1024.41(i). 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. The regulation is silent on whether a loss mitigation application submitted before January 10, 2014 could qualify as the "single complete loss mitigation application." 1024.41(b)(2)(B). 1024.41(f), (g), and (h) and Md. See Farber, 2017 WL 4347826 at 15; Billings, 170 F. Supp. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. Nationstar also seeks summary judgment on the Robinsons' claims under the MCPA, which include claims of misleading statements in connection with the collection of consumer debts, in violation of section 13-301(1), (3) and section 13-303(4)-(5) of the MCPA, and claims that Nationstar did not respond to consumer inquiries within 15 days, in violation of section 13-316(c) of the MCPA. These events will be represented by discrete data points in Nationstar's databases, such that these violations may be proved through that data. Id. Certification will also be denied as to the claim under 12 C.F.R. 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."). 12 U.S.C. 2015). 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. Id. See id. 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. Thus, the Court concludes that, while Nationstar may have defenses as to some borrowers, the common proof that establishes the asserted violations, as well as the common question of whether the Robinsons can prove a pattern-or-practice violation by Nationstar, will predominate over the individual issues as to these claims. Portland, OR 97208-3560. Universal Athletic Sales Co. v. Am. 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 first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." Where the Robinsons, after discovery, cannot point to evidence that Nationstar did not even consider or evaluate the Robinsons for loss mitigation options, they have not established the existence of a genuine issue of material fact on the issue of false or misleading statements. The Robinsons do not address this argument in their Opposition. 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." Id. "We want to hear from you," Raoul says. See id. Nationstar denies all allegations of wrongdoing and no judgment or determination of wrongdoing has been made. In Frank v. J.P. Morgan Chase Bank, N.A., No. Johnson, 374 F. App'x at 873; Keen v. Ocwen Loan Servicing, LLC, No. Since Mrs. Robinson may not bring a claim under Regulation X, she may not be a named class representative. 2010) (considering consistency of results that provide finality to the defendant as favoring a finding of superiority). Here, Mrs. Robinson signed the Deed but did not sign the Note. 1024.41(a). R. Civ. R. Civ. 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). P. 23(b)(3). 10696, 10836. Id. 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. The CFPB estimates about 40,000 borrowers were harmed by Nationstar's allegedly unfair and deceptive practices, according to a statement released Monday. 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. Finally, the Court finds that Mr. Robinson will adequately represent the absent class members. 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. 1024.41(c)(1)(ii), which requires a servicer to respond to a completed loan modification application; or Md. All but $28.6 million of its. 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. 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. 2605(f)(1). cause[d] damages retroactively" and "transmogrifie[d]" the costs that predate the RESPA violation into damages. To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder of all members is impracticable." That notice must be provided within 30 days of receiving the complete loss mitigation application. See 12 C.F.R. 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. Regulation X went into effect on January 10, 2014. When those scripts did not produce data that allowed the Robinsons to conduct the sampling, the Magistrate Judge ordered Nationstar on April 3, 2018 to run certain "structural scripts" on two of its four databases. 2601-2617 (2012), specifically RESPA's implementing regulations known as "Regulation X," 12 C.F.R. 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. 12 C.F.R. 19-303.4 cmt.3. "); see also 1 William Rubenstein et al., Newberg on Class Actions 2:3 (5th ed. That is not so here. 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 fee arrangement will be considered as an issue potentially affecting the credibility, rather than the admissibility, of the expert testimony. 1024.41(h)(1), (4). 12 U.S.C. As a result, the Robinsons' claim that Nationstar violated certain Regulation X procedures with respect to their loan modification application and those of the class members. Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. ("Opp'n') 13, ECF No. Congress enacted RESPA to protect consumers from "unnecessarily high settlement charges caused by certain abusive practices" in the real estate mortgage industry, and to ensure "that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process." At least one court has found a similar expert report by Oliver to meet the Daubert standard. 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." HARRISBURG Attorney General Josh Shapiro, as part of a multistate effort, today announced that his office obtained an $86.3 million settlement from Nationstar Mortgage, the country's fourth-largest mortgage servicer. . 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. 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. Nationstar, the fourth-largest mortgage servicer in the U.S., is set to pay $91 million to settle claims brought by the Consumer Financial Protection Bureau and state attorneys general alleging that the company failed to honor mortgage forbearance agreements and unfairly foreclosed on homeowners. Law 13-301 and 303. See Tagatz, 861 F.2d at 1042. Code Ann., Com. 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. Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th 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. A class action may be maintained under Rule 23(b)(3) if common questions of law or fact "predominate over any questions affecting only individual members" and a "class action is superior to other available methods for fairly and efficiently adjudicating the controversy." McLean I, 595 F. Supp. The Robinsons assert that they have suffered damages in the lost opportunity to have their mortgage loan modified and to pursue other loss mitigation options; in the fees, late fees, and interest that Nationstar has assessed since they became delinquent on their loan; in the lost "time and effort" which they expended in "pursuing the loss mitigation process with Nationstar" rather than trying to improve their business; and in administrative costs, including "postage, travel expenses, photocopying, scanning, and facsimile expenses." Code Ann., Com. You will receive no benefits from the Settlement, but will retain any rights you currently have to sue Nationstar about the same claims in this case. This argument runs contrary to the plain language of Nationstar's own procedures, which describe the application as "complete" based on the processor's determination, leading to the referral of the complete package to an underwriter. Sep. 9, 2019). 2605(f), caused by the violation, which likely consist of administrative fees and costs, the individual recovery available for each class member would likely be low, far below the cost of litigating the claims themselves. Mr. Robinson's counsel is experienced in complex civil litigation and class action litigation. Claim Your Cash Every Week! 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. 09-08213, 2011 WL 11651320 (C.D. Robinson, 2015 WL 4994491, at *4 (citing Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 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. . The MCPA prohibits the use of an "unfair or deceptive trade practice" in the "[t]he extension of consumer credit" or "[t]he collection of consumer debts" and provides for a private right of action. Before the error was discovered, Mr. Robinson appealed this offer as insufficient on April 10, 2014. A borrower may enforce violations of these provisions through a private cause of action pursuant to 12 U.S.C. Id. At different stages in the processing of a loan modification application, Nationstar employees enter certain codes into certain databases, and certain information can be stored and accessed through those applications. Gunnells, 348 F.3d at 429 ("[T]he need for individualized proof of damages alone will not defeat class certification."). 1024.1 to 1024.41 and known as "Regulation X," see 12 C.F.R. Mrs. Robinson was the primary point of contact for the Robinsons in interacting with Nationstar. See Stillmock v. Weis Markets, Inc., 385 F. App'x 267, 275 (4th Cir. In their Motion for Class Certification, the Robinsons seek certification of two classes. Id. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. 12 U.S.C. 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. Signed by Judge Theodore D. Chuang on 8/18/2015. Class Certif. Nationstar, the fourth-largest mortgage servicer in the U.S., is set to pay $91 million to settle claims brought by the Consumer Financial Protection Bureau and state attorneys general alleging. They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). According to Nationstar's Underwriting Workflow Procedures, which sets forth the steps followed to review loans for modifications, when a borrower submits a loan modification application, a code is entered into LSAMS and updates the loan's substatus in Remedy Star. PO Box 3560. 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. The Motions are fully briefed, and no hearing is necessary to resolve the issues.