Sept. 9, 2019), there were multiple other claims at issue, for which Oliver's expert report seemed better suited to address. If the application is complete "more than 37 days before a foreclosure sale," the servicer may not move for a foreclosure judgment or conduct a foreclosure sale, but instead must first "[e]valuate the borrower for all loss mitigation options available to the borrower," send to the borrower "a notice in writing stating the servicer's determination of which loss mitigation options, if any, it will offer," and include a statement of applicable appeal rights. 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. After this missed payment, Nationstar assessed a late fee. 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). 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. McLean II, 398 F. App'x at 471. 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. 1024.41(b)(2)(B), which requires that an acknowledgment letter be sent within five days of receipt of a loan modification application; or 12 C.F.R. 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. After an additional period of expert discovery relating to the class certification motion, discovery closed on December 30, 2018. Law 13-316(c). Auto. 1024.41(c)(1)(i). Corp. ("McLean I"), 595 F. Supp. 2014). Because all of the Rule 23(a) and (b)(3) requirements are met as to a class asserting violations of 12 C.F.R. 2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). 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. 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. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. 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. 2605(f)(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. Co., 350 F.3d 1018, 1023 (9th Cir. Co., 595 F.3d 164, 179-80 (4th Cir. Reg. Mortgage servicers seek government aid as forebearance requests soar, How this 39-year-old earns $26,000 a year in California. 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. Since the Court already considered and ruled on these issues, see supra part I.B, it will not revisit those arguments here. 2605(f). Fed. Fed. 1024.41(a). MCC JR 0003. 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. Finally, to the extent that Oliver did not execute his stated methodology for identifying damages, that limitation is again based in part on Nationstar's failure to make relevant data available to him. Feb. 14, 2017) (holding that the plaintiff sufficiently pleaded damages under the MCPA where she alleged that the defendant's failures to respond "resulted in the continual assessment of accruing interest, fees and costs on the mortgage account," as well as "stress, physical sickness, headaches, sleep deprivation, worry, and pecuniary expenses"). An 85-year Harvard study found the No. If a borrower is experiencing issues or not getting the help needed, contact your state attorneys general. The Robinsons and Nationstar then engaged in a series of tortured exchanges over the next several months. 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. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. R. Civ. 1024.41(i). The servicer "is liable for any economic damages caused by the violation." 1967). Code Ann., Com. 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." 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. 1998). See id. v. Windsor, 521 U.S. 591, 623-24 (1997). 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."). James Robinson v. National Student Clearinghouse Toggle navigation Home Commonly Asked Questions Documents The Court approved the settlement at the July 7, 2020 Fairness Hearing. Accordingly, the Motion is denied as to such claims. Law 13-316(c). 1976). 1024.1 to 1024.41 and known as "Regulation X," see 12 C.F.R. Compl. That notice must be provided within 30 days of receiving the complete loss mitigation application. The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. Similarly, since Mr. Robinson has not suffered injury under these provisions, he may not bring those claims on behalf of the class. For the following reasons, the Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART; the Motion to Strike will be DENIED; and the Motion for Class Certification will be GRANTED IN PART and DENIED IN PART. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. 1024.41(a). Filed by Janie Robinson. Contact the Class Action Administrator at 1-855-917-3477 (Toll-Free). In February 2014, after their income had further decreased, the Robinsons ceased making payments on the mortgage loan. . Sept. 2, 2015). 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. Class Certif. 2002), is misplaced. Cent. 1024.41 (2019), and the Maryland Consumer Protection Act ("MCPA"), Md. 2007)), aff'd sub nom. Finally, the Court finds that common issues of law and fact predominate. 12 U.S.C. The Robinsons' Motion for Class Certification will be GRANTED IN PART and DENIED IN PART. 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. Order at 2, ECF No. In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. Id. 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. In their memorandum in opposition to the Motion for Summary Judgment ("Opposition"), the Robinsons admit that they "do not have evidence that Nationstar dual tracked them" or began foreclosure proceedings while a loan modification application was pending. United States v. Valona, 834 F.2d 1334, 1344 (7th Cir. . FCRA). 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." 2d 452, 467 (D. Md. These events will be represented by discrete data points in Nationstar's databases, such that these violations may be proved through that data. application to Nationstar after January 10, 2014, and through the date of the Court's . Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 16-0117, 2017 WL 4347826, at *15 (D. Md. The Motions are fully briefed, and no hearing is necessary to resolve the issues. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. In Frank, due to the state's community property laws, the mortgage was "a community debt," and after her husband died, the plaintiff "was therefore obligated to make the loan payments" because of her interest in the home. Sept. 29, 2017); Billings v. Seterus, Inc., 170 F. Supp. A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. Id. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. Id. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) ("In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met."). 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. See Tagatz, 861 F.2d at 1042. 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. If you are a member of the Settlement Class, you must submit a completed Claim Form to receive a payment. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. 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. 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.