See Fed. Fla. 2009), aff'd, 398 F. App'x 467, 471 (11th Cir. Nationstar ultimately became the servicer of the Robinsons' loan. 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. Following protracted litigation, Nationstar, and the Robinsonsnegotiated a $3,0 00,000 settlement. 1024.41(c)(1)(i)-(ii), (g). 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). 1024.41(a). Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. On August 26, 2014, Nationstar mailed another letter acknowledging Bouchat, 346 F.3d at 522. After they became delinquent on their loan, the Robinsons submitted another loan modification application to Nationstar on March 7, 2014. 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. 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. Where the PaCE consulting fee was a one-time fee to advise the Robinsons in their interactions with Nationstar paid in August 2013, several months before they first submitted the March 2014 loan modification application, this cost was incurred "whether or not [Nationstar] complied with its obligations." or other representation . Nationstar has no process for standardizing file names. 16-0117, 2017 WL 4347826, at *15 (D. Md. At a minimum, the question of when a loss mitigation application is "complete" under RESPA within the workflow of Nationstarwhether at the time of the processor's designation of the file as complete or at a later stageis a significant unresolved question of law and fact that would be common to all RESPA claims against Nationstar. Anderson, 477 U.S. at 248. Law 13-316(e)(1), and "actual damages," 12 U.S.C. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. Contact Fraudfighters.net Current Class Settlements Search Our Successes Practice Areas Class Actions Financial Services & Economic Justice 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. Although the parties have not offered specific details on the nature and timing of those costs and fees, it is reasonable to infer that at least some portion of them were incurred after they submitted their March 7, 2014 loan modification application and after Nationstar had violated Regulation X. 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. Id. 1024.41(b)(2)(B). (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"). 2005))). Claimants will receive their payments via check. 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. 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. Nationstar further argues that the Robinsons cannot show that they suffered economic damages as a result of the violation of section 13-316. Nationstar Plaintiffs Demetrius and Tamara Robinson (the "Robinsons") have resided in a home in Damascus, Maryland that has been subject to a mortgage loan. ; 78 Fed. 1024.41(c)(1)(ii), which requires a servicer to respond to a completed loan modification application; or Md. . See id. 1024.41, a regulation of RESPA that outlines loss mitigation procedures. See D. Md. . 2004). PDF PUBLISHED - United States Court of Appeals for the Fourth Circuit CFPB V. Nationstar - Frequently Asked Questions Mr. Cooper Withdraws Mortgage Payments Without - Class Action R. Civ. Filed by Janie Robinson. Fed. Mrs. Robinson was the primary point of contact for the Robinsons in interacting with Nationstar. Whether an application is complete depends on the requirements of the investor who holds the loan. 2605(f)(2). The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. In this photo illustration, the Nationstar Mortgage Holdings Inc. logo seen displayed on a smartphone. the same interest in establishing the liability of defendants." 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"). Id. See, e.g., Linderman v. U.S. Bank Nat'l Ass'n, 887 F.3d 319, 321 (7th Cir. . Nationstar will need to enhance its policies and processes around how it handles consumer complaints, performs escrow analyses and conducts audits, for example. Code Ann., Com. After two more extensions were granted, based on a finding by the Magistrate Judge that "Defendant has failed to comply" with its discovery obligations and delayed the process, discovery closed on March 22, 2018. 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. 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. Stewart v. Bierman, 859 F. Supp. Sept. 9, 2019), there were multiple other claims at issue, for which Oliver's expert report seemed better suited to address. 1972). Here, Mrs. Robinson signed the Deed but did not sign the Note. . 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." 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. 2d 873, 883 (D. Md. PDF In the United States Court of Appeals for the Fourth Circuit 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. 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. Mich. 2016), at least one district court has held that loan servicers need not comply with Regulation X if the borrower had previously submitted a loss mitigation application before the January 10, 2014 effective date, see Trionfo v. Bank of America, N.A., No. Thumbnails Document Outline Attachments Layers. 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. Am. Pia McAdams, a class member, objected to the settlement, arguing that the Corp., 546 F.2d 530, 538-39 (3d Cir. hb```f&A G PX@$]55:q3bbf00dYaiDuVLt3C5X;:48:@A (400 @ H*brIe I1@ ]"
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See supra parts I.B.1, I.B.3, I.C.1. 28, 2017). 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. 2002), is misplaced. 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. PDF Order Granting Motion for Final Approval - Robinson v Nationstar 1024.41(b)(2)(B), (c)(1)(ii); Md. 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. Fed. 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. Local R. 105.6. Ballard v. Blue Shield of S.W. 1024.41(a). Am. 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. Check out:Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, Don't miss:Amex Blue Cash Preferred is offering an elevated welcome bonus for a limited time, Get Make It newsletters delivered to your inbox, Learn more about the world of CNBC Make It, 2023 CNBC LLC. PDF SETTLEMENT AGREEMENT Nationstar Mortgage LLC ("Nationstar"). (kw2s, Deputy Clerk) Download PDF 12 C.F.R. 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. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. Discovery Order, ECF No. Throughout discovery, Nationstar repeatedly stated that it could not produce the data on loss mitigation or loan modification applications from its databases in the form requested by the Robinsons. Furthermore, Nationstar's argument that the Robinsons are not typical largely recycles the same arguments made in the Motion for Summary Judgment. 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." Id. 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. 15-05811, 2016 WL 3055901 (N.D. Cal. Class Cert. The settlement in the form of a consent judgment, filed in the U.S. District Court for the District of Columbia, resolves allegations that Nationstar, which does business as "Mr. Cooper," violated consumer protection laws. A fact is "material" if it "might affect the outcome of the suit under the governing law." The fact that each borrower must individually show damages under 12 U.S.C. Code Ann., Com. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). 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." Additional facts relevant to the pending motions are set forth below. 12 C.F.R. The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Wesleyan Coll. Nationstar Mortgage TCPA Class Action Settlement 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. 1024.41(a). How do I get my check reissued? DEMETRIUS ROBINSON, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. NATIONSTAR MORTGAGE LLC, Defendant. or misleading oral or written statement . A magistrate granted preliminary approval. Nationstar also does not argue that the class is not numerous, as there approximately 33,855 members who submitted loss mitigation applications from January 10, 2014 to March 30, 2014. 1024.41(c)(1)(i). Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. ("Opp'n') 13, ECF No. Gunnells, 348 F.3d at 427-28. Under Count I, the Robinsons allege a violation of 12 C.F.R. Class Action Rebates | June 2022 - Top Class Actions "[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.'" Code Ann., Com. While the particulars of Mr. Robinson's application process will not necessarily prove that Nationstar mishandled the applications of other individual class members, these facts fairly encompass the types of claims that would be brought by the members of the class. A code is also added to LSAMS to put a hold on foreclosure proceedings. 2013)). Finally, the Court finds that common issues of law and fact predominate. 8:14-CV-03667-TJS ORDER GRANTING MOTION FOR . 2016) ("[F]ortuitous non-injury to a subset of class members does not necessarily defeat certification of the entire class, particularly as the district court is well situated to winnow out those non-injured members at the damages phase of the litigation, or to refine the class definition. 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. 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. See Broussard, 155 F.3d at 344. The Robinsons' Motion for Class Certification will be GRANTED IN PART and DENIED IN PART. Nationstar argues that summary judgment should be entered on the Robinsons' MCPA claim under section 13-316 because the Robinsons have not shown that they submitted a complaint or inquiry that triggers a duty to respond. A letter noting receipt of the application is automatically generated and sent to the borrower, and a Nationstar employee checks the application's documentation to determine if it is complete based on a checklist. An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." "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.". In its Motion to Strike, Nationstar argues that Oliver's methodology has not been peer reviewed, has a high error rate because he used the wrong data fields to identify the dates of events, failed to consider the timing of foreclosure sales relative to the dates of the submission of loan modification applications, and did not propose a specific methodology for calculating damages. Previous. Robinson v. Nationstar Mortgage, LLC. . Id. See Robinson v. Nationstar Mortg. The defendant is accused of violating the Telephone Consumer Protection Act by robocalling consumers regarding a home loan. Certification will also be denied as to the claim under 12 C.F.R. See 12 C.F.R. 702, 703. On May 5, 2014, Nationstar asked the Robinsons for additional information to evaluate the appeal, including documents to verify their income. %%EOF
Nationstar said in a statement that its settlements were based on "loan-servicing practices" that the company used between 2010 and 2015 and has since discontinued. . 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. The Robinsons do not address this argument in their Opposition. If a borrower is experiencing issues or not getting the help needed, contact your state attorneys general. During this time and up until September 25, 2017, Nationstar had not begun any foreclosure proceedings on the Robinsons' home. 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. 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. Eligible claimants will receive either $5 for a qualifying 600- watt model, $7 for a qualifying 900- watt model, or a $10 or $15 discount code for a new 600-watt or 900-watt blender, respectively. On August 20, 2014, when Mrs. Robinson called to check on the status of the application, a Nationstar representative told her that the paperwork had gone to the wrong loss mitigation division and that the Robinsons needed to submit their application again. Ins. Nationstar's Motion to Strike will be DENIED. Marais v. Chase Home Fin., LLC, 24 F. Supp. Specifically, the loan servicer failed to honor borrowers' loan modification agreements. 2d 452, 467 (D. Md. The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. See, e.g., Ward v. Dixie Nat. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. Plaintiffs "must present specific evidence to establish a causal link between the [servicer's] violation and their injuries." 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. 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. The Court will address the varying claims in turn. Id. 2605(f). Since the Court has already concluded that Nationstar is entitled to summary judgment on the Robinsons' claims under 12 C.F.R. 10696, 10708 (Feb. 14, 2013) (codified at 12 C.F.R. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." Likewise, he concluded that for approximately 53 percent of sampled loans, Nationstar failed to comply with the requirement of acknowledging receipt of the application within five days. Nationstar's failings resulted in "substantial consumer harm," CFPB Director Kathleen Kraninger said in a statement. Id. Nationstar's claim that the above-described coding is not dispositive, because an underwriter could subsequently determine that more information was needed after all, is not persuasive. 3d 254, 274-75 (S.D.N.Y. Joint Record ("MSJ JR") 0102. 14-3667, 2015 WL 4994491, at *1-2 (D. Md. 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. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. P. 23(b)(3). That's one reason why the settlement, particularly the provisions requiring Nationstar to adhere to enhanced standards, is crucial. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356-57 (3d Cir. 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." Co, 445 F.3d 311, 318 (4th Cir. Id. 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. 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." 09-08213, 2011 WL 11651320 (C.D. 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. Because such a common question would have to be resolved in many if not all individual cases, it advances, rather than undermines, the argument in favor of predominance. 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. In December 2020, Nationstar (d/b/a Mr. Cooper) reached a settlement with the CFPB, the State Attorneys General, and certain state mortgage regulators to resolve old regulatory matters. 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. Make your practice more effective and efficient with Casetexts legal research suite. 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. 19-303.4 cmt.3. 1024.41. 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. THEODORE D. CHUANG United States District Judge. In Frank v. J.P. Morgan Chase Bank, N.A., No. The court, however, did not explain how in the absence of any obligation to pay back to the Note, the plaintiff qualified as a "borrower" under the RESPA statute. 1990) (citing Universal Athletic favorably for this proposition). 1988) (distinguishing between a rule of professional conduct and admissibility of evidence); cf. Although similar to Rule 23(a)'s commonality requirement, the test for predominance under Rule 23(b)(3) is "far more demanding" and "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Instead, he analyzed certain data fields that were returned by the scripts written by a different expert. at 152. 12) is GRANTED with respect to Count V and Count III against Nationstar; it is DENIED with respect to Counts I, II, and VI, and Count III against NSM. 2605(f)(2) is not fatal to the predominance inquiry. 17-0982, 2018 WL 4111938, at *5-6 (M.D. 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. 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." 1024.41(b)(2)(i)(B), which requires that an acknowledgment letter be sent within five days of receipt of a loss mitigation application; 12 C.F.R. Moreover, even if the fee arrangement violated the ethical rules for attorneys, "it does not follow that evidence obtained in violation of the rule is inadmissible." P. 23(a)(1). While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. Id. The Robinsons appealed the Magistrate Judge's ruling because it did not require Nationstar to run a structural script for a third database. Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ("Regulation X"), 78 Fed. This website provides information about a joint state attorney general and state mortgage regulator settlement with Nationstar, which does business publicly as Mr. Cooper. "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. The Motions are fully briefed, and no hearing is necessary to resolve the issues. 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. Id. 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. The Robinsons and Nationstar then engaged in a series of tortured exchanges over the next several months. 1024.41(f), (g), and (h) and Md. Co., 350 F.3d 1018, 1023 (9th Cir. 15-3960, 2017 WL 623465, at *8 (D. Md. 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.
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