10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). 3d 712, 728 (S.D. 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. 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. On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. These fees allegedly violated the Fair Debt Collection Practices Act and the Washington state Collection Agency Act. 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. If you were contacted on your cell phone by a company via an . 2d 452, 467 (D. Md. 1990) (citing Universal Athletic favorably for this proposition). Law 13-301 and 303. Regulation X went into effect on January 10, 2014. v. Nationstar Mortgage LLC. Sept. 29, 2021). 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. 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. 3d at 1014. 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. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. 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. 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. Since it is the plaintiff's burden to establish that the requirements of Rule 23 have been met and Mr. Robinson has failed to do so, the Motion for Class Certification will be denied as to any claims that Nationstar violated 12 C.F.R. Moreover, even if the fee arrangement violated the ethical rules for attorneys, "it does not follow that evidence obtained in violation of the rule is inadmissible." Eligible consumers will be contacted by Nationstar or the settlement administrator about refunds under the settlement. 2605(f)(1)(A); see 12 C.F.R. 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. 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. 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. P. 23(b)(3). application to Nationstar after January 10, 2014, and through the date of the Court's . 2003). Like the class members, to prove his case, Mr. Robinson will have to show that Nationstar failed to timely and appropriately respond to his loan modification applications by pointing to the dates of his submissions and the dates and contents of Nationstar's responses. Am. Sep. 9, 2019). Fed. 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. This field is for validation purposes and should be left unchanged. Mot. 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. While the particulars of Mr. Robinson's application process will not necessarily prove that Nationstar mishandled the applications of other individual class members, these facts fairly encompass the types of claims that would be brought by the members of the class. 2002) (affirming without addressing the propriety of the striking of the expert testimony). Presently pending is Nationstar's Motion for Summary Judgment, Nationstar's Motion to Strike, and the Robinsons' Motion for Class Certification. RESPA's implementing regulations, codified at 12 C.F.R. . ("MCC") 2, ECF No. JA 130. 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. Check out:Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, Don't miss:Amex Blue Cash Preferred is offering an elevated welcome bonus for a limited time, Get Make It newsletters delivered to your inbox, Learn more about the world of CNBC Make It, 2023 CNBC LLC. The CFPB estimates about 40,000 borrowers were harmed by Nationstar's allegedly unfair and deceptive practices, according to a statement released Monday. 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. 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. 1024.41(a). Summary judgment will therefore be entered for Nationstar on the claims that Nationstar violated subsections (f) and (g). 89, 90, ECF No. When considering whether expert testimony is reliable or should be excluded, the court considers the following factors: "When an expert's report or testimony is 'critical to class certification,'" the district court "must make a conclusive ruling on any challenge to that expert's qualifications or submissions before it may rule on a motion for class certification." As a result, the Robinsons' claim that Nationstar violated certain Regulation X procedures with respect to their loan modification application and those of the class members. 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. or other representation . 2006). 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." After March 2014, Mrs. Robinson was primarily responsible for communicating with Nationstar and PaCE. Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. See 12 C.F.R. The settlement in the form of a consent judgment, filed in the U . 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. Id. 1024.41(h)(1), (4). Compl. 12 U.S.C. See 12 C.F.R. Id. Id. Instead, the Robinsons assert that Nationstar has not affirmatively proven that it conducted such reviews. The cases cited by the Robinsons do not alter the Court's conclusion. Code Ann., Com. Bouchat, 346 F.3d at 522. A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). 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. Furthermore, determining whether statutory damages are available will require no individualized consideration, because the pattern-or-practice claim "would be based solely on" Nationstar's conduct and can be established through sampling. 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"). Nationstar's Motion to Strike will be DENIED. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. 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. . Mrs. Robinson was the primary point of contact for the Robinsons in interacting with Nationstar. The public policy interest at issue was one against "stirring up litigation or promoting litigating for the benefit of the promoter rather than for the benefit of the litigant or the public," an interest not implicated in the same manner by the fee arrangement with the particular expert witness in this case. v. W.R. Grace & Co., 6 F.3d 177, 188 (4th Cir. Corp., 546 F.2d 530, 538-39 (3d Cir. See id. Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. 1976). 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 Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. Summ. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. 12 C.F.R. 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. See D. Md. 1967). Any additional updates will be posted here. 19-303.4 cmt.3. 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." Contact the Class Action Administrator at 1-855-917-3477 (Toll-Free). Nationstar seeks summary judgment on the Robinsons' RESPA claims on the grounds that (1) Mrs. Robinson is not a proper plaintiff because she is not a "borrower" within the meaning of RESPA; (2) RESPA is inapplicable because Nationstar was required to comply with Regulation X only as to the Robinsons' first loss mitigation application; (3) there is no evidence to support a violation of 12 C.F.R. at 248-49. Universal Athletic Sales Co. v. Am. MCC JR 0003. The Complaint asserts two claims. 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. See Fed. Instead, he analyzed certain data fields that were returned by the scripts written by a different expert. See Wirtz, 886 F.3d at 719-20. Code Ann., Com. Rather, the Court finds, based on the reasoning of Tagatz and Universal Athletic Sales, that the potential violation of an ethical rule does not itself make Oliver's testimony inadmissible. 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." See MCC JR0529-31. loan" did not have standing to bring a RESPA claim); Nelson v. Nationstar Mortg. 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. . This assertion mischaracterizes the burden of proof in a civil case. 1024.41(f), (g), and (h) because there is no evidence in the record that Nationstar violated those provisions. . 1024.41(h)(1), (4). Id. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. 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." Regulation X, which became effective on January 10, 2014, 78 Fed. Fed. The Court may rely only on facts supported in the record, not simply assertions in the pleadings. 2012). Here, Mrs. Robinson signed the Deed but did not sign the Note. See Robinson v. Nationstar Mortg. Id. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. cause[d] damages retroactively" and "transmogrifie[d]" the costs that predate the RESPA violation into damages. 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. On February 16, 2017, the Court referred the case to United States Magistrate Judge Charles B. TDC-14-3667 (D. Md. Specifically, if a loss mitigation application is received "45 days or more before a foreclosure sale," the loan servicer must provide a notice to the borrower "in writing within 5 days" of receiving it in which the servicer acknowledges receipt of the application and states whether the "application is either complete or incomplete." Reg. Whether an application is complete depends on the requirements of the investor who holds the loan. 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. 1024.41(f), (g), and (h), and Mr. Robinson's MCPA claim under sections 13-301 and 13-303. 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. Questions? In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. A servicer that fails to comply with Regulation X is liable for actual damages and, upon a finding of a "pattern or practice" of non-compliance by the servicer, up to $2,000 in statutory damages. These letters are based on standard Nationstar templates, and the code reflects the type of letter sent. 2013)). 16-0117, 2017 WL 4347826, at *15 (D. Md. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. In Frank v. J.P. Morgan Chase Bank, N.A., No. 1024.41(b)(2)(B), (c)(1)(ii); Md. v. Windsor, 521 U.S. 591, 623-24 (1997). 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. Code Ann., Com. 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. Although the parties have not offered specific details on the nature and timing of those costs and fees, it is reasonable to infer that at least some portion of them were incurred after they submitted their March 7, 2014 loan modification application and after Nationstar had violated Regulation X. 2013); Poindexter v. Teubert, 462 F.2d 1096, 1097 (4th Cir. The Robinsons' designated expert, Geoffrey Oliver, has offered a methodology for identifying class members and when their rights under RESPA and the MCPA have been violated. Johnson, 374 F. App'x at 873; Keen v. Ocwen Loan Servicing, LLC, No. Fed. 1024.41 Id. 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. If you are a member of the Settlement Class, you must submit a completed Claim Form to receive a payment. He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. 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. 877-683-9363. 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. or misleading oral or written statement . MSJ JR 0284. 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. Nationstar argues that summary judgment should be granted against Mrs. Robinson because she is not a "borrower" within the meaning of RESPA. The fact that each borrower must individually show damages under 12 U.S.C. 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. at *2. 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. Aug. 19, 2015). Signed by Magistrate Judge Jillyn K Schulze on 9/9/2016 . R. Civ. Discovery Order, ECF No. The Robinsons assert that they have suffered damages in the lost opportunity to have their mortgage loan modified and to pursue other loss mitigation options; in the fees, late fees, and interest that Nationstar has assessed since they became delinquent on their loan; in the lost "time and effort" which they expended in "pursuing the loss mitigation process with Nationstar" rather than trying to improve their business; and in administrative costs, including "postage, travel expenses, photocopying, scanning, and facsimile expenses." 2006). 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. 1024.41(c)(1)(i). Gunnells, 348 F.3d at 427-28. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. Id. See 12 C.F.R. Co., 595 F.3d 164, 179 (4th Cir. Some courts have held that administrative costs that predate the alleged RESPA violation cannot constitute "actual damages." The Motions are fully briefed, and no hearing is necessary to resolve the issues. at 300. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. ; 78 Fed. Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. . Anderson, 477 U.S. at 248. 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. Law 13 . The Robinsons' Motion for Class Certification will be GRANTED IN PART and DENIED IN PART. However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. Opp'n Mot. 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. Mortgage servicers seek government aid as forebearance requests soar, How this 39-year-old earns $26,000 a year in California. . There is no reason to conclude that individual class members have any particular interest in individually controlling the litigation through separate actions, or that this Court is an undesirable forum to host this litigation, since Nationstar services loans in this district, is subject to jurisdiction here, and has presented no argument that Maryland is an inconvenient forum. After an additional period of expert discovery relating to the class certification motion, discovery closed on December 30, 2018. 1024.41(f), (g), and (h) and Md. At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. 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.
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