. See id. A Scheduling Order was first entered on November 24, 2015, and the period for discovery was extended four times between November 2015 and January 2017. or other representation . The Court will therefore deny the Motion for Summary Judgment as to this argument. Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. Contact Fraudfighters.net Current Class Settlements Search Our Successes Practice Areas Class Actions Financial Services & Economic Justice R. Evid. Code Ann., Com. Nationstar to Pay $110 Million to Settle Borrower Claims 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." 1024.41(b)(2)(B). 1024.41(c)(1)(ii), which requires a servicer to respond to a loan modification application within 30 days of receipt of a complete loss mitigation application and provide notice of appeal rights; 12 C.F.R. Fed. Similarly, though the precise nature of the fees imposed was not specified, it is reasonable to infer that some were attributable to delays linked to RESPA violations. A class action may be maintained under Rule 23(b)(3) if common questions of law or fact "predominate over any questions affecting only individual members" and a "class action is superior to other available methods for fairly and efficiently adjudicating the controversy." 3d 254, 274-75 (S.D.N.Y. Specifically, if a loss mitigation application is received "45 days or more before a foreclosure sale," the loan servicer must provide a notice to the borrower "in writing within 5 days" of receiving it in which the servicer acknowledges receipt of the application and states whether the "application is either complete or incomplete." "); see also 1 William Rubenstein et al., Newberg on Class Actions 2:3 (5th ed. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Check out:Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, Don't miss:Amex Blue Cash Preferred is offering an elevated welcome bonus for a limited time, Get Make It newsletters delivered to your inbox, Learn more about the world of CNBC Make It, 2023 CNBC LLC. Rules 19-303.4(b) (2018). Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. Instead, the Robinsons assert that Nationstar has not affirmatively proven that it conducted such reviews. The Court will not revisit this determination. Nationstar insists that its customers agreed to receive phone calls from the mortgage loan provider, however it agreed to pay $12.1 million to avoid ongoing litigation. . See 12 C.F.R. Although Monday's case specifically addresses Nationstar's actions following the Great Recession, the outcome can affect today's homeowners, says Kwame Raoul, attorney general of Illinois. 2010). Summ. Class Action Rebates | June 2022 - Top Class Actions Ass'n, No. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. . 2010). See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. Signed by Judge Theodore D. Chuang on 8/18/2015. Id. 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. 1024.41(f), (g), and (h), and Md. 26-1. Nationstar's Motion for Summary Judgment will be granted as to Tamara Robinson. "We want to hear from you," Raoul says. The Robinsons have not made any mortgage payments since January 2014 and have not been assessed any late fees since February 2014. These claims do not have to be factually or legally identical, but the class claims should be fairly encompassed by those of the named plaintiffs. Md. Law 13-316(c), which requires a response to a loan modification application within 15 days. 15-05811, 2016 WL 3055901 (N.D. Cal. 2002), is misplaced. Law 13-301 and 13-303, and that Mr. Robinson therefore may not assert such claims on behalf of the class, Mr. Robinson's remaining claims and defenses are typical of the class members. McLean v. GMAC Mortg. 89, 90, ECF No. Nationstar, the fourth-largest mortgage servicer in the U.S., is set to pay $91 million to settle claims brought by the Consumer Financial Protection Bureau and state attorneys general alleging that the company failed to honor mortgage forbearance agreements and unfairly foreclosed on homeowners. For a class action brought for violations of Regulation X, a servicer is liable for "actual damages to each of the borrowers in the class" and, upon a finding of a "pattern or practice" of noncompliance, statutory damages amounting to a maximum of $2,000 per class member up to a total of the lesser of $1 million or one percent of the servicer's net worth. Mr. Robinson then submitted another loan modification application on August 25, 2014. Accordingly, Nationstar's Motion for Summary Judgment will be granted as to the MCPA claims under sections 13-301 and 13-303. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. 27. judge. For the foregoing reasons, Nationstar's Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. MCC JR 318, 530-531. See Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) ("When 'one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defense peculiar to some individual class members.'" Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. Here, even though the Robinsons' March 7, 2014 loss mitigation application was not the Robinsons' first such application, it was their first submitted after the effective date of Regulation X. The predominance and superiority requirements under Rule 23(b)(3) are designed to ensure that the class action "achieve[s] economies of time, effort, and expense, and promote[s] . He was retained by the Robinsons under an arrangement through which he is to be paid a flat fee of $125,000: $62,500 up front, with an additional $62,500 to be paid if a class is certified in this case. at 983. Because Nationstar employees used standard templates to communicate with borrowers, Oliver concluded that Regulation X violations can be identified through the existence of noncompliant templates and the dates that those templates were in use. As the Supreme Court noted in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), Daubert "made clear that its list of factors was meant to be helpful, not definitive," and it is not always the case that an expert witness's claim will have been subjected to peer review. Fed. Id. 12 U.S.C. Robinson v. Nationstar Mortgage, LLC: Complaint with jury demand First, as a threshold matter, the Court notes that in ruling on Nationstar's Motion for Summary Judgment, it will grant judgment in favor of Nationstar as to Mrs. Robinson's claims, Mr. Robinson's RESPA claims under 12 C.F.R. If a borrower is experiencing issues or not getting the help needed, contact your state attorneys general. Where a contingency fee arrangement for expert witnesses is not expressly prohibited by the Maryland Rules of Professional Conduct, the Court declines to find that the fee arrangement here constituted an ethical violation. A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . While the date that Nationstar's systems came into compliance, is unknown, Nationstar's systematic noncompliance presents common questions of law and fact for all class members. Fed. After this missed payment, Nationstar assessed a late fee. Court Description: OPINION AND ORDER - Based on the foregoing reasons, the defendants motion to dismiss (doc. Like the class members, to prove his case, Mr. Robinson will have to show that Nationstar failed to timely and appropriately respond to his loan modification applications by pointing to the dates of his submissions and the dates and contents of Nationstar's responses. 2017), the United States Court of Appeals for the Eleventh Circuit held that postage costs incurred by the plaintiff to send the "initial request for information is not a cost to the borrower 'as a result of the failure' to comply with a RESPA obligation," because a violation has not occurred and will not "necessarily occur" at the time the plaintiff paid the postage. Regulation X went into effect on January 10, 2014. 12 U.S.C. 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. Moreover, although the court stated that an arrangement for providing expert testimony for a contingent fee would violate public policy, the court did not address the question of the admissibility of evidence at issue here. For the requirements that hinge on the timing of a communication or response, Oliver's methodology consists of using Nationstar's data from the LSAMS and FileNet software applications relating to a sample of 400 loans to identify the dates when certain events occurredsuch as the filing of a loan modification application, when a loan modification application became complete, and the sending of an acknowledgment or decision letter to a borrowerand then counting the days between the dates to assess whether a RESPA timing requirement was satisfied. Id. EQT Prod. Nationstar Mortgage settles $2.75 million for Pennsylvania mortgage UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND. In its complaint, filed in federal district court in the District of Columbia, the Bureau alleges that Nationstar engaged in unfair and deceptive acts and practices in violation of the Consumer Financial Protection Act of 2010, violated the Real Estate Settlement Procedures Act (RESPA), and violated the Homeowner's Protection Act of 1998 (HPA). Signed by Judge James L Graham on 11/15/12. Amchem Prods. Co., 350 F.3d 1018, 1023 (9th Cir. 2605(f)(1). StubHub, Apple, other class action settlement checks in the mail Old Navy, Nissan, Equifax, other class action settlement payments in the mail Postmates, 1-800 Contacts, other settlement checks on the way Id. Fed. JA 130. State attorneys general are here for homeowners, Raoul adds. Feb. 14, 2017) (holding that the plaintiff sufficiently pleaded damages under the MCPA where she alleged that the defendant's failures to respond "resulted in the continual assessment of accruing interest, fees and costs on the mortgage account," as well as "stress, physical sickness, headaches, sleep deprivation, worry, and pecuniary expenses"). 125. 12 C.F.R. "When these issues were identified several years ago, we immediately made restitution to our impacted customers and invested in process improvements to prevent reoccurrence," Jay Bray, CEO and chairman of Mr. Cooper said in a statement Monday. Mr. Robinson's counsel is experienced in complex civil litigation and class action litigation. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. Nationstar argues that summary judgment should be entered on the Robinsons' MCPA claim under section 13-316 because the Robinsons have not shown that they submitted a complaint or inquiry that triggers a duty to respond. While it is not necessary to identify every class member at the time of certification for a class to be "ascertainable," a class cannot be certified if its membership must be determined through "individualized fact-finding or mini-trials." . Code Ann., Com. McAdams v. Nationstar Mortgage, LLC, No. 21-1087 (4th Cir. 2022) Thorn v. Jefferson-Pilot Life Ins. Because there are, at a minimum, disputed issues of fact as to what fees, administrative costs, and interest constitute damages, the Court will deny the motion for summary judgment on the issue of actual damages. Robinson v. Nationstar Mortgage, LLC. et al - pacermonitor.com . 702, 703. 12 U.S.C. 2013) (holding that the plaintiff sufficiently pleaded actual injury or loss under the MCPA where he alleged that he suffered "bogus late fees," damage to his credit, and attorney's fees); see also Cole v. Fed'l Nat'l Mortg. Here, Mrs. Robinson signed the Deed but did not sign the Note. 2017) (holding that "incidental costs related to the sending of correspondence" to the servicer, including "postage and travel," are not actual damages under RESPA because such a rule "would transform virtually all unsatisfactory borrower inquiries into RESPA lawsuits"). 1024.41(c)(1)(i)-(ii), (g). Discovery Order, ECF No. Factors "pertinent" to the predominance and superiority requirements include the "class members' interests in individually controlling" the litigation, whether litigation on the matter has already been begun by other class members, whether concentrating the litigation in one forum is desirable or undesirable, and the potential difficulties managing the class action presents. Fed. 10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. See Wirtz, 886 F.3d at 719-20. During this time and up until September 25, 2017, Nationstar had not begun any foreclosure proceedings on the Robinsons' home. at *2. See 12 C.F.R. The denial letters stated that the loan's principal balance exceeded the limit under HAMP. Delaware Attorney General Kathleen Jennings said the settlements, Several states also fined Nationstar in 2018, Kwame Raoul, attorney general of Illinois, latest research from the Mortgage Bankers Association. 1024.41(c)(1)(ii), which requires a servicer to respond to a completed loan modification application; or Md. On March 8, 2014, Nationstar sent to Mr. Robinson a letter stating that he was ineligible for a HAMP modification, but on March 15, 2014, it sent a different letter offering a loan modification under which Mr. Robinson would receive a reduced interest rate for two years. Fed. 3d at 1014. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. Filed by Janie Robinson. 2605(f). There is no reason to conclude that individual class members have any particular interest in individually controlling the litigation through separate actions, or that this Court is an undesirable forum to host this litigation, since Nationstar services loans in this district, is subject to jurisdiction here, and has presented no argument that Maryland is an inconvenient forum. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. Throughout discovery, Nationstar repeatedly stated that it could not produce the data on loss mitigation or loan modification applications from its databases in the form requested by the Robinsons. Plaintiffs "must present specific evidence to establish a causal link between the [servicer's] violation and their injuries." The data derived from scripts written by another expert, Abraham J. Wyner, without the benefit of seeing the databases, a process necessitated by Nationstar's unwillingness or inability to produce the relevant data. 2014). Hickerson, 882 F.3d at 480 (quoting Cooper, 259 F.3d at 199). Lembach v. Bierman, 528 F. App'x 297 (4th Cir. . . Signed by Magistrate Judge Jillyn K Schulze on 9/9/2016 . The economic challenges and burdens that homeowners currently face are similar to the ones experienced following the Great Recession. The Deed specifies that a person who signs it but "does not execute the note" is a co-signer of the Deed in order to mortgage and convey that person's interest in the Property under the terms of the Deed, but "is not personally obligated to pay the sums secured by this Security Instrument," and her consent is not required to alter the terms of the Deed or the Note. 2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). 1024.41(b)(2)(B), which requires that an acknowledgment letter be sent within five days of receipt of a loan modification application; or 12 C.F.R. Since the parties do not argue that the Nationwide Class and the Maryland Subclass differ for the purposes of the class certification analysis, the Court will analyze them together. Call Us Today (202) 973-0900Your Call is Confidential. While the particulars of Mr. Robinson's application process will not necessarily prove that Nationstar mishandled the applications of other individual class members, these facts fairly encompass the types of claims that would be brought by the members of the class. While every class member will have to establish damages, that calculation will not be "particularly complex," as it will require identifying administrative costs and fees that would not have occurred but for the RESPA violation. From January 2012 to December 2016, the CFPB and 50 state attorneys general claim Nationstar, which is now doing business asMr. Cooper, engaged in a number of unlawful practices in handling mortgages following the Great Recession. 1976) (holding that while it may be unethical for a lawyer to testify on behalf of a client as an expert, "it does not necessarily follow that any alleged professional misconduct" would require exclusion of the testimony because the rules of professional conduct do "not delineate rules of evidence"); United States v. Fogel, 901 F.2d 23, 26 (4th Cir. The fact that each borrower must individually show damages under 12 U.S.C. Since Mrs. Robinson may not bring a claim under Regulation X, she may not be a named class representative. The settlement in the form of a consent judgment, filed in the U.S. District Court for the District of Columbia, resolves allegations that Nationstar, which does business as "Mr. Cooper," violated consumer protection laws. Code Ann., Com. Class Action Settlement Checks Mailed - Top Class Actions Individual damages would be below the cost of litigation even if each class member could establish that Nationstar's conduct consisted of a pattern or practice of violating Regulation X, because the statute limits such damages to $2,000 per borrower. . Robinson, 2015 WL 4994491, at *4 (citing Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. Messner v. Northshore Univ. Nationstar's claim that the above-described coding is not dispositive, because an underwriter could subsequently determine that more information was needed after all, is not persuasive. Nationstar sent Mr. Robinson two letters denying his loan modification application on July 17, 2014 and September 9, 2014, but there is no evidence in the record that the Robinsons submitted an appeal to either of those letters. Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. 2605(f)(2); Wirtz, 886 F.3d at 719-20, that the individualized damages inquiry would need to precede the award of statutory damages based on a finding of a pattern-or-practice of RESPA violations is a distinction without a difference: whether individual damages are shown before or after the pattern-or-practice liability, the common issues of liability predominate over the individualized questions of damages. Ass'n, 375 F.2d 648, 653 (4th Cir. More importantly, while a determination of an individual violation would not require extensive analysis, specific proof of a pattern or practice of RESPA violations in any individual case would be a substantial undertaking, likely requiring the same type of complex analysis proposed here: a sampling of Nationstar files, compilation of all relevant data for such files, expert analysis to identify violations, and an assessment whether the identified violations are sufficient to establish a pattern or practice of violations. In 2020, the Robinsons and Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate "A loss mitigation application is a request from a borrower to change the terms of their payment obligations to avoid delinquency or foreclosure." J.A. 12) is GRANTED with respect to Count V and Count III against Nationstar; it is DENIED with respect to Counts I, II, and VI, and Count III against NSM. Although the parties have not offered specific details on the nature and timing of those costs and fees, it is reasonable to infer that at least some portion of them were incurred after they submitted their March 7, 2014 loan modification application and after Nationstar had violated Regulation X. Furthermore, Nationstar's argument that the Robinsons are not typical largely recycles the same arguments made in the Motion for Summary Judgment. Tagatz, 861 F.2d at 1042; cf. 1024.41, a regulation of RESPA that outlines loss mitigation procedures. Law 13-316(c). To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder of all members is impracticable." In assessing this element, "numbers alone are not controlling" and a district court should consider "all of the circumstances of the case." As for the claims of errors in Oliver's analysis, although this criticism is couched as his "misunderstanding the nature of Nationstar's various databases," Nationstar largely challenges Oliver's failure to use particular data fields, some which were never made available to him. At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. Since the Rule 23(a) factors are satisfied, the Court will now consider whether the Rule 23(b)(3) predominance and superiority considerations are met. 303 0 obj <> endobj Moreover, because borrowers often submit multiple loan modification applications, and because Nationstar's data is stored at the loan level, not at the application level, Nationstar claims that it is not possible to tell from the data alone, without reviewing the files, whether a status or code change is in response to a specific loan modification application. See Broussard, 155 F.3d at 344. Although section 13-316 provides a remedy only for economic damages arising from a mortgage servicer's failure to respond to an inquiry, see Md. In their memorandum in opposition to the Motion for Summary Judgment ("Opposition"), the Robinsons admit that they "do not have evidence that Nationstar dual tracked them" or began foreclosure proceedings while a loan modification application was pending.