Ohio 2014). Where the Robinsons, after discovery, cannot point to evidence that Nationstar did not even consider or evaluate the Robinsons for loss mitigation options, they have not established the existence of a genuine issue of material fact on the issue of false or misleading statements. Accordingly, the Motion is denied as to such claims. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. . The fact that each borrower must individually show damages under 12 U.S.C. Since Mrs. Robinson may not bring a claim under Regulation X, she may not be a named class representative. Cal. 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." 120. 2013); Poindexter v. Teubert, 462 F.2d 1096, 1097 (4th Cir. 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." 2d 873, 883 (D. Md. Since neither party contends that Oliver's testimony and report are not "critical," the Court must address the Daubert challenge before reaching the question of class certification. As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. 1024.41(b)(1). "); cf. Northern District of Ohio, ohnd-1:2021-cv-00452 of 0 An error occurred while loading the PDF. That notice must be provided within 30 days of receiving the complete loss mitigation application. The CFPB estimates about 40,000 borrowers were harmed by Nationstar's allegedly unfair and deceptive practices, according to a statement released Monday. Code Ann., Com. The Court will therefore deny the Motion for Summary Judgment as to this argument. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. LLC, No. Certification will not be granted as to the claims under 12 C.F.R. 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. 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. 143. Under Count I, the Robinsons allege a violation of 12 C.F.R. 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. Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. 2017) (holding that "incidental costs related to the sending of correspondence" to the servicer, including "postage and travel," are not actual damages under RESPA because such a rule "would transform virtually all unsatisfactory borrower inquiries into RESPA lawsuits"). Md. 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. 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. Date: September 9, 2019, Civil Action No. 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. 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." The Motions are fully briefed, and no hearing is necessary to resolve the issues. Fed. 2d at 1366. A fact is "material" if it "might affect the outcome of the suit under the governing law." See, e.g., Linderman v. U.S. Bank Nat'l Ass'n, 887 F.3d 319, 321 (7th Cir. 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. Mot. When combined with the state settlements, Nationstar is on the hook to pay a total of $91 million overall: $85 million to harmed consumers and $6 million in civil penalties. 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. Since the Court has already concluded that Nationstar is entitled to summary judgment on the Robinsons' claims under 12 C.F.R. v. Nationstar Mortgage LLC. 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. 2019) (noting that the purpose of certifying a class "is not to identify every class member at the time of certification, but to define a class in such a way as to ensure that there will be some administratively feasible [way] for the court to determine whether a particular individual is a member at some point" (internal citation omitted) (quoting EQT Production Co. v. Adair, 764 F.3d 347, 358 (4th Cir. Although based on imperfect data, Oliver's expert report reveals that such analysis can substantially address whether Nationstar violated 12 C.F.R. 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. The next day, Nationstar sent a letter noting that the August 25 application had been received and requesting additional information. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Nationstar Mortgage agreed to settle an action commenced by the Consumer Financial Protection Bureau for $91 million to resolve allegations surrounding mortgage servicing misconduct and deceptive practices that resulted in financial harm to borrowers. Code Ann., Com. 28, 2017). 2004). You will receive no benefits from the Settlement, but will retain any rights you currently have to sue Nationstar about the same claims in this case. See 12 C.F.R. If the application is denied, a notice to that effect is sent to the borrower. After two more extensions were granted, based on a finding by the Magistrate Judge that "Defendant has failed to comply" with its discovery obligations and delayed the process, discovery closed on March 22, 2018. Thus, the Court concludes that, while Nationstar may have defenses as to some borrowers, the common proof that establishes the asserted violations, as well as the common question of whether the Robinsons can prove a pattern-or-practice violation by Nationstar, will predominate over the individual issues as to these claims. Rules Prof'l Conduct 3.4 cmt. See 12 C.F.R. Code Ann., Com. If more documents are required, then the same Remedy Star substatus and LSAMS code that denote missing documents are entered. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. 218. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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. 3d 254, 274-75 (S.D.N.Y. 09-08213, 2011 WL 11651320 (C.D. 1998). See id. 2006). Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. 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. R. Civ. According to Oliver, to determine that certain disclosures or specific information were conveyed to borrowers, the "objectid" field used in FileNet can be used to identify the type of letter sent. In Washington v. Am. 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. v. Nationstar Mortgage LLC, Case No. The Robinsons do not address this argument in their Opposition. Regulation X's effective date reflected "an intent not to apply it to conduct occurring prior to that date." It follows that only borrowers may bring a claim that a loan servicer has violated Regulation X. Law 13-316(e), for the reasons stated above, see supra part I.B.4, the Robinsons have provided sufficient evidence to create a genuine issue of material fact whether they have suffered economic damages, in the form of administrative costs, fees, and interest. Certification will also be denied as to the claim under 12 C.F.R. 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. Mar. A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . Although section 13-316 provides a remedy only for economic damages arising from a mortgage servicer's failure to respond to an inquiry, see Md. Id. Whether an application is complete depends on the requirements of the investor who holds the loan. Some courts have held that administrative costs that predate the alleged RESPA violation cannot constitute "actual damages." Lembach v. Bierman, 528 F. App'x 297 (4th Cir. 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. 2018); Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 n.4 (11th Cir. v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. 2605(f)(2). . Fed. 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. 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." 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. Nationstar admits that in March 2014, two months after the implementation date of Regulation X, it had not yet updated its systems to comply with the regulation. . An 85-year Harvard study found the No. Nationstar argues that it should be granted summary judgment on all of the RESPA claims because Nationstar was required to comply with Regulation X only as to a borrower's first loss mitigation application, and the Robinsons' March 7, 2014 application was not their first loan modification application. TDC-14-3667 (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. v. W.R. Grace & Co., 6 F.3d 177, 188 (4th Cir. Opp'n Mot. 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority).
