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Although Monday's case specifically addresses Nationstar's actions following the Great Recession, the outcome can affect today's homeowners, says Kwame Raoul, attorney general of Illinois. As for typicality, the named plaintiff must be "typical" of the class, such that that the class representative's claim and defenses are "typical of the claims or defenses of the class" in that prosecution of the claim will "simultaneously tend to advance the interests of the absent class members." R. Civ. For the claims that rely on the timing of a response, Oliver and the Robinsons propose using changes in the Remedy Star substatus or LSAMS codes and documents stored in FileNet to identify the date a loan modification application was received or marked as complete, to identify the date a response was sent, and to count the number of days between events. 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. MCC JR 0003. 2013). 2605(f)(1)(B), a borrower cannot recover these additional damages "without first recovering actual damages." 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. TDC-14-3667, 2019 WL 4261696 (D. Md. While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. 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." The Robinsons assert that they have paid a total of $6,147.12 in unspecified fees to Nationstar. As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. A Division of NBC Universal. The Class is represented by Rafey S. Balabanian of Edelson PC. Id. at 359-60. Code Ann., Com. The Federal Rules of Evidence do not prohibit these kinds of arrangements. Sept. 29, 2017); Billings v. Seterus, Inc., 170 F. Supp. 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. 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. 1024.41 (2019), and the Maryland Consumer Protection Act ("MCPA"), Md. This assertion mischaracterizes the burden of proof in a civil case. v. Windsor, 521 U.S. 591, 623-24 (1997). Nationstar claims that manual review of each file would take about 60 to 90 minutes per file. 2d 452, 467 (D. Md. 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. 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. 1024.41(h)(1), (4). 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. 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. An 85-year Harvard study found the No. JA 130. While Mr. Robinson sought to reduce his monthly mortgage payment in applying for a loan modification, his deposition testimony reflects that he understands that the present lawsuit contends that Nationstar did not process the Robinsons' loan modification application correctly. Instead, he analyzed certain data fields that were returned by the scripts written by a different expert. 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. 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. McAdams v. Nationstar Mortg. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. or misleading oral or written statement . 3d 712, 728 (S.D. 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. Subsequent Loss Mitigation Application. The Motion will be otherwise denied. 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. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. 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. 1024.41, a regulation of RESPA that outlines loss mitigation procedures. 2d 873, 883 (D. Md. 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). Order, ECF No. 1024.41(b)(2)(B). Summary judgment will therefore be entered for Nationstar on the claims that Nationstar violated subsections (f) and (g). Id. After an additional period of expert discovery relating to the class certification motion, discovery closed on December 30, 2018. 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. 12 U.S.C. R. Civ. 1024.1 to 1024.41 and known as "Regulation X," see 12 C.F.R. 2014). 2605(f)(1)(A)). 2003). 2002), is misplaced. Mot. 15-0925, 2015 WL 5165415, at *4 (D. Md. 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. . Law 13-316(e)(1), and "actual damages," 12 U.S.C. 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. Where such statements in no way promise approval, the Robinsons appear to claim that such statements are false or misleading because Nationstar never intended to, and did not, evaluate the Robinsons for the various loss mitigation options. 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. 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. At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. 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. Id. Fed. 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. Campbell v. Nationstar Mortg., 611 F. App'x 288, 297-98 (6th Cir. Subscribe to our free newsletter right now. 1024.41(a). Rules 19-303.4(b) (2018). 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. 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. Amchem Prods. 1024.41(d). These rights and optionsand the deadlines to exercise themare explained further on the Frequently Asked Questions page of this website and in the Notice. 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. Make your practice more effective and efficient with Casetexts legal research suite. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. In addition to the fines and restitution, Delaware Attorney General Kathleen Jennings said the settlements require Nationstar to adhere to increased "servicing standards." The Robinsons own a business called Green Earth Services, which provides waste and recycling services to clients. 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. P. 23(a)(3); Deiter v. Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. 1998). Id. Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. 10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. Reg. A class action allows representative parties to prosecute not only their own claims, but also the claims of other individuals which present similar issues. The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. 2011) ("[T]he possibility that a well-defined class will nonetheless encompass some class members who have suffered no injury . Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder of all members is impracticable." PO Box 3560. But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 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. 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."