robinson v nationstar settlement
1024.41(a). The public policy interest at issue was one against "stirring up litigation or promoting litigating for the benefit of the promoter rather than for the benefit of the litigant or the public," an interest not implicated in the same manner by the fee arrangement with the particular expert witness in this case. "We want to hear from you," Raoul says. 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."). Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. R. Evid. 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. See 12 C.F.R. While Mr. Robinson signed the promissory note ("the Note"), the deed of trust ("the Deed"), and the balloon payment rider for the 2007 loan, Tamara Robinson ("Mrs. Robinson") signed only the Deed and balloon payment rider and did not sign the Note. Law 13-303(4)-(5), 13-408. To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder of all members is impracticable." 1024.41 (2019), and the Maryland Consumer Protection Act ("MCPA"), Md. The Robinsons, however, have not identified any evidence that Nationstar did not intend to, and did not, conduct such evaluations. 2605(f)(1)(A); see 12 C.F.R. 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. Campbell v. Nationstar Mortg., 611 F. App'x 288, 297-98 (6th Cir. Corp. ("McLean I"), 595 F. Supp. Deiter, 436 F.3d at 466-67. 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. 2012). A borrower may enforce violations of these provisions through a private cause of action pursuant to 12 U.S.C. 14-3667, 2015 WL 4994491, at *1-2 (D. Md. 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. 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. . To establish an MCPA violation under this provision, a plaintiff must establish that (1) the defendant engaged in an unfair or deceptive practice or misrepresentation; (2) the plaintiff relied upon the representation; and (3) doing so caused the plaintiff actual injury. Law 13-316(c), which requires a response to a loan modification application within 15 days. 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"). Rather than rendering the testimony inadmissible, the fee arrangement is relevant to the expert's credibility. . Gym, Recreational & Athletic Equip. 2601(a). 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. 12 U.S.C. "[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.'" 2605(f). Finally, a loan servicer "is only required to comply with the requirements" of section 1024.41 "for a single complete loss mitigation application for a borrower's mortgage loan account." . On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. A servicer that fails to comply with Regulation X is liable for "any actual damages to the borrower as a result of the failure" to comply. 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. See Tagatz, 861 F.2d at 1042. The Complaint asserts two claims. 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. Filed by Janie Robinson. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. Some courts have held that administrative costs that predate the alleged RESPA violation cannot constitute "actual damages." 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. . Any additional updates will be posted here. 2010). 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. Because all of the Rule 23(a) and (b)(3) requirements are met as to a class asserting violations of 12 C.F.R. Claim Your Cash Every Week! Id. The distinction is crucial. 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. 3d 254, 274-75 (S.D.N.Y. Rules 19-303.4(b) (2018). This field is for validation purposes and should be left unchanged. 1024.41(i). In this photo illustration, the Nationstar Mortgage Holdings Inc. logo seen displayed on a smartphone. Robinson, 2015 WL 4994491, at *4 (citing Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. Nationstar's reliance on Accrued Financial Services v. Prime Retail, Inc., 298 F.3d 291 (4th Cir. . The economic challenges and burdens that homeowners currently face are similar to the ones experienced following the Great Recession. However, Nationstar did not comply with all requirements of Regulation X, which became effective on January 10, 2014. The Court may rely only on facts supported in the record, not simply assertions in the pleadings. 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.'" The comments to that rule state that the "common law rule in most jurisdictions is . "Since then, we have continued to invest in technology, people, and leadership to ensure that our compliance and risk management programs not only meet our regulators' expectations but also support sustainable growth and maintain our position as an industry leader.". A fact is "material" if it "might affect the outcome of the suit under the governing law." Certification will not be granted as to the claims under 12 C.F.R. Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. Although she has worked as a bookkeeper for various companies, she was not employed between March and September 2014. USCA4 Appeal: 21-1087 Doc: 38 Filed: 06/15/2021 Pg: 9 of 33 Compl. 1024.41(a). Filing fee paid $ 402, Receipt number AOHNDC-10680087. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). 1024.41(f), (g), and (h) and Md. The Motion will be otherwise denied. 19-303.4 cmt.3. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. 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. The servicer "is liable for any economic damages caused by the violation." Anderson, 477 U.S. at 248. The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. 1024.41(f), (g), and (h), and Md. 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. 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. 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. ORDER Scheduling Settlement Conference for Wednesday, October 26, 2016 at 10:30 a.m. Ballard v. Blue Shield of S.W. 12 U.S.C. Amchem Prods. Many impacted consumers have already received refunds and more will be contacted by the settlement administrator in the coming weeks. The plaintiff's claim "cannot be so different from the claims of absent class members that their claims will not be advanced by" proof of the plaintiff's own individual claim. Regulation X went into effect on January 10, 2014. 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." 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. "); cf. Summ. 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. Code Ann., Com. 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. See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. Class certification will be granted, with Demetrius Robinson as the named plaintiff, as to both the Nationwide Class and the Maryland Class for the claims under 12 C.F.R. See id. Law 13-316(c). 12 C.F.R. 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. 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." 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. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. 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. 2003). The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. Joint Record ("MCC JR") 0907. See 12 C.F.R. Code Ann., Com. The ruling serves as a reminder that Florida remains one of the top states for both mortgage fraud and lender errors. . Relevant factual and procedural background is set forth in the Court's prior Memorandum Opinion granting in part and denying in part Nationstar's partial Motion to Dismiss. 1024.41(b)(1). 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. Accordingly, Nationstar's Motion for Summary Judgment will be granted as to the MCPA claims under sections 13-301 and 13-303. Class Cert. . FCRA). loan" did not have standing to bring a RESPA claim); Nelson v. Nationstar Mortg. From January 2012 to December 2016, the CFPB and 50 state attorneys general claim Nationstar, which is now doing business asMr. Cooper, engaged in a number of unlawful practices in handling mortgages following the Great Recession. Plaintiffs Demetrius and Tamara Robinson (the "Robinsons") have resided in a home in Damascus, Maryland that has been subject to a mortgage loan. Under a provision of Regulation X entitled "Loss mitigation procedures," mortgage servicers must take certain steps when a borrower applies for loss mitigation measures, such as the loan modifications sought in this case. 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. The Class Action Administrator would then begin distribution of the settlement funds. A separate Order shall issue. 2605(f)(2); Wirtz, 886 F.3d at 719-20, that the individualized damages inquiry would need to precede the award of statutory damages based on a finding of a pattern-or-practice of RESPA violations is a distinction without a difference: whether individual damages are shown before or after the pattern-or-practice liability, the common issues of liability predominate over the individualized questions of damages. The CFPB estimates about 40,000 borrowers were harmed by Nationstar's allegedly unfair and deceptive practices, according to a statement released Monday. 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. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. Universal Athletic Sales Co. v. Am. Rules Prof'l Conduct 3.4 cmt. 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). 2605(f)(1). Md. . Sept. 29, 2017); Billings v. Seterus, Inc., 170 F. Supp. Date: September 9, 2019, Civil Action No. 2d at 1366. 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. at 359-60. 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. which has the capacity, tendency, or effect of deceiving or misleading consumers." The loan is then evaluated for loan modification options. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. 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. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). R. Civ. 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. 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. 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. Summary judgment will therefore be entered for Nationstar on the claims that Nationstar violated subsections (f) and (g). He asserted that the amount of fees was calculated based on Nationstar's statements, but he could not specify the nature of the fees. "There are going to be a lot of homeowners who need a home loan modification or other assistance," Raoul says. 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. Since the MCPA and Regulation X allow recovery only of "economic damages," Md. Code Ann., Com. 2013)). 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. A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . at 152. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. After this missed payment, Nationstar assessed a late fee. 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. Law 13-316(c), the Court will grant class certification as to those class members and claims. Robinson v. Nationstar Mortgage, LLC Complaint with jury demand against Nationstar Mortgage, LLC. More Information See id. The regulation is silent on whether a loss mitigation application submitted before January 10, 2014 could qualify as the "single complete loss mitigation application." At this juncture, this allegation plausibly supports a finding of willful noncompliance. A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. Commonality requires that a class have "questions of law or fact common to the class" which are capable of classwide resolution, such that the determination of the truth or falsity of the common issue "will resolve an issue that is central to the validity of each one of the claims in one stroke." While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. The Court will not revisit this determination. Proof of these claims requires a showing of the dates that an application was received, an acknowledgment letter was sent, an application became complete, Nationstar sent a decision letter to the borrower, and a foreclosure sale is scheduled. 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. Ohio 2014). 2d 452, 467 (D. Md. 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. Order, ECF No. The Court will therefore deny the Motion for Summary Judgment as to this argument. Fed. 2018); Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 n.4 (11th Cir. 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. 1024.1, prescribe additional duties and responsibilities of mortgage servicers under RESPA. On May 5, 2014, Nationstar asked the Robinsons for additional information to evaluate the appeal, including documents to verify their income. Several states also fined Nationstar in 2018 over failing to have proper procedures in place and "unfair and deceptive" mortgage modification policies. The Federal Rules of Evidence do not prohibit these kinds of arrangements. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. Code Ann., Com. Gunnells, 348 F.3d at 424 (quoting Amchem, 521 U.S. at 615). . 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. 09-08213, 2011 WL 11651320 (C.D. Id. Nationstar's criticism that Oliver failed to use the correct data field to identify the date when a loss mitigation application was complete, and failed to consider the timing of application relative to the date of scheduled foreclosure sale, ring hollow because Nationstar provided to Oliver only limited data fields, which did not contain clear field names or definitions. R. Civ. 2010). In its complaint, filed in federal district court in the District of Columbia, the Bureau alleges that Nationstar engaged in unfair and deceptive acts and practices in violation of the Consumer Financial Protection Act of 2010, violated the Real Estate Settlement Procedures Act (RESPA), and violated the Homeowner's Protection Act of 1998 (HPA). 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"). 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. Neither the rule nor the comment, however, state whether Maryland is one such jurisdiction. 12 U.S.C. Life Ins. 1024.41(h)(1), (4). He was retained by the Robinsons under an arrangement through which he is to be paid a flat fee of $125,000: $62,500 up front, with an additional $62,500 to be paid if a class is certified in this case. See MCC JR0529-31. Before the error was discovered, Mr. Robinson appealed this offer as insufficient on April 10, 2014. At least one court has found a similar expert report by Oliver to meet the Daubert standard. Gunnells, 348 F.3d at 427-28. is generally unproblematic as the non-injured parties can just be sorted out at the remedies phase of the suit."). Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 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. 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 to its customers mortgage servicing complaints. The relevant rule prohibits an attorney from "offer[ing] an inducement to a witness that is prohibited by law." Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. . Law 13-316(c). 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.
