19-303.4 cmt.3. 2007)), aff'd sub nom. Signed by Judge Theodore D. Chuang on 8/18/2015. In Robinson v. Nationstar Mortgage LLC, No. FCRA). See 12 C.F.R. Code Ann., Com. Marais v. Chase Home Fin., LLC, 24 F. Supp. Law 13-101 to 13-411 (West 2015). . Amchem Prods. The relevant rule prohibits an attorney from "offer[ing] an inducement to a witness that is prohibited by law." The Robinsons and Nationstar then engaged in a series of tortured exchanges over the next several months. 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." v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . See McGraw, 646 F.2d at 176. In addition to the fines and restitution, Delaware Attorney General Kathleen Jennings said the settlements require Nationstar to adhere to increased "servicing standards." If more documents are required, then the same Remedy Star substatus and LSAMS code that denote missing documents are entered. 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"). The denial letters stated that the loan's principal balance exceeded the limit under HAMP. 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 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. Date: September 9, 2019, Civil Action No. 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. McAdams v. Nationstar Mortg. 13-316(e)(1). A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . at *5. Gunnells, 348 F.3d at 424 (quoting Amchem, 521 U.S. at 615). Order at 2, ECF No. 16-0117, 2017 WL 4347826, at *15 (D. Md. 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." P. 23(b)(3). 2002) (affirming without addressing the propriety of the striking of the expert testimony). Your Email Please enter your email. Md. In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. A class action allows representative parties to prosecute not only their own claims, but also the claims of other individuals which present similar issues. 2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). 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. Instead, the Robinsons assert that Nationstar has not affirmatively proven that it conducted such reviews. 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. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. 1024.41(a). See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. Id. 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. at 300. 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. An "unfair or deceptive" trade practice includes a "false . Lembach v. Bierman, 528 F. App'x 297 (4th Cir. at 359-60. In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. In Baez v. Specialized Loan Servicing, LLC, 709 F. App'x 979 (11th Cir. If the application is denied, a notice to that effect is sent to the borrower. TDC-14-3667 (D. Md. 2003). 3d 249, 266 (D. Md. During discovery, Oliver revealed that his fee arrangement with the Robinsons includes a flat fee for his expert services, but that a portion of the fee is contingent on the certification of a class in this case. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. Code Ann., Com. These fees allegedly violated the Fair Debt Collection Practices Act and the Washington state Collection Agency Act. 702, 703. 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. 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. 2d 754, 768-69 (D. Md. 1024.41(h)(1), (4). 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. 2003) ("[I]f Lierboe has no stacking claim, she cannot represent others who may have such a claim, and her bid to serve as a class representative must fail. Where the deed of trust explicitly states that Mrs. Robinson is not obligated on the loan, the Court finds that she is not a borrower under RESPA and cannot bring the claim against Nationstar under Regulation X. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. 877-683-9363. After attempts to modify the 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. Eligible consumers will be contacted by Nationstar or the settlement administrator about refunds under the settlement. The Robinsons also claim as damages interest overcharges of approximately $141,000. 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. In assessing the Motion, the Court views the facts in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Wright et al. UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND. Code Ann., Com. Fed. Code Ann., Com. He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. 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. . Nationstar also does not argue that the class is not numerous, as there approximately 33,855 members who submitted loss mitigation applications from January 10, 2014 to March 30, 2014. PO Box 3560. Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. Law 13-316(c). 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. That is not so here. Plaintiffs Demetrius and Tamara Robinson (the "Robinsons") have resided in a home in Damascus, Maryland that has been subject to a mortgage loan. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. 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. 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. Joint Record ("MCC JR") 0907. 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. ORDER Scheduling Settlement Conference for Wednesday, October 26, 2016 at 10:30 a.m. . 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. 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. 218. 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. 2601(a). 3d 254, 274-75 (S.D.N.Y. 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. Robinson, 2015 WL 4994491, at *4 (citing Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. In Washington v. Am. These letters are based on standard Nationstar templates, and the code reflects the type of letter sent. which has the capacity, tendency, or effect of deceiving or misleading consumers." 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. When Nationstar received the application, it prevented late fees from being assessed and put a hold on any foreclosure proceedings. Furthermore, according to Nationstar, to identify the content of a letter sent to a borrower, the letter itself must be viewed. 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. 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. Part 1024). 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] . In assessing this element, "numbers alone are not controlling" and a district court should consider "all of the circumstances of the case." 2605(f)(1)(B), a borrower cannot recover these additional damages "without first recovering actual damages." However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. If the loan servicer denies a loan modification application where the complete application was received more than 90 days before a foreclosure sale, the servicer must allow the borrower to appeal and must respond to the appeal within 30 days of receiving it by stating in writing whether the appeal was granted and a loan modification will be offered. These rights and optionsand the deadlines to exercise themare explained further on the Frequently Asked Questions page of this website and in the Notice. 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority). Fed. Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. Corp. ("McLean I"), 595 F. Supp. See D. Md. . Nationstar further argues that summary judgment must be entered in its favor on the Robinsons' claims under 12 C.F.R. The Class Action Administrator would then begin distribution of the settlement funds. 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. Nationstar denies all allegations of wrongdoing and no judgment or determination of wrongdoing has been made. 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. 1024.41(a). Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. Law 13-301 and 303. Ass'n, 375 F.2d 648, 653 (4th Cir. 2004). See id. 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. 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. 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. . 1024.41(b)(2)(i)(B) and Md. 1024.41(d). 2605(f)(1)(A); see 12 C.F.R. 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. 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. 1024.41(h)(1), (4). 12 C.F.R. 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. 12 U.S.C. Presently pending is Nationstar's Motion for Summary Judgment, Nationstar's Motion to Strike, and the Robinsons' Motion for Class Certification. 3d 712, 728 (S.D. Rules 19-303.4(b) (2018). See 12 C.F.R. 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. 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 will be otherwise denied. 1024.41(f), (g), and (h), and Md. 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. In focusing on whether RESPA violations can be established through computerized analysis rather than individual file review, the parties lose track of the fact that because statutory damages are predicated on a finding that there has been a pattern or practice of RESPA violations, that issue common to almost any individual claim plays an outsized role in the predominance analysis. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Discovery Order, ECF No. 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." While several district courts have concluded that loss mitigation applications submitted before Regulation X's effective date do not count as the single application for which a loan servicer must comply with Regulation X, see, e.g., Farber v. Brock & Scott, LLC, No. or other representation . 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. MCC JR 0003. 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. See Tyson Foods, 136 S. Ct. at 1046-47 (holding that representative sampling was a permissible method to prove whether time spent donning and doffing gear resulted in violations of the Fair Labor Standards Act). 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. Campbell v. Nationstar Mortg., 611 F. App'x 288, 297-98 (6th Cir. 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. A borrower may enforce violations of these provisions through a private cause of action pursuant to 12 U.S.C. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. In February 2014, after their income had further decreased, the Robinsons ceased making payments on the mortgage loan. Nationstar ultimately became the servicer of the Robinsons' loan. Because Oliver analyzed proprietary databases and data specifically disclosed for this litigation pursuant to a protective order, such that Oliver's peers lack access to the same information, Oliver's expert testimony is not of the type that ordinarily would be subject to peer review, and it would be unfair to require "general acceptance within a relevant scientific community." TDC-14-3667, 2019 WL 4261696 (D. Md. Class Certif. 1024.41(f), (g), and (h) because there is no evidence in the record that Nationstar violated those provisions. Id. Since the Court already considered and ruled on these issues, see supra part I.B, it will not revisit those arguments here. In Frank, due to the state's community property laws, the mortgage was "a community debt," and after her husband died, the plaintiff "was therefore obligated to make the loan payments" because of her interest in the home. 1024.41(c) and (d) impose obligations on a loan servicer once it receives a "complete loss mitigation application" and once the completed application is denied. Co, 445 F.3d 311, 318 (4th Cir. 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. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. CFPB Director Kathleen Kraninger said in a statement. 12 U.S.C. 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). 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. 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. Potentially eligible class members for all of these provisions can be identified through the LSAMS and Remedy data that marks that an application was received, identified as complete, and denied. Summ. 2002), is misplaced. Filed by Janie Robinson. "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.".
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