The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. The use of a class action is primarily justified on the grounds of efficiency, because it advances judicial economy to resolve common issues affecting all class members in a single action. The Motions are fully briefed, and no hearing is necessary to resolve the issues. Finally, the Court finds that common issues of law and fact predominate. The loan is then evaluated for loan modification options. 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. While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. 2010). 702, 703. 3d 254, 274-75 (S.D.N.Y. 1967). Those claims arose from Nationstar's alleged Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. 1024.41(f), (g), and (h), and Mr. Robinson's MCPA claim under sections 13-301 and 13-303. 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. See Broussard, 155 F.3d at 344. Opp'n Mot. 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. Indeed, since previous versions of the Maryland rule expressly stated that contingency fee arrangements for experts were forbidden, but that explicit language was removed, it is reasonable to conclude that the amendment changed the rule in Maryland to no longer bar contingency fee arrangements. Tagatz, 861 F.2d at 1042; cf. 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. See 12 C.F.R. Finally, a loan servicer "is only required to comply with the requirements" of section 1024.41 "for a single complete loss mitigation application for a borrower's mortgage loan account." TDC-14-3667 (D. Md. 2. Id. 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. Petitioner: NATIONSTAR MORTGAGE, LLC: Respondent: TAMARA ROBINSON and DEMETRIUS ROBINSON: Case Number: 19-379: Filed: September 24, 2019: Court: U.S. Court of Appeals . Class Action Claims Nationstar Mortgage Unlawfully Failed to Pay Fed. 1024.41(b)(2)(B), (c)(1)(ii); Md. 1024.41(i). 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. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. Jennings' office said that these new standards are more robust than existing law and will be in place for three years starting in January 2021. Lembach v. Bierman, 528 F. App'x 297 (4th Cir. 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. 1024.41(c)(1)(i). The Robinsons, however, have not identified any evidence that Nationstar did not intend to, and did not, conduct such evaluations. News Ask a Lawyer Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. 1024.41(h)(1). Id. Md. 2d 873, 883 (D. Md. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. TDC-14-3667, 2019 WL 4261696 (D. 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. 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." 2014). 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). Id. 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. 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. A settlement has been reached in a class action lawsuit alleging Nationstar Mortgage LLC (Nationstar or Defendant) violated the Real Estate Settlement Procedures Act (RESPA) by failing to adhere to its requirements with respect to its customers loss mitigation applications and that Nationstar violated Maryland law by not timely responding to its customers mortgage servicing complaints. Ask to speak in court about the fairness of the Settlement. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. JA 130. 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. Fed. Here, Mrs. Robinson signed the Deed but did not sign the Note. 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. Fed. Robinson et al v. Nationstar Mortgage LLC - law360.com This Court previously held that a loan modification application can be an inquiry under the MCPA that triggers a duty to respond, and that in the case of the Robinsons, the loan modification application that was "submitted at the request of Nationstar[] necessarily seeks a response." Corp. ("McLean I"), 595 F. Supp. 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.'" The court, however, did not explain how in the absence of any obligation to pay back to the Note, the plaintiff qualified as a "borrower" under the RESPA statute. The Deed specifies that a person who signs it but "does not execute the note" is a co-signer of the Deed in order to mortgage and convey that person's interest in the Property under the terms of the Deed, but "is not personally obligated to pay the sums secured by this Security Instrument," and her consent is not required to alter the terms of the Deed or the Note. See McGraw, 646 F.2d at 176. The Court agrees that costs, including administrative costs, "incurred whether or not the servicer complied with its obligations" are not actual damages "caused by, or 'a result of,'" the RESPA violation, whether or not they occurred before or after the violation. R. Civ. The lawsuit alleges, however, that Nationstar has not made interest payments to the plaintiffs, nor provided any record that interest was accruing and due to the homeowners, at any time during or after December 1, 2018 to March 22, 2019 or May 1, 2020 through the present. A separate Order shall issue. The data derived from scripts written by another expert, Abraham J. Wyner, without the benefit of seeing the databases, a process necessitated by Nationstar's unwillingness or inability to produce the relevant data. Accordingly, a loan servicer must comply with Regulation X as to the first loss mitigation application submitted after the effective date. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. 1024.41(b)(2)(i)(B) and Md. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. Therefore, Nationstar was required to comply with section 1024.41 in processing it. 2d 452, 467 (D. Md. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. In assessing this element, "numbers alone are not controlling" and a district court should consider "all of the circumstances of the case." First, Nationstar correctly notes that Mr. Robinson, in his Motion, and Oliver, in his expert report, do not put forward any evidence establishing that the necessary prerequisites for a class action have been met with respect to the claim that Nationstar did not evaluate borrowers "for all loss mitigation options available to the borrower," in violation of 12 C.F.R. Some of the alleged damages are not supported in law or in fact. P. 23(a)(1). Code Ann., Com. More Information 1024.41(a). 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." See, e.g., Linderman v. U.S. Bank Nat'l Ass'n, 887 F.3d 319, 321 (7th Cir. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49 (2011) ("[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." 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). 164. Rules 19-303.4(b) (2018). See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. 2007)), aff'd sub nom. The Federal Rules of Evidence do not prohibit these kinds of arrangements. THEODORE D. CHUANG United States District Judge. Notably, Oliver's analysis did not consider foreclosure information because the data produced did not include dates of foreclosure sales. See Farmer v. Ramsay, 159 F. Supp. Id. On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. The fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. However, the burden is on the plaintiffs to show that other class members exist and that their joinder is impracticable; a court may not rely on mere speculation that numerosity has been satisfied. 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." 1024.41(d). 2605(f). Code Ann., Com. In Robinson v., Under the RESPA, civil liability is limited to "borrowers": "[w]hoever fails to comply with any provision of, Full title:DEMETRIUS ROBINSON and TAMARA ROBINSON, Plaintiffs, v. NATIONSTAR MORTGAGE, Court:UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND. 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. 28, 2017). From January 2014 to the present, the Robinsons have not pursued other loss mitigation options, such as a short sale. After attempts to modify the loan failed, the Robinsons filed a class action Complaint against Defendant Nationstar Mortgage, LLC ("Nationstar") for alleged violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 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. 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. 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. Robinson v. Nationstar Mortg. LLC | 2015 WL 4994491 | D. Md. | Judgment 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." 2605(f), caused by the violation, which likely consist of administrative fees and costs, the individual recovery available for each class member would likely be low, far below the cost of litigating the claims themselves. Law 13-101 to 13-411 (West 2015). The Robinsons assert that they have paid a total of $6,147.12 in unspecified fees to Nationstar. After several customers of Green Earth Services canceled its services, the Robinsons sought loss mitigation in the form of a loan modification from Nationstar. Before the error was discovered, Mr. Robinson appealed this offer as insufficient on April 10, 2014. 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. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Life Ins. 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." McLean I, 595 F. Supp. 1024.41(c)(1)(i). Indeed, Nationstar does not seriously contest the commonality prong. Id. 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. When each event occurseither the mailing of a letter or the changing of a code or substatusthe date is recorded in the databases. In their Motion for Class Certification, the Robinsons seek certification of two classes. In February 2014, after their income had further decreased, the Robinsons ceased making payments on the mortgage loan. While several district courts have concluded that loss mitigation applications submitted before Regulation X's effective date do not count as the single application for which a loan servicer must comply with Regulation X, see, e.g., Farber v. Brock & Scott, LLC, No. . 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. 2605(f)(1)(A)). Compl. The Final Approval Order, approving the Class-wide Settlement, was entered December 11, 2020. Sept. 2, 2015). Factors "pertinent" to the predominance and superiority requirements include the "class members' interests in individually controlling" the litigation, whether litigation on the matter has already been begun by other class members, whether concentrating the litigation in one forum is desirable or undesirable, and the potential difficulties managing the class action presents. It is the plaintiffs who bear the burden of proving their claims. 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. Furthermore, Oliver states that since Nationstar employees used templates to communicate with borrowers, he could determine whether there were violations of certain RESPA provisions based on entries showing that Nationstar employees used templates that did not comply with RESPA. Id. 1024.41(a). This argument runs contrary to the plain language of Nationstar's own procedures, which describe the application as "complete" based on the processor's determination, leading to the referral of the complete package to an underwriter. 3d 712, 728 (S.D. v. Nationstar Mortgage LLC. United States v. Valona, 834 F.2d 1334, 1344 (7th Cir. Law 13-316(c), which requires a response to a mortgage servicing complaint or inquiry within 15 days. 1024.41(a). As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. at 359-60. In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. 14-3667, 2015 WL 4994491, at *1-2 (D. Md. Sept. 9, 2019), there were multiple other claims at issue, for which Oliver's expert report seemed better suited to address. Robinson et al v. Nationstar Mortgage LLC, No. If you were contacted on your cell phone by a company via an . These events will be represented by discrete data points in Nationstar's databases, such that these violations may be proved through that data. 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. The Motion will be otherwise denied. That claim will be subject to common proof, namely sampling and analysis of loan files along the lines suggested by Oliver.
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