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. Date: September 9, 2019, Civil Action No. 16-0307, 2017 WL 1167230, at *3 (E.D.N.C. 2605(f)(2). Accordingly, the Motion is denied as to such claims. 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 February 16, 2017, the Court referred the case to United States Magistrate Judge Charles B. 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. State attorneys general are here for homeowners, Raoul adds. 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. 3d at 1014. or misleading oral or written statement . 125. Cal. Johnson, 374 F. App'x at 873; Keen v. Ocwen Loan Servicing, LLC, No. 2605(f)(1)(A)). Where the deed of trust explicitly states that Mrs. Robinson is not obligated on the loan, the Court finds that she is not a borrower under RESPA and cannot bring the claim against Nationstar under Regulation X. Id. 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] . 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. 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. Id. Baez, 709 F. App'x at 983. Delaware Attorney General Kathleen Jennings said the settlements, Several states also fined Nationstar in 2018, Kwame Raoul, attorney general of Illinois, latest research from the Mortgage Bankers Association. Cf. 1024.41(c)(1)(ii), which requires a servicer to respond to a completed loan modification application; or Md. Am. "We want to hear from you," Raoul says. 2018); Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 n.4 (11th Cir. 1024.41(d). 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. Robinson et al v. Nationstar Mortgage LLC, No. 8:2014cv03667 - Justia Law Law 13-301 and 13-303, and that Mr. Robinson therefore may not assert such claims on behalf of the class, Mr. Robinson's remaining claims and defenses are typical of the class members. Although based on imperfect data, Oliver's expert report reveals that such analysis can substantially address whether Nationstar violated 12 C.F.R. loan" did not have standing to bring a RESPA claim); Nelson v. Nationstar Mortg. "We will be watching the mortgage interest industry to ensure they are treating homeowners fairly and fulfilling their obligations.". Filing fee paid $ 402, Receipt number AOHNDC-10680087. In approving such a modification, Nationstar made a mistake: the underwriter working on the Robinsons' loan had erroneously double-counted their income. at *5. 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. Co v. Adair, 764 F.3d 347, 359-60 (4th Cir. PDF PUBLISHED - Justia Law In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. 1998). The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Law 13-301(1). At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. Finally, while Nationstar presented arguments for why the Robinsons have not shown damages as to most of the asserted categories, it did not advance any argument for why the interest damages claimed by the Robinsons were not attributable to Nationstar's Regulation X violations and thus is not entitled to summary judgment on that issue. All but $28.6 million of its. Auto. (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"). . Compl. Am. 1976). 702. Co, 445 F.3d 311, 318 (4th Cir. v. Nationstar Mortgage LLC Nationstar Call Settlement Administrator PO Box 3560 Portland, OR 97208-3560 877-683-9363 Class Counsel Rafey S. Balabanian EDELSON PC Defense Counsel Abraham J. Colman Raymond Y. Kim REED SMITH LLP 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."). 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. This is not the first time Nationstar has been the subject of federal and state investigations. Corp. ("McLean I"), 595 F. Supp. Law 13-316(e), for the reasons stated above, see supra part I.B.4, the Robinsons have provided sufficient evidence to create a genuine issue of material fact whether they have suffered economic damages, in the form of administrative costs, fees, and interest. Ward, 595 F.3d at 180 (quoting Gunnells, 348 F.3d at 430). If the initial application is not complete, a different Remedy Star substatus notation and LSAMS code are entered, and a letter is created and sent to the borrower asking for the required documents. which has the capacity, tendency, or effect of deceiving or misleading consumers." Co., 595 F.3d 164, 179-80 (4th Cir. The Motion will be otherwise denied. Fed. "[A]n evaluation of the merits to determine the strength of plaintiffs' case is not part of a Rule 23 analysis." When each event occurseither the mailing of a letter or the changing of a code or substatusthe date is recorded in the databases. Id. 12 C.F.R. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." 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. LLC, No. In support of this argument, Nationstar contends that the ethical rules for attorneys prohibit contingency fee arrangements with expert witnesses. A separate Order shall issue. 2d 754, 768-69 (D. Md. Furthermore, determining whether statutory damages are available will require no individualized consideration, because the pattern-or-practice claim "would be based solely on" Nationstar's conduct and can be established through sampling. 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. The relevant rule prohibits an attorney from "offer[ing] an inducement to a witness that is prohibited by law." application to Nationstar after January 10, 2014, and through the date of the Court's . For the claims that rely on the timing of a response, Oliver and the Robinsons propose using changes in the Remedy Star substatus or LSAMS codes and documents stored in FileNet to identify the date a loan modification application was received or marked as complete, to identify the date a response was sent, and to count the number of days between events. 2010) (holding that a plaintiff who "was not a borrower or otherwise obligated on the . The Robinsons and Nationstar then engaged in a series of tortured exchanges over the next several months. 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. A class action claimed Nationstar violated consumer protection laws in servicing class members' mortgage loans. A Division of NBC Universal. 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). 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. 12 U.S.C. Ass'n, 375 F.2d 648, 653 (4th Cir. Id. United States v. Valona, 834 F.2d 1334, 1344 (7th Cir. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. 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). . 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. Likewise, the articulated concern that Nationstar would not be required to respond to loss mitigation applications filed within a certain number of days of a foreclosure sale, can be addressed through the provision of data relating to the dates of scheduled foreclosure sales. Claimants will receive their payments via check. 1024.41(a). Anderson, 477 U.S. at 248. PDF In the United States Court of Appeals for the Fourth Circuit 2d 452, 467 (D. Md. Home Loans, No. 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." In contrast, the Court finds that there is a genuine issue of material fact whether the administrative costs and fees incurred by the Robinsons resulted from Nationstar's RESPA violations. 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. Indeed, Mr. Robinson testified that Mrs. Robinson did not sign the Note because she did not purchase the property with him. 12 U.S.C. 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. The Court will address the varying claims in turn. 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). 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. See McGraw, 646 F.2d at 176. White setting Settlement Conference for 10/3/2023 at 9:00 AM in Chambers, Room 327, US Courthouse, . 1024.41(b)(2)(B), (c)(1)(ii); Md. 2019) (noting that the purpose of certifying a class "is not to identify every class member at the time of certification, but to define a class in such a way as to ensure that there will be some administratively feasible [way] for the court to determine whether a particular individual is a member at some point" (internal citation omitted) (quoting EQT Production Co. v. Adair, 764 F.3d 347, 358 (4th 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. Class Cert. 2605(f). Code Ann., Com. Robinson v. Nationstar Mortgage, LLC Complaint with jury demand against Nationstar Mortgage, LLC. Co., 350 F.3d 1018, 1023 (9th Cir. To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder of all members is impracticable." (ds) Download PDF Search this Case 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." McLean v. GMAC Mortg. Law 13-316(c). Code Ann., Com. PDF Order Granting Motion for Final Approval - Robinson v Nationstar P. 23(a)(3); Deiter v. Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir.
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