Similarly, though the precise nature of the fees imposed was not specified, it is reasonable to infer that some were attributable to delays linked to RESPA violations. 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. Furthermore, the Robinsons have made a sufficient showing that a central computerized analysis of Nationstar data would substantially, if not completely, resolve questions of whether RESPA violations occurred. Id. 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. Nationstar to Pay $110 Million to Settle Borrower Claims 12 U.S.C. 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. ; 78 Fed. Instead, the Robinsons assert that Nationstar has not affirmatively proven that it conducted such reviews. McLean II, 398 F. App'x at 471. The Robinsons and Nationstar then engaged in a series of tortured exchanges over the next several months. 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." or other representation . 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. Discovery Order, ECF No. Md. Ins. Order, ECF No. Nationstar ultimately became the servicer of the Robinsons' loan. Code Ann., Com. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. . TDC-14-3667, 2019 WL 4261696 (D. Md. 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. See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. at 300. 1024.41, a regulation of RESPA that outlines loss mitigation procedures. 2015). 1024.41(i). A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . 2013); Poindexter v. Teubert, 462 F.2d 1096, 1097 (4th Cir. Gunnells, 348 F.3d at 429 ("[T]he need for individualized proof of damages alone will not defeat class certification."). The Class Action Administrator would then begin distribution of the settlement funds. The comments to that rule state that the "common law rule in most jurisdictions is . This field is for validation purposes and should be left unchanged. Ass'n, No. Law 13 . Regulation X, which became effective on January 10, 2014, 78 Fed. 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. Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 2018); Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 n.4 (11th Cir. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. 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. Fed. 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. at 983 (quoting 12 U.S.C. 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. 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. Day to address discovery issues. May 31, 2016), the plaintiff had signed the deed of trust but not the promissory note but was nevertheless deemed to have standing because she had owned the home with a right of survivorship with her deceased husband, who had signed the note. James Robinson v. National Student Clearinghouse Toggle navigation Home Commonly Asked Questions Documents The Court approved the settlement at the July 7, 2020 Fairness Hearing. This abandoned high school was converted into a 31-unit apartment building, number of unlawful practices in handling mortgages following the Great Recession. The servicer "is liable for any economic damages caused by the violation." AG Shapiro Secures $2.75 Million for Pennsylvania Mortgage Loan HealthSystem, 669 F.3d 802, 812 (7th Cir. 1 . 2605(f)(2); Wirtz, 886 F.3d at 719-20, that the individualized damages inquiry would need to precede the award of statutory damages based on a finding of a pattern-or-practice of RESPA violations is a distinction without a difference: whether individual damages are shown before or after the pattern-or-practice liability, the common issues of liability predominate over the individualized questions of damages. See Keen, 2018 WL 4111938, at *5-6. Law 13-316(e)(1), and "actual damages," 12 U.S.C. 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. Class Certif. 1024.41. Certification will not be granted as to the claims under 12 C.F.R. Code Ann., Com. Ask to speak in court about the fairness of the Settlement. 2010). Campbell v. Nationstar Mortg., 611 F. App'x 288, 297-98 (6th Cir. Presently pending is Nationstar's Motion for Summary Judgment, Nationstar's Motion to Strike, and the Robinsons' Motion for Class Certification. Id. 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. Code Ann., Com. R. Civ. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. For purposes of ascertainability, the requirements of 12 C.F.R. 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. The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. 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 . 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." 2002) (affirming without addressing the propriety of the striking of the expert testimony). 120. Since the Court has already concluded that Nationstar is entitled to summary judgment on the Robinsons' claims under 12 C.F.R. A Division of NBC Universal. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. Id. A letter noting receipt of the application is automatically generated and sent to the borrower, and a Nationstar employee checks the application's documentation to determine if it is complete based on a checklist. If you are a member of the Settlement Class, you must submit a completed Claim Form to receive a payment. . 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. 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. 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. 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. 8:2014cv03667 - Document 18 (D. Md. 1024.41(a). A class action allows representative parties to prosecute not only their own claims, but also the claims of other individuals which present similar issues. 1024.41(b)(2)(i)(B) and Md. The record is undisputed that as of September 25, 2017, Nationstar had neither started foreclosure proceedings nor moved for foreclosure judgment on the Robinsons' home. Make your practice more effective and efficient with Casetexts legal research suite. 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). See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. 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.'" "[A] trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." "[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.'" This is not the first time Nationstar has been the subject of federal and state investigations. 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. 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. 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. 2605(f)(2). 2605(f)(2) is not fatal to the predominance inquiry. Id. J. Nationstar Mortgage Convenience Fee Class Action Settlement After they became delinquent on their loan, the Robinsons submitted another loan modification application to Nationstar on March 7, 2014. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. If the Court approves the Settlement and it becomes final and effective, and you remain in the Settlement Class, you will receive a payment. Maryland's Commissioner of Financial Regulation Announces Settlement She alleges Nationstar was sent multiple disputes by both Experian and Equifax with documentation showing the debt was forgiven, yet Nationstar persisted in reporting the debt as valid. 222. 2605(f), is common question of law and fact that Mr. Robinson and the class members would all be required prove in their individual cases in order to qualify for statutory damages. 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. Law 13-316(c), the Court will grant class certification as to those class members and claims. (kw2s, Deputy Clerk) Download PDF Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! 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. Nationstar Mortgage TCPA Class Action Settlement Nationstar Mortgage LLC v. Demetrius Robinson Northern District of Ohio, ohnd-1:2021-cv-00452 of 0 An error occurred while loading the PDF. More importantly, while a determination of an individual violation would not require extensive analysis, specific proof of a pattern or practice of RESPA violations in any individual case would be a substantial undertaking, likely requiring the same type of complex analysis proposed here: a sampling of Nationstar files, compilation of all relevant data for such files, expert analysis to identify violations, and an assessment whether the identified violations are sufficient to establish a pattern or practice of violations. 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. Corp., 546 F.2d 530, 538-39 (3d Cir. A plaintiff has the burden to show that all of the necessary prerequisites for a class action have been met. Home Loans, No. . Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate . 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. Universal Athletic Sales Co. v. Am. JA 130. Where the Robinsons may be able to show that they have suffered actual damages, their claim for statutory damages, upon a showing that Nationstar has engaged in a pattern or practice of violating Regulation X, remains viable. In support of these claims, Mr. Robinson testified in his deposition that the $141,000 in interest represents the amount that the Robinsons have been overcharged over the life of the loan. 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." 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. The fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. 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. He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. Under the terms of the Settlement, if nothing else occurs in the litigation, then the Settlement will become effective 95 days from the date of that decision by the Court of Appeals. See 12 C.F.R. 10696, 10836. Bouchat, 346 F.3d at 522. Subsequent to the Court's approval, one of the objectors to the settlement filed an appeal. Local R. 105.6. v. Nationstar Mortgage LLC, Case No. Portland, OR 97208-3560. Code Ann., Com. The proposed settlement with the CFPB requires Nationstar to pay $73 million in restitution to affected borrowers, as well as a $1.5 million civil penalty to the agency. 2014))). He is joined by 49 other Attorneys General, the District of Columbia, and other state and federal agencies. McLean v. GMAC Mortg. See Tagatz, 861 F.2d at 1042. Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. Am. The cases cited by the Robinsons do not alter the Court's conclusion. Rule 702 permits an expert to testify if the testimony "will help the trier of fact to understand the evidence or to determine a fact in issue," "is based on sufficient facts or data," and "is the product of reliable principles and methods," and if the expert has "reliably applied the principles and methods to the facts of the case." Robinson v. Nationstar Mortg. LLC, Civil Action No. TDC-14-3667 When Nationstar received the application, it prevented late fees from being assessed and put a hold on any foreclosure proceedings. 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. 2605(f)(1)(A)). 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. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. Fed. Code Ann., Com. See Stillmock v. Weis Markets, Inc., 385 F. App'x 267, 275 (4th Cir. Nationstar claims that manual review of each file would take about 60 to 90 minutes per file. Gunnells, 348 F.3d at 427-28. 2605(f). Robinson v. Nationstar Mortgage, LLC: Complaint with jury demand That provision provides, in parallel, that a loan servicer which does not comply with Regulation X is liable "to the borrower." Fed. TDC-14-3667 (D. Md. 3d at 1014. In their Motion for Class Certification, the Robinsons seek certification of two classes. 2003). On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. 15-0925, 2015 WL 5165415, at *4 (D. Md. Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ("Regulation X"), 78 Fed. 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. Likewise, Oliver's expert report provides no analysis on how Nationstar's databases allow for a systematic determination whether Nationstar failed to inform borrowers of the specific reasons for the servicer's decision to deny each loan modification option, in violation of 12 C.F.R. Nationstar employees use four software applications and databases to store and track electronic information relating to loans: (1) Loan Services and Accounting Management System ("LSAMS"), Nationstar's primary loan servicing software, which contains data for loans, including the permanent records of the accounting history, communication logs, and letters documented with codes that were sent to the borrower; (2) Remedy Star, Nationstar's proprietary loss mitigation and loan modification management system, which, among other tasks, tracks the status and timeline of a loan modification and links to documents stored in FileNet; (3) LPS Desktop ("LPS"), an application which Nationstar uses to track and manage foreclosure processes and communicate with outside attorneys; and (4) FileNet, a platform that houses PDF images of documents, including letters sent to borrowers by Nationstar. Since the Rule 23(a) factors are satisfied, the Court will now consider whether the Rule 23(b)(3) predominance and superiority considerations are met. Compl. 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. application to Nationstar after January 10, 2014, and through the date of the Court's .