Not a Lexis Advance subscriber? Try it out for free.

Bernard v. CitiMortgage Inc.

United States Court of Appeals for the Ninth Circuit

February 4, 2016, Argued and Submitted, Pasadena, California; March 2, 2016, Filed

No. 13-57158

Opinion

 [*472]  MEMORANDUM2

Hanna Bernard and others ("Plaintiffs") appeal the district court's order denying their motion for class certification in their diversity action against

"A ruling on class certification 'is subject to a very limited review and will be reversed only upon a strong showing that the district court's decision was a clear abuse of discretion.'" Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931, 937 (9th Cir. 2009) (per curiam) (quoting In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 461 (9th Cir. 2000)). Under this standard, we first "consider whether the district court identified the correct legal standard." United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc). We next "determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record." Id.

The parties do not dispute [**3]  that the district court identified the correct legal standard for class certification as Federal Rule of Civil Procedure 23. Instead, Plaintiffs contend that the district court's application of Rule 23 was "illogical, implausible, or without support in inferences that may be drawn from facts in the record." Id.

The district court did not abuse its discretion in denying certification under Rule 23(b)(3). As required by Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545 (9th Cir. 2013), the district court's analysis focused on the relationship between the common and individual issues in the case. In doing so, the district court determined that individual issues predominated over common issues, because determination of the deadline by which Citi was allegedly required to grant or deny permanent modification could not be made "simply by identifying the MED [Modification Effective Date] as stated in the TPP [Trial Payment Plan Agreement]." In re CitiMortgage, Inc. Home Affordable Modification Program (HAMP) Litig., No. 11-2274, 2013 U.S. Dist. LEXIS 188283, 2013 WL 8844095, at *6 (C.D. Cal. Oct. 7, 2013). Rather, such a determination would also require inquiry into issues unique to each class member. Id. The district court supported this conclusion with specific examples. "The deadline may also have been affected by the parties' course of conduct, changes in income, inaccurately or incompletely reported income, oral and written representations regarding documentation still [**4]  needed and other modification options, applicable Treasury Directives, and other considerations." Id. The district court then noted that these additional considerations were critical to determining not only whether Citi had breached the TPP, but  [*473]  also the amount of damages. Id. Because of the importance of these individual factors, the district court concluded that individual issues predominated over common issues, noting that "it is clear that an evaluation of the merits of the proposed class claim would require significant individualized inquiry." Id.

The district court also did not abuse its discretion by denying class certification under Rule 23(b)(1), because Plaintiffs failed to "affirmatively demonstrate [their] compliance" with Rule 23(b)(1). Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2551-2552, 180 L. Ed. 2d 374 (2011)). As the district court noted, Plaintiffs' footnoted arguments under Rule 23(b)(1) were "cursory" and lacked "any substantive explanation as to why the reasoning in [the cases Plaintiffs cited] would support certification on the facts and law in this case." In re CitiMortgage, Inc., 2013 WL 8844095, at *4.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

637 Fed. Appx. 471 *; 2016 U.S. App. LEXIS 3916 **

HANNA BERNARD; et al., Plaintiffs - Appellants, v. CITIMORTGAGE INC., a New York corporation, Defendant - Appellee.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-ml-02274-DSF-PLA. Dale S. Fischer, District Judge, Presiding.

In re CitiMortgage, Inc. Home Affordable Modification Program ("HAMP") Litig., 2013 U.S. Dist. LEXIS 188283 (C.D. Cal., Oct. 7, 2013)

Disposition: AFFIRMED.

CORE TERMS

district court, class certification, individual issues, legal standard, modification, common issue, fact finding, certification, predominated, implausible, illogical, deadline