v. Windsor, 521 U.S. 591, 623-24 (1997). 12 U.S.C. Here, Mrs. Robinson signed the Deed but did not sign the Note. . 1024.41 (2019), and the Maryland Consumer Protection Act ("MCPA"), Md. R. Civ. And given that the class includes all borrowers who have submitted an application since January 10, 2014, joinder of all members is eminently impractical. During this period, in August 2013, the Robinsons retained a forensic loan auditor, Professional Compliance Examiners ("PaCE"), and paid it $2,275 to help them communicate with Nationstar. They have claimed $141,000 in interest; $6,147.12 in fees assessed by Nationstar; $2,275 in consulting fees; $50.58 in administrative costs; and lost time and labor of approximately 120 hours; as well as punitive and statutory damages. Others, however, have concluded that "all expenses, costs, fees, and injuries fairly attributable to" a servicer's RESPA violation are damages, "even if incurred before the" violation, because the "wrongful act . Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. Oliver is the Chief Executive Officer of Hilltop Advisors LLC, a financial services consulting, compliance audit, and accounting advisory firm, and has extensive experience conducting compliance reviews for mortgage servicers, including for compliance with loss mitigation procedures. Therefore, Nationstar was required to comply with section 1024.41 in processing it. Code Ann., Com. 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. R. Civ. Notably, Oliver's analysis did not consider foreclosure information because the data produced did not include dates of foreclosure sales. 12 U.S.C. 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. 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. An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." 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. These events will be represented by discrete data points in Nationstar's databases, such that these violations may be proved through that data. "Since then, we have continued to invest in technology, people, and leadership to ensure that our compliance and risk management programs not only meet our regulators' expectations but also support sustainable growth and maintain our position as an industry leader.". 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). As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate . WASHINGTON, D.C. The Consumer Financial Protection Bureau (CFPB) today ordered Nationstar Mortgage LLC to pay a $1.75 million civil penalty for violating the Home Mortgage Disclosure Act (HMDA) by consistently failing to report accurate data about mortgage transactions for 2012 through 2014. The court, however, did not explain how in the absence of any obligation to pay back to the Note, the plaintiff qualified as a "borrower" under the RESPA statute. The Complaint asserts two claims. Since the Court has already concluded that Nationstar is entitled to summary judgment on the Robinsons' claims under 12 C.F.R. 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." Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. 2d 1360, 1366 (S.D. HARRISBURG Attorney General Josh Shapiro, as part of a multistate effort, today announced that his office obtained an $86.3 million settlement from Nationstar Mortgage, the country's fourth-largest mortgage servicer. LLC, No. Gunnells, 348 F.3d at 429 ("[T]he need for individualized proof of damages alone will not defeat class certification."). 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. Md. Before the error was discovered, Mr. Robinson appealed this offer as insufficient on April 10, 2014. "); see also 1 William Rubenstein et al., Newberg on Class Actions 2:3 (5th ed. Moreover, the conflict must not be "merely speculative or hypothetical." In 2007, Mr. Robinson obtained a loan with the principal amount of $755,000 to refinance the property. 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. Nationstar asserts that Oliver's testimony should be stricken because this fee arrangement includes an unethical contingency fee. Where the cost of litigation as compared to the potential recovery gives class members little incentive to bring suit, and there is little reason to individually control the litigation, a class action is a superior method to vindicate the rights of class members. See Broussard, 155 F.3d at 344. THEODORE D. CHUANG United States District Judge. In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. Id. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49 (2011) ("[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Amchem Prods. 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. While Demetrius Robinson did appeal Nationstar's March 15, 2014 offer of an in-house modification, the requirements of subsection (h) were not triggered because the offer was not a denial of a loan modification application. Gunnells, 348 F.3d at 424 (quoting Amchem, 521 U.S. at 615). At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. See Farmer v. Ramsay, 159 F. Supp. 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 Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. It does not mount any persuasive attack on Oliver's "principles and methodology," Westberry, 178 F.3d at 261, which largely consisted of counting the number of days between events and reviewing files for a particular loan to determine whether they contained certain standard content. This assertion mischaracterizes the burden of proof in a civil case. For the claims that rely on the timing of a response, Oliver and the Robinsons propose using changes in the Remedy Star substatus or LSAMS codes and documents stored in FileNet to identify the date a loan modification application was received or marked as complete, to identify the date a response was sent, and to count the number of days between events. Code Ann., Com. In contrast, Nationstar maintains that there is no way to reliably identify when a loss mitigation application is submitted or complete using codes and status change entries in its existing software, and that the only way to make those determinations is through a file-by-file review. On September 9, 2014, Nationstar sent Mr. Robinson a letter denying the loan modification application and stating that it could not offer him any modification because his income was not high enough to cover the mortgage payments under any modification option. See 12 C.F.R. (2012), and the Maryland Consumer Protection Act ("MCPA"), Md. Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. 1994) (noting that a single common issue is sufficient to meet the commonality requirement). 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. . This is not the first time Nationstar has been the subject of federal and state investigations. 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. 89, 90, ECF No. Id. 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.'" Code Ann., Com. 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. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. Compl. See Tagatz, 861 F.2d at 1042. Bouchat, 346 F.3d at 522. See Robinson v. Nationstar Mortg. Id. The fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. To establish an MCPA violation under this provision, a plaintiff must establish that (1) the defendant engaged in an unfair or deceptive practice or misrepresentation; (2) the plaintiff relied upon the representation; and (3) doing so caused the plaintiff actual injury. 1024.41(i). 1 . The comments to that rule state that the "common law rule in most jurisdictions is . PO Box 3560. Nationstar said in a statement that its settlements were based on "loan-servicing practices" that the company used between 2010 and 2015 and has since discontinued. 26-1. Where the results of such an analysis would apply to any individual claim, it would be highly inefficient and wasteful to require duplicative analysis in each such case. Nationstar's Motion to Strike will be DENIED. "[A]n evaluation of the merits to determine the strength of plaintiffs' case is not part of a Rule 23 analysis." Mot. Plaintiffs "must present specific evidence to establish a causal link between the [servicer's] violation and their injuries." 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." See Johnson v. Ocwen Loan Servicing, 374 F. App'x 868, 873 (11th Cir. Fed. 2004). See Lierboe v. State Farm Mut. He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. . Since the Court already considered and ruled on these issues, see supra part I.B, it will not revisit those arguments here. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. ("Opp'n') 13, ECF No. Sep. 9, 2019). On May 5, 2014, Nationstar asked the Robinsons for additional information to evaluate the appeal, including documents to verify their income. All but $28.6 million of its. 2003). 14-cv-10457, in the U.S. District Court for the Northern District of Illinois, Eastern Division.. Join a Free TCPA Class Action Lawsuit Investigation. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. The Motion will be otherwise denied. . The Final Approval Order, approving the Class-wide Settlement, was entered December 11, 2020. The Class is represented by Rafey S. Balabanian of Edelson PC. The economic challenges and burdens that homeowners currently face are similar to the ones experienced following the Great Recession. Thus, the nature of the proof of whether there has been a pattern or practice of RESPA violations provides substantial support for a finding of predominance. 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. Because Oliver's methodology is reliable within the meaning of Federal Rule of Civil Procedure 702 and Daubert, Nationstar's Motion to Strike will be denied. At least one court has found a similar expert report by Oliver to meet the Daubert standard. 20-cv, -2202, 2021 WL 4462909, at *1 (S.D. Notably, although a borrower may recover up to $2,000 in statutory damages upon a showing of a "pattern or practice of non-compliance with the requirements" of Regulation X, 12 U.S.C. Finally, Nationstar argues that summary judgment should be entered on the RESPA claims because the Robinsons cannot establish that they have suffered actual damages as a result of Nationstar's violations of Regulation X. Accordingly, the Motion is denied as to such claims. Nationstar claims that manual review of each file would take about 60 to 90 minutes per file. Once an underwriter is assigned, that employee double-checks whether the application contains all required documentation and is complete. (quoting 7AA Charles Allan Wright et al., Federal Practice and Procedure 1778 (3d ed. 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. 3d at 1014. In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. The servicer "is liable for any economic damages caused by the violation." See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. 2006). 2019) (noting that the purpose of certifying a class "is not to identify every class member at the time of certification, but to define a class in such a way as to ensure that there will be some administratively feasible [way] for the court to determine whether a particular individual is a member at some point" (internal citation omitted) (quoting EQT Production Co. v. Adair, 764 F.3d 347, 358 (4th Cir. Aug. 19, 2015). 125. J. To the extent that, as Nationstar claims, such a determination could not be fully accomplished through computerized analysis alone, the resources needed to resolve this question would be even greater, such that the importance of having it resolved in a common fashion for all claims would be heightened. Nationstar correctly notes that the Robinsons have not identified a false or misleading statement or representation by Nationstar in the record. at *2. 2. Stewart v. Bierman, 859 F. Supp. 2010). Although similar to Rule 23(a)'s commonality requirement, the test for predominance under Rule 23(b)(3) is "far more demanding" and "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." 1967). Moreover, the possibility that some members of the class as defined by the Robinsons have not suffered any injury cognizable under RESPA or MCPA does not preclude certifying the class. On July 17, 2014, Nationstar informed Mr. Robinson by letter that he did not qualify for a HAMP modification and that since the March 14 loan modification offer had not been accepted, it was withdrawn. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Ballard v. Blue Shield of S.W. 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. From January 2014 to the present, the Robinsons have not pursued other loss mitigation options, such as a short sale. LLCNo. "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." Order at 2, ECF No. Finally, to the extent that Oliver did not execute his stated methodology for identifying damages, that limitation is again based in part on Nationstar's failure to make relevant data available to him. 10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. In its Motion to Strike, Nationstar argues that Oliver's methodology has not been peer reviewed, has a high error rate because he used the wrong data fields to identify the dates of events, failed to consider the timing of foreclosure sales relative to the dates of the submission of loan modification applications, and did not propose a specific methodology for calculating damages. In its Motion to Strike, Nationstar moves to strike the report of the Robinsons' expert witness, Geoffrey Oliver, on the grounds that (1) Oliver was hired pursuant to an ethically improper contingency fee agreement; and (2) his testimony does not meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Law 13-301 and 303. R. Civ. Nationstar also seeks summary judgment on the Robinsons' claims under the MCPA, which include claims of misleading statements in connection with the collection of consumer debts, in violation of section 13-301(1), (3) and section 13-303(4)-(5) of the MCPA, and claims that Nationstar did not respond to consumer inquiries within 15 days, in violation of section 13-316(c) of the MCPA. 2013)). Wirtz v. Specialized Loan Servicing, LLC, 886 F.3d 713, 719-20 (8th Cir. Likewise, although Mrs. Robinson expended time corresponding with Nationstar, she was not working for pay at the same time, and the Robinsons have not provided evidence to quantify the loss to Mr. Robinson, the only viable plaintiff here. Baez, 709 F. App'x at 983. See, e.g. 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. Nationstar denies all allegations of wrongdoing and no judgment or determination of wrongdoing has been made. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. HealthSystem, 669 F.3d 802, 812 (7th Cir. This argument runs contrary to the plain language of Nationstar's own procedures, which describe the application as "complete" based on the processor's determination, leading to the referral of the complete package to an underwriter. While Mrs. Robinson stated that she was conducting bookkeeping for Green Earth Services during the relevant time frame, she testified that her work was less than six hours per week, and the Robinsons have not shown that her time spent communicating with Nationstar "resulted in actual pecuniary loss" to Mr. Robinson or the business. 2010). 1024.41(h)(1), (4). 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] . See, e.g., Ward v. Dixie Nat. 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. Some of the alleged damages are not supported in law or in fact. Law 13 . 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. Claim Your Cash Every Week! Write to the Court if you do not like the Settlement. The regulation is silent on whether a loss mitigation application submitted before January 10, 2014 could qualify as the "single complete loss mitigation application." A separate Order shall issue. 8:2014cv03667 - Document 18 (D. Md. Local R. 105.6. at 983. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. After attempts to modify their loan failed, the Robinsons filed a Class Action Complaint against Defendant Nationstar Mortgage, LLC ("Nationstar") for alleged violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C.
Hispanic Inventors And What They Invented,
Brisbane Crime Rate By Suburb,
Banner Health Provider Portal Login,
Mountain View High School Racist,
Articles R
