In Re: RFC and RESCAP Liquidating Trust Litigation

Background

ResCap Liquidating Trust moved to exclude testimony from James Crawford, an employee of Primary Residential Mortgage, Inc. (PRMI). PRMI intended to offer some of Crawford’s testimony in support of its estoppel and waiver defense concerning one loan underwritten under Countrywide’s guidelines and the sale of Assetwise-approved loans.

Parties’ Positions

ResCap argued that Crawford testified he was not the person responsible for representations and warranties during the relevant period, did not know who was, and had not discussed the representations and warranties applicable to the loans. ResCap also pointed to Crawford’s inability to identify specific dates, times, or speakers for relevant communications. Regarding the Countrywide loan and Assetwise-approved loans, ResCap argued that Crawford lacked knowledge of relevant communications and documents.

PRMI argued that Crawford had made the offer to RFC and accepted the bid for the Countrywide loan pool on PRMI’s behalf. PRMI also relied on Crawford’s testimony about the purchase, his recollection of the loan pool, PRMI’s communication that the pool was underwritten to Countrywide’s guidelines, and his recollection of how Assetwise functioned. PRMI further argued that Crawford’s testimony was relevant to explain email communications reflected in exhibits.

Ruling

The Court found that the apparent weaknesses in Crawford’s testimony and his lack of memory generally concerned the testimony’s weight, meaning how persuasive it was, rather than its admissibility, meaning whether it could be presented to the factfinder. The Court therefore permitted PRMI to offer some testimony from Crawford, subject to ResCap’s objections, which the Court would evaluate in context.

Judge Susan Richard Nelson ordered that ResCap’s Motion to Exclude Witness James Crawford was DENIED.