robinson v nationstar settlement

Gym, Recreational & Athletic Equip. While the particulars of Mr. Robinson's application process will not necessarily prove that Nationstar mishandled the applications of other individual class members, these facts fairly encompass the types of claims that would be brought by the members of the class. Class Certif. 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. 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. 1024.41(h)(1), (4). JA 130. Code Ann., Com. 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." Life Ins. Where a contingency fee arrangement for expert witnesses is not expressly prohibited by the Maryland Rules of Professional Conduct, the Court declines to find that the fee arrangement here constituted an ethical violation. These fees allegedly violated the Fair Debt Collection Practices Act and the Washington state Collection Agency Act. McLean II, 398 F. App'x at 471. Those claims arose from Nationstar's alleged Id. 28, 2017). . at 359-60. Portland, OR 97208-3560. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. The Court will therefore deny the Motion for Summary Judgment as to this argument. R. Civ. "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." See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. Nelson, 2017 WL 1167230, at *3 (collecting cases). 702, 703. The Federal Rules of Evidence do not prohibit these kinds of arrangements. Moreover, Nationstar cites no authority for the proposition that a loss mitigation application would not be deemed "complete" for purposes of RESPA upon such a formal designation, and any rule that would deem such an application incomplete in the event that an underwriter subsequently decided to ask for additional material would be entirely unworkable. 12 U.S.C. Once an underwriter is assigned, that employee double-checks whether the application contains all required documentation and is complete. Id. 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. uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." The ruling serves as a reminder that Florida remains one of the top states for both mortgage fraud and lender errors. or other representation . The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. Hickerson, 882 F.3d at 480 (quoting Cooper, 259 F.3d at 199). RESPA's implementing regulations, codified at 12 C.F.R. 2007)), aff'd sub nom. Order, ECF No. 2d 452, 468 (D. Md. Id. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. Code Ann., Com. See Md. The company has already paid about $57.5 million in restitution to affected consumers, according to the CFPB. 3d at 1014. Local R. 105.6. It does not mount any persuasive attack on Oliver's "principles and methodology," Westberry, 178 F.3d at 261, which largely consisted of counting the number of days between events and reviewing files for a particular loan to determine whether they contained certain standard content. the same interest in establishing the liability of defendants." 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."). In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. 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." Nationstar further argues that summary judgment must be entered in its favor on the Robinsons' claims under 12 C.F.R. 1024.41(a). 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. 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. 2605(f). Nov. 12, 2011), the court held that a plaintiff who signed a deed of trust on a property and was a joint tenant with her son, but did not sign the promissory note, had constitutional standing to bring a RESPA claim because she stood to be injured if a default on her son's loan led to the loss of her equitable interest in the property. Sept. 2, 2015). Nationstar seeks summary judgment on the Robinsons' RESPA claims on the grounds that (1) Mrs. Robinson is not a proper plaintiff because she is not a "borrower" within the meaning of RESPA; (2) RESPA is inapplicable because Nationstar was required to comply with Regulation X only as to the Robinsons' first loss mitigation application; (3) there is no evidence to support a violation of 12 C.F.R. 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. 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. 15-05811, 2016 WL 3055901 (N.D. Cal. Co., 595 F.3d 164, 179-80 (4th Cir. The comments to that rule state that the "common law rule in most jurisdictions is . 2605(f)(1)(A)). 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. 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. 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). Id. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. Furthermore, according to Nationstar, to identify the content of a letter sent to a borrower, the letter itself must be viewed. Marais v. Chase Home Fin., LLC, 24 F. Supp. 2004). 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. 1024.41(a). 2010). Id. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. Id. The Robinsons assert that they have paid a total of $6,147.12 in unspecified fees to Nationstar. Sep. 9, 2019). Id. 2605(f)(2). 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. 1024.41(f), (g), and (h) and Md. If the settlements are approved by the D.C. district court, Nationstar will be required to immediately set aside about $15.6 million to pay borrowers it has not yet remediated. 12 C.F.R. 1994) (noting that a single common issue is sufficient to meet the commonality requirement). Any additional updates will be posted here. For the claims that rely on the timing of a response, Oliver and the Robinsons propose using changes in the Remedy Star substatus or LSAMS codes and documents stored in FileNet to identify the date a loan modification application was received or marked as complete, to identify the date a response was sent, and to count the number of days between events. Furthermore, Nationstar's argument that the Robinsons are not typical largely recycles the same arguments made in the Motion for Summary Judgment. And given that the class includes all borrowers who have submitted an application since January 10, 2014, joinder of all members is eminently impractical. . 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. PO Box 3560. Fed. 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. 125. For the Regulation X provisions that require the servicer to communicate specific information to a borrower, Oliver's methodology involves reviewing a sample of loan files and identifying a specific communication to a borrower based on the file name. Although Nationstar argues that Mr. Robinson has a conflict of interest because he wishes to avoid foreclosure and to delay payments on his mortgage, the record does not reflect that proposition. Under Count I, the Robinsons allege a violation of 12 C.F.R. Delaware Attorney General Kathleen Jennings said the settlements, Several states also fined Nationstar in 2018, Kwame Raoul, attorney general of Illinois, latest research from the Mortgage Bankers Association. Furthermore, determining whether statutory damages are available will require no individualized consideration, because the pattern-or-practice claim "would be based solely on" Nationstar's conduct and can be established through sampling. Nationstar argues that summary judgment should be entered on the Robinsons' MCPA claim under section 13-316 because the Robinsons have not shown that they submitted a complaint or inquiry that triggers a duty to respond. Deiter, 436 F.3d at 466-67. Id. However, the burden is on the plaintiffs to show that other class members exist and that their joinder is impracticable; a court may not rely on mere speculation that numerosity has been satisfied. Indeed, Nationstar does not seriously contest the commonality prong. 2013). 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. 12 U.S.C. Where the results of such an analysis would apply to any individual claim, it would be highly inefficient and wasteful to require duplicative analysis in each such case. 1967). A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. Nationstar also does not argue that the class is not numerous, as there approximately 33,855 members who submitted loss mitigation applications from January 10, 2014 to March 30, 2014. Id. USCA4 Appeal: 21-1087 Doc: 38 Filed: 06/15/2021 Pg: 9 of 33 Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Although similar to Rule 23(a)'s commonality requirement, the test for predominance under Rule 23(b)(3) is "far more demanding" and "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Since Regulation X explicitly does not require a loan servicer to provide a loan modification, the Robinsons' claim that they suffered damages because they did not receive a loan modification is not cognizable under the statute. loan" did not have standing to bring a RESPA claim); Nelson v. Nationstar Mortg. . 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. at 300. Aug. 19, 2015). See 12 C.F.R. The Robinsons' designated expert, Geoffrey Oliver, has offered a methodology for identifying class members and when their rights under RESPA and the MCPA have been violated. Questions? R. Civ. Joint Record ("MCC JR") 0907. Law 13-316(e)(1), and "actual damages," 12 U.S.C. A separate Order shall issue. LLC, No. Id. Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. Discovery Order, ECF No. Nationstar, the fourth-largest mortgage servicer in the U.S., is set to pay $91 million to settle claims brought by the Consumer Financial Protection Bureau and state attorneys general alleging. Sept. 29, 2017); Billings v. Seterus, Inc., 170 F. Supp. Mrs. Robinson was the primary point of contact for the Robinsons in interacting with Nationstar. P. 23(a)(1). Thus, Mrs. Robinson is not "obligated" to pay the amount due on the Note and therefore is not a "borrower" for purposes of RESPA. 15-3960, 2017 WL 623465, at *8 (D. Md. 3d 249, 266 (D. Md. 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. 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. v. Nationstar Mortgage LLC, Case No. See Keen, 2018 WL 4111938, at *5-6. 1972). Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 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. 12 C.F.R. Law 13-316(c). Since the Court already considered and ruled on these issues, see supra part I.B, it will not revisit those arguments here. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. Under the terms of the Settlement, if nothing else occurs in the litigation, then the Settlement will become effective 95 days from the date of that decision by the Court of Appeals. 8:2014cv03667 - Document 18 (D. Md. Corp., 546 F.2d 530, 538-39 (3d Cir. 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 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. 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. See Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) ("When 'one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defense peculiar to some individual class members.'" Moreover, although the court stated that an arrangement for providing expert testimony for a contingent fee would violate public policy, the court did not address the question of the admissibility of evidence at issue here. See Wirtz, 886 F.3d at 719-20. 2016) (dicta). 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. 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). He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. For purposes of ascertainability, the requirements of 12 C.F.R. Nationstar's Motion for Summary Judgment will be granted as to Tamara Robinson. McLean v. GMAC Mortg. 2605(f). J. 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. 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. 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. Since the MCPA and Regulation X allow recovery only of "economic damages," Md. 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. Several states also fined Nationstar in 2018 over failing to have proper procedures in place and "unfair and deceptive" mortgage modification policies. The Robinsons have not made any mortgage payments since January 2014 and have not been assessed any late fees since February 2014. Joint Record ("MSJ JR") 0102. Others, however, have concluded that "all expenses, costs, fees, and injuries fairly attributable to" a servicer's RESPA violation are damages, "even if incurred before the" violation, because the "wrongful act . 1024.41(f), (g), and (h), and Md. See, e.g., Linderman v. U.S. Bank Nat'l Ass'n, 887 F.3d 319, 321 (7th Cir. 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. News Ask a Lawyer Code Ann., Com. Law 13-301(1). Law 13-316(c), which requires a response to a mortgage servicing complaint or inquiry within 15 days. In Washington v. Am. Potentially eligible class members for all of these provisions can be identified through the LSAMS and Remedy data that marks that an application was received, identified as complete, and denied. "We want to hear from you," Raoul says. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. At different stages in the processing of a loan modification application, Nationstar employees enter certain codes into certain databases, and certain information can be stored and accessed through those applications. See, e.g. Id. Fed. See Johnson v. Ocwen Loan Servicing, 374 F. App'x 868, 873 (11th Cir. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. 2605(f)(1)(B), a borrower cannot recover these additional damages "without first recovering actual damages." Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. Baez, 709 F. App'x at 983. 1024.41(f), (g), and (h), and Md. 1024.41(b)(1). On July 17, 2014, Nationstar informed Mr. Robinson by letter that he did not qualify for a HAMP modification and that since the March 14 loan modification offer had not been accepted, it was withdrawn. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). That provision provides, in parallel, that a loan servicer which does not comply with Regulation X is liable "to the borrower." 14-cv-10457, in the U.S. District Court for the Northern District of Illinois, Eastern Division.. Join a Free TCPA Class Action Lawsuit Investigation. 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. Under subsections (f) and (g), a loan servicer is not permitted to begin foreclosure proceedings or move for foreclosure judgment if "a borrower submits a complete loss mitigation application" except in certain circumstances. Nationstar broke that trust by engaging in unfair and deceptive practices," Kraninger added. The lawsuit alleges, however, that Nationstar has not made interest payments to the plaintiffs, nor provided any record that interest was accruing and due to the homeowners, at any time during or after December 1, 2018 to March 22, 2019 or May 1, 2020 through the present. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). Id. 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. 218. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. Wright et al. ORDER Scheduling Settlement Conference for Wednesday, October 26, 2016 at 10:30 a.m. While she is trained as a bookkeeper, at the time of the Robinsons' 2014 application for a loan modification and in the subsequent months, Mrs. Robinson was not employed in any capacity. 2003). The next day, Nationstar sent a letter noting that the August 25 application had been received and requesting additional information. The Robinsons own a business called Green Earth Services, which provides waste and recycling services to clients. 143. v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . Congress enacted RESPA to protect consumers from "unnecessarily high settlement charges caused by certain abusive practices" in the real estate mortgage industry, and to ensure "that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process." 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. Day to address discovery issues. . Code Ann., Com. 2006). Nationstar employees use four software applications and databases to store and track electronic information relating to loans: (1) Loan Services and Accounting Management System ("LSAMS"), Nationstar's primary loan servicing software, which contains data for loans, including the permanent records of the accounting history, communication logs, and letters documented with codes that were sent to the borrower; (2) Remedy Star, Nationstar's proprietary loss mitigation and loan modification management system, which, among other tasks, tracks the status and timeline of a loan modification and links to documents stored in FileNet; (3) LPS Desktop ("LPS"), an application which Nationstar uses to track and manage foreclosure processes and communicate with outside attorneys; and (4) FileNet, a platform that houses PDF images of documents, including letters sent to borrowers by Nationstar. Law 13 . The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. Robinson v. Nationstar Mortgage, LLC 1:2021cv00452 | US District Court for the Northern District of Ohio | Justia Log In Sign Up Find a Lawyer Ask a Lawyer Research the Law Law Schools Laws & Regs Newsletters Marketing Solutions Justia Dockets & Filings Sixth Circuit Ohio Northern District Robinson v. Nationstar Mortgage, LLC Robinson v.

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