Id. See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. Reg. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." at 983 (quoting 12 U.S.C. A borrower may enforce violations of these provisions through a private cause of action pursuant to 12 U.S.C. When Nationstar received the application, it prevented late fees from being assessed and put a hold on any foreclosure proceedings. 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority). An 85-year Harvard study found the No. Finally, the Court finds that common issues of law and fact predominate. Since the MCPA and Regulation X allow recovery only of "economic damages," Md. 2006). 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. The Class Action Administrator would then begin distribution of the settlement funds. Reg. See 12 C.F.R. 2605(f). Therefore, the Court will grant in part and deny in part the Motion for Class Certification. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d 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. Eligible consumers will be contacted by Nationstar or the settlement administrator about refunds under the settlement. Ask to speak in court about the fairness of the Settlement. That is not so here. "There are going to be a lot of homeowners who need a home loan modification or other assistance," Raoul says. . In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. 1972). TDC-14-3667 (D. Md. Code Ann., Com. But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. Nationstar will need to enhance its policies and processes around how it handles consumer complaints, performs escrow analyses and conducts audits, for example. 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. 15-05811, 2016 WL 3055901 (N.D. Cal. Nationstar Call Settlement Administrator. THEODORE D. CHUANG United States District Judge. 2010). 3d 254, 274-75 (S.D.N.Y. R. Civ. Code Ann., Com. 12 C.F.R. A $3.8 million settlement has been reached in a Nationstar convenience fee class action lawsuit, which claimed that the mortgage lender wrongfully charged convenience fees to their consumers when making payments on past due accounts. In their memorandum in opposition to the Motion for Summary Judgment ("Opposition"), the Robinsons admit that they "do not have evidence that Nationstar dual tracked them" or began foreclosure proceedings while a loan modification application was pending. 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. After attempts to modify the 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. Id. Accordingly, the Motion is denied as to such claims. A fact is "material" if it "might affect the outcome of the suit under the governing law." 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. 2015) Court Description: MEMORANDUM OPINION. Id. The Motion will be granted as to all of Tamara Robinson's claims and as to Demetrius Robinson's claims under 12 C.F.R. If you are a member of the Settlement Class, you must submit a completed Claim Form to receive a payment. Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. But, Nationstar is correct that Owens-Benniefield may 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. RESPA's implementing regulations, codified at 12 C.F.R. Co, 445 F.3d 311, 318 (4th Cir. 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. 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." 1024.41. See Robinson v. Nationstar Mortg. 1024.41(c)(1)(i). 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(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. 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. 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. 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. 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. 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. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. During this period, in August 2013, the Robinsons retained a forensic loan auditor, Professional Compliance Examiners ("PaCE"), and paid it $2,275 to help them communicate with Nationstar. 164. 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. Id. 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. The relevant rule prohibits an attorney from "offer[ing] an inducement to a witness that is prohibited by law." which has the capacity, tendency, or effect of deceiving or misleading consumers." As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. Gunnells, 348 F.3d at 429 ("[T]he need for individualized proof of damages alone will not defeat class certification."). 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. Id. Cent. 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. Since there is no genuine issue of material fact as to whether Nationstar violated subsection (h), summary judgment will be entered for Nationstar on that claim. Wirtz v. Specialized Loan Servicing, LLC, 886 F.3d 713, 719-20 (8th Cir. If a borrower is experiencing issues or not getting the help needed, contact your state attorneys general. Because of the manner in which class discovery was conducted, see supra part II.A, Oliver did not have access to all of Nationstar's data fields for the representative sample of loans. The regulation is silent on whether a loss mitigation application submitted before January 10, 2014 could qualify as the "single complete loss mitigation application." Some of the alleged damages are not supported in law or in fact. While the Nationstar employee who conducts the initial processing of an application may refer it to an underwriter based on its facial completeness, the underwriter makes the final determination of whether the application is complete and is responsible for obtaining any additional required documentation. On September 9, 2014, Nationstar sent Mr. Robinson a letter denying the loan modification application and stating that it could not offer him any modification because his income was not high enough to cover the mortgage payments under any modification option. 1 . 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. Plaintiffs Demetrius and Tamara Robinson (the "Robinsons") have resided in a home in Damascus, Maryland that has been subject to a mortgage loan. 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. 1024.41(c)(1)(i)-(ii), (g). 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. cause[d] damages retroactively" and "transmogrifie[d]" the costs that predate the RESPA violation into damages. 143. 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. 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). As for typicality, the named plaintiff must be "typical" of the class, such that that the class representative's claim and defenses are "typical of the claims or defenses of the class" in that prosecution of the claim will "simultaneously tend to advance the interests of the absent class members." DEMETRIUS ROBINSON and TAMARA ROBINSON, Plaintiffs, v. NATIONSTAR MORTGAGE LLC, Defendant. Furthermore, to the extent that the Robinsons' claim is that Nationstar falsely stated that it would evaluate the Robinsons for all available loss mitigation plans, the Robinsons point only to statements in letters that the Robinsons "may" be eligible for certain non-HAMP loan modification programs. 26-1. Petitioner: NATIONSTAR MORTGAGE, LLC: Respondent: TAMARA ROBINSON and DEMETRIUS ROBINSON: Case Number: 19-379: Filed: September 24, 2019: Court: U.S. Court of Appeals . 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." 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. Id. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Regulation X, which became effective on January 10, 2014, 78 Fed. 1994) (noting that a single common issue is sufficient to meet the commonality requirement). The next day, Nationstar sent a letter noting that the August 25 application had been received and requesting additional information. Cal. R. Civ. In February 2014, after their income had further decreased, the Robinsons ceased making payments on the mortgage loan. . 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. While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. 1024.41(a). Robinson v. Nationstar Mortgage, LLC Complaint with jury demand against Nationstar Mortgage, LLC. 125. 16-0117, 2017 WL 4347826, at *15 (D. Md. 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. An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." 3d 712, 728 (S.D. 2007)), aff'd sub nom. Code Ann., Com. . While several district courts have concluded that loss mitigation applications submitted before Regulation X's effective date do not count as the single application for which a loan servicer must comply with Regulation X, see, e.g., Farber v. Brock & Scott, LLC, No. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. In contrast, Nationstar maintains that there is no way to reliably identify when a loss mitigation application is submitted or complete using codes and status change entries in its existing software, and that the only way to make those determinations is through a file-by-file review. 1024.41(b)(2)(B), which requires that an acknowledgment letter be sent within five days of receipt of a loan modification application; or 12 C.F.R. . On November 21, 2014, the Robinsons filed suit against Nationstar on behalf of themselves and a class of similarly situated individuals nationwide. 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. 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] . R. Civ. A plaintiff has the burden to show that all of the necessary prerequisites for a class action have been met. 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 The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." Although section 13-316 provides a remedy only for economic damages arising from a mortgage servicer's failure to respond to an inquiry, see Md. 2d 452, 467 (D. Md. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. 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. Summ. Portland, OR 97208-3560. See Wirtz, 886 F.3d at 719-20. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. ORDER Scheduling Settlement Conference for Wednesday, October 26, 2016 at 10:30 a.m. Compl. R. Civ. Particularly where a class may be certified even if individualized damages calculations would be necessary, the incomplete nature of the damages analysis does not provide a basis for striking Oliver's expert testimony. EQT Prod. Order, ECF No. 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. Likewise, Oliver's expert report provides no analysis on how Nationstar's databases allow for a systematic determination whether Nationstar failed to inform borrowers of the specific reasons for the servicer's decision to deny each loan modification option, in violation of 12 C.F.R. 15-0925, 2015 WL 5165415, at *4 (D. Md. Every mortgage has a unique loan number that can be used to identify the borrower and the loan in each of the four databases. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database.

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