Furthermore, according to Nationstar, to identify the content of a letter sent to a borrower, the letter itself must be viewed. Accordingly, the Motion is denied as to such claims. The denial letters stated that the loan's principal balance exceeded the limit under HAMP. The one-time consulting fee was paid in August 2013 to PaCE, a forensic loan auditor, to advise the Robinsons on how to communicate with Nationstar and to handle their loan. Id. The Robinsons and Nationstar then engaged in a series of tortured exchanges over the next several months. 1024.41(h)(1). All Rights Reserved. 1024.41(b)(2)(i)(B), which requires that an acknowledgment letter be sent within five days of receipt of a loss mitigation application; 12 C.F.R. See 12 C.F.R. (quoting 7AA Charles Allan Wright et al., Federal Practice and Procedure 1778 (3d ed. Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. 2002), is misplaced. Thus, the Court concludes that common computerized analysis can largely answer the question of whether Nationstar violated these RESPA provisions with respect to individual borrowers. The next day, Nationstar sent a letter noting that the August 25 application had been received and requesting additional information. the same interest in establishing the liability of defendants." 1024.41(a). On June 16, 2017, the Magistrate Judge bifurcated discovery to focus initially on the merits of the Robinsons' individual claim and the question of class certification, ordered Nationstar to disclose electronic records so that the Robinsons could sample Nationstar's data for purposes of a motion for class certification, and limited the discovery of such records to a sample of 400 loans from the period from January 10, 2014 to June 30, 2014 and "to areas which inform" the Court's decision on class certification, namely whether Nationstar was in compliance with Regulation X. Mot. 89, 90, ECF No. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. RESPA's implementing regulations, codified at 12 C.F.R. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. The Federal Rules of Evidence do not prohibit these kinds of arrangements. 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. Cf. In addition to the fee paid to PaCE, the Robinsons also assert as damages $50.58 in administrative costs, specifically postage fees for sending information relating to their loan modification application to Nationstar, and 120 hours of time expended on the loan modification process. "[A]n evaluation of the merits to determine the strength of plaintiffs' case is not part of a Rule 23 analysis." Fla. 2009), aff'd, 398 F. App'x 467, 471 (11th Cir. Corp. ("McLean I"), 595 F. Supp. From January 2014 to the present, the Robinsons have not pursued other loss mitigation options, such as a short sale. See Stillmock, 385 F. App'x at 274 ("[T]here is no reasoned basis to conclude that the fact that an individual plaintiff can recover attorney's fees in addition to statutory damages of up to $1,000 will result in enforcement of [the Fair Credit Reporting Act] by individual actions of a scale comparable to the potential enforcement by way of class action."). 2007)), aff'd sub nom. 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. 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). ORDER Scheduling Settlement Conference for Wednesday, October 26, 2016 at 10:30 a.m. Nationstar denies all allegations of wrongdoing and no judgment or determination of wrongdoing has been made. Gunnells, 348 F.3d at 427-28. 10696, 10708, provides that "[a] servicer is only required to comply with the requirements of this section for a single complete loss mitigation application for a borrower's mortgage loan account." Under subsections (f) and (g), a loan servicer is not permitted to begin foreclosure proceedings or move for foreclosure judgment if "a borrower submits a complete loss mitigation application" except in certain circumstances. For the following reasons, the Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART; the Motion to Strike will be DENIED; and the Motion for Class Certification will be GRANTED IN PART and DENIED IN PART. Mot. Once an underwriter is assigned, that employee double-checks whether the application contains all required documentation and is complete. 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." Robinson v. Nationstar Mortg. LLC - Casetext Id. 1967). Fed. 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. 12 C.F.R. To prepare his expert report, Oliver reviewed a randomly selected sample of 400 loans serviced by Nationstar in which a loan modification application was submitted. (kw2s, Deputy Clerk) Download PDF Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." Id. These fees allegedly violated the Fair Debt Collection Practices Act and the Washington state Collection Agency Act. In addition, Nationstar asserts that not all loan modification applications referred to an underwriter are complete. The Court will therefore deny the Motion for Summary Judgment as to this argument. The Motion will be granted as to all of Tamara Robinson's claims and as to Demetrius Robinson's claims under 12 C.F.R. 2605(f), caused by the violation, which likely consist of administrative fees and costs, the individual recovery available for each class member would likely be low, far below the cost of litigating the claims themselves. Where Accrued Financial addresses a different scenario with a different remedy, the Court does not find that it requires that the testimony of an expert witness paid on contingency fee basis must be excluded. 15-0925, 2015 WL 5165415, at *4 (D. Md. The entry under "objected" acts as a unique identifier for an electronic file, but it does not contain information about the file's substance and could in fact contain multiple submissions or documents relating to one borrower. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. Make your practice more effective and efficient with Casetexts legal research suite. A borrower may enforce violations of these provisions through a private cause of action pursuant to 12 U.S.C. Nationstar's Motion for Summary Judgment will be granted as to Tamara Robinson. 2d 452, 468 (D. Md. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2605(f)(1)(A); see 12 C.F.R. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. 1 Nationstar later conceded that at the time the Robinsons submitted their application, it had not yet updated its systems to comply with Section 1024.41. Based on his experience and review of deposition transcripts of Nationstar employees, Oliver asserts that Nationstar has computerized data from which RESPA violations may be identified, not least because Nationstar must be able to demonstrate its compliance with RESPA to regulators. "); see also 1 William Rubenstein et al., Newberg on Class Actions 2:3 (5th ed. A separate Order shall issue. He asserts that damages to borrowers can be calculated based on entries in LSAMS and other data showing that fees were assessed, and that it would be possible to identify which fees would not have been assessed but for a RESPA violation. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. Robinson v. Nationstar Mortg. LLC, Civil Action No. TDC-14-3667 1976). 1994) (noting that a single common issue is sufficient to meet the commonality requirement). 12 C.F.R. . 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. 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. 2605(f)(2) is not fatal to the predominance inquiry. 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. Signed by Judge Theodore D. Chuang on 8/18/2015. 2605(f). Wesleyan Coll. See, e.g., Ward v. Dixie Nat. All but $28.6 million of its. R. Civ. "We want to hear from you," Raoul says. Through both a declaration by a Nationstar Vice President of Default Servicing, Brandon Anderson, and an expert report by Stuart D. Gurrea, Nationstar contests Oliver's analysis and endeavors to establish that the only way to identify RESPA violations using Nationstar's data is through a file-by-file review. Because such a common question would have to be resolved in many if not all individual cases, it advances, rather than undermines, the argument in favor of predominance. The trial court granted the motion over the Robinsons' objection, noting in its order that Nationstar had now waived its claim for attorney feesthe claim that had been the sole impediment to a final judgment being entered after the trial court granted Nationstar's request to reopen the evidence after entry of the initial final judgment. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. Plaintiff and Class Representative Demetrius Robinson, along with Class Counsel Tycko & Zavareei LLP and The Bestor Law Firm, respectfully move this Court for an award of $1,300,000 in reasonable attorneys' fees and expenses, as well as a $5,000 service award for Mr. Robinson. "If a borrower's complete loss mitigation application is denied for any trial or permanent loan modification option available to the borrower," the servicer must state in the required notice to the borrower "the specific reason or reasons for the servicer's determination for each such trial or permanent loan modification and, if applicable, that the borrower was not evaluated on other criteria." 2d 1360, 1366 (S.D. 12 C.F.R. Mar. Id. 2605(f)(1). Ass'n, 375 F.2d 648, 653 (4th Cir. Sept. 9, 2019), there were multiple other claims at issue, for which Oliver's expert report seemed better suited to address. See Wirtz, 886 F.3d at 719-20. Congress enacted RESPA to protect consumers from "unnecessarily high settlement charges caused by certain abusive practices" in the real estate mortgage industry, and to ensure "that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process." 1024.41(f), (g), and (h), and Mr. Robinson's MCPA claim under sections 13-301 and 13-303. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. Commonality requires that a class have "questions of law or fact common to the class" which are capable of classwide resolution, such that the determination of the truth or falsity of the common issue "will resolve an issue that is central to the validity of each one of the claims in one stroke." 1972). A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . From this approach, Oliver concluded that for approximately 60 percent of the sampled loans, Nationstar failed to comply with the requirement that it inform the borrower of loss mitigation application determination within 30 days of receiving a complete application. Code Ann., Com. at 248-49. Actual damages may include late fees; denial of credit or access to the full amount of a credit line; out-of-pocket expenses incurred in dealing with a RESPA violation, such as expenses for preparing and copying correspondence; and lost time and inconvenience, including time spent away from employment while preparing correspondence "to the extent it resulted in actual pecuniary loss." For the Regulation X provisions that require the servicer to communicate specific information to a borrower, Oliver's methodology involves reviewing a sample of loan files and identifying a specific communication to a borrower based on the file name. Law 13-316(c), which requires a response to a loan modification application within 15 days. Appellate Win Affirms $3 Million Settlement in Class Action against at 152. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. However, the burden is on the plaintiffs to show that other class members exist and that their joinder is impracticable; a court may not rely on mere speculation that numerosity has been satisfied. The CFPB estimates about 40,000 borrowers were harmed by Nationstar's allegedly unfair and deceptive practices, according to a statement released Monday. Claim Your Cash Every Week! Joint Record ("MCC JR") 0907. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. In this photo illustration, the Nationstar Mortgage Holdings Inc. logo seen displayed on a smartphone. 2010). 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. A class action is a superior means for "fairly and efficiently adjudicating" whether Nationstar has violated Regulation X and section 3-316(c) of the MCPA. 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. Regulation X, which became effective on January 10, 2014, 78 Fed. Fed. Those claims arose from Nationstar's alleged Although she has worked as a bookkeeper for various companies, she was not employed between March and September 2014. A servicer that fails to comply with Regulation X is liable for "any actual damages to the borrower as a result of the failure" to comply. It follows that only borrowers may bring a claim that a loan servicer has violated Regulation X. The Fourth Circuit has stated that 74 members is "well within the range appropriate for class certification," Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 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. Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. 1024.41. Since Regulation X explicitly does not require a loan servicer to provide a loan modification, the Robinsons' claim that they suffered damages because they did not receive a loan modification is not cognizable under the statute. At this stage of the proceedings, the Court must rely on facts in the record, and not assertions in the pleadings. MSJ JR 0284. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. Gunnells, 348 F.3d at 429 ("[T]he need for individualized proof of damages alone will not defeat class certification."). 2011) ("[T]he possibility that a well-defined class will nonetheless encompass some class members who have suffered no injury . Stewart v. Bierman, 859 F. Supp. Rules 19-303.4(b) (2018). See id. Although the Robinsons contend that they would have pursued other loss mitigation options in the absence of the RESPA violations, they have not identified any such options in a way that would permit a calculation of damages associated with any lost opportunity. Md. Amchem Prods. R. Civ. 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). In addition to the fines and restitution, Delaware Attorney General Kathleen Jennings said the settlements require Nationstar to adhere to increased "servicing standards." Code Ann., Com. McLean v. GMAC Mortg. "[N]amed class representatives [must] demonstrate standing through a 'requisite case or controversy between themselves personally and defendants,' not merely allege that 'injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" Deiter, 436 F.3d at 466-67. 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. Life Ins. Likewise, he concluded that for approximately 53 percent of sampled loans, Nationstar failed to comply with the requirement of acknowledging receipt of the application within five days. The commonality requirement is also met. Here, the Robinsons have not put forward any evidence that Mrs. Robinson has an ownership interest in the home that would specifically obligate her to make payments on the loan. As to the third denial on November 7, 2013, Nationstar informed the Robinsons that the loan modification application was denied because the mortgage loan was not in default. Robinson v Nationstar - Home The Robinsons, however, have not identified any evidence that Nationstar did not intend to, and did not, conduct such evaluations. 2014). Am. These letters are based on standard Nationstar templates, and the code reflects the type of letter sent. Robinson v. Nationstar Mortgage, LLC - Justia Dockets & Filings Finally, a loan servicer "is only required to comply with the requirements" of section 1024.41 "for a single complete loss mitigation application for a borrower's mortgage loan account." 1024.41(b)(2)(i)(B) and Md. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. 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. 2605(f). 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.'" Thus, based on his report and experience, Oliver concludes that Nationstar "failed to comply" with Regulation X and that it is possible to "identify violations" of Regulation X "using the methodologies" he described, without the necessity of a file-by-file review. Id. at 300. ; 78 Fed. 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. Finally, the Court notes that a decision to certify a class is based on whether or not a putative class satisfies the Rule 23 factors, not on a preliminary assessment of the underlying merits of the claim. This assertion mischaracterizes the burden of proof in a civil case. According to Oliver, to determine that certain disclosures or specific information were conveyed to borrowers, the "objectid" field used in FileNet can be used to identify the type of letter sent. 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. Id. Local R. 105.6. Finally, the Court finds that common issues of law and fact predominate. 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. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. . In analyzing this question, a court compares the class representative's claims and defenses to those of the absent class members, considers the facts needed to prove the class representative's claims, and assesses the extent to which those facts would also prove the claims of the absent class members. 1 . 1024.41(i). That provision provides, in parallel, that a loan servicer which does not comply with Regulation X is liable "to the borrower." Courts have held that a person who did not sign the promissory note is not a "borrower" for the purposes of RESPA because that individual has not "assumed the loan." EQT Prod. After two more extensions were granted, based on a finding by the Magistrate Judge that "Defendant has failed to comply" with its discovery obligations and delayed the process, discovery closed on March 22, 2018. Robinson v. Nationstar Mortgage, LLC 1:2021cv00452 | US District Court for the Northern District of Ohio | Justia Log In Sign Up Find a Lawyer Ask a Lawyer Research the Law Law Schools Laws & Regs Newsletters Marketing Solutions Justia Dockets & Filings Sixth Circuit Ohio Northern District Robinson v. Nationstar Mortgage, LLC Robinson v. To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder of all members is impracticable." at 983. Law 13-316(c). . The settlement in the form of a consent judgment, filed in the U . Code Ann., Com. Parties, docket activity and news coverage of federal case Robinson et al v. Nationstar Mortgage LLC, case number 8:14-cv-03667, from Maryland Court. Id. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ("Regulation X"), 78 Fed.
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