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A complete loss mitigation application is "an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower." Furthermore, according to Nationstar, to identify the content of a letter sent to a borrower, the letter itself must be viewed. However, if the costs are shown to have been incurred in response to the RESPA violation, the Court finds that they would be actual damages within the meaning of 12 U.S.C. Law 13-316(c). 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." The Deed specifies that a person who signs it but "does not execute the note" is a co-signer of the Deed in order to mortgage and convey that person's interest in the Property under the terms of the Deed, but "is not personally obligated to pay the sums secured by this Security Instrument," and her consent is not required to alter the terms of the Deed or the Note. Sept. 2, 2015). 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." at *5. The Court does not find such a prohibition in the Maryland Attorneys' Rules of Professional Conduct. 2. 14-3667, 2015 WL 4994491, at *1-2 (D. Md. This Court previously held that a loan modification application can be an inquiry under the MCPA that triggers a duty to respond, and that in the case of the Robinsons, the loan modification application that was "submitted at the request of Nationstar[] necessarily seeks a response." Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))). Id. Co., 595 F.3d 164, 179 (4th Cir. 1024.41(f), (g), and (h), and Md. 8:2014cv03667 - Document 18 (D. Md. 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. 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." Oliver's expert report focuses on the use of Nationstar's internal databases to determine whether Nationstar has systematically failed to comply with various requirements of Regulation X. 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. Messner v. Northshore Univ. Law 13-316(c), the Court will grant class certification as to those class members and claims. 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. Robinson v. Nationstar Mortgage, LLC Complaint with jury demand against Nationstar Mortgage, LLC. 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. Id. 1024.41(b)(2)(B). . Stewart v. Bierman, 859 F. Supp. On May 5, 2014, Nationstar asked the Robinsons for additional information to evaluate the appeal, including documents to verify their income. 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. 2605(f)(1)(A); see 12 C.F.R. Jennings' office said that these new standards are more robust than existing law and will be in place for three years starting in January 2021. Like the class members, to prove his case, Mr. Robinson will have to show that Nationstar failed to timely and appropriately respond to his loan modification applications by pointing to the dates of his submissions and the dates and contents of Nationstar's responses. The Robinsons' expert had written the scripts using data dictionaries and without accessing the databases. Some of the alleged damages are not supported in law or in fact. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ("Regulation X"), 78 Fed. Indeed, since previous versions of the Maryland rule expressly stated that contingency fee arrangements for experts were forbidden, but that explicit language was removed, it is reasonable to conclude that the amendment changed the rule in Maryland to no longer bar contingency fee arrangements. Since the MCPA and Regulation X allow recovery only of "economic damages," Md. 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). Id. That notice must be provided within 30 days of receiving the complete loss mitigation application. The Robinsons do not address this argument in their Opposition. Law 13-303(4)-(5), 13-408. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. The Motions are fully briefed, and no hearing is necessary to resolve the issues. A code is entered in Remedy Star when the letter is sent. Under Count I, the Robinsons allege a violation of 12 C.F.R. Cal. Since it is the plaintiff's burden to establish that the requirements of Rule 23 have been met and Mr. Robinson has failed to do so, the Motion for Class Certification will be denied as to any claims that Nationstar violated 12 C.F.R. 3d 254, 274-75 (S.D.N.Y. The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. A fact is "material" if it "might affect the outcome of the suit under the governing law." 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. While class members would not be eligible for statutory damages unless actual damages are shown, see 12 U.S.C. . A conflict of interest will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and . 1998). In addition to the fee paid to PaCE, the Robinsons also assert as damages $50.58 in administrative costs, specifically postage fees for sending information relating to their loan modification application to Nationstar, and 120 hours of time expended on the loan modification process. 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. Based on his experience and review of deposition transcripts of Nationstar employees, Oliver asserts that Nationstar has computerized data from which RESPA violations may be identified, not least because Nationstar must be able to demonstrate its compliance with RESPA to regulators. 2d 452, 468 (D. Md. Summ. 10696, 10708, provides that "[a] servicer is only required to comply with the requirements of this section for a single complete loss mitigation application for a borrower's mortgage loan account." 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. 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. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. Although each class member must individually show that they suffered "actual damages" under 12 U.S.C. . Certification will also be denied as to the claim under 12 C.F.R. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." The Class Action Administrator would then begin distribution of the settlement funds. Law 13-301 and 13-303, because the Robinsons do not have standing to bring those claims. During this time and up until September 25, 2017, Nationstar had not begun any foreclosure proceedings on the Robinsons' home. Indeed, Nationstar does not seriously contest the commonality prong. 12 U.S.C. Class Cert. Day to address discovery issues. Auto. An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." JA 130. 1024.41. 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. They have a home in Damascus, Maryland purchased by Demetrius Robinson ("Mr. Robinson"). A "borrower" may enforce the provisions of Regulation X pursuant to 12 U.S.C. The relevant rule prohibits an attorney from "offer[ing] an inducement to a witness that is prohibited by law." The Final Approval Order, approving the Class-wide Settlement, was entered December 11, 2020. The Robinsons, however, have not identified any evidence that Nationstar did not intend to, and did not, conduct such evaluations. Those claims arose from Nationstar's alleged Compl. 2d at 1366. Class Certif. Am. See, e.g., Ward v. Dixie Nat. Gunnells, 348 F.3d at 427-28. 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. 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. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. 1994) (noting that a single common issue is sufficient to meet the commonality requirement). 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. Compl. 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. Appellate Win Affirms $3 Million Settlement in Class Action against Nationstar Mortgage - Tycko & Zavareei LLP Contact Us We look forward to hearing from you. 2015) Court Description: MEMORANDUM OPINION. at 248-49. After March 2014, Mrs. Robinson was primarily responsible for communicating with Nationstar and PaCE. 26-1. Va., Inc., 543 F.2d 1075, 1080 (4th Cir. Law 13-316(e)(1), and "actual damages," 12 U.S.C. At the time, Nationstar had not completed the process of updating its systems to conform to those requirements. See 12 C.F.R. 1976). 2002) (affirming without addressing the propriety of the striking of the expert testimony). 1024.41(i). 1024.41(c)(1)(i). Nationstar claims that manual review of each file would take about 60 to 90 minutes per file. 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. P. 23(a)(1). Id. 2003). Any additional updates will be posted here. 2014))). Thus, the Court concludes that common computerized analysis can largely answer the question of whether Nationstar violated these RESPA provisions with respect to individual borrowers.