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. 303 0 obj <> endobj 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. Certification will not be granted as to the claims under 12 C.F.R. QSF Settlement Administrator. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. Particularly where a class may be certified even if individualized damages calculations would be necessary, the incomplete nature of the damages analysis does not provide a basis for striking Oliver's expert testimony. 2605(f). ("MCC") 2, ECF No. See id. 12 C.F.R. Baez, 709 F. App'x at 983. Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. In Pennsylvania, the settlement affected 2,234 loans for a total of $2.75 million in restitution for these borrowers. Nationstar claims that manual review of each file would take about 60 to 90 minutes per file. 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. From January 2014 to the present, the Robinsons have not pursued other loss mitigation options, such as a short sale. THEODORE D. CHUANG United States District Judge. Therefore, the Court will grant in part and deny in part the Motion for Class Certification. 1024.41(a). 8:2014cv03667 - Document 18 (D. Md. 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. At this stage of the proceedings, the Court must rely on facts in the record, and not assertions in the pleadings. See Tagatz, 861 F.2d at 1042. Signed by Judge Theodore D. Chuang on 8/18/2015. The trial court granted the motion over the Robinsons' objection, noting in its order that Nationstar had now waived its claim for attorney feesthe claim that had been the sole impediment to a final judgment being entered after the trial court granted Nationstar's request to reopen the evidence after entry of the initial final judgment. Code Ann., Com. Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. Code Ann., Com. ("Opp'n') 13, ECF No. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. 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. The Motion will be granted as to all of Tamara Robinson's claims and as to Demetrius Robinson's claims under 12 C.F.R. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. If the initial application is not complete, a different Remedy Star substatus notation and LSAMS code are entered, and a letter is created and sent to the borrower asking for the required documents. 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. Id. While Mrs. Robinson stated that she was conducting bookkeeping for Green Earth Services during the relevant time frame, she testified that her work was less than six hours per week, and the Robinsons have not shown that her time spent communicating with Nationstar "resulted in actual pecuniary loss" to Mr. Robinson or the business. Rules Prof'l Conduct 3.4 cmt. In their memorandum in opposition to the Motion for Summary Judgment ("Opposition"), the Robinsons admit that they "do not have evidence that Nationstar dual tracked them" or began foreclosure proceedings while a loan modification application was pending. Messner v. Northshore Univ. 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. Gunnells, 348 F.3d at 424 (quoting Amchem, 521 U.S. at 615). 3d 1011, 1015 (W.D. 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. In contrast, the Court finds that there is a genuine issue of material fact whether the administrative costs and fees incurred by the Robinsons resulted from Nationstar's RESPA violations. Reg. 1024.41(f), (g), and (h), and Mr. Robinson's MCPA claim under sections 13-301 and 13-303. The Robinsons complied. 2605(f). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Years later, the parties filed a notice of settlement. %PDF-1.6 % Law 13-316(c), the Court will grant class certification as to those class members and claims. Make your practice more effective and efficient with Casetexts legal research suite. 2605(f)(2). 28, 2017). 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. Nationstar argues that summary judgment should be entered on the Robinsons' MCPA claim under section 13-316 because the Robinsons have not shown that they submitted a complaint or inquiry that triggers a duty to respond. See McGraw, 646 F.2d at 176. Following protracted litigation, Nationstar, and the Robinsonsnegotiated a $3,0 00,000 settlement. Md. 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. On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. P. 23(b)(3). 19-303.4 cmt.3. 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. Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. . 12 U.S.C. 1024.41(i). This case arises from a class action alleging that Nationstar Mortgage LLC violated federal and state consumer-protection laws in servicing the class members' mortgage loans. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. 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. "[A]n evaluation of the merits to determine the strength of plaintiffs' case is not part of a Rule 23 analysis." Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. Back To Top. 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. 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. After several customers of Green Earth Services canceled its services, the Robinsons sought loss mitigation in the form of a loan modification from Nationstar. Robinson v. Nationstar Mortgage, LLC Complaint with jury demand against Nationstar Mortgage, LLC. See MCC JR0529-31. Nationstar broke that trust by engaging in unfair and deceptive practices," Kraninger added. Because Nationstar employees used standard templates to communicate with borrowers, Oliver concluded that Regulation X violations can be identified through the existence of noncompliant templates and the dates that those templates were in use. At least one court has found a similar expert report by Oliver to meet the Daubert standard. Mr. Robinson then submitted another loan modification application on August 25, 2014. 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. (quoting East Tex. Settlement Website www.AutomatedPhoneCallSettlement.com Claims Administrator Wright et al. Id. 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. On February 16, 2017, the Court referred the case to United States Magistrate Judge Charles B. How do I get my check reissued? 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. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). Fed. Corp. ("McLean I"), 595 F. Supp. See Stillmock, 385 F. App'x at 274 ("[T]here is no reasoned basis to conclude that the fact that an individual plaintiff can recover attorney's fees in addition to statutory damages of up to $1,000 will result in enforcement of [the Fair Credit Reporting Act] by individual actions of a scale comparable to the potential enforcement by way of class action."). A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. Class Certif. 325 0 obj <>stream 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. First, to the extent that there was a period of time during which Nationstar failed to implement procedures to comply with RESPA, the facts establishing such a gap would be highly relevant to a pattern or practice determination and would be common in every case. 15-3960, 2017 WL 623465, at *8 (D. Md. Id. or other representation . Tenn. Aug. 28, 2018) (holding that a spouse who signed a deed of trust stating that a person who did not sign the promissory note was not obligated on the security instrument, but did not sign the promissory note, was not a borrower under RESPA). Thus, the nature of the proof of whether there has been a pattern or practice of RESPA violations provides substantial support for a finding of predominance. (ds) Download PDF Search this Case 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. J. 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. 15-0925, 2015 WL 5165415, at *4 (D. Md. 1024.41(a). 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. Please check back in late January for updates. The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. 1024.41(f), (g), and (h) because there is no evidence in the record that Nationstar violated those provisions. 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. Id. 2605(f)(1)(A); see 12 C.F.R. . During this time and up until September 25, 2017, Nationstar had not begun any foreclosure proceedings on the Robinsons' home. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. See D. Md. Although similar to Rule 23(a)'s commonality requirement, the test for predominance under Rule 23(b)(3) is "far more demanding" and "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." 2605(f). 2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). In contrast, Nationstar maintains that there is no way to reliably identify when a loss mitigation application is submitted or complete using codes and status change entries in its existing software, and that the only way to make those determinations is through a file-by-file review. 12 C.F.R. 1024.41(d). 164. 10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. 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. They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). 702. In December 2020, Nationstar (d/b/a Mr. Cooper) reached a settlement with the CFPB, the State Attorneys General, and certain state mortgage regulators to resolve old regulatory matters. See Fed. J. The Court may rely only on facts supported in the record, not simply assertions in the pleadings. R. Civ. Law 13-301 and 303. In its Motion to Strike, Nationstar argues that Oliver's methodology has not been peer reviewed, has a high error rate because he used the wrong data fields to identify the dates of events, failed to consider the timing of foreclosure sales relative to the dates of the submission of loan modification applications, and did not propose a specific methodology for calculating damages. JA 130. LLC, No. Order, ECF No. Id. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. Wirtz v. Specialized Loan Servicing, LLC, 886 F.3d 713, 719-20 (8th Cir. See 12 C.F.R. Ass'n, 375 F.2d 648, 653 (4th Cir. 2016) (dicta). If the application is denied, a notice to that effect is sent to the borrower. Md. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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. Cf. 1024.41(b)(2)(B). 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. Signed by Judge James L Graham on 11/15/12. Summ. MCC JR 530. hbbd```b``63@$urD29 NIL5 "#>9$ 0 3 Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Law 13-301(1). 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."
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