Dkt. # 89 at p. 19). However, as discussed, above, Defendant did not raise an objection to Kasmir’s standing at any point prior to its Renewed Motion for Judgment as a Matter of- Law, and thus its objection to his standing was waived.
Admission of Evidence Regarding III Niece
Defendant also asserts that the Court committed an evidentiary error by admitting evidence regarding the illness and death of Plaintiffs’ juvénile niece (Dkt. # 89 at p. 19). Defendant argues that this information was not relevant to Plaintiffs’ RESPA claim and that “any remote probative value that Plaintiffs’ niece’s- health condition may have had to the claims in this lawsuit was substantially outweighed by the danger of unfair prejudice, confusing of the issues, and misleading the jury.” (Dkt. # 89 at p. 19).
Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401. The court may exclude relevant evidence only if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403.
The evidence and testimony regarding Plaintiffs’ terminally ill niece was relevant to why Plaintiffs left their house in California to be in Texas, where their niece was living (Trial Tr. 9/9/15 at 24:5-28:21). This was also relevant because it helped explain why it took time for Plaintiffs to become aware of the fact that they were in default (Trial Tr. 9/9/15 at 102:13-21). Additionally, this evidence is relevant to why Plaintiffs were interested in renting out the house instead of selling it (Trial Tr. 9/9/15 at 86:3-90:11).
District courts are granted broad discretion in admitting evidence, and their rulings are reviewed only for an abuse of discretion. Perez v. Texas Dep’t of Criminal Justice, Institutional Div.,
Improper Jury Argument
Defendant also argues that there was improper jury argument regarding the “eggshell plaintiff’ doctrine (Dkt. #89 at p. 20). Defendant argues that the tort doctrine of the “eggshell plaintiff’ has no relevance to this statutory RESPA case and that the improper invocation of the doctrine was prejudicial in that it unduly
A motion for a new trial premised on improper arguments by counsel “should only be granted when improper closing argument irreparably prejudice's a jury verdict.” Baisden v. I’m Ready Prods., Inc.,
The Court’s Questioning of. Janati
Defendant also asserts that the Court’s questioning of Janati expressed disbelief and “thereby trespassed on the jury’s function of assessing the credibility of the witness” (Dkt. # 89 at p. 27).
The first issue regarding Janati arose on May 15, 2015, when Plaintiffs filed their Motion for Sanctions (Dkt. #30). In the Motion for Sanctions, Plaintiffs asked that the Court compel Defendant to produce a competent corporate representative, award Plaintiffs’ counsel’s travel costs, and award Plaintiffs’ attorneys’ fees for preparing and attending the deposition (Dkt. # 30). Plain-, tiffs asserted that “Janati was evasive during her deposition, and responded with T don’t know’ to virtually every single important question relating to Plaintiffs’ claims and allegations in this case and the topics disclosed in her deposition notice.” (Dkt. # 30 at p. 5).
The Court held a. hearing on the Motion for Sanctions on June 5, 2015 (Dkt. # 39). On July 14, 2015 the Court entered an Order granting Plaintiffs’ Motion for Sanctions, and ordered Defendant to produce a competent corporate representative with personal knowledge of the topics and ordered Defendant to produce requested documents contained in Plaintiffs’ Deposition Notice of Corporate Representative pursuant to Rule 30(b)(6) (Dkt. # 44).
Plaintiffs made a strategic decision not to depose a second corporate representative as a witness (Dkt. # 52).
When the jury was allowed to ask Janati questions,
The Court: Then, ma’am, for the fall of 2013 how were the procedures for handling QWRs communicated to the other employees responsible for responding to the QWRs, prior to the issuance of the written policy? 18
A. Other employees would not respond to QWR. It needed to fit the , specific of QWR. And in this case, the December 16 letter from the attorney fit into the QWR. It did go to Customer Relation Officer. They logged it in. They worked it, and they responded to every question that they have.
The Court: Okay. So are you saying you make that decision? I mean, that’s what I’m trying to understand I guess and I think the jury is trying to understand, is you have no written policy at the time you’re addressing these letters and you’re making it sound like, well, okay, if it’s QWR, we respond. What procedures are there in determining when it qualifies as a QWR?
A. If—f it is made to—
The Court: Because, ma’am, the Plaintiffs are asserting that all these letters sent qualified as a QWR. That’s their assertion.
A. And it doesn’t. One of them, it qualifies. So there’s three important factors about QWR.
The Court: But, ma’am, the question I’m trying to figure out is tell me what procedures are there to determine what qualifies as a QWR.
A. I’m sorry?
The Court: You’re making the statement that this isn’t, but how? Why?
A. Why? Okay. So first, mailed to the correct address. Second, Attention Customer Relation Officer. Third, your question should be in regards to servicing of the account. We are the servicer of the account. So ask for accounting, ask for—you know, if you think there has been an error made. So if it does go to the correct address, Attention Customer Relation Officer, and it does address or question about the servicing of the account, it does go to Customer Relation Officer, they open, they log in, and they respond.
(Trial Tr. 9/10/15 at 47:8-48:20).
After the jury questions were complete, Plaintiffs counsel asked Janati follow-up questions, and the following exchange occurred:
Q. Will you agree with me that that January 3rd letter was a QWR? The letter that was previously up here, not the response. The letter that was just on the screen for 15 minutes.
A. No, sir, that was not a QWR. .
Q. Okay.
A. Would you—r
Q. Why was that not a QWR?
A. I read it carefully. Every single paragraph, if you want to put it up, it was explained in the previous letter. It more looked like the previous attorney didn’t agree with Nationstar. Every single item was addressed with the letter that we sent to them with all those attachment. She is re-questioning me. She is just I don’t agree with you, I don’t agree with you, when I provided the document to show how many month, what is this, what is this. Everything was in that package.
Q. Okay. Yes or no, do you think the January 3rd letter was a QWR?
A. No, sir.
Q. Okay. In your deposition you told me under oath you did not know whether or not that letter was a QWR, right?
A. I said back then I—
Q. But now today you have changed your testimony and it is a QWR, right?
A. It is not.
Q. Oh, it’s not. I get confused. You answer so many different ways, I can’t remember which one it is.
A. Well, let me clear it. One letter, December 16 letter that we responded, it went to Customer Relation. It got logged in. They followed the procedures and they provided everything that they ask. One letter was QWR. The January 3rd was the follow-up of that, and we can go paragraph by paragraph just so I can explain that every question that Ms. Sara was asking, it was the same question from the December 16 that it was responded. So I’m telling you the January 3rd is not QWR. We already provided those information to the attorney.
Q. During your deposition you didn’t know whether or not the February 11th letter was a QWR either, did you?
A. No, I didn’t know and I explained.
Q. Okay.
A. I researched it.
The Court: Let me just ask a question. How did you research it? So you’re in that department. You followed the oral procedures, whatever those are, to make these decisions. Of course, now you have a written policy. So at the time of your deposition, those policies were in place. The written policies were in place I believe at the time of the deposition. That’s correct, right? Make sure that counsel—
Mr. Hughes: Yes.
The Court: Okay. So how would you not know at the time of your deposition whether those qualified as a QWR? You’re the corporate representative at the deposition. You’re the corporate representative. Why would you not know whether that qualified as a QWR at that point? That’s your job. Why would you not know?
A. I’m sorry.
The Court: No, that’s not sufficient. That’s not good enough. Why do you not know?
A. We do have a—I am not Customer Relation.
The Court: So why should we believe you now when you say it’s not one?
A: I’m sorry?
The Court: Why should we believe you now that it’s not a qualified written request when your job at the deposition as the corporate representative for the Defendant, you’re saying you don’t know at the deposition? After you already had written policies in place at the time of your deposition, you’re saying you don’t know if those are qualified written requests. But today you’re saying no, they’re not. Tell me how we’re supposed to believe one or the other. And I don’t want to hear I’m sorry. You’re the—you work for the company. How is the jury supposed to assess this?'
A. I went back and researched it, so I—
The Court: How did you research it?
A. Well, you know, I went back and I talked to somebody who works for Customer Relationship and I reverified that—Your Honor, I said that one of them was treated as a QWR, the letter before it. So the letter before it was treated as QWR, and I didn’t know if the second letter would still be a QWR when I already—my company already responded to the previous one, so it was repetition. I didn’t know if it is a repetition of the question, would it be again a QWR.
(Trial Tr. 9/10/15 at 57:23-61:6).
After the exchange above occurred and after a break, Defendant’s counsel made a motion for the Court’s recusal outside the presence of the jury.
Mr. Mclnnis: It’s our client’s position that because of the questioning, specifically the questioning that went beyond that of the jurors, that it evidenced partiality and questioned the credibility of the witness that crossed, the line to advocacy and may not be cured by the instruction, so we would respectfully ask for recusal.
(Trial Tr. 9/10/15 at 104:9-14). The Court denied the motion to recuse (Trial Tr. 9/10/15 at 104:15-16). After further discussion of the verdict form, the Court again addressed the motion for recusal thus,
The Court:,.,And also going back to your request for recusal, I think the Federal Rules allow me to question witnesses and allow me to comment on the evidence. There’s nothing improper about that. So explain to me again why you think that I’m not being—somehow being impartial in this.
Mr. Mclnnis: Yes, sir. Certainly 614 allows Your Honor to ask questions, but there is case law that says where that evidences a partiality or crosses the line to advocacy as with regard to in this specific instance the statement of how am I supposed to believe you, how are we supposed to believe you now, those type of comments are the basis of the motion, Your Honor.
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Mr. Hughes: First of all, all you were doing was reading the jurors’ questions, and then the witness didn’t answer. And I believe all you were doing was instructing her that she needs to answer the question and that’s the extent of what I believe you were doing. •
The Court: I agree. I mean, you put a witness on that did a horrible job and wouldn’t respond, gave a lot of non-responsive answers and then also answered questions that weren’t being asked. So I did do that, but that doesn’t show my partiality. It’s trying to get the witness to answer the questions that were being asked, both by counsel as well as the jury.
(Trial Tr. 9/10/15 at 105:7-106:8).
The Court’s questioning of Janati benefitted the jury by clarifying her previous (nonresponsive and evasive) answers, and it is. expressly authorized by the Federal Rules of Evidence. See Fed. R. Evid. 614(b). Rule 614(b) of the Federal Rules of Evidence permits judges to question witnesses. Id. “A trial judge has wide discretion over the ‘tone and tempo’ of a trial and may elicit further information from a witness if he believes it. would benefit the jury.” United States v. Saenz,
The Fifth Circuit has previously stated that a trial judge’s questioning of witnesses is permissible if aimed at clarifying the evidence or managing the trial. United States v. Williams,
When analyzed in the context of the entire record, the cumulative effect of the Court’s questioning did not prejudice Defendant. See United States v. Deason,
CONCLUSION
It is therefore ORDERED that Defendant’s Renewed Motion for Judgment as a Matter of Law, Motion to Alter or Amend Judgment, and Alternatively, Motion for New Trial (Dkt. # 89) is hereby DENIED.
Notes
. Plaintiffs also brought a breach of contract claim against Defendant (Dkt. # 64 at p. 2). Defendant asserted that Plaintiffs breached their contract with Defendant, "prior to any alleged breach by Defendant” (Dkt. # 64 at p. 3). However, Plaintiffs dropped this claim before trial (Dkt. # 89 at p. 1).
. Fendia stated during her testimony that she sent “a letter” on January 3, 2014, and on January 17, 2014 (Trial Tr. 9/10/15 at 85:25-86:11).
. Defendant comments in its reply that “Plaintiffs cite no authority for the proposition that, when a communication initially fails to meet the statutory requirements of a QWR, ’ it can be revived if it is attached to a subsequent communication that is a valid QWR. Fortunately, the Court need not decide that issue... ” (Dkt. # 94 at p. 2). However, Defendant misconstrues the issue. The issue is not whether one communication can "revive” another, but whether two separate communications can be considered individually although they are sent, within the same envelope. Defendant cites no case law establishing that just because a later communication that is repetitive of an earlier communication is included in the same envelope as the earlier communication, the earlier communication is no longer able to be considered a QWR.
. Defendant cited a number of other cases to support its contention that the January 3 Communication does not legally qualify as a QWR because it did not include "Attention Customer Relations Office” in the address and office. However, the Court found that all of the cases that Defendant cited were unpersuasive because none of them involved a discussion of whether the plaintiff sent the communication to a different office within the same physical address specified to receive QWRs, or a situation where the plaintiff was specifically told to direct their communications to a specific individual within the same
. The December 16 Communication was addressed to "Alex Beaty Dedicated Loan Spe
. Additionally, Defendant points out that nothing in the January 3 Communication mentioned RESPA or indicated the letter was intended to be a QWR under RESPA (Dkt. # 89 at p. 6). However, RESPA does not require that for a communication to be a QWR, it mention RESPA or indicate that it is intended to be a QWR. See 12 U.S.C. § 2605(e)(1)(B).
. Defendant also alleges that since there was no mention of “mental anguish damages” in Plaintiffs’ complaint, during discovery, or in the parties’ Joint Pretrial Order, Plaintiffs waived any type of mental anguish award (Dkt. # 89 at p. 12). However, as discussed above, mental anguish damages are, included in actual damages under RESPA, which Plaintiffs included in their Complaint (Dkt. # 7 at ¶ 26). Additionally, Defendant did not assert this argument in its initial Motion for Judgment as a Matter of Law (Trial Tr. 9/10/15 at 92:6-94:10). Therefore, Defendant cannot argue waiver, on these grounds for the first time now.
. Similarly, Defendant also suggests that because there was no expert testimony or health record evidence presented regarding the mental anguish suffered by Plaintiffs, they are not able to recover mental anguish damages (Dkt. # 89 at pp. 18-19). The actual damages portion of RESPA can be interpreted in a manner similar to the FDCPA. McLean,
. Defendant suggests that because Geoffrion was not the individual calling, faxing, and mailing communications to Defendant, it could not have caused Geoffrion any type of mental anguish (Dkt. # 89 at p. 13). However, case law is clear that an attorney may send a QWR on behalf of their client and the Court sees no reason why this should bar an injured plaintiff from receiving mental anguish damages. See Roth,
. Defendant also argues that "[t]he damages awarded must fairly and reasonably compensate the loss, and there must be some evidence to support the amount awarded.” (Dkt; # 89 atp.13 n. 2), Defendant states that Plaintiffs presented no evidence regarding the amount of mental anguish damages (Dkt. # 89 at p. 13 n. 2). However, the cases that Defendant cites are distinguishable. In Saenz, the appellate court found that there was no evidence that supported an award of $250,000 for mental anguish damages.
. Janati also testified that she was involved ' in many other lawsuits that were pending and that she was unaware of other specific pending cases with facts similar to the current case (Trial Tr. 9/10/15 at 61:9-63:18).
. Plaintiffs also argue that Defendant stipulated to the following facts which negate Defendant’s standing argument (Dkt, #91 at p. 9): "On or around August of 2003, Plaintiffs purchased a single-family home located at 934 Dunsmuir Avenue, Los Angeles, CA 90036 (the ‘Property’).” (Dkt. # 74 at p. 5) (emphasis added). "After purchasing the Property in 2003, Plaintiffs refinanced their mortgage...” (Dkt. #74 at p. 5) (emphasis added). "To secure repayment of the Note, Plaintiffs executed a deed of trust encumbering the Property. (The June 30, 2004 note and deed of trust are the ‘Loan.’).” (Dkt. # 74 at p. 5) (emphasis added). “Nationstar contends Plaintiffs are delinquent on their account..” (Dkt. # 74 at p. 6) (emphasis added). Defendant does not address this argument. While case law is clear that regardless of whether the parties have stipulated to facts establishing constitutional jurisdiction, "courts are required to examine the true facts.” In re Olson, No. 92 A 258,
. Defendant does not directly and specifically address Article III standing, but does cite several cases where courts found that the plaintiffs did not have Article III standing to bring a claim under RESPA because they were not signatories to the note (Dkt. # 89 at pp. 15-19). Therefore, the Court will analyze whether Kasmir has Article III standing.
. At least one other court has utilized similar information in its determination of whether a plaintiff was more prone to suffer higher degrees of mental anguish than others similarly situated. See McCollough v. Johnson, Rodenburg & Lauinger, LLC,
, Plaintiffs persuasively argued that Defendant should not be allowed to benefit from not complying with Rule 30(b)(6). Fed. R. Civ. P. 30(b)(6).
, See Trial Tr. 9/10/15 at 23:8-17 (refusing to acknowledge the fact that she said “I don’t know” several times in her deposition even after the attorney told her that she said that phrase 116 times in her deposition, and instead repeatedly telling the lawyer he would have to point it out to her in the deposition transcript); Trial Tr. at 9/10/15 20:23-21:22:8 (stating that she could not be sure if her deposition testimony was correct because she did not know if during the deposition she had examined the relevant documentation); Trial Tr, 9/10/15 at 26:1-28:7 (unable to state how much Plaintiffs paid in October of 2013 and saying that she was not smart enough to retain the numbers and dates she was asked about); Trial Tr. 9/10/15 at 19:16-20:22 (refusing to say that she understood that Plaintiffs’ contention was that they never received an adequate accounting, even though she had stated that she understood this during her deposition); Trial Tr. 9/10/15 at 31:12-32:13, 32:22-33:2, 33:9-34:1 (acknowledging that she could have brought documentation with her to assist her in answering questions, after stating several times that she could not answer Plaintiffs’ counsel’s questions because she would have to check the records).
, The Court allowed jurors to ask questions of the witnesses. The procedure for doing so is explained to the jury during the Court’s preliminaiy instructions. Each juror is given a blank question form. If, during a particular witness's testimony, they believe that there is something important that they would like to ask that witness, they may write their question on the form. After the attorneys have completed their questioning of the witness, the Court asks each juror to pass their form to the Court Security Officer. They are instructed to pass a form even if it-is blank. By doing this, the identity of the juror asking a question will not be readily apparent. The Court then has the attorneys approach the bench and the Court reviews the questions with the attorneys out of the hearing of the jury. The Court then decides whether it believes each question is appropriate. The Court then asks the witness the questions it believes are appropriate, and the witness will then answer the questions for the jury. After the witness answers all of the juror questions, the Court allows the attorneys, if they desire, to ask any follow-up questions. The jury is told not be offended if the Court does not ask their question, or rephrases it. The jury is also told that the Court hopes that by allowing jurors to ask questions, they will be more engaged in the proceedings and get the information they need to reach a just verdict. The jury is instructed not to feel compelled to ask a question if they do not feel it is necessary. The jury is also instructed that they should not be afraid to ask a question if they believe it will help them better understand a witness's testimony. They are told that their questions should be limited strictly to the witness's testimony, and not to ask questions that are unrelated to the specific testimony of that witness. The jury is informed that the Court will decide whether a question is appropriate and whether it should be asked. The jury is instructed that they should not draw any adverse inference against any party should the Court decline to ask a question or re-phrase a question that has been submitted.
. This question was submitted by the jury. The rest of the questions included herein were follow-up questions that the Court asked in an attempt to clarify Janati’s response to the jury question.
. Defendant has not raised the issue of recu-sal again in its current motion (Dkt. # 89).
. The Court’s curative instruction in the Jury Charge stated that,
If I have given you the impression during the trial that I favor either party, you must disregard that impression. If I have given you the-impression during the trial that I have an opinion about the facts of this case, you must disregard that impression. You are the sole judges of the facts of this case. Other than my instructions to you on the law, you should disregard anything I may have said or done during the trial in arriving at your verdict.
(Dkt. # 74 at p. 1).