                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 15 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LEHMAN BROTHERS HOLDINGS,                        No. 13-55671
INC.,
                                                 D.C. No. 2:10-cv-07207-JAK-PJW
              Plaintiff - Appellee,

 v.                                              MEMORANDUM*

PMC BANCORP, AKA Professional
Mortgage Corp.,

              Defendant - Appellant.



LEHMAN BROTHERS HOLDINGS,                        No. 13-56213
INC.,
                                                 D.C. No. 2:10-cv-07207-JAK-PJW
              Plaintiff - Appellee,

 v.

PMC BANCORP, AKA Professional
Mortgage Corp.,

              Defendant - Appellant.


                   Appeals from the United States District Court
                      for the Central District of California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    John A. Kronstadt, District Judge, Presiding

                         Argued and Submitted May 6, 2015
                               Pasadena, California

Before: TASHIMA, TALLMAN, and NGUYEN, Circuit Judges.

      PMC Bancorp (“PMC”) appeals the district court’s grant of summary

judgment in favor of Lehman Brothers Holdings, Inc. (“LBHI”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Reviewing de novo, Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d

458, 460 (9th Cir. 1986), the district court correctly found that PMC’s obligations

under the indemnity agreement survived past foreclosure on the underlying

properties. Under New York law, “a court should not adopt an interpretation

which will operate to leave a provision of a contract . . . without force and effect.”

Laba v. Carey, 277 N.E.2d 641, 644 (N.Y. 1971) (citation and internal quotation

marks omitted). The interpretation of the agreement advanced by PMC would

impermissibly render two provisions of the agreement ineffective. See id. These

include: (1) the provision giving Lehman Brothers Bank (“LBB”) “sole and

exclusive control . . . over the marketing, administration, and disposition of any

foreclosed mortgage property”; and (2) the provision discussing full credit bids.




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Accordingly, the district court properly granted summary judgment in favor of

LBHI as to liability on the indemnity agreement.

      Next, reviewing for abuse of discretion, Bias v. Moynihan, 508 F.3d 1212,

1224 (9th Cir. 2007), the district court did not err in overruling PMC’s generalized

objection to the authentication of the exhibits appended to John Baker’s

declaration. Evidence may be authenticated by a “witness with knowledge . . . that

an item is what it is claimed to be,” Fed. R. Evid. 901(b)(1), and such knowledge

may be inferred from the witness’s position and the nature of his participation in

the matters to which he attests. See Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d

999, 1018 (9th Cir. 1990). Here, Baker stated that he was a “corporate

representative” of LBHI, was employed by one of LBHI’s wholly-owned

subsidiaries, and was previously employed by a different wholly-owned subsidiary.

Moreover, he stated that his declaration was based on personal knowledge gained

from his “employment experience as well as from knowledge obtained after

reasonable inquiry and review of the records” appended to his declaration. Finally,

contrary to PMC’s contention, Baker need not be an employee of LBHI in order to

authenticate its records because his declaration demonstrates that he understood

LBHI’s record-keeping system. See United States v. Ray, 930 F.2d 1368, 1370




                                          3
(9th Cir. 1990). The district court therefore did not abuse its discretion in

overruling PMC’s generalized objection to LBHI’s authentication of its exhibits.

       PMC also contends that the district court erred in admitting the summary

Exhibit M to the Baker declaration because LBHI did not provide an affidavit from

the person who prepared the exhibit, or from a person who had verified the

exhibit’s accuracy. The district court did not abuse its discretion in admitting

Exhibit M as a summary of LBHI’s damages because (1) PMC did not object to the

accuracy of Exhibit M or the manner in which the figures in the exhibit were

calculated; and (2) all of the foundational documents for Exhibit M were properly

admitted. See United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980); see

also Fed. R. Evid. 1006. Alternatively, any error in the admission of Exhibit M

was harmless. See United States v. Boulware, 470 F.3d 931, 936 (9th Cir. 2006),

vacated and remanded on other grounds, Boulware v. United States, 552 U.S. 421

(2008).

       Next, on de novo review, Universal Mortg., 799 F.2d at 460, we conclude

that the “full credit bid rule” does not apply to the calculation of damages in this

action, but for different reasons than those articulated by the district court. First,

the parties agree that the full credit bid rule applies at most to six of the loans at

issue in this action: the PA, WA, PE, BU, LE, and RA1 loans. Second, in the


                                            4
indemnity agreement, PMC expressly agreed that the full credit bid rule would not

apply to the PA or WA loans. Third, the record contains no evidence that LBHI or

LBB placed full credit bids, or caused such bids to be placed during foreclosure

proceedings on the PE, BU, LE, or RA1 loans. PMC’s contention that Aurora

Loan Services acted as LBHI’s agent in placing full credit bids finds no support in

the record, and Aurora’s status as a wholly-owned subsidiary of LBHI does not, on

its own, give rise to an agency relationship under New York or California law. See

BBA Aviation PLC v. Super. Ct., 190 Cal. App. 4th 421, 433 (2010); A.W. Fiur Co.

v. Ataka & Co., 422 N.Y.S.2d 419, 422 (N.Y. App. Div. 1979). Because neither

LBHI nor LBB was responsible for the placement of full credit bids in the course

of foreclosure proceedings on any of these four loans, the full credit bid rule is

inapplicable to the calculation of LBHI’s damages in this action. See First

Commercial Mortg. Co. v. Reece, 89 Cal. App. 4th 731, 744 (2001) (explaining

that full credit bid rule does not apply to lender that did not place the bid);

Whitestone Sav. & Loan Ass’n v. Allstate Ins. Co., 270 N.E.2d 694, 696–97 (N.Y.

1971) (explaining that the primary rationale for the full credit bid rule is that it

would be inequitable to permit a lender to choose to place such a bid, “thus cutting

off other lower bidders,” only to later argue that the property is worth less than the

bid).


                                            5
      Finally, reviewing for abuse of discretion, Berkla v. Corel Corp., 302 F.3d

909, 917 (9th Cir. 2002), the district court permissibly awarded attorneys’ fees to

LBHI for work done after the hearing on February 13, 2012. At the hearing, the

district court did not explicitly vacate the trial date, or give any clear indication that

the trial date would be substantially postponed. And, the minute order vacating the

trial date did not appear on the docket until February 21, 2012. The district court

also reasonably concluded that the additional fees incurred after February 21, 2012,

were not significant, and primarily arose from communications regarding the status

of the case while LBHI’s motion for summary judgment remained pending.

      AFFIRMED.




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