DeBoer v. Mellon Mortgage Co.

64 F.3d 1171, 1995 WL 509407
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 30, 1995
DocketNo. 94-2800
StatusPublished
Cited by80 cases

This text of 64 F.3d 1171 (DeBoer v. Mellon Mortgage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1995 WL 509407 (8th Cir. 1995).

Opinion

WOLLMAN, Circuit Judge.

Objectors Michael T. and Suzanne T. Cre-han appeal the district court’s1 orders certifying a class and approving a settlement in Gretchen DeBoer’s class action suit against Mellon Mortgage Company. We affirm.

I.

Mellon is one of the nation’s largest servi-cers of mortgage loans. Athough Mellon’s escrow accounting practices have historically been accepted by the Department of Housing and Urban Development (“HUD”), they have been challenged in a number of suits as requiring too high an account balance. Escrow accounts typically are maintained to enable the servicer to pay taxes, insurance, and other expenses as they come due. When the loan servicer maintains excess cushion in an escrow account, the servicer essentially receives an interest-free loan from the customer on the excess amount. Maintaining some cushion, however, enables the servicer to pay off expenses as they accrue without dipping into corporate funds if the customer is delinquent in paying.

Mortgage servicers can account for escrow balances through either an aggregate or an individual-item analysis.2 When aggregate accounting is used, the servicer estimates the balance for the whole account for the year, assuming that the borrower will make monthly payments equal to one-twelfth of the total disbursements. The monthly balances are then adjusted to reflect a lowest monthly trial balance of zero, and the amount of the cushion is then added. 24 C.F.R. § 3500.17(d). When a servicer employs individual-item analysis for its escrow accounts, separate subaccounts are set up for each escrow item. Typically, these individual-item accounts generate more cushion than an aggregate account because the funds for one subaccount are unavailable to pay another subaccount as it comes due; thus requiring an adequate amount of cushion for each sub-account at all times. Neither the Federal National Mortgage Association (“FNMA”) nor the Federal Housing Administration or Veterans Administration (“FHA/VA”) mortgage forms disallows the use of individual-item analysis.

DeBoer filed her class action suit against Mellon in Minnesota state court in 1992, alleging a number of state law claims as well as a violation of section 10 of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2609, which sets a ceiling on the amount of allowable cushion. The suit sought to enjoin Mellon “from requiring any mortgagor to establish or maintain in an escrow account an actual cushion in excess of the cushion authorized by the underlying mortgage contract or the RESPA ceiling, whichever is less.” The suit also sought to force Mellon to adjust its escrow accounts to ensure compliance with that standard. In August 1993, the Crehans brought an independent suit against Mellon in the Eastern District of Virginia, asserting a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, as well as numerous state law claims.

Following removal of the class action to the federal district court in September 1992, DeBoer and Mellon began negotiations and eventually came to a proposed settlement. The settlement would allow Mellon to employ individual-item analysis accounting in determining an estimate of escrow amounts necessary to pay items as they come due, with accrual completed in the month prior to disbursement. Mellon is also authorized under the settlement to maintain the maximum cushion allowed by law, regardless of the [1174]*1174terms of a customer’s mortgage instrument. The settlement requires Mellon to automatically refund excess escrow funds if they total more than $15, pay a class rebate for past charges, and pay $240,000 of the requested $290,000 in attorneys’ fees. All individual suits against Mellon would be dismissed under the settlement, including any suit by the Crehans. Prior to the district court’s approval of the settlement, the Crehans’ Virginia action was dismissed for failing to state a federal cause of action, and during the pen-dency of this appeal that decision was affirmed by the Fourth Circuit in an unpublished opinion. Crehan v. Mellon Mtge. Co., 42 F.3d 1385, 1994 WL 689875 (4th Cir.1994) (table).

The settlement was submitted to the district court on October 27, 1993. Two days later the district court preliminarily certified the class for the purpose of the settlement and approved the notice of the settlement to be published to class members. On May 13, 1994, the district court held a hearing to consider objections. Five timely objections were filed out of an approximate class of 300,000, including the Crehans’, and another six individuals timely noted their desire to be excluded from the class. On June 15, 1994, the settlement and attorneys’ fees were approved, and on July 5, 1994, the Crehans were allowed to intervene for purposes of appealing the settlement. The Crehans challenge the substance of the settlement, the propriety of a class action to handle the claims against Mellon, their inability to opt-out of the class to pursue their individual claims, and several other points.

II.

A.

Management of class actions is governed by Rule 23 of the Federal Rules of Civil Procedure. The Crehans claim that the class fails to meet the certification prerequisites of Rule 23(a) because common questions of law or fact do not exist. The Crehans also claim that DeBoer does not present claims that are typical of the class and that DeBoer and class counsel have provided woefully inadequate representation of the class.

Commonality is not required on every question raised in a class action. Rather, Rule 23 is satisfied when the legal question “ ‘linking the class members is substantially related to the resolution of the litigation.’” Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir.1982) (quoting American Fin. Sys., Inc. v. Harlow, 65 F.R.D. 94, 107 (D.Md.1974)), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983). The Crehans claim that the differing types of mortgage contracts give rise to different claims that call for different treatment through subclasses. The fact that individuals with different mortgage forms will have RESPA or contract claims of differing strengths does not impact on the commonality of the class as structured, however. See Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir.1993) (commonality and typicality satisfied in challenge to pension calculations despite presence of four different pension plans). The main point of contention centers on Mellon’s alleged over-escrowing of funds, and all members of the class are interested in a satisfactory common course of conduct in the future servicing of their loans, despite the fact that some class members have different mortgage contracts. This declaratory and injunctive nexus is sufficient to establish the requisite commonality. See Paxton,

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Bluebook (online)
64 F.3d 1171, 1995 WL 509407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deboer-v-mellon-mortgage-co-ca8-1995.