Kay v. Wells Fargo & Co.

247 F.R.D. 572, 2007 U.S. Dist. LEXIS 90451, 2007 WL 4249854
CourtDistrict Court, N.D. California
DecidedNovember 30, 2007
DocketNo. C 07-01351 WHA
StatusPublished
Cited by8 cases

This text of 247 F.R.D. 572 (Kay v. Wells Fargo & Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kay v. Wells Fargo & Co., 247 F.R.D. 572, 2007 U.S. Dist. LEXIS 90451, 2007 WL 4249854 (N.D. Cal. 2007).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this action for violations of the Real Estate Settlement Procedures Act, plaintiff moves for class certification of all homeowners who obtained residential mortgage loans through Wells Fargo Bank, N.A. (“WFB”) and who paid for private mortgage insurance arranged through Wells Fargo Company’s (“WFC”) affiliated reinsurer, North Star Mortgage Guaranty Reinsurance Company. Although equitable tolling is available under RE SPA, plaintiff has failed to plead the facts necessary to toll the statute of limitations. Nonetheless, plaintiff has demonstrated the requirements to certify a more limited class. Accordingly, plaintiffs motion to certify the class is Granted in part and Denied in part. The class will be limited to only those borrowers who obtained mortgage loans through WFB that closed after March 7, 2006, and paid for private mortgage insurance arranged through North Star through the commencement of this action. In addition, borrowers whose loans WFB [574]*574acquired from third-party lenders will be excluded from the class.

STATEMENT

In August 2006, plaintiff Andrea Kay obtained a residential mortgage loan from defendant WFB to purchase a home (Second Amd. Compl. ¶ 10). Kay made a down payment in conjunction with the home purchase of less than twenty percent of the total purchase price (ibid.). Given the increased risk associated with a lower down payment on a home purchase, mortgage lenders typically preferred to finance no more than eighty percent of the purchase price with the buyer required to pay the remaining twenty percent as a down payment (id. ¶ 20). When a potential buyer was unable to front such a large down payment, lenders looked to private mortgage insurers to share some of the risk of the transaction by financing the remaining difference. The borrower paid the premiums, but in the event of a default, the claims are paid to the lender (id. ¶24). Plaintiff alleges that borrowers were often compelled to use the private mortgage insurer chosen by the lender and given no opportunity to shop around for better rates (ibid.).

Private mortgage insurers could enter into contracts under which reinsurers assume some of the risk taken on by the private mortgage insurer for a given pool of loans (id. ¶ 38). In exchange for taking on some of the private mortgage insurer’s risk, the rein-surer received a portion of the premiums paid by the borrower (ibid.). Some mortgage lenders established their own affiliated or “captive” reinsurers (id. ¶ 23). The lender would then refer the borrower to the private mortgage insurer who subsequently rein-sures with the lender’s captive reinsurer (id. ¶44). This raises concerns about possible kickback payments between the private mortgage insurer and the captive reinsurer if the risk taken on by the captive reinsurer was not commensurate with the payment it received (id. ¶¶ 45^46).

Plaintiff alleges that defendant WFC had such a kickback arrangement with seven private mortgage insurers that reinsured with WFC’s subsidiary defendant North Star Guaranty Reinsurance Company (id. ¶ 55). North Star solely entered into reinsurance agreements for loans financed by WFB (ibid.). Kay alleges that the payments made to North Star were in violation of RESPA because little or no risk at all was actually transferred to North Star to justify the portion of the premiums North Star received (id. ¶ 59). This ultimately resulted, as the plaintiff alleges, in unwarranted increased premiums to mortgagees and more money for WFC (id. at ¶¶ 65-66).

This action was filed on March 7, 2007, by plaintiffs Andrea Kay and Daniel Myford. Myford voluntarily dismissed his claims on June 13, 2007. An order entered July 24 (Dkt. No. 54) found that while equitable tolling is available under RE SPA, plaintiff failed to adequately plead the facts necessary to qualify for tolling. Plaintiff had not alleged that defendants took affirmative steps to conceal their alleged scheme or that the putative class members could not have discovered the scheme’s existence despite due diligence. Plaintiff was allowed leave to amend her complaint in order to adequately plead the requirements for equitable tolling and fraudulent concealment (ibid.). Plaintiff filed her second amended complaint on August 23.

Kay filed a motion seeking class certification on October 4 seeking to represent the class of persons who obtained mortgages through WFB and who were also required to purchase private mortgage insurance (Second Amd. Compl. ¶ 68). The current order is based on that motion.

ANALYSIS

1. Legal Standard for Class Certification.

Contrary to the defense, in adjudicating a motion for class certification, the district court must take the allegations in the complaint as true as long as those allegations are specific enough to meet the requirements of Rule 23. In determining whether class certification is appropriate, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather, whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

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Cite This Page — Counsel Stack

Bluebook (online)
247 F.R.D. 572, 2007 U.S. Dist. LEXIS 90451, 2007 WL 4249854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kay-v-wells-fargo-co-cand-2007.