Id. Id. The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. LLCNo. 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." Id. 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. But where the broad methodology is sound, the lack of consideration of unproduced data cannot provide a basis to strike the expert witness's testimony. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. 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. Code Ann., Com. or misleading oral or written statement . Messner v. Northshore Univ. See supra parts I.B.1, I.B.3, I.C.1. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. at 983. Sept. 2, 2015). More importantly, while a determination of an individual violation would not require extensive analysis, specific proof of a pattern or practice of RESPA violations in any individual case would be a substantial undertaking, likely requiring the same type of complex analysis proposed here: a sampling of Nationstar files, compilation of all relevant data for such files, expert analysis to identify violations, and an assessment whether the identified violations are sufficient to establish a pattern or practice of violations. These events will be represented by discrete data points in Nationstar's databases, such that these violations may be proved through that data. "We will be watching the mortgage interest industry to ensure they are treating homeowners fairly and fulfilling their obligations.". Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. Although based on imperfect data, Oliver's expert report reveals that such analysis can substantially address whether Nationstar violated 12 C.F.R. When Nationstar received the application, it prevented late fees from being assessed and put a hold on any foreclosure proceedings. 2d 873, 883 (D. Md. See, e.g., Linderman v. U.S. Bank Nat'l Ass'n, 887 F.3d 319, 321 (7th Cir. 16-0117, 2017 WL 4347826, at *15 (D. Md. 2002), is misplaced. v. Nationstar Mortgage LLC, Case No. at 151. Class Certif. See Robinson v. Nationstar Mortg. The proposed settlement with the CFPB requires Nationstar to pay $73 million in restitution to affected borrowers, as well as a $1.5 million civil penalty to the agency. Thus, the Court concludes that common computerized analysis can largely answer the question of whether Nationstar violated these RESPA provisions with respect to individual borrowers. Id. 2015) Court Description: MEMORANDUM OPINION. v. Windsor, 521 U.S. 591, 623-24 (1997). 1024.41(i). . 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. 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. 2015). 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. the same interest in establishing the liability of defendants." Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 2006). 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. Consumer Financial Protection Bureau and Multiple States Enter into 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. In the Amended Complaint, the Robinsons claim that Nationstar's representations that it offered many loss mitigation plans and "would evaluate" borrowers "for eligibility for all these loss mitigation plans" were false. Because such a common question would have to be resolved in many if not all individual cases, it advances, rather than undermines, the argument in favor of predominance. P. 23(b)(3). 1024.41(i). All but $28.6 million of its. Nationstar has no process for standardizing file names. 12 C.F.R. PO Box 3560. Id. 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." 15-0925, 2015 WL 5165415, at *4 (D. Md. Robinson et al v. Nationstar Mortgage LLC - law360.com R. Civ. She alleges Nationstar was sent multiple disputes by both Experian and Equifax with documentation showing the debt was forgiven, yet Nationstar persisted in reporting the debt as valid. While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. See Tagatz, 861 F.2d at 1042. 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. 1024.41(f), (g), and (h) and Md. Hickerson, 882 F.3d at 480 (quoting Cooper, 259 F.3d at 199). "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. Rule 702 permits an expert to testify if the testimony "will help the trier of fact to understand the evidence or to determine a fact in issue," "is based on sufficient facts or data," and "is the product of reliable principles and methods," and if the expert has "reliably applied the principles and methods to the facts of the case." Universal Athletic Sales Co. v. Am. Since the parties do not argue that the Nationwide Class and the Maryland Subclass differ for the purposes of the class certification analysis, the Court will analyze them together. Furthermore, according to Nationstar, to identify the content of a letter sent to a borrower, the letter itself must be viewed. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. Finally, the Court notes that a decision to certify a class is based on whether or not a putative class satisfies the Rule 23 factors, not on a preliminary assessment of the underlying merits of the claim. Finally, where Nationstar has offered no specific argument in its brief, beyond those addressed above, to refute Oliver's proffered analysis for identifying RESPA violations arising from the failure to notify borrowers of their appeal rights or the failure to exercise diligence in requesting documents based on repeated requests for the same documents, 12 C.F.R. Class Action Claims Nationstar Mortgage Unlawfully Failed to Pay Code Ann., Com. 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. 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. 1 . 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. 17-0982, 2018 WL 4111938, at *5-6 (M.D. 1024.41(h)(1), (4). After they became delinquent on their loan, the Robinsons submitted another loan modification application to Nationstar on March 7, 2014. Rules 19-303.4(b) (2018). The Motion will be otherwise denied. Id. See, e.g., Ward v. Dixie Nat. Fed. 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. From this methodology, Oliver concluded that Nationstar failed to inform borrowers of their appeal rights in 39 percent of the sampled loans and failed to exercise reasonable diligence by improperly requested the same documentation already provided in 18 percent of the loans. 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. On June 16, 2017, the Magistrate Judge bifurcated discovery to focus initially on the merits of the Robinsons' individual claim and the question of class certification, ordered Nationstar to disclose electronic records so that the Robinsons could sample Nationstar's data for purposes of a motion for class certification, and limited the discovery of such records to a sample of 400 loans from the period from January 10, 2014 to June 30, 2014 and "to areas which inform" the Court's decision on class certification, namely whether Nationstar was in compliance with Regulation X. Mot. An "unfair or deceptive" trade practice includes a "false . Between July 2010 and November 2013, the Robinsons submitted and Nationstar denied three applications for a loan modification under the Home Affordable Modification Program ("HAMP"). The fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. Code Ann., Com. On September 9, 2014, Nationstar sent Mr. Robinson a letter denying the loan modification application and stating that it could not offer him any modification because his income was not high enough to cover the mortgage payments under any modification option. THEODORE D. CHUANG United States District Judge. . 2d 452, 468 (D. Md. 3d 254, 274-75 (S.D.N.Y. Robinson v. Nationstar Mortgage, LLC - Justia Dockets & Filings The "Maryland Subclass" consists of "[a]ll persons in the State of Maryland that submitted a loss mitigation application to Nationstar after January 10, 2014, and through the date of the Court's certification order." Although the Robinsons contend that they would have pursued other loss mitigation options in the absence of the RESPA violations, they have not identified any such options in a way that would permit a calculation of damages associated with any lost opportunity. Home Loans, No. Class litigation would also promote consistent results on the common question whether Nationstar engaged in a pattern or practice of violating Regulation X and would provide Nationstar with finality and closure on that issue. 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. 120. 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. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." 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. Robinson v. Nationstar Mortgage, LLC Complaint with jury demand against Nationstar Mortgage, LLC. The predominance and superiority requirements under Rule 23(b)(3) are designed to ensure that the class action "achieve[s] economies of time, effort, and expense, and promote[s] . Discovery Order, ECF No. A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. When those scripts did not produce data that allowed the Robinsons to conduct the sampling, the Magistrate Judge ordered Nationstar on April 3, 2018 to run certain "structural scripts" on two of its four databases. Some courts have held that administrative costs that predate the alleged RESPA violation cannot constitute "actual damages." Thorn v. Jefferson-Pilot Life Ins. The fact that each borrower must individually show damages under 12 U.S.C. Although the parties have not offered specific details on the nature and timing of those costs and fees, it is reasonable to infer that at least some portion of them were incurred after they submitted their March 7, 2014 loan modification application and after Nationstar had violated Regulation X. This field is for validation purposes and should be left unchanged. 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. A plaintiff has the burden to show that all of the necessary prerequisites for a class action have been met. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. Mot. 1024.41(h)(1). 1024.41(b)(1), (b)(2)(i)(B), and (c)(1)(ii) and Md. Indeed, Nationstar does not seriously contest the commonality prong. Any additional updates will be posted here. v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . . 222. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. Here, Mrs. Robinson signed the Deed but did not sign the Note. EQT Prod. 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. If the Court approves the Settlement and it becomes final and effective, and you remain in the Settlement Class, you will receive a payment. P. 23(a)(4); Ward v. Dixie Nat'l Life Ins. Deiter, 436 F.3d at 466-67. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. After this missed payment, Nationstar assessed a late fee. A Division of NBC Universal. at 300. 15-05811, 2016 WL 3055901 (N.D. Cal. 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." Through both a declaration by a Nationstar Vice President of Default Servicing, Brandon Anderson, and an expert report by Stuart D. Gurrea, Nationstar contests Oliver's analysis and endeavors to establish that the only way to identify RESPA violations using Nationstar's data is through a file-by-file review. See 12 C.F.R. He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. 2003) ("[I]f Lierboe has no stacking claim, she cannot represent others who may have such a claim, and her bid to serve as a class representative must fail. PDF In the United States Court of Appeals for the Fourth Circuit 1024.41(c) and (d) impose obligations on a loan servicer once it receives a "complete loss mitigation application" and once the completed application is denied. Nationstar ultimately became the servicer of the Robinsons' loan. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. The Robinsons also claim as damages interest overcharges of approximately $141,000. More Information In contrast, the Court finds that there is a genuine issue of material fact whether the administrative costs and fees incurred by the Robinsons resulted from Nationstar's RESPA violations. 12 U.S.C. at 300. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. 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. P. 23(a)(3); Deiter v. Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. 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. In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. Am. 2605(f)(2). The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." Anderson, 477 U.S. at 248. Fed. The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. 2018); Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 n.4 (11th Cir. Notably, although a borrower may recover up to $2,000 in statutory damages upon a showing of a "pattern or practice of non-compliance with the requirements" of Regulation X, 12 U.S.C. . Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. Nationstar Mortgage Agrees to $91M Settlement with the CFPB 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. Ballard v. Blue Shield of S.W. A $3.8 million settlement has been reached in a Nationstar convenience fee class action lawsuit, which claimed that the mortgage lender wrongfully charged convenience fees to their consumers when making payments on past due accounts. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. Law 13-316(c). Nationstar said in a statement that its settlements were based on "loan-servicing practices" that the company used between 2010 and 2015 and has since discontinued. 1994) (noting that a single common issue is sufficient to meet the commonality requirement). Since Mr. Robinson has the same goal as the other class members of establishing that Nationstar violated Regulation X with respect to his loan, he will adequately protect their interests. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. 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. Gunnells, 348 F.3d at 427-28. 2605(f)(2) is not fatal to the predominance inquiry. Mr. Robinson then submitted another loan modification application on August 25, 2014. Questions? 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." Notably, Oliver's analysis did not consider foreclosure information because the data produced did not include dates of foreclosure sales. The ruling serves as a reminder that Florida remains one of the top states for both mortgage fraud and lender errors. Id. Id. 2005))). See 12 C.F.R. 2605(f)(1). Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. Reg. JA 130. TDC-14-3667, 2019 WL 4261696 (D. Md. 2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). 2012). Co., 595 F.3d 164, 179 (4th Cir. "We want to hear from you," Raoul says. Amchem Prods. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. . 12 U.S.C. These claims do not have to be factually or legally identical, but the class claims should be fairly encompassed by those of the named plaintiffs.