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. 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. LLC, No. Sept. 9, 2019), there were multiple other claims at issue, for which Oliver's expert report seemed better suited to address. In focusing on whether RESPA violations can be established through computerized analysis rather than individual file review, the parties lose track of the fact that because statutory damages are predicated on a finding that there has been a pattern or practice of RESPA violations, that issue common to almost any individual claim plays an outsized role in the predominance analysis. Law 13-316(c), which requires a response to a mortgage servicing complaint or inquiry within 15 days. Corp. ("McLean I"), 595 F. Supp. In Robinson v. Nationstar Mortgage LLC, No. Oliver's expert report focuses on the use of Nationstar's internal databases to determine whether Nationstar has systematically failed to comply with various requirements of Regulation X. PO Box 3560. R. Civ. 1024.41(a). 19-303.4 cmt.3. Nationstar further argues that summary judgment must be entered in its favor on the Robinsons' claims under 12 C.F.R. In their Motion for Class Certification, the Robinsons seek certification of two classes. "When these issues were identified several years ago, we immediately made restitution to our impacted customers and invested in process improvements to prevent reoccurrence," Jay Bray, CEO and chairman of Mr. Cooper said in a statement Monday. 143. 3d 254, 274-75 (S.D.N.Y. Bouchat v. Balt. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. Ward, 595 F.3d at 180 (quoting Gunnells, 348 F.3d at 430). The Court will address the varying claims in turn. Nationstar broke that trust by engaging in unfair and deceptive practices," Kraninger added. Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. For the foregoing reasons, Nationstar's Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. 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. Likewise, although Mrs. Robinson expended time corresponding with Nationstar, she was not working for pay at the same time, and the Robinsons have not provided evidence to quantify the loss to Mr. Robinson, the only viable plaintiff here. Code Ann., Com. 2003). 20-cv, -2202, 2021 WL 4462909, at *1 (S.D. . 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. MSJ JR 0284. 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. These letters are based on standard Nationstar templates, and the code reflects the type of letter sent. The company has already paid about $57.5 million in restitution to affected consumers, according to the CFPB. 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. 2012). Gym, Recreational & Athletic Equip. The Court does not find such a prohibition in the Maryland Attorneys' Rules of Professional Conduct. is generally unproblematic as the non-injured parties can just be sorted out at the remedies phase of the suit."). R. Civ. 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. And given that the class includes all borrowers who have submitted an application since January 10, 2014, joinder of all members is eminently impractical. In addition, Nationstar asserts that not all loan modification applications referred to an underwriter are complete. A complete loss mitigation application is "an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower." The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. . Code Ann., Com. Class Certif. 2605(f). Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. See Stillmock v. Weis Markets, Inc., 385 F. App'x 267, 275 (4th Cir. Id. 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. . 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. Id. 2d 873, 883 (D. Md. 12 U.S.C. 120. CFPB Director Kathleen Kraninger said in a statement. Order, ECF No. A plaintiff has the burden to show that all of the necessary prerequisites for a class action have been met. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. Cal. 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. 1 . Discovery Order, ECF No. Law 13 . Mot. Here, the Robinsons have not put forward any evidence that Mrs. Robinson has an ownership interest in the home that would specifically obligate her to make payments on the loan. 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. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. 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. Day to address discovery issues. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." 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. McAdams v. Nationstar Mortg. Baez, 709 F. App'x at 983. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. It will be otherwise denied. Id. In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. Individual damages would be below the cost of litigation even if each class member could establish that Nationstar's conduct consisted of a pattern or practice of violating Regulation X, because the statute limits such damages to $2,000 per borrower. 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. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). at *5. The denial letters stated that the loan's principal balance exceeded the limit under HAMP. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. (quoting East Tex. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. Life Ins. Nationstar's criticism that Oliver failed to use the correct data field to identify the date when a loss mitigation application was complete, and failed to consider the timing of application relative to the date of scheduled foreclosure sale, ring hollow because Nationstar provided to Oliver only limited data fields, which did not contain clear field names or definitions. Mr. Robinson then submitted another loan modification application on August 25, 2014. Plaintiff and Class Representative Demetrius Robinson, along with Class Counsel Tycko & Zavareei LLP and The Bestor Law Firm, respectfully move this Court for an award of $1,300,000 in reasonable attorneys' fees and expenses, as well as a $5,000 service award for Mr. Robinson. 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. Nationstar will need to enhance its policies and processes around how it handles consumer complaints, performs escrow analyses and conducts audits, for example. Accordingly, Nationstar did not send the Robinsons an acknowledgment letter within five days stating that it had received the application, as required by Regulation X. "If a borrower's complete loss mitigation application is denied for any trial or permanent loan modification option available to the borrower," the servicer must state in the required notice to the borrower "the specific reason or reasons for the servicer's determination for each such trial or permanent loan modification and, if applicable, that the borrower was not evaluated on other criteria." Nationstar has no process for standardizing file names. Reg. Id 1024.41(c)(1). In its Motion to Strike, Nationstar moves to strike the report of the Robinsons' expert witness, Geoffrey Oliver, on the grounds that (1) Oliver was hired pursuant to an ethically improper contingency fee agreement; and (2) his testimony does not meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Robinsons own a business called Green Earth Services, which provides waste and recycling services to clients. 3d at 1014. Throughout discovery, Nationstar repeatedly stated that it could not produce the data on loss mitigation or loan modification applications from its databases in the form requested by the Robinsons. Nationstar's failings resulted in "substantial consumer harm," CFPB Director Kathleen Kraninger said in a statement. 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. The Court will therefore deny the Motion for Summary Judgment as to this argument. HealthSystem, 669 F.3d 802, 812 (7th Cir. Class certification will be granted, with Demetrius Robinson as the named plaintiff, as to both the Nationwide Class and the Maryland Class for the claims under 12 C.F.R. Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ("Regulation X"), 78 Fed. 1024.41 As the Supreme Court noted in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), Daubert "made clear that its list of factors was meant to be helpful, not definitive," and it is not always the case that an expert witness's claim will have been subjected to peer review. See 12 C.F.R. The Robinsons have not made any mortgage payments since January 2014 and have not been assessed any late fees since February 2014. Questions? Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. See Fed. See 12 C.F.R. 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. Ballard v. Blue Shield of S.W. Nationstar asserts that Oliver's testimony should be stricken because this fee arrangement includes an unethical contingency fee. THEODORE D. CHUANG United States District Judge. Where the PaCE consulting fee was a one-time fee to advise the Robinsons in their interactions with Nationstar paid in August 2013, several months before they first submitted the March 2014 loan modification application, this cost was incurred "whether or not [Nationstar] complied with its obligations." But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. R. Civ. Law 13-101 to 13-411 (West 2015). Ins. 1024.41(a). As to the third denial on November 7, 2013, Nationstar informed the Robinsons that the loan modification application was denied because the mortgage loan was not in default. Code Ann., Com. 1024.41(b)(2)(B). 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. Id. May 31, 2016), the plaintiff had signed the deed of trust but not the promissory note but was nevertheless deemed to have standing because she had owned the home with a right of survivorship with her deceased husband, who had signed the note. Thus, a loan servicer could not have complied with Regulation X for a loss mitigation application submitted before January 10, 2014 because there was no regulation in effect with which to comply. MCC JR 530. RESPA's implementing regulations, codified at 12 C.F.R. Campbell v. Nationstar Mortg., 611 F. App'x 288, 297-98 (6th Cir. Code Ann., Com. TDC-14-3667, 2019 WL 4261696 (D. Md. 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. 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. 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." Furthermore, to the extent that the Robinsons' claim is that Nationstar falsely stated that it would evaluate the Robinsons for all available loss mitigation plans, the Robinsons point only to statements in letters that the Robinsons "may" be eligible for certain non-HAMP loan modification programs. 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). See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. 1024.41(c)(1)(i). Joint Record ("MSJ JR") 0102. "We want to hear from you," Raoul says. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. Ohio 2014). Presently pending is Nationstar's Motion for Summary Judgment, Nationstar's Motion to Strike, and the Robinsons' Motion for Class Certification. Mortgage servicers seek government aid as forebearance requests soar, How this 39-year-old earns $26,000 a year in California. It is the plaintiffs who bear the burden of proving their claims. In 2007, Mr. Robinson obtained a loan with the principal amount of $755,000 to refinance the property. 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. Make your practice more effective and efficient with Casetexts legal research suite. An 85-year Harvard study found the No. 222. 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. 12 U.S.C. Fed. 13-316(e)(1). At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. 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. Moreover, the conflict must not be "merely speculative or hypothetical." P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. 1024.41(i). See, e.g. More Information 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. . At this juncture, this allegation plausibly supports a finding of willful noncompliance. 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 settlement in the form of a consent judgment, filed in the U . McLean I, 595 F. Supp. 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. Nationstar's claim that the above-described coding is not dispositive, because an underwriter could subsequently determine that more information was needed after all, is not persuasive. (quoting 7AA Charles Allan Wright et al., Federal Practice and Procedure 1778 (3d ed. Johnson, 374 F. App'x at 873; Keen v. Ocwen Loan Servicing, LLC, No. 2605(f)(1). 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. McLean v. GMAC Mortg. 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. Notably, Oliver's analysis did not consider foreclosure information because the data produced did not include dates of foreclosure sales. Ass'n, 375 F.2d 648, 653 (4th Cir. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. 1024.41(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." For example, Nationstar's own internal procedures reveal that when a loss mitigation application is received, a processor reviews it to determine if all required information and documents have been received, and enters one code, specifically "code HMPC" in LSAMS signifying "Financial Application Complete," and a different code, specifically "code HMPA," signifying "Financial Application Incomplete." When considering whether expert testimony is reliable or should be excluded, the court considers the following factors: "When an expert's report or testimony is 'critical to class certification,'" the district court "must make a conclusive ruling on any challenge to that expert's qualifications or submissions before it may rule on a motion for class certification." 2014))). 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority). For example, since default fees are often paid by sources other than the borrower, such as in a short sale or refinancing, Nationstar challenges Oliver's assessment that fees identified through LSAMS can be deemed to constitute damages from RESPA violations, because the software does not reflect who paid the fee. 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. Wesleyan Coll. Id. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. 2003). See 12 C.F.R. See id. at 983 (quoting 12 U.S.C. Bouchat, 346 F.3d at 522. While the Nationstar employee who conducts the initial processing of an application may refer it to an underwriter based on its facial completeness, the underwriter makes the final determination of whether the application is complete and is responsible for obtaining any additional required documentation. Md. "); cf. See Wirtz, 886 F.3d at 719-20. 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. Code Ann., Com. Reg. Petitioner: NATIONSTAR MORTGAGE, LLC: Respondent: TAMARA ROBINSON and DEMETRIUS ROBINSON: Case Number: 19-379: Filed: September 24, 2019: Court: U.S. Court of Appeals . 12 U.S.C. Gunnells, 348 F.3d at 424 (quoting Amchem, 521 U.S. at 615). Id. LLCNo. Finally, Nationstar argues that summary judgment should be entered on the RESPA claims because the Robinsons cannot establish that they have suffered actual damages as a result of Nationstar's violations of Regulation X. 2605(f)(1)(A)). 2013)). 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. at 983. See Broussard, 155 F.3d at 344.
robinson v nationstar settlement
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