uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." 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. 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." 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. Life Ins. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. If the application is denied, a notice to that effect is sent to the borrower. 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. That notice must be provided within 30 days of receiving the complete loss mitigation application. Hickerson, 882 F.3d at 480 (quoting Cooper, 259 F.3d at 199). Joint Record ("MSJ JR") 0102. Messner v. Northshore Univ. Code Ann., Com. A separate Order shall issue. If a class is ascertainable, it must then satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. 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." 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. Code Ann., Com. However, the burden is on the plaintiffs to show that other class members exist and that their joinder is impracticable; a court may not rely on mere speculation that numerosity has been satisfied. Reg. Furthermore, Nationstar's argument that the Robinsons are not typical largely recycles the same arguments made in the Motion for Summary Judgment. Although based on imperfect data, Oliver's expert report reveals that such analysis can substantially address whether Nationstar violated 12 C.F.R. 28, 2017). Law 13-316(c) are triggered upon the submission of a loss mitigation application, while 12 C.F.R. At this juncture, this allegation plausibly supports a finding of willful noncompliance. Corp. ("McLean II"), 398 F. App'x 467, 471 (11th Cir. 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. 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. Law 13-316(c), the Court will grant class certification as to those class members and claims. 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. 13-316(e)(1). See Tagatz, 861 F.2d at 1042. Thorn v. Jefferson-Pilot Life Ins. In addition, Nationstar asserts that not all loan modification applications referred to an underwriter are complete. Actual damages may also include "non-pecuniary damages, such as emotional distress and pain and suffering." 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. The Robinsons do not address this argument in their Opposition. 2605(f)(2) is not fatal to the predominance inquiry. Code Ann., Com. 2012) (citing Lloyd v. Gen. Motors Corp., 916 A.2d 257, 277 (Md. To view the settlement agreement and consent order, please visit the CSBS's website. 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. The record is undisputed that as of September 25, 2017, Nationstar had neither started foreclosure proceedings nor moved for foreclosure judgment on the Robinsons' home. Under a provision of Regulation X entitled "Loss mitigation procedures," mortgage servicers must take certain steps when a borrower applies for loss mitigation measures, such as the loan modifications sought in this case. 2605(f)(1)(A); see 12 C.F.R. (quoting 7AA Charles Allan Wright et al., Federal Practice and Procedure 1778 (3d ed. R. Civ. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. See, e.g., Ward v. Dixie Nat. 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. 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. Thus, a loan servicer could not have complied with Regulation X for a loss mitigation application submitted before January 10, 2014 because there was no regulation in effect with which to comply. The comments to that rule state that the "common law rule in most jurisdictions is . Day to address discovery issues. 2014))). 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. The commonality requirement is also met. Under the terms of the Settlement, if nothing else occurs in the litigation, then the Settlement will become effective 95 days from the date of that decision by the Court of Appeals. Accordingly, a loan servicer must comply with Regulation X as to the first loss mitigation application submitted after the effective date. 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. Law 13-316(c). And given that the class includes all borrowers who have submitted an application since January 10, 2014, joinder of all members is eminently impractical. Write to the Court if you do not like the Settlement. Finally, the named plaintiff must "fairly and adequately protect the interests of class" without a conflict of interest with the absent class members. From this approach, Oliver concluded that for approximately 60 percent of the sampled loans, Nationstar failed to comply with the requirement that it inform the borrower of loss mitigation application determination within 30 days of receiving a complete application. 2015) Court Description: MEMORANDUM OPINION. (quoting East Tex. Co, 445 F.3d 311, 318 (4th Cir. 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. Law 13-316(e)(1), and "actual damages," 12 U.S.C. A servicer that fails to comply with Regulation X is liable for "any actual damages to the borrower as a result of the failure" to comply. Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 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"). Sep. 9, 2019). Nationstar also asserts that the Robinsons have not identified evidence sufficient to support their MCPA claims. Accordingly, Nationstar did not send the Robinsons an acknowledgment letter within five days stating that it had received the application, as required by Regulation X. In addition to the fines and restitution, Delaware Attorney General Kathleen Jennings said the settlements require Nationstar to adhere to increased "servicing standards." 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. Nationstar's failings resulted in "substantial consumer harm," CFPB Director Kathleen Kraninger said in a statement. In 2017, the CFPB fined Nationstar $1.75 million for failing to report accurate data about its mortgage transactions. Section 13-316(c) governs "mortgage servicing" and, among other requirements, provides that a "servicer shall designate a contact to whom mortgagors may direct complaints and inquiries" and that the "contact shall respond in writing to each written complaint or inquiry within 15 days if requested." 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). The economic challenges and burdens that homeowners currently face are similar to the ones experienced following the Great Recession. . P. 23(b)(3). 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. Moreover, because borrowers often submit multiple loan modification applications, and because Nationstar's data is stored at the loan level, not at the application level, Nationstar claims that it is not possible to tell from the data alone, without reviewing the files, whether a status or code change is in response to a specific loan modification application. 2006). For purposes of ascertainability, the requirements of 12 C.F.R. Order at 2, ECF No. The Class is represented by Rafey S. Balabanian of Edelson PC. 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.
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