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. If a class is ascertainable, it must then satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. 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. 2016) (dicta). 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. 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, 861 F.2d at 1042; cf. Nationstar argues that summary judgment should be granted against Mrs. Robinson because she is not a "borrower" within the meaning of RESPA. 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. 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. Law 13-316(c), the Court will grant class certification as to those class members and claims. 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. In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. 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. Corp. ("McLean I"), 595 F. Supp. On May 5, 2014, Nationstar asked the Robinsons for additional information to evaluate the appeal, including documents to verify their income. R. Evid. 1024.41 (2019), and the Maryland Consumer Protection Act ("MCPA"), Md. Moreover, whether Nationstar engaged in a "pattern or practice" of Regulation X violations, within the meaning of 12 U.S.C. Parties, docket activity and news coverage of federal case Robinson et al v. Nationstar Mortgage LLC, case number 8:14-cv-03667, from Maryland Court. Id. More Information 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. Corp., 546 F.2d 530, 538-39 (3d Cir. (2012), and the Maryland Consumer Protection Act ("MCPA"), Md. Thus, Mrs. Robinson is not "obligated" to pay the amount due on the Note and therefore is not a "borrower" for purposes of RESPA. See Tagatz, 861 F.2d at 1042. Order, ECF No. 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. Id. or misleading oral or written statement . Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. All but $28.6 million of its. 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. WASHINGTON, D.C. The Consumer Financial Protection Bureau (CFPB) today ordered Nationstar Mortgage LLC to pay a $1.75 million civil penalty for violating the Home Mortgage Disclosure Act (HMDA) by consistently failing to report accurate data about mortgage transactions for 2012 through 2014. Law 13 . The Robinsons own a business called Green Earth Services, which provides waste and recycling services to clients. "When these issues were identified several years ago, we immediately made restitution to our impacted customers and invested in process improvements to prevent reoccurrence," Jay Bray, CEO and chairman of Mr. Cooper said in a statement Monday. A fact is "material" if it "might affect the outcome of the suit under the governing law." Nationstar Mortgage LLC v. Demetrius Robinson Accordingly, a loan servicer must comply with Regulation X as to the first loss mitigation application submitted after the effective date. 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. 120. Date: September 9, 2019, Civil Action No. 2011) ("[T]he possibility that a well-defined class will nonetheless encompass some class members who have suffered no injury . 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. Robinson v. Nationstar Mortgage LLC (8:14-cv-03667) 2014))). Nationstar's Motion for Summary Judgment will be granted as to Tamara Robinson. AG Shapiro Secures $2.75 Million for Pennsylvania Mortgage Loan 1024.41(d). 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. 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. Code Ann., Com. Make your practice more effective and efficient with Casetexts legal research suite. Gym, Recreational & Athletic Equip. Joint Record ("MSJ JR") 0102. . Ohio 2014). P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). 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. MSJ JR 0284. MCC JR 0003. Code Ann., Com. Code Ann., Com. 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. 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. Robinson et al v. Nationstar Mortgage LLC, No. Opp'n Mot. See Stillmock v. Weis Markets, Inc., 385 F. App'x 267, 275 (4th Cir. 12 C.F.R. TDC-14-3667 (D. Md. If the Court approves the Settlement and it becomes final and effective, and you remain in the Settlement Class, you will receive a payment. The Robinsons' designated expert, Geoffrey Oliver, has offered a methodology for identifying class members and when their rights under RESPA and the MCPA have been violated. Additional facts relevant to the pending motions are set forth below. In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. Robinson v. Nationstar Mortg. LLC - Casetext 1024.41(c)(1)(i). The entry under "objected" acts as a unique identifier for an electronic file, but it does not contain information about the file's substance and could in fact contain multiple submissions or documents relating to one borrower. Law 13-301 and 303. See Fed. Nationstar Call Settlement Administrator. 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. 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. 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. 2605(f)(1). 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. that it is improper to pay an expert witness a contingent fee." Id. Life Ins. 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. (quoting East Tex. 3d 712, 728 (S.D. 1 . Order at 2, ECF No. Fed. 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. 2. 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. Fed. According to Oliver, if he used incorrect data, that was a result of the limited data fields and definitions provided to him. The fact that each borrower must individually show damages under 12 U.S.C. See id. 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." See Tyson Foods, 136 S. Ct. at 1046-47 (holding that representative sampling was a permissible method to prove whether time spent donning and doffing gear resulted in violations of the Fair Labor Standards Act). 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. Ballard v. Blue Shield of S.W. Joint Record ("MCC JR") 0907. The loan is then evaluated for loan modification options. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." P. 23(a)(1). Mr. Robinson's counsel is experienced in complex civil litigation and class action litigation. Instead, the Robinsons assert that Nationstar has not affirmatively proven that it conducted such reviews. 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. Law 13-301(1). Since the Court already considered and ruled on these issues, see supra part I.B, it will not revisit those arguments here. at *2. First, Nationstar correctly notes that Mr. Robinson, in his Motion, and Oliver, in his expert report, do not put forward any evidence establishing that the necessary prerequisites for a class action have been met with respect to the claim that Nationstar did not evaluate borrowers "for all loss mitigation options available to the borrower," in violation of 12 C.F.R. R. Evid. Lembach v. Bierman, 528 F. App'x 297 (4th Cir. If the application is denied, a notice to that effect is sent to the borrower. Code Ann., Com. 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." Rather than striking the testimony, the Court may need to consider permitting supplemental discovery to correct for the lack of relevant data not previously made available to Oliver. See McGraw, 646 F.2d at 176. 2013) (holding that the plaintiff sufficiently pleaded actual injury or loss under the MCPA where he alleged that he suffered "bogus late fees," damage to his credit, and attorney's fees); see also Cole v. Fed'l Nat'l Mortg. Id. 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. Id. Law 13-316(c) are triggered upon the submission of a loss mitigation application, while 12 C.F.R. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But see Sutton v. CitiMortgage, Inc., 228 F. Supp. But see Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 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. is generally unproblematic as the non-injured parties can just be sorted out at the remedies phase of the suit."). Mr. Robinson then submitted another loan modification application on August 25, 2014. Claim Your Cash Every Week! 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.'" From January 2014 to the present, the Robinsons have not pursued other loss mitigation options, such as a short sale. R. Civ. Reg. For the requirements that hinge on the timing of a communication or response, Oliver's methodology consists of using Nationstar's data from the LSAMS and FileNet software applications relating to a sample of 400 loans to identify the dates when certain events occurredsuch as the filing of a loan modification application, when a loan modification application became complete, and the sending of an acknowledgment or decision letter to a borrowerand then counting the days between the dates to assess whether a RESPA timing requirement was satisfied. 2605(f). See 12 C.F.R. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. Id 1024.41(c)(1). 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. 125. Because Oliver analyzed proprietary databases and data specifically disclosed for this litigation pursuant to a protective order, such that Oliver's peers lack access to the same information, Oliver's expert testimony is not of the type that ordinarily would be subject to peer review, and it would be unfair to require "general acceptance within a relevant scientific community." USCA4 Appeal: 21-1087 Doc: 38 Filed: 06/15/2021 Pg: 9 of 33 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). See supra parts I.B.1, I.B.3, I.C.1. at 152. The Court will not revisit this determination. "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.". Petitioner: NATIONSTAR MORTGAGE, LLC: Respondent: TAMARA ROBINSON and DEMETRIUS ROBINSON: Case Number: 19-379: Filed: September 24, 2019: Court: U.S. Court of Appeals . Nelson, 2017 WL 1167230, at *3 (collecting cases). Instead, he analyzed certain data fields that were returned by the scripts written by a different expert. The Robinsons do not address this argument in their Opposition. 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. Rather than rendering the testimony inadmissible, the fee arrangement is relevant to the expert's credibility. 2605(f)(2), "Rule 23 contains no suggestion that the necessity for individual damage determinations destroys commonality, typicality, or predominance, or otherwise forecloses class certification." 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. v. Windsor, 521 U.S. 591, 623-24 (1997). 1987) (holding, in the context of an informant who is paid a contingent fee, that the fee should be treated "as a credibility factor"). 218. 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. Deiter, 436 F.3d at 466-67. 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. 15-0925, 2015 WL 5165415, at *4 (D. Md. 12 C.F.R. Because there are, at a minimum, disputed issues of fact as to what fees, administrative costs, and interest constitute damages, the Court will deny the motion for summary judgment on the issue of actual damages. 2605(f). Nationstar to pay $91 million to settle claims of it harmed - CNBC McLean v. GMAC Mortg. 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 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. They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. LLC, No. Subscribe to our free newsletter right now. Cf. 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." 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. At this juncture, this allegation plausibly supports a finding of willful noncompliance. In Robinson v. Nationstar Mortgage LLC, No. . Aug. 19, 2015). 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." at 983 (quoting 12 U.S.C. Although Monday's case specifically addresses Nationstar's actions following the Great Recession, the outcome can affect today's homeowners, says Kwame Raoul, attorney general of Illinois. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Fed. Id. 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. As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. 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. Accordingly, the Motion is denied as to such claims. "We will be watching the mortgage interest industry to ensure they are treating homeowners fairly and fulfilling their obligations.". 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. Universal Athletic Sales Co. v. Am. Rule 702 permits an expert to testify if the testimony "will help the trier of fact to understand the evidence or to determine a fact in issue," "is based on sufficient facts or data," and "is the product of reliable principles and methods," and if the expert has "reliably applied the principles and methods to the facts of the case." Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate . After an additional period of expert discovery relating to the class certification motion, discovery closed on December 30, 2018. Fla. 2009), aff'd, 398 F. App'x 467, 471 (11th Cir. JA 130. The Final Approval Order, approving the Class-wide Settlement, was entered December 11, 2020. Moreover, although the court stated that an arrangement for providing expert testimony for a contingent fee would violate public policy, the court did not address the question of the admissibility of evidence at issue here. Class Certif. Id. Indeed, Nationstar does not seriously contest the commonality prong. Nationstar Mortgage TCPA Class Action Settlement 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. See id. (2000) (reflecting that the prior version of the rules of professional conduct prohibited an attorney from "acquiesc[ing] in the payment of compensation to a witness contingent on the content of his testimony or the outcome of the case"). The Robinsons have not made any mortgage payments since January 2014 and have not been assessed any late fees since February 2014. For example, in EQT, the court concluded that a proposed class of all individuals who owned an interest in a gas estate was not ascertainable because the actual owners could be determined only through an individualized review of land records. Co., 350 F.3d 1018, 1023 (9th Cir. Baez, 709 F. App'x at 983. application to Nationstar after January 10, 2014, and through the date of the Court's . In support of these claims, Mr. Robinson testified in his deposition that the $141,000 in interest represents the amount that the Robinsons have been overcharged over the life of the loan. Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. That is not so here. 1024.41(b)(2)(B). This abandoned high school was converted into a 31-unit apartment building, number of unlawful practices in handling mortgages following the Great Recession. Consumer Financial Protection Bureau and Multiple States Enter into 702. 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. News Ask a Lawyer Law 13-316(c), which requires a response to a mortgage servicing complaint or inquiry within 15 days. 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. Code Ann., Com. . Portland, OR 97208-3560. He is joined by 49 other Attorneys General, the District of Columbia, and other state and federal agencies. v. DEMETRIUS ROBINSON; TAMARA ROBINSON, Plaintiffs - Appellees, v. . The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. 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. 2605(f)(1). 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. See 12 C.F.R. The Court does not find such a prohibition in the Maryland Attorneys' Rules of Professional Conduct. 3d 1011, 1015 (W.D. at 248-49. Anderson, 477 U.S. at 248.
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