Minter v. Wells Fargo Bank, N.A.

279 F.R.D. 320, 81 Fed. R. Serv. 3d 508, 2012 U.S. Dist. LEXIS 1163, 2012 WL 32569
CourtDistrict Court, D. Maryland
DecidedJanuary 5, 2012
DocketCivil Action No. WMN-07-3442
StatusPublished
Cited by5 cases

This text of 279 F.R.D. 320 (Minter v. Wells Fargo Bank, N.A.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minter v. Wells Fargo Bank, N.A., 279 F.R.D. 320, 81 Fed. R. Serv. 3d 508, 2012 U.S. Dist. LEXIS 1163, 2012 WL 32569 (D. Md. 2012).

Opinion

MEMORANDUM

WILLIAM M. NICKERSON, Senior District Judge.

Pending before the Court is Plaintiffs’ Motion for Certification of the Tolling Class, ECF No. 264. The motion is fully briefed and ripe for review.1 Upon consideration of the pleadings, facts and applicable law, the Court determines that no hearing is necessary, Local Rule 105.6, and the Motion for Certification of the Tolling Class will be granted in part.

I. Background

As already summarized in this Court’s memorandum dated May 3, 2011 (May 3 Memo), this litigation arises out of

Plaintiffs theory that that Prosperity Mortgage Company (Prosperity), the product of a joint venture between Wells Fargo Bank, N.A. (Wells Fargo) and Long & Foster Real Estate, Inc. (Long & Foster), operated not as an independent mortgage lender but rather as a mere front organization formed to circumvent legislation designed to prevent market-distorting business practices within the real estate settlement services industry.

ECF No. 253 at 2. Plaintiffs allege violations of: Sections 8(a), 8(c) and 8(c)(4) of the Real Estate Settlement Procedures Act (RESPA); the Racketeer Influenced and Corrupt Organizations Act (RICO); the Maryland Consumer Protection Act, Md.Code Ann. Com. Law § 13-101, et seq. (CPA); and derivative tort claims.

Plaintiffs initially sought certification for a class consisting of all consumers who transacted with Prosperity at any time from Prosperity’s formation in 1993 to the present. ECF No. 185. The Court noted, however, that certification of a class for the entire eighteen year period was problematic for two primary reasons: one, the claims of the majority of the proposed class arise outside of RE SPA’s one-year statute of limitations, and so would have to be equitably tolled before those class members could pursue their claims; and two, Prosperity’s business operations markedly changed around the time of the December 26, 2006, statute of limitations date, requiring different inquiries into the claims of those who transacted with Prosperity during the two time periods. ECF No. 253 at 54.

To enable a more accurate analysis of the different types of plaintiffs, the Court bifurcated Plaintiffs’ proposed class into a “Timely Class,” containing those class members whose claims fall within the statutes of limitations, i.e., arising after December 26, 2006, and a “Tolling Class,” for those whose claims arise prior to December 26, 2006, and thus must be equitably tolled before being pursued further. Id. at 55. The Named Plaintiffs at the time class certification was [323]*323initially sought were Denise Minter, Jason Alborough and Rachel Alborough, all of whom had entered into transactions after December 26, 2006, and so were members of the Timely Class. The Court granted certification for the Timely Class, but declined to grant certification for the Tolling Class because it lacked a representative member whose claim arose during the tolling period and so could be “sufficiently typical and adequate.” Id. at 60.

The Court specifically noted, however, that “if Plaintiffs wish to pursue Tolling Class claims premised on RESPA Section 8(c) in this litigation, they may identify and designate a proper class representative and move the Court to that end.” Id. Plaintiffs responded and amended the complaint to include a new Named Plaintiff, Lizbeth Binks, whose transaction with Prosperity took place prior to December 26, 2006, ECF No. 263 at 4, and have now moved to certify the Tolling Class with Ms. Binks as its representative. Plaintiffs’ proposed class definition is:

All consumers who have obtained a federally related mortgage loan originated by Prosperity Mortgage Company that was funded by transfers from a line of credit at Wells Fargo Bank, any of its subsidiaries or any of their predecessors, before December 26, 2006.

ECF No. 264. Plaintiffs seek certification of the Tolling Class for the following RE SPA claims2: Section 8(c) sham-controlled entity claim, Section 8(c)(4)(A) inadequate ABA disclosure claim, and Section 8(a) kickback claim. In its May 3 Memo, the Court declined to certify a class for the Section 8(a) kickback claim because this claim only pertains to clients who transacted with Prosperity after being referred there by Long & Foster. ECF No. 253 at 59. Certifying this subclass would “unnecessarily complicate and obscure the larger question” of the case, that regarding the legitimacy or illegitimacy of Prosperity. Id. As this still holds true, the Court will not revisit this issue for the Tolling Class, and will confine its analysis to whether the Tolling Class can be certified for the remaining two RESPA claims.

II. Class Certification

As the Court outlined in its May 3 Memo, the legal standard required to certify a plaintiff class is set forth in Federal Rule of Civil Procedure 23. Rule 23(a) requires the party seeking certification to demonstrate that:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

These four requirements are boiled down to the elements of numerosity, commonality, typicality and adequacy of representation. All four elements must be satisfied, though “the final three requirements of Rule 23(a) ‘tend to merge,’ with commonality and typicality ‘serving as guideposts for determining whether ... maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’ ” Brown v. Nucor Corp., 576 F.3d 149, 152 (4th Cir.2009) (quoting Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir.1998) and Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

Additionally, Plaintiff must demonstrate that the putative class satisfies at least one of the conditions of Rule 23(b). In this ease, Plaintiff must meet the conditions of Rule 23(b)(3),3 which require that:

questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other [324]*324available methods for fairly and efficiently adjudicating the controversy.

At the certification stage, the Court need not undertake, and should in fact avoid, an evaluation of the merits of the underlying claim. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct.

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Bluebook (online)
279 F.R.D. 320, 81 Fed. R. Serv. 3d 508, 2012 U.S. Dist. LEXIS 1163, 2012 WL 32569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minter-v-wells-fargo-bank-na-mdd-2012.