Home Stretch Vs Lazy Boy, Articles R

at 983. 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." See 12 C.F.R. 12 C.F.R. 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. 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. 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). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). LLC, No. 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. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. Id. The distinction is crucial. 12 U.S.C. Notably, Oliver's analysis did not consider foreclosure information because the data produced did not include dates of foreclosure sales. Bouchat v. Balt. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. . A Division of NBC Universal. Accordingly, the Motion is denied as to such claims. On February 16, 2017, the Court referred the case to United States Magistrate Judge Charles B. 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. They do not seek damages in the Amended Complaint for emotional distress or include such a claim in their itemized list of damages submitted in discovery. 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." "[A] trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." McAdams v. Nationstar Mortg. 2605(f). 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. It will be otherwise denied. Rules 19-303.4(b) (2018). Moreover, the conflict must not be "merely speculative or hypothetical." 8:2014cv03667 - Document 18 (D. Md. 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. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) ("In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met."). 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. Regulation X went into effect on January 10, 2014. Nelson, 2017 WL 1167230, at *3 (collecting cases). The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Id 1024.41(c)(1). Id. 1024.41(d). McLean II, 398 F. App'x at 471. The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. 10696, 10836. Although based on imperfect data, Oliver's expert report reveals that such analysis can substantially address whether Nationstar violated 12 C.F.R. 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." 2003). See id. Order, ECF No. Moreover, although the court stated that an arrangement for providing expert testimony for a contingent fee would violate public policy, the court did not address the question of the admissibility of evidence at issue here. Fla. 2009), aff'd, 398 F. App'x 467, 471 (11th Cir. . 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. 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. Nov. 12, 2011), the court held that a plaintiff who signed a deed of trust on a property and was a joint tenant with her son, but did not sign the promissory note, had constitutional standing to bring a RESPA claim because she stood to be injured if a default on her son's loan led to the loss of her equitable interest in the property. Jennings' office said that these new standards are more robust than existing law and will be in place for three years starting in January 2021. (2000) (reflecting that the prior version of the rules of professional conduct prohibited an attorney from "acquiesc[ing] in the payment of compensation to a witness contingent on the content of his testimony or the outcome of the case"). 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 . Joint Record ("MCC JR") 0907. Mr. Robinson's counsel is experienced in complex civil litigation and class action litigation. Tagatz, 861 F.2d at 1042; cf. . Nationstar argues that it should be granted summary judgment on all of the RESPA claims because Nationstar was required to comply with Regulation X only as to a borrower's first loss mitigation application, and the Robinsons' March 7, 2014 application was not their first loan modification application. 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. 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. 2010). HealthSystem, 669 F.3d 802, 812 (7th Cir. 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. Reg. P. 23(a)(4); Ward v. Dixie Nat'l Life Ins. Cf. Portland, OR 97208-3560. In Accrued Financial, the United States Court of Appeals for the Fourth Circuit held that where commercial real estate tenants assigned their potential claims against their landlords to a commercial real estate auditor under an arrangement through which the auditor would receive a percentage of any recovery in litigation, the assignments violated public policy because where the auditor's employees could testify in such litigation, the assignments "provide for supplying expert testimony for a contingent fee." The denial letters stated that the loan's principal balance exceeded the limit under HAMP. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." 2002) (affirming without addressing the propriety of the striking of the expert testimony). Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. . 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. In Frank v. J.P. Morgan Chase Bank, N.A., No. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. 2006). Class Cert. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. 1024.41(d). 2010). Va., Inc., 543 F.2d 1075, 1080 (4th Cir. Md. 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. At different stages in the processing of a loan modification application, Nationstar employees enter certain codes into certain databases, and certain information can be stored and accessed through those applications. 89, 90, ECF No. "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.". While the Nationstar employee who conducts the initial processing of an application may refer it to an underwriter based on its facial completeness, the underwriter makes the final determination of whether the application is complete and is responsible for obtaining any additional required documentation. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). ("Opp'n') 13, ECF No. In this photo illustration, the Nationstar Mortgage Holdings Inc. logo seen displayed on a smartphone. 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. Law 13-303(4)-(5), 13-408. at *5. Likewise, the articulated concern that Nationstar would not be required to respond to loss mitigation applications filed within a certain number of days of a foreclosure sale, can be addressed through the provision of data relating to the dates of scheduled foreclosure sales. The economic challenges and burdens that homeowners currently face are similar to the ones experienced following the Great Recession. Since Mr. Robinson has the same goal as the other class members of establishing that Nationstar violated Regulation X with respect to his loan, he will adequately protect their interests. The fact that Oliver's methodology has not been subjected to peer review and that he has not published any articles about it does not invalidate it. But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 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. 1024.41(a). R. Civ. See Robinson v. Nationstar Mortg. 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. Subsequent Loss Mitigation Application. 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. 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. 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. Based on the language of Regulation X, the Court finds that a loss mitigation application submitted before the effective date does not count as the single application subject to the regulation. In Robinson v., Under the RESPA, civil liability is limited to "borrowers": "[w]hoever fails to comply with any provision of, Full title:DEMETRIUS ROBINSON and TAMARA ROBINSON, Plaintiffs, v. NATIONSTAR MORTGAGE, Court:UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND. McLean v. GMAC Mortg. Code Ann., Com. 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. 2601(a). 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. at 983 (quoting 12 U.S.C. Law 13-316(e)(1), and "actual damages," 12 U.S.C. If the named plaintiff satisfies each of these requirements under Rule 23(a), the Court must still find that the proposed class action fits into one of the categories of class action under Rule 23(b) in order to certify the class. 1024.41(c)(1)(ii), which requires a servicer to respond to a completed loan modification application; or Md. 2d 754, 768-69 (D. Md. 26-1. at 359-60. "[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.'" 17-0982, 2018 WL 4111938, at *5-6 (M.D. 1994) (noting that a single common issue is sufficient to meet the commonality requirement). 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. USCA4 Appeal: 21-1087 Doc: 38 Filed: 06/15/2021 Pg: 9 of 33 Id. 20-cv, -2202, 2021 WL 4462909, at *1 (S.D. 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." 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. A class action allows representative parties to prosecute not only their own claims, but also the claims of other individuals which present similar issues. Under Count I, the Robinsons allege a violation of 12 C.F.R. Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. (2012), and the Maryland Consumer Protection Act ("MCPA"), Md. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. 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.