They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). Id. See Broussard, 155 F.3d at 344. 1024.41(h)(1), (4). 2d 1360, 1366 (S.D. 12 C.F.R. Md. Plaintiff and Class Representative Demetrius Robinson, along with Class Counsel Tycko & Zavareei LLP and The Bestor Law Firm, respectfully move this Court for an award of $1,300,000 in reasonable attorneys' fees and expenses, as well as a $5,000 service award for Mr. Robinson. Deiter, 436 F.3d at 466-67. See, e.g., Linderman v. U.S. Bank Nat'l Ass'n, 887 F.3d 319, 321 (7th Cir. 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. 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. 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. . See Farmer v. Ramsay, 159 F. Supp. Accordingly, a loan servicer must comply with Regulation X as to the first loss mitigation application submitted after the effective date. Before relating the facts relevant to the Motion for Class Certification, the Court will highlight the relevant procedural history affecting the record before the Court. 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. Hickerson, 882 F.3d at 480 (quoting Cooper, 259 F.3d at 199). Code Ann., Com. 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. See Tagatz, 861 F.2d at 1042. See id. Moreover, the conflict must not be "merely speculative or hypothetical." Since the Court already considered and ruled on these issues, see supra part I.B, it will not revisit those arguments here. Oliver's expert report focuses on the use of Nationstar's internal databases to determine whether Nationstar has systematically failed to comply with various requirements of Regulation X. 2d at 1366. 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. The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Law 13-303(4)-(5), 13-408. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. The Deed specifies that a person who signs it but "does not execute the note" is a co-signer of the Deed in order to mortgage and convey that person's interest in the Property under the terms of the Deed, but "is not personally obligated to pay the sums secured by this Security Instrument," and her consent is not required to alter the terms of the Deed or the Note. 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. 2018). . 1024.41(c)(1)(i) and (d), because the Robinsons made no showing that the Rule 23 requirements were met. Thus, Mrs. Robinson is not "obligated" to pay the amount due on the Note and therefore is not a "borrower" for purposes of RESPA. ("MCC") 2, ECF No. TDC-14-3667 (D. Md. McLean I, 595 F. Supp. 1024.41(f), (g). They have claimed $141,000 in interest; $6,147.12 in fees assessed by Nationstar; $2,275 in consulting fees; $50.58 in administrative costs; and lost time and labor of approximately 120 hours; as well as punitive and statutory damages. All but $28.6 million of its. 19-303.4 cmt.3. The cases cited by the Robinsons do not alter the Court's conclusion. The Court does not find such a prohibition in the Maryland Attorneys' Rules of Professional Conduct. In addition to the fee paid to PaCE, the Robinsons also assert as damages $50.58 in administrative costs, specifically postage fees for sending information relating to their loan modification application to Nationstar, and 120 hours of time expended on the loan modification process. 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." McLean II, 398 F. App'x at 471. 2d 452, 468 (D. Md. 16-0117, 2017 WL 4347826, at *15 (D. Md. 1024.41(c)(1)(i)-(ii), (g). Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. The Court will address the varying claims in turn. Plaintiffs Demetrius and Tamara Robinson (the "Robinsons") have resided in a home in Damascus, Maryland that has been subject to a mortgage loan. Nelson, 2017 WL 1167230, at *3 (collecting cases). 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. 1024.41(h)(1). EQT Prod. 3d 712, 728 (S.D. Indeed, Nationstar does not seriously contest the commonality prong. Petitioner: NATIONSTAR MORTGAGE, LLC: Respondent: TAMARA ROBINSON and DEMETRIUS ROBINSON: Case Number: 19-379: Filed: September 24, 2019: Court: U.S. Court of Appeals . Actual damages may include late fees; denial of credit or access to the full amount of a credit line; out-of-pocket expenses incurred in dealing with a RESPA violation, such as expenses for preparing and copying correspondence; and lost time and inconvenience, including time spent away from employment while preparing correspondence "to the extent it resulted in actual pecuniary loss." News Ask a Lawyer 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. 12 C.F.R. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. 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. 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. 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. or misleading oral or written statement . The Complaint asserts two claims. The next day, Nationstar sent a letter noting that the August 25 application had been received and requesting additional information. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. Id 1024.41(c)(1). 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. Law 13-316(c), which requires a response to a mortgage servicing complaint or inquiry within 15 days. Sept. 2, 2015). The Court will not revisit this determination. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. Based on his experience and review of deposition transcripts of Nationstar employees, Oliver asserts that Nationstar has computerized data from which RESPA violations may be identified, not least because Nationstar must be able to demonstrate its compliance with RESPA to regulators. 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. The Robinsons own a business called Green Earth Services, which provides waste and recycling services to clients. 2012). 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. At this stage of the proceedings, the Court must rely on facts in the record, and not assertions in the pleadings. 2601 et seq. However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. 1024.41(f), (g), and (h) because there is no evidence in the record that Nationstar violated those provisions. A Division of NBC Universal. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." 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. 2003). "We will be watching the mortgage interest industry to ensure they are treating homeowners fairly and fulfilling their obligations.". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Md. 15-0925, 2015 WL 5165415, at *4 (D. Md. That claim will be subject to common proof, namely sampling and analysis of loan files along the lines suggested by Oliver. 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. Signed by Magistrate Judge Jillyn K Schulze on 9/9/2016 . 3d 1011, 1015 (W.D. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. at 152. 120. 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. The fact that Oliver's methodology has not been subjected to peer review and that he has not published any articles about it does not invalidate it. Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority). Distribution of funds to Class Members, however, could not occur because a member of the Class filed an objection to the Settlement and a subsequent appeal to the U.S. Court of Appeals for the Fourth Circuit. In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. Id. 2605(f)(1)(B), a borrower cannot recover these additional damages "without first recovering actual damages." 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. Gunnells, 348 F.3d at 427-28. 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. 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. 2605(f). Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate . Nationstar also allegedly foreclosed on borrowers with pending forbearance applications after promising not to do so and failed to properly handle escrow payments and accounting for homeowners who were in Chapter 13 bankruptcy proceedings. 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 . HealthSystem, 669 F.3d 802, 812 (7th Cir. This abandoned high school was converted into a 31-unit apartment building, number of unlawful practices in handling mortgages following the Great Recession. 15-3960, 2017 WL 623465, at *8 (D. Md. Discovery Order, ECF No. The Robinsons also claim as damages interest overcharges of approximately $141,000. . Subsequent to the Court's approval, one of the objectors to the settlement filed an appeal. Nationstar denies all allegations of wrongdoing and no judgment or determination of wrongdoing has been made. A code is also added to LSAMS to put a hold on foreclosure proceedings. In Washington v. Am. 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. He asserts that damages to borrowers can be calculated based on entries in LSAMS and other data showing that fees were assessed, and that it would be possible to identify which fees would not have been assessed but for a RESPA violation. To the extent that, as Nationstar claims, such a determination could not be fully accomplished through computerized analysis alone, the resources needed to resolve this question would be even greater, such that the importance of having it resolved in a common fashion for all claims would be heightened. 125. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. The record is undisputed that as of September 25, 2017, Nationstar had neither started foreclosure proceedings nor moved for foreclosure judgment on the Robinsons' home. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 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." 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. After attempts to modify their loan failed, the Robinsons filed a Class Action Complaint against Defendant Nationstar Mortgage, LLC ("Nationstar") for alleged violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. Here, even though the Robinsons' March 7, 2014 loss mitigation application was not the Robinsons' first such application, it was their first submitted after the effective date of Regulation X. On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. 1024.41(f), (g), and (h) and Md. 1024.41(b)(1), which requires reasonable diligence in obtaining documents and information to complete a loss mitigation application; and Md. 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. Finally, the Court finds that common issues of law and fact predominate. In Frank v. J.P. Morgan Chase Bank, N.A., No. 2. 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. JA 130. . Claim Your Cash Every Week! While it is not necessary to identify every class member at the time of certification for a class to be "ascertainable," a class cannot be certified if its membership must be determined through "individualized fact-finding or mini-trials." Id. Nationstar argues that it should be granted summary judgment on all of the RESPA claims because Nationstar was required to comply with Regulation X only as to a borrower's first loss mitigation application, and the Robinsons' March 7, 2014 application was not their first loan modification application. Class Certif. Questions? That is not so here. 3d at 1014. According to Oliver, to determine that certain disclosures or specific information were conveyed to borrowers, the "objectid" field used in FileNet can be used to identify the type of letter sent. cause[d] damages retroactively" and "transmogrifie[d]" the costs that predate the RESPA violation into damages. 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. These rights and optionsand the deadlines to exercise themare explained further on the Frequently Asked Questions page of this website and in the Notice. Nationstar will need to enhance its policies and processes around how it handles consumer complaints, performs escrow analyses and conducts audits, for example. In assessing this element, "numbers alone are not controlling" and a district court should consider "all of the circumstances of the case." 1024.41(a). Law 13-316(c). See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. "There are going to be a lot of homeowners who need a home loan modification or other assistance," Raoul says. 1024.41(a). 2002) (affirming without addressing the propriety of the striking of the expert testimony). 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. This is not the first time Nationstar has been the subject of federal and state investigations. 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). The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. The fact that each borrower must individually show damages under 12 U.S.C. Fed. P. 23(b)(3). In this photo illustration, the Nationstar Mortgage Holdings Inc. logo seen displayed on a smartphone. Ballard v. Blue Shield of S.W. at 300. Cal. 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 all of the Rule 23(a) and (b)(3) requirements are met as to a class asserting violations of 12 C.F.R. A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. In addition to the fines and restitution, Delaware Attorney General Kathleen Jennings said the settlements require Nationstar to adhere to increased "servicing standards." . 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. Code Ann., Com. 1024.41(b)(2)(i)(B) and Md. Auto. An "unfair or deceptive" trade practice includes a "false . 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. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49 (2011) ("[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." R. Evid. The Robinsons have not made any mortgage payments since January 2014 and have not been assessed any late fees since February 2014. 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." Your Email Please enter your email. Since Mrs. Robinson may not bring a claim under Regulation X, she may not be a named class representative. If a class is ascertainable, it must then satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. The distinction is crucial. 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. 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. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. . 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. After this missed payment, Nationstar assessed a late fee. 2d 452, 467 (D. Md. 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.