Oliver is the Chief Executive Officer of Hilltop Advisors LLC, a financial services consulting, compliance audit, and accounting advisory firm, and has extensive experience conducting compliance reviews for mortgage servicers, including for compliance with loss mitigation procedures. The commonality requirement is also met. To calculate damages, Oliver stated that he would look to data from the LSAMS application, including data tables that contain fee information, to identify fees that would not have been charged but for Nationstar's various RESPA violations, but that he was not able to evaluate this data in his report because it had not been provided to him. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. which has the capacity, tendency, or effect of deceiving or misleading consumers." The Robinsons own a business called Green Earth Services, which provides waste and recycling services to clients. 2010). Summary judgment will therefore be entered for Nationstar on the claims that Nationstar violated subsections (f) and (g). Sep. 9, 2019). 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. Code Ann., Com. Law 13-301 and 303. R. Civ. This field is for validation purposes and should be left unchanged. Mich. 2016), at least one district court has held that loan servicers need not comply with Regulation X if the borrower had previously submitted a loss mitigation application before the January 10, 2014 effective date, see Trionfo v. Bank of America, N.A., 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." 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. The Court will address the varying claims in turn. The plaintiff's claim "cannot be so different from the claims of absent class members that their claims will not be advanced by" proof of the plaintiff's own individual claim. In addition to the fines and restitution, Delaware Attorney General Kathleen Jennings said the settlements require Nationstar to adhere to increased "servicing standards." 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. The Robinsons do not address this argument in their Opposition. Bouchat v. Balt. A class action allows representative parties to prosecute not only their own claims, but also the claims of other individuals which present similar issues. . See 12 C.F.R. Amchem Prods. 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. 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. 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. 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. A Scheduling Order was first entered on November 24, 2015, and the period for discovery was extended four times between November 2015 and January 2017. 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. 1967). 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. Your Email Please enter your email. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. Code Ann., Com. 15-05811, 2016 WL 3055901 (N.D. Cal. See id. The comments to that rule state that the "common law rule in most jurisdictions is . 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. The entry under "objected" acts as a unique identifier for an electronic file, but it does not contain information about the file's substance and could in fact contain multiple submissions or documents relating to one borrower. Id. For the foregoing reasons, Nationstar's Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. 2605(f)(1). 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. application to Nationstar after January 10, 2014, and through the date of the Court's . Law 13-316(c). "); cf. 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. 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. The relevant rule prohibits an attorney from "offer[ing] an inducement to a witness that is prohibited by law." Class Cert. See 12 C.F.R. 2601 et seq. . 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. Mortgage servicers seek government aid as forebearance requests soar, How this 39-year-old earns $26,000 a year in California. 1024.41(c)(1)(ii), which requires a servicer to respond to a loan modification application within 30 days of receipt of a complete loss mitigation application and provide notice of appeal rights; 12 C.F.R. Law 13-316(c) are triggered upon the submission of a loss mitigation application, while 12 C.F.R. See Wirtz, 886 F.3d at 719-20. On February 16, 2017, the Court referred the case to United States Magistrate Judge Charles B. 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. If the application is denied, a notice to that effect is sent to the borrower. 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. Nationstar also allegedly foreclosed on borrowers with pending forbearance applications after promising not to do so and failed to properly handle escrow payments and accounting for homeowners who were in Chapter 13 bankruptcy proceedings. 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. The MCPA prohibits the use of an "unfair or deceptive trade practice" in the "[t]he extension of consumer credit" or "[t]he collection of consumer debts" and provides for a private right of action. Id. The Borrower Payment Amount shall be used: (1) for payments to borrowers who submit claims and are in either or both of the Service Transfer and Property Preservation Populations set forth below; and (2) for reasonable costs and expenses of the Settlement Administrator, including taxes and fees for tax counsel. at *2. The Court will therefore deny the Motion for Summary Judgment as to this argument. at 151. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. R. Civ. P. 23(b)(3). These events will be represented by discrete data points in Nationstar's databases, such that these violations may be proved through that data. If more documents are required, then the same Remedy Star substatus and LSAMS code that denote missing documents are entered. 2d 873, 883 (D. Md. 2003). 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority). 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. 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). Since the Court has already concluded that Nationstar is entitled to summary judgment on the Robinsons' claims under 12 C.F.R. It is the plaintiffs who bear the burden of proving their claims. 2010). 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. Code Ann., Com. Therefore, the Court will grant in part and deny in part the Motion for Class Certification. 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. 2010). Certification will not be granted as to the claims under 12 C.F.R. 2018). If you were contacted on your cell phone by a company via an . "[A] trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." 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. 1024.41(h)(1), (4). Nationstar argues that summary judgment should be granted against Mrs. Robinson because she is not a "borrower" within the meaning of RESPA. Id. 1024.41(c)(1)(i)-(ii), (g). Nationstar's Motion to Strike will be DENIED. RESPA's implementing regulations, codified at 12 C.F.R. 2605(f). 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. 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. "[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.'" Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. FCRA). Law 13-301(1). 1994) (noting that a single common issue is sufficient to meet the commonality requirement). 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. While Mr. Robinson signed the promissory note ("the Note"), the deed of trust ("the Deed"), and the balloon payment rider for the 2007 loan, Tamara Robinson ("Mrs. Robinson") signed only the Deed and balloon payment rider and did not sign the Note. Order at 2, ECF No. v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . 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. 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." 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. 12 C.F.R. Stewart v. Bierman, 859 F. Supp. J. 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. Law 13-316(c), the Court will grant class certification as to those class members and claims. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. 1024.41(a). 14-cv-10457, in the U.S. District Court for the Northern District of Illinois, Eastern Division.. Join a Free TCPA Class Action Lawsuit Investigation. When each event occurseither the mailing of a letter or the changing of a code or substatusthe date is recorded in the databases. 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. Northern District of Ohio, ohnd-1:2021-cv-00452 of 0 An error occurred while loading the PDF. Fed. Mrs. Robinson was the primary point of contact for the Robinsons in interacting with Nationstar. Write to the Court if you do not like the Settlement. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. See 12 C.F.R. Because all of the Rule 23(a) and (b)(3) requirements are met as to a class asserting violations of 12 C.F.R. Although she has worked as a bookkeeper for various companies, she was not employed between March and September 2014. R. Evid. Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. 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"). 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." Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. Code Ann., Com. These rights and optionsand the deadlines to exercise themare explained further on the Frequently Asked Questions page of this website and in the Notice. Md. Code Ann., Com. 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. Instead, he analyzed certain data fields that were returned by the scripts written by a different expert. Instead, the Robinsons assert that Nationstar has not affirmatively proven that it conducted such reviews. 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. USCA4 Appeal: 21-1087 Doc: 38 Filed: 06/15/2021 Pg: 9 of 33 Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). 2011) ("[T]he possibility that a well-defined class will nonetheless encompass some class members who have suffered no injury . Reg. Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. Local R. 105.6. 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. Id. DEMETRIUS ROBINSON and TAMARA ROBINSON, Plaintiffs, v. NATIONSTAR MORTGAGE LLC, Defendant. 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. Subsequent to the Court's approval, one of the objectors to the settlement filed an appeal. 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. at 152. 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. 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. 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. 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."). While she is trained as a bookkeeper, at the time of the Robinsons' 2014 application for a loan modification and in the subsequent months, Mrs. Robinson was not employed in any capacity. Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. Messner v. Northshore Univ. When those scripts did not produce data that allowed the Robinsons to conduct the sampling, the Magistrate Judge ordered Nationstar on April 3, 2018 to run certain "structural scripts" on two of its four databases. 14-3667, 2015 WL 4994491, at *1-2 (D. Md. McLean II, 398 F. App'x at 471. In Frank v. J.P. Morgan Chase Bank, N.A., No. Id. The distinction is crucial. Contact the Class Action Administrator at 1-855-917-3477 (Toll-Free). 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). (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"). An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." 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." Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. 1024.41(c)(1)(ii), 1024.41(b)(1), the Court concludes that common computerized analysis will substantially advance the resolution of such claims, even if not entirely eliminating the need for reviewing certain specific file documents. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. "We want to hear from you," Raoul says. The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. 1990) (citing Universal Athletic favorably for this proposition). 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. The Robinsons, however, have not identified any evidence that Nationstar did not intend to, and did not, conduct such evaluations. Neither the rule nor the comment, however, state whether Maryland is one such jurisdiction. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. 1024.41(c)(1)(i). . While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. Before the error was discovered, Mr. Robinson appealed this offer as insufficient on April 10, 2014. 1024.41(a). 2005))). On July 17, 2014, Nationstar informed Mr. Robinson by letter that he did not qualify for a HAMP modification and that since the March 14 loan modification offer had not been accepted, it was withdrawn. 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." Co., 595 F.3d 164, 179-80 (4th Cir. Fed. v. Nationstar Mortgage LLC, Case No. Id. 2605(f). But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 1976). Opp'n Mot. 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. 1024.41(b)(2)(B). The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. aurora avenue seattle news, wyn rownd a rownd,
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