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Jackson v. Bank of Am., N.A.

United States District Court for the Western District of New York

December 30, 2019, Decided; December 30, 2019, Filed

Case # 16-CV-787




Plaintiffs Bobbi and Matthew Jackson ("Plaintiffs") filed a putative class action complaint on September 30, 2016, alleging that their mortgage loan servicer, Defendant Bank of America ("Defendant"), improperly and untimely processed their mortgage assistance applications so that it could charge them excessive loan delinquency fees. Specifically, Plaintiffs alleged Defendant violated the Real Estate Settlement Procedures Act ("RESPA"), [*2]  12 U.S.C. §§ 2601-2617, its implementing regulations, 12 C.F.R. §§ 1024.1-1024.41, and Section 349 of New York's General Business Law ("GBL").

Defendant moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). ECF No. 6. On November 21, 2017, the Court dismissed all of Plaintiffs' claims except for those relating to the time period between January 28, 2014 and December 20, 2014, leaving only the claim that Defendant failed to use "reasonable diligence" in violation of 12 C.F.R. § 1024.41(b)(1). ECF No. 15. The Court denied leave to amend the complaint and the parties commenced discovery. ECF No. 39.

Presently before the Court is Plaintiffs' motion to certify a class pursuant to Rule 23 (ECF No. 77) and Defendant's motion to strike the purported expert report Plaintiffs submitted in support of their motion to certify the class (ECF No. 87). For the reasons stated below, Defendant's motion is DENIED and Plaintiffs' motion is DENIED.


I. Regulatory Background

After the 2008 recession, mortgage loan servicers such as Bank of America struggled to handle the increase in delinquent loans, mortgage modification requests, and foreclosures they were required to process. ECF. No. 1 at 11. Servicers were either too overwhelmed to timely process mortgage assistance applications, or in some instances, [*3]  unwilling to. Because servicers earn revenue from "fees assessed on borrowers, such as late fees," servicers had every incentive to delay the loss mitigation application process. Id. In one case, former Bank of America employees stated that they were "instructed that their job was to maximize fees for BofA by delaying and refusing to process loss mitigation applications," and were instructed to "tell borrowers that their loss mitigation applications were under review, even though that was not the case or to falsely claim that documents were incomplete or missing." ECF No. 1 at 21.

In an effort to help borrowers seeking mortgage assistance, the Consumer Financial Protection Bureau issued final rules under RESPA requiring servicers to follow strict procedures and deadlines for processing mortgage assistance applications and disclose important information to borrowers about the status of their application. See 12 C.F.R. § 1024.41. Section 6(f) of RESPA gives borrowers a private right of action against servicers that fail to comply with any portion of 12 C.F.R. § 1024.41. ECF No. 1 at 17. Borrowers can recover actual damages, as well as statutory damages if a servicer demonstrates a "pattern or practice" of noncompliance with the rules. Id. at 24. These [*4]  rules became effective on January 10, 2014. Id.

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2019 U.S. Dist. LEXIS 222511 *; 2019 WL 7288508


Prior History: Jackson v. Bank of Am., N.A., 2017 U.S. Dist. LEXIS 192235 (W.D.N.Y., Nov. 21, 2017)


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