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Burton v. Nationstar Mortg., LLC

United States District Court for the Eastern District of California

October 8, 2014, Decided; October 8, 2014, Filed

Case No.: 1:13-cv-00307-LJO-JLT

Opinion

FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

(Doc. 69)

Dennis Burton sought a loan modification in 2009 after he had fallen behind in his mortgage payments. He complied with the terms of his trial period plan offered by Nationstar, during which he was required to make reduced mortgage payments. Given his compliance, he was offered a permanent loan modification. Burton signed the documents to complete the modification and had them notarized and, eventually, returned both of the needed original copies. Though Nationstar [*2]  approved the modification by signing the documents, the loan was never "booked," meaning the modified loan was never entered into the system. Burton stopped making his payments timely and then stopped making them altogether. Nationwide foreclosed on the home. In this action, Burton seeks to certify a class of borrowers in all 50 states who suffered due to Nationstar's "sign then book" policy.

In support of his motion, Burton supplies sparse evidence that absent class members suffered damages as a result of Nationstar's policy, and Nationstar provides evidence that no one suffered harm similar to Burton. Burton also fails to provide a sufficient examination of the law that would apply to his nationwide class and fails to address the Rule 23(a) factors as to his proposed subclasses.

The Court has read and considered the pleadings and supporting documents and heard oral arguments of counsel. For the reasons set forth below, the Court recommends Plaintiff's motion for class certification be DENIED.

I. HAMP BACKGROUND

Congress passed the Emergency Economic Stabilization Act, Pub. L. No. 110-343, 122 Stat. 3756 in 2008. This included the Troubled Asset Relief Program, "which required the Secretary of the Treasury, among many other duties [*3]  and powers, to 'implement a plan that seeks to maximize assistance for homeowners and . . . encourage the servicers of the underlying mortgages . . . to take advantage of . . . available programs to minimize foreclosures.'" Corvello v. Wells Fargo Bank, N.A., 728 F.3d 878, 885 (9th Cir. 2013) (quoting Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir. 2012); 12 U.S.C. § 5219(a)). In response, the Treasury Department initiated the Home Affordable Modification Program ("HAMP") "to incentivize banks to refinance mortgages of distressed homeowners so they could stay in their homes." Corvello, 728 F.3d at 880.

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2014 U.S. Dist. LEXIS 144137 *; 2014 WL 5035163

DENNIS BURTON, on behalf of himself and all others similarly situated, Plaintiff, v. NATIONSTAR MORTGAGE, LLC, Defendant.

Subsequent History: Adopted by, Class certification denied by Burton v. Nationstar Mortg., LLC, 2014 U.S. Dist. LEXIS 155014 (E.D. Cal., Oct. 30, 2014)

Prior History: Burton v. Nationstar Mortg. LLC, 2013 U.S. Dist. LEXIS 75467 (E.D. Cal., May 28, 2013)

CORE TERMS

borrowers, modification, class certification, booked, class member, subclass, asserts, proposed class, effective date, servicer, sign-then-book, permanent, class action, argues, rule requirements, modified, certification, modification agreement, putative class member, commonality, contends, terms, homeowners, mortgage, certify, state law, documents, breached, damages, reply