. Id. . 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. 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. 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. 2006). 2006). Law 13-301(1). 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. 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. Reg. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. Section 13-316(c) governs "mortgage servicing" and, among other requirements, provides that a "servicer shall designate a contact to whom mortgagors may direct complaints and inquiries" and that the "contact shall respond in writing to each written complaint or inquiry within 15 days if requested." 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. If the application is denied, a notice to that effect is sent to the borrower. MCC JR 0003. Nationstar Mortgage LLC Filing 18 Robinson et al v. Nationstar Mortgage LLC, No. Day to address discovery issues. 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. Although based on imperfect data, Oliver's expert report reveals that such analysis can substantially address whether Nationstar violated 12 C.F.R. 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. The Court will therefore deny the Motion for Summary Judgment as to this argument. Because of the manner in which class discovery was conducted, see supra part II.A, Oliver did not have access to all of Nationstar's data fields for the representative sample of loans. Baez, 709 F. App'x at 983. Law 13-316(c). Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2010). The Fourth Circuit has stated that 74 members is "well within the range appropriate for class certification," Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. The Robinsons also claim as damages interest overcharges of approximately $141,000. 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 "Nationwide Class" is composed of "[a]ll persons in the United States that submitted a loss mitigation application to Nationstar after January 10, 2014, and through the date of the Court's certification order." See Johnson v. Ocwen Loan Servicing, 374 F. App'x 868, 873 (11th Cir. While Demetrius Robinson did appeal Nationstar's March 15, 2014 offer of an in-house modification, the requirements of subsection (h) were not triggered because the offer was not a denial of a loan modification application. A separate Order shall issue. . Fed. et al (6:21-cv-00380), Oklahoma Eastern District Court, Filed: 12/23/2021 - PacerMonitor Mobile Federal and Bankruptcy Court PACER Dockets . When each event occurseither the mailing of a letter or the changing of a code or substatusthe date is recorded in the databases. Rules Prof'l Conduct 3.4 cmt. 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. Filing fee paid $ 402, Receipt number AOHNDC-10680087. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. Ass'n, 375 F.2d 648, 653 (4th Cir. 2605(f)(1)(A); see 12 C.F.R. . 12 C.F.R. . MCC JR 318, 530-531. 8:2014cv03667 - Document 18 (D. Md. 143. 2014). Thorn v. Jefferson-Pilot Life Ins. Co, 445 F.3d 311, 318 (4th Cir. 2011) ("[T]he possibility that a well-defined class will nonetheless encompass some class members who have suffered no injury . Id. 2014))). "[A]n evaluation of the merits to determine the strength of plaintiffs' case is not part of a Rule 23 analysis." Nationstar further argues that summary judgment must be entered in its favor on the Robinsons' claims under 12 C.F.R. Md. To calculate damages, Oliver stated that he would look to data from the LSAMS application, including data tables that contain fee information, to identify fees that would not have been charged but for Nationstar's various RESPA violations, but that he was not able to evaluate this data in his report because it had not been provided to him. 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. Fed. 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. 2003). Since there is no genuine issue of material fact as to whether Nationstar violated subsection (h), summary judgment will be entered for Nationstar on that claim. 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."). White setting Settlement Conference for 10/3/2023 at 9:00 AM in Chambers, Room 327, US Courthouse, . 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. See Md. 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. 1024.41, a regulation of RESPA that outlines loss mitigation procedures. 1024.41(b)(2)(i)(B) and Md. Docket for Robinson v. Nationstar Mortgage LLC, 8:14-cv-03667 Brought to you by the RECAP Initiative and Free Law Project, a non-profit dedicated to creating high quality open legal information. Class Members included all U.S. consumers who received a robocall on their cell phone from Nationstar between October 2015 and March 2016. A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . Settlement Pool $12,100,000 Settlement Website Nationstar Class Action Settlement Deadline 04/11/2016 Contact Wright et al. HARRISBURG, Pa. (WHTM) Attorney General Josh Shapiro announced Monday, that his office obtained an $86.3 million settlement from Nationstar Mortgage, the country's fourth-largest mortgage . 19-303.4 cmt.3. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. Mot. At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. 1024.41(c)(1)(ii), which requires a servicer to respond to a loan modification application within 30 days of receipt of a complete loss mitigation application and provide notice of appeal rights; 12 C.F.R. 2d 452, 467 (D. Md. The one-time consulting fee was paid in August 2013 to PaCE, a forensic loan auditor, to advise the Robinsons on how to communicate with Nationstar and to handle their loan. . Regulation X, which became effective on January 10, 2014, 78 Fed. In 2020, the Robinsons and Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate "A loss mitigation application is a request from a borrower to change the terms of their payment obligations to avoid delinquency or foreclosure." J.A. In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. 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. Tagatz, 861 F.2d at 1042; cf. 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. While Mr. Robinson signed the promissory note ("the Note"), the deed of trust ("the Deed"), and the balloon payment rider for the 2007 loan, Tamara Robinson ("Mrs. Robinson") signed only the Deed and balloon payment rider and did not sign the Note. After March 2014, Mrs. Robinson was primarily responsible for communicating with Nationstar and PaCE. That is not so here. Notably, Oliver's analysis did not consider foreclosure information because the data produced did not include dates of foreclosure sales. 2013)). Id. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. 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. Back To Top. Code Ann., Com. In analyzing this question, a court compares the class representative's claims and defenses to those of the absent class members, considers the facts needed to prove the class representative's claims, and assesses the extent to which those facts would also prove the claims of the absent class members. 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. loan" did not have standing to bring a RESPA claim); Nelson v. Nationstar Mortg. 1024.41(i). 2017), the United States Court of Appeals for the Eleventh Circuit held that postage costs incurred by the plaintiff to send the "initial request for information is not a cost to the borrower 'as a result of the failure' to comply with a RESPA obligation," because a violation has not occurred and will not "necessarily occur" at the time the plaintiff paid the postage. The commonality requirement is also met. See Robinson v. Nationstar Mortg. Code Ann., Com. Finally, the Court finds that common issues of law and fact predominate. 3d 254, 274-75 (S.D.N.Y. at 248-49. If a class is ascertainable, it must then satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Check out:Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, Don't miss:Amex Blue Cash Preferred is offering an elevated welcome bonus for a limited time, Get Make It newsletters delivered to your inbox, Learn more about the world of CNBC Make It, 2023 CNBC LLC. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Regulation X's effective date reflected "an intent not to apply it to conduct occurring prior to that date." . Although this data was not provided to Oliver, there is no reason it could not be produced and used to make determinations on the timeliness of decisions on loss mitigation applications. Fla. 2009), aff'd, 398 F. App'x 467, 471 (11th Cir. 26-1. 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. Id. DEMETRIUS ROBINSON, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. NATIONSTAR MORTGAGE LLC, Defendant. Law 13-316(c), the Court will grant class certification as to those class members and claims. The public policy interest at issue was one against "stirring up litigation or promoting litigating for the benefit of the promoter rather than for the benefit of the litigant or the public," an interest not implicated in the same manner by the fee arrangement with the particular expert witness in this case. 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). United States v. Valona, 834 F.2d 1334, 1344 (7th Cir. As for the claims of errors in Oliver's analysis, although this criticism is couched as his "misunderstanding the nature of Nationstar's various databases," Nationstar largely challenges Oliver's failure to use particular data fields, some which were never made available to him. 0 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. Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. Nationstar's failings resulted in "substantial consumer harm," CFPB Director Kathleen Kraninger said in a statement. . Nationstar claims that manual review of each file would take about 60 to 90 minutes per file. At a minimum, the question of when a loss mitigation application is "complete" under RESPA within the workflow of Nationstarwhether at the time of the processor's designation of the file as complete or at a later stageis a significant unresolved question of law and fact that would be common to all RESPA claims against Nationstar. Fed. The fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. 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). . Northern District of Ohio, ohnd-1:2021-cv-00452. 2013) (holding that the plaintiff sufficiently pleaded actual injury or loss under the MCPA where he alleged that he suffered "bogus late fees," damage to his credit, and attorney's fees); see also Cole v. Fed'l Nat'l Mortg. "Mortgage servicers are entrusted with handling significant financial transactions for millions of Americans, including struggling homeowners. Previous. 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). 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. 1024.41. 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. Since the Court has already concluded that Nationstar is entitled to summary judgment on the Robinsons' claims under 12 C.F.R. . (quoting East Tex. Thus, Mrs. Robinson is not "obligated" to pay the amount due on the Note and therefore is not a "borrower" for purposes of RESPA. 2605(f)(1). 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. Am. 1024.41(a). For the requirements that hinge on the timing of a communication or response, Oliver's methodology consists of using Nationstar's data from the LSAMS and FileNet software applications relating to a sample of 400 loans to identify the dates when certain events occurredsuch as the filing of a loan modification application, when a loan modification application became complete, and the sending of an acknowledgment or decision letter to a borrowerand then counting the days between the dates to assess whether a RESPA timing requirement was satisfied. According to Nationstar's Underwriting Workflow Procedures, which sets forth the steps followed to review loans for modifications, when a borrower submits a loan modification application, a code is entered into LSAMS and updates the loan's substatus in Remedy Star. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." 2605(f). EQT Prod. McLean II, 398 F. App'x at 471. . The comments to that rule state that the "common law rule in most jurisdictions is . THEODORE D. CHUANG United States District Judge. Code Ann., 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."
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