Susan Closson v. Bank of America

MEMORANDUM

Susan and Charles Closson appeal the district court’s judgment in Bank of America’s (“BOA”) favor following a jury trial on their breach of contract and breach of the implied covenant of good faith and fair dealing claims arising from the foreclosure of the Clossons’ property. We have jurisdiction under 28 U.S.C. § 1291 . The Clos-sons argue that the district court erred in allowing BOA to argue the unpled affirmative defense of release and in admitting evidence of their post-March 2008 financial difficulties, and also argue the district court engaged in judicial misconduct at trial. We conclude that there was no harm in allowing BOA to argue the affirmative defense of release, the district court did not abuse its discretion in admitting the evidence of the Clossons’ post-March 2008 financial troubles, and the district court judge did not engage in judicial misconduct; thus we affirm.

We need not determine whether the district court erred in allowing BOA to argue the affirmative defense of release because even if it did, any error was harmless and does not warrant a reversal. If a jury’s verdict is “more probably than not untainted by the error,” reversal is not…