Johnson, 374 F. App'x at 873; Keen v. Ocwen Loan Servicing, LLC, No. 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. 2010). In the case of Tony Robinson and Debra Robinson vs Nationstar Mortgage, LLC, the appeals court ruled that the lender did not actually have the right to foreclose on the property. And given that the class includes all borrowers who have submitted an application since January 10, 2014, joinder of all members is eminently impractical. A fact is "material" if it "might affect the outcome of the suit under the governing law." 2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). Additional facts relevant to the pending motions are set forth below. Because of the need to protect the rights of absent plaintiffs to assert different claims and of defendants to assert facts and defenses specific to individual class members, courts must conduct a "rigorous analysis" of whether a proposed class action meets the requirements of Federal Rule of Civil Procedure 23 before certifying a class. 3d at 1014. 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. 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. Class Certif. A complete loss mitigation application is "an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower." Because all of the Rule 23(a) and (b)(3) requirements are met as to a class asserting violations of 12 C.F.R. 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. MCC JR 318, 530-531. 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. the same interest in establishing the liability of defendants." The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. Id. If you are a member of the Settlement Class, you must submit a completed Claim Form to receive a payment. (quoting 7AA Charles Allan Wright et al., Federal Practice and Procedure 1778 (3d ed. Under subsection (h), if a loan servicer receives a complete loss mitigation application more than 90 days before a foreclosure sale but then denies the application, the servicer must allow the borrower to appeal and must respond to the appeal within 30 days of receiving it. 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. Rules Prof'l Conduct 3.4 cmt. DEMETRIUS ROBINSON and TAMARA ROBINSON, Plaintiffs, v. NATIONSTAR MORTGAGE LLC, Defendant. 26-1. 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. . 1024.41(h)(1). 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. These rights and optionsand the deadlines to exercise themare explained further on the Frequently Asked Questions page of this website and in the Notice. 3d 254, 274-75 (S.D.N.Y. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. 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. 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. Id. Plaintiffs "must present specific evidence to establish a causal link between the [servicer's] violation and their injuries." Thorn v. Jefferson-Pilot Life Ins. 2007)), aff'd sub nom. Marais v. Chase Home Fin., LLC, 24 F. Supp. The ruling serves as a reminder that Florida remains one of the top states for both mortgage fraud and lender errors. See 12 C.F.R. Code Ann., Com. 12 U.S.C. Law 13 . Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. Nationstar admits that in March 2014, two months after the implementation date of Regulation X, it had not yet updated its systems to comply with the regulation. For example, in EQT, the court concluded that a proposed class of all individuals who owned an interest in a gas estate was not ascertainable because the actual owners could be determined only through an individualized review of land records. "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.". EQT Prod. A separate Order shall issue. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. 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." Nationstar's criticism that Oliver failed to use the correct data field to identify the date when a loss mitigation application was complete, and failed to consider the timing of application relative to the date of scheduled foreclosure sale, ring hollow because Nationstar provided to Oliver only limited data fields, which did not contain clear field names or definitions. 1024.41(f), (g), and (h) and Md. Section 13-316(c) governs "mortgage servicing" and, among other requirements, provides that a "servicer shall designate a contact to whom mortgagors may direct complaints and inquiries" and that the "contact shall respond in writing to each written complaint or inquiry within 15 days if requested." Nationstar further argues that summary judgment must be entered in its favor on the Robinsons' claims under 12 C.F.R. See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. J. Under a provision of Regulation X entitled "Loss mitigation procedures," mortgage servicers must take certain steps when a borrower applies for loss mitigation measures, such as the loan modifications sought in this case. 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. 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. Fla. 2009), aff'd, 398 F. App'x 467, 471 (11th Cir. . A Division of NBC Universal. The Federal Rules of Evidence do not prohibit these kinds of arrangements. 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. Cal. 2601 et seq. 164. Fed. In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. 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. A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . v. Nationstar Mortgage LLC, Case No. "There are going to be a lot of homeowners who need a home loan modification or other assistance," Raoul says. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. The fact that each borrower must individually show damages under 12 U.S.C. In 2007, Mr. Robinson obtained a loan with the principal amount of $755,000 to refinance the property. This field is for validation purposes and should be left unchanged. MCC JR 530. 2006). 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." Thus, Mrs. Robinson is not "obligated" to pay the amount due on the Note and therefore is not a "borrower" for purposes of RESPA. Class litigation would also promote consistent results on the common question whether Nationstar engaged in a pattern or practice of violating Regulation X and would provide Nationstar with finality and closure on that issue. MCC JR 0003. 2605(f)(2), "Rule 23 contains no suggestion that the necessity for individual damage determinations destroys commonality, typicality, or predominance, or otherwise forecloses class certification." The "Nationwide Class" is composed of "[a]ll persons in the United States that submitted a loss mitigation application to Nationstar after January 10, 2014, and through the date of the Court's certification order." Accordingly, a loan servicer must comply with Regulation X as to the first loss mitigation application submitted after the effective date. Before relating the facts relevant to the Motion for Class Certification, the Court will highlight the relevant procedural history affecting the record before the Court. 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. Md. 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. 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. Fed. Distribution of funds to Class Members, however, could not occur because a member of the Class filed an objection to the Settlement and a subsequent appeal to the U.S. Court of Appeals for the Fourth Circuit. Cf. Nationstar correctly notes that the Robinsons have not identified a false or misleading statement or representation by Nationstar in the record. 2002), is misplaced. The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. Nationstar Mortgage agreed to settle an action commenced by the Consumer Financial Protection Bureau for $91 million to resolve allegations surrounding mortgage servicing misconduct and deceptive practices that resulted in financial harm to borrowers. 28, 2017). Regulation X went into effect on January 10, 2014. 19-303.4 cmt.3. A $3.8 million settlement has been reached in a Nationstar convenience fee class action lawsuit, which claimed that the mortgage lender wrongfully charged convenience fees to their consumers when making payments on past due accounts. Questions? Furthermore, Nationstar's argument that the Robinsons are not typical largely recycles the same arguments made in the Motion for Summary Judgment. When combined with the state settlements, Nationstar is on the hook to pay a total of $91 million overall: $85 million to harmed consumers and $6 million in civil penalties. Therefore, the Court will grant in part and deny in part the Motion for Class Certification. 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 Robinsons do not address this argument in their Opposition. 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. 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. 143. 125. 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." at 151. Mot. 2002) (affirming without addressing the propriety of the striking of the expert testimony). 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. Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. Since the MCPA and Regulation X allow recovery only of "economic damages," Md. 1024.41(f), (g). 20-cv, -2202, 2021 WL 4462909, at *1 (S.D. Docket for Robinson v. Nationstar Mortgage LLC, 8:14-cv-03667 Brought to you by the RECAP Initiative and Free Law Project, a non-profit dedicated to creating high quality open legal information. Finally, where Nationstar has offered no specific argument in its brief, beyond those addressed above, to refute Oliver's proffered analysis for identifying RESPA violations arising from the failure to notify borrowers of their appeal rights or the failure to exercise diligence in requesting documents based on repeated requests for the same documents, 12 C.F.R. Fed. A plaintiff has the burden to show that all of the necessary prerequisites for a class action have been met. 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. Code Ann., Com. 2605(f). Code Ann., Com. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. McLean v. GMAC Mortg. 1024.41(c)(1)(i). 2013)). The use of a class action is primarily justified on the grounds of efficiency, because it advances judicial economy to resolve common issues affecting all class members in a single action. at *2. The Complaint asserts two claims. The Robinsons, however, have not identified any evidence that Nationstar did not intend to, and did not, conduct such evaluations. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. Id. See 12 C.F.R. Here, Mrs. Robinson signed the Deed but did not sign the Note. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. 2012). 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. 1024.41. In Frank v. J.P. Morgan Chase Bank, N.A., No. Co., 595 F.3d 164, 179 (4th Cir. 1024.41(d). Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. 1024.41(a). Id. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." Code Ann., Com. Nationstar Call Settlement Administrator. 2d at 1366. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Corp., 546 F.2d 530, 538-39 (3d Cir. at 152. These fees allegedly violated the Fair Debt Collection Practices Act and the Washington state Collection Agency Act. (2012), and the Maryland Consumer Protection Act ("MCPA"), Md. This assertion mischaracterizes the burden of proof in a civil case. 8:2014cv03667 - Document 18 (D. Md. Id. Under Count I, the Robinsons allege a violation of 12 C.F.R. Class certification will be granted, with Demetrius Robinson as the named plaintiff, as to both the Nationwide Class and the Maryland Class for the claims under 12 C.F.R. 2018). An "unfair or deceptive" trade practice includes a "false . In Washington v. Am. Id. Id. The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. Md. . However, if the costs are shown to have been incurred in response to the RESPA violation, the Court finds that they would be actual damages within the meaning of 12 U.S.C. Id. Law 13-316(c) are triggered upon the submission of a loss mitigation application, while 12 C.F.R. In the Amended Complaint, the Robinsons claim that Nationstar's representations that it offered many loss mitigation plans and "would evaluate" borrowers "for eligibility for all these loss mitigation plans" were false. According to Nationstar's Underwriting Workflow Procedures, which sets forth the steps followed to review loans for modifications, when a borrower submits a loan modification application, a code is entered into LSAMS and updates the loan's substatus in Remedy Star. Reg. Finally, while Nationstar presented arguments for why the Robinsons have not shown damages as to most of the asserted categories, it did not advance any argument for why the interest damages claimed by the Robinsons were not attributable to Nationstar's Regulation X violations and thus is not entitled to summary judgment on that issue. For example, since default fees are often paid by sources other than the borrower, such as in a short sale or refinancing, Nationstar challenges Oliver's assessment that fees identified through LSAMS can be deemed to constitute damages from RESPA violations, because the software does not reflect who paid the fee. Make your practice more effective and efficient with Casetexts legal research suite. See Md. The Court does not find such a prohibition in the Maryland Attorneys' Rules of Professional Conduct. Where the Robinsons, after discovery, cannot point to evidence that Nationstar did not even consider or evaluate the Robinsons for loss mitigation options, they have not established the existence of a genuine issue of material fact on the issue of false or misleading statements. at 300. Relevant factual and procedural background is set forth in the Court's prior Memorandum Opinion granting in part and denying in part Nationstar's partial Motion to Dismiss. 2605(f)(1). Signed by Magistrate Judge Jillyn K Schulze on 9/9/2016 . 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. Cal. Between July 2010 and November 2013, the Robinsons submitted and Nationstar denied three applications for a loan modification under the Home Affordable Modification Program ("HAMP"). The CFPB estimates about 40,000 borrowers were harmed by Nationstar's allegedly unfair and deceptive practices, according to a statement released Monday. Deiter, 436 F.3d at 466-67. 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." Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. Certification will not be granted as to the claims under 12 C.F.R. 1024.41(b)(2)(B), (c)(1)(ii); Md. 2605(f)(1)(B), a borrower cannot recover these additional damages "without first recovering actual damages." The Court agrees that costs, including administrative costs, "incurred whether or not the servicer complied with its obligations" are not actual damages "caused by, or 'a result of,'" the RESPA violation, whether or not they occurred before or after the violation. Id. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. See Broussard, 155 F.3d at 344. For example, Nationstar's own internal procedures reveal that when a loss mitigation application is received, a processor reviews it to determine if all required information and documents have been received, and enters one code, specifically "code HMPC" in LSAMS signifying "Financial Application Complete," and a different code, specifically "code HMPA," signifying "Financial Application Incomplete." That is not so here. State attorneys general are here for homeowners, Raoul adds. 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. It is the plaintiffs who bear the burden of proving their claims. 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." Id. Some courts have held that administrative costs that predate the alleged RESPA violation cannot constitute "actual damages." Furthermore, to the extent that the Robinsons' claim is that Nationstar falsely stated that it would evaluate the Robinsons for all available loss mitigation plans, the Robinsons point only to statements in letters that the Robinsons "may" be eligible for certain non-HAMP loan modification programs. Id. Amchem Prods. At a minimum, the question of when a loss mitigation application is "complete" under RESPA within the workflow of Nationstarwhether at the time of the processor's designation of the file as complete or at a later stageis a significant unresolved question of law and fact that would be common to all RESPA claims against Nationstar. Filed by Janie Robinson. If a class is ascertainable, it must then satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Part 1024). v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . Nationstar argues that summary judgment should be granted against Mrs. Robinson because she is not a "borrower" within the meaning of RESPA. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. 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. 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. But where the broad methodology is sound, the lack of consideration of unproduced data cannot provide a basis to strike the expert witness's testimony.