2015) (holding that Regulation X did not apply to loss mitigation applications submitted before the effective date). 2605(f). 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. Since the MCPA and Regulation X allow recovery only of "economic damages," Md. Nationstar to Pay $110 Million to Settle Borrower Claims Law 13-316(c), the Court will grant class certification as to those class members and claims. 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. 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. 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. 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. FCRA). Id. As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. 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. Subsequent Loss Mitigation Application. That is not so here. Code Ann., Com. 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. 15-0925, 2015 WL 5165415, at *4 (D. Md. McAdams v. Nationstar Mortg. The Court will therefore deny the Motion for Summary Judgment as to this argument. "[N]amed class representatives [must] demonstrate standing through a 'requisite case or controversy between themselves personally and defendants,' not merely allege that 'injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" More Information Fed. Eligible consumers will be contacted by Nationstar or the settlement administrator about refunds under the settlement. Before the error was discovered, Mr. Robinson appealed this offer as insufficient on April 10, 2014. The Borrower Payment Amount shall be used: (1) for payments to borrowers who submit claims and are in either or both of the Service Transfer and Property Preservation Populations set forth below; and (2) for reasonable costs and expenses of the Settlement Administrator, including taxes and fees for tax counsel. PDF NATIONSTAR MORTGAGE LLC, D/B/A MR. COOPER, Defendant. PO Box 3560. 2. or other representation . 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. The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. Specifically, the application itself would have to be reviewed to determine when it was stamped as received by Nationstar. 2010). MCC JR 0003. 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. The trial court granted the motion over the Robinsons' objection, noting in its order that Nationstar had now waived its claim for attorney feesthe claim that had been the sole impediment to a final judgment being entered after the trial court granted Nationstar's request to reopen the evidence after entry of the initial final judgment. 2010) (holding that a plaintiff who "was not a borrower or otherwise obligated on the . Mar. 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. Wright et al. 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. Fed. Id. 2605(f)(1). See Wirtz, 886 F.3d at 719-20. Fed. 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. Law 13-316(c), which requires a response to a loan modification application within 15 days. Where such statements in no way promise approval, the Robinsons appear to claim that such statements are false or misleading because Nationstar never intended to, and did not, evaluate the Robinsons for the various loss mitigation options. Nationstar has no process for standardizing file names. Bouchat, 346 F.3d at 522. Code Ann., Com. 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." Id. 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"). Mot. The Robinsons have not made any mortgage payments since January 2014 and have not been assessed any late fees since February 2014. 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. Law 13-303(4)-(5), 13-408. Reg. 2018). 1024.41. 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. It will be otherwise denied. 1024.41(f), (g), and (h), and Md. 2018); Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 n.4 (11th Cir. Id. 20-cv, -2202, 2021 WL 4462909, at *1 (S.D. Portland, OR 97208-3560. After March 2014, Mrs. Robinson was primarily responsible for communicating with Nationstar and PaCE. 12 C.F.R. 1024.41(a). 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. R. Civ. 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."). Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ("Regulation X"), 78 Fed. Under Count I, the Robinsons allege a violation of 12 C.F.R. Gym, Recreational & Athletic Equip. Courts have held that a person who did not sign the promissory note is not a "borrower" for the purposes of RESPA because that individual has not "assumed the loan." 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. On July 16, 2018, the Court affirmed the Magistrate Judge's ruling and required Nationstar to produce all outstanding "records subject to discovery orders." Tenn. Aug. 28, 2018) (holding that a spouse who signed a deed of trust stating that a person who did not sign the promissory note was not obligated on the security instrument, but did not sign the promissory note, was not a borrower under RESPA). Robinson et al v. Nationstar Mortgage LLC - law360.com 1024.41(c)(1)(i). 89, 90, ECF No. 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. See Broussard, 155 F.3d at 344. Robinson v. Nationstar Mortgage, LLC - Justia Dockets & Filings Although she has worked as a bookkeeper for various companies, she was not employed between March and September 2014. Regulation X, which became effective on January 10, 2014, 78 Fed. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. Campbell v. Nationstar Mortg., 611 F. App'x 288, 297-98 (6th Cir. UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND. 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. 10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. Where Accrued Financial addresses a different scenario with a different remedy, the Court does not find that it requires that the testimony of an expert witness paid on contingency fee basis must be excluded. 1024.41(c)(1)(ii), 1024.41(b)(1), the Court concludes that common computerized analysis will substantially advance the resolution of such claims, even if not entirely eliminating the need for reviewing certain specific file documents. 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. Md. Petitioner: NATIONSTAR MORTGAGE, LLC: Respondent: TAMARA ROBINSON and DEMETRIUS ROBINSON: Case Number: 19-379: Filed: September 24, 2019: Court: U.S. Court of Appeals . See id. A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). The distinction is crucial. 2004). Since it is the plaintiff's burden to establish that the requirements of Rule 23 have been met and Mr. Robinson has failed to do so, the Motion for Class Certification will be denied as to any claims that Nationstar violated 12 C.F.R. PDF United States District Court Middle District of Florida Tampa Division The Class Action Administrator would then begin distribution of the settlement funds. 2605(f), is common question of law and fact that Mr. Robinson and the class members would all be required prove in their individual cases in order to qualify for statutory damages. 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. 12 C.F.R. 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. 1024.41(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. Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. In addition, Nationstar asserts that not all loan modification applications referred to an underwriter are complete. Sept. 9, 2019), there were multiple other claims at issue, for which Oliver's expert report seemed better suited to address. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. 2601(a). Law 13-316(c) are triggered upon the submission of a loss mitigation application, while 12 C.F.R. 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. R. Evid. If the loan servicer denies a loan modification application where the complete application was received more than 90 days before a foreclosure sale, the servicer must allow the borrower to appeal and must respond to the appeal within 30 days of receiving it by stating in writing whether the appeal was granted and a loan modification will be offered. 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. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. at 983. cause[d] damages retroactively" and "transmogrifie[d]" the costs that predate the RESPA violation into damages. 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. 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. 1972). Law 13-316(c). 164. Cal. If the application is denied, a notice to that effect is sent to the borrower. 15-3960, 2017 WL 623465, at *8 (D. Md. 1024.41(b)(2)(i)(B), which requires that an acknowledgment letter be sent within five days of receipt of a loss mitigation application; 12 C.F.R. Id. These letters are based on standard Nationstar templates, and the code reflects the type of letter sent. From this approach, Oliver concluded that for approximately 60 percent of the sampled loans, Nationstar failed to comply with the requirement that it inform the borrower of loss mitigation application determination within 30 days of receiving a complete application. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. Robinson v. Nationstar Mortgage, LLC: Complaint with jury demand Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. Plaintiffs Demetrius and Tamara Robinson (the "Robinsons") have resided in a home in Damascus, Maryland that has been subject to a mortgage loan. See Fed. Day to address discovery issues. Co., 595 F.3d 164, 179-80 (4th Cir. 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. LLCNo. Universal Athletic Sales Co. v. Am. To prepare his expert report, Oliver reviewed a randomly selected sample of 400 loans serviced by Nationstar in which a loan modification application was submitted. They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. Code Ann., Com. Summ. 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." All but $28.6 million of its. The Motion will be otherwise denied. McLean v. GMAC Mortg. Accordingly, a loan servicer must comply with Regulation X as to the first loss mitigation application submitted after the effective date. 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. 1024.41(i). 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. . A fact is "material" if it "might affect the outcome of the suit under the governing law." P. 23(b)(3). the same interest in establishing the liability of defendants." Reg. Law 13-301 and 13-303, and that Mr. Robinson therefore may not assert such claims on behalf of the class, Mr. Robinson's remaining claims and defenses are typical of the class members. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. Part 1024). 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. Local R. 105.6. After they became delinquent on their loan, the Robinsons submitted another loan modification application to Nationstar on March 7, 2014. 1024.41(f), (g), and (h) and Md. 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." 2013)). 1024.41(f), (g), and (h); and (4) there is no evidence of actual damages from any RESPA violation. 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. This abandoned high school was converted into a 31-unit apartment building, number of unlawful practices in handling mortgages following the Great Recession. Code Ann., Com. All Rights Reserved. THEODORE D. CHUANG United States District Judge. Nationstar broke that trust by engaging in unfair and deceptive practices," Kraninger added. Ins. 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. 12 U.S.C. 12 U.S.C. Maryland's Commissioner of Financial Regulation Announces Settlement 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. See, e.g. 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. 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." Indeed, Nationstar does not seriously contest the commonality prong. at 300. After this missed payment, Nationstar assessed a late fee. Deiter, 436 F.3d at 466-67. 1024.41(a). The Court will not revisit this determination. "); cf. 2015) Court Description: MEMORANDUM OPINION. 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"). AG Shapiro Secures $2.75 Million for Pennsylvania Mortgage Loan Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. MCC JR 318, 530-531. 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. 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. Since Mrs. Robinson may not bring a claim under Regulation X, she may not be a named class representative. Reg. 2d at 1366. Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. 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." 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. Id. Opp'n Mot. Accordingly, the Motion is denied as to such claims. 2017) (holding that "incidental costs related to the sending of correspondence" to the servicer, including "postage and travel," are not actual damages under RESPA because such a rule "would transform virtually all unsatisfactory borrower inquiries into RESPA lawsuits"). "We want to hear from you," Raoul says. The Class is represented by Rafey S. Balabanian of Edelson PC. 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. 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The language of the regulation states not that a loan servicer must comply with Regulation X's requirements only for a borrower's first loss mitigation application, but that a loan servicer must "comply with the requirements" only "for a single complete loss mitigation application." P. 23(a)(1). However, if the costs are shown to have been incurred in response to the RESPA violation, the Court finds that they would be actual damages within the meaning of 12 U.S.C. . An 85-year Harvard study found the No. 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. Robinson v. Nationstar Mortg. LLC | 2015 WL 4994491 | D. Md. | Judgment Law 13-316(e)(1), and "actual damages," 12 U.S.C. 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] . 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. 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. PDF In the United States Court of Appeals for the Fourth Circuit Thus, based on his report and experience, Oliver concludes that Nationstar "failed to comply" with Regulation X and that it is possible to "identify violations" of Regulation X "using the methodologies" he described, without the necessity of a file-by-file review. Filing fee paid $ 402, Receipt number AOHNDC-10680087. 8:2014cv03667 - Document 18 (D. Md. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). The fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. Wesleyan Coll. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. A settlement has been reached in a class action lawsuit alleging Nationstar Mortgage LLC ("Nationstar" or "Defendant") violated the Real Estate Settlement Procedures Act ("RESPA") by failing to adhere to its requirements with respect to its customers' loss mitigation applications and that Nationstar violated Maryland law by not timely responding 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.

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