O'Gara ex rel. Estate of Portnick v. Countrywide Home Loans, Inc.

282 F.R.D. 81, 2012 WL 2943676, 2012 U.S. Dist. LEXIS 96698
CourtDistrict Court, D. Delaware
DecidedJuly 12, 2012
DocketC.A. No. 08-113-LPS
StatusPublished
Cited by3 cases

This text of 282 F.R.D. 81 (O'Gara ex rel. Estate of Portnick v. Countrywide Home Loans, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Gara ex rel. Estate of Portnick v. Countrywide Home Loans, Inc., 282 F.R.D. 81, 2012 WL 2943676, 2012 U.S. Dist. LEXIS 96698 (D. Del. 2012).

Opinion

MEMORANDUM OPINION

STARK, District Judge:

Pending before the Court is a Motion to Certify Class filed by plaintiff Greg O’Gara, on behalf of the Estate of Tamara Portnick (“Plaintiff”). (D.I. 76) For the reasons discussed below, the Court will deny Plaintiffs Motion to Certify Class.

I. BACKGROUND

A. Factual Background

Countrywide Home Loans, Inc. (“Defendant” or “Countrywide”1) is a nationwide mortgage lender. (D.I. 80, Ex. 1 ¶ 2) At loan closings, borrowers who obtain loans from Countrywide execute Notes and Mortgage Deeds of Trust (“Mortgage Agreements”) governing the terms of their loans. (Id.) The Mortgage Agreements contain provisions permitting Countrywide to recover costs, fees, and expenses in the event that borrowers default upon their obligations (the “Fee Provisions”).2 Once a borrower defaults, Countrywide can initiate foreclosure proceedings. (D.I. 80, Ex. 1 ¶ 4)

During the Class Period,3 approximately 150 different law firms worked on foreclosure proceedings for Countrywide, and each firm provided services pursuant to a standardized agreement with Countrywide. (See D.I. 76, Ex. A at 21:19-25; id., Ex. A at 73:10-21)4 Pursuant to the standardized agreement, Countrywide’s outside counsel submitted their invoices for attorneys’ fees and costs to Countrywide’s Foreclosure and Bankruptcy Finance Department. (See id., Ex. B. at 40:6-7; 40:16^11:5) Countrywide reviewed foreclosure counsel’s invoices to determine if the total time billed was within the “investor insurer allowable amount”5 applicable to the loan at issue. (See id., Ex. B at 19:5-22) If foreclosure counsel’s invoices exceeded the investor insurer allowable amount without prior approval, then Countrywide reviewed the bills submitted for accuracy. (See id., Ex. B at 23:9-11, 23:17-24:6, 24:10-21) If counsel’s invoices did not exceed the investor insured allowable amount, then the charges [85]*85were not reviewed unless a billing accuracy audit was conducted.6 (See id., Ex. A at 56:8-10, 71:9-11, 75:12-18; id., Ex. G ¶ 5)

If a borrower voluntarily paid to bring a loan out of default, ending foreclosure, then the loan became known as a “reinstated loan” and was subject to a reconciliation review by Countrywide. (D.I. 80 at 6) When a borrower notified Countrywide that he or she wanted to reinstate the loan, Countrywide would calculate the amount necessary to reinstate.7 (Id.) After the loan was reinstated, Countrywide conducted a loan reconciliation review to compare the estimated fees and costs listed on the reinstatement quote with those actually incurred by foreclosure counsel. (See D.I. 76, Ex. B at 46:15-47:8) In the event that the borrower was overcharged, Countrywide refunded the amount of overcharge to the borrower. (See id. at 46:14r-47:8) Tamara Portnick’s loan was subject to the reinstatement process. (D.I. 80 at 6)

B. Procedural History

On February 25, 2008, Plaintiff filed a putative class action complaint alleging, individually and on behalf of all others similarly situated, that Defendant charged “inflated, unverifiable or false costs, fees and expenses associated with enforcement proceedings.” (D.I. 1 ¶ 17) Plaintiff asserts three causes of action: breach of contract, unjust enrichment, and breach of duty of good faith and fair dealing. (Id. ¶¶ 68-80) On November 14, 2011, after completing discovery related to class certification, Plaintiff filed the pending Motion to Certify Class. (D.I. 76)

Plaintiff seeks to certify a class (the “Proposed Class”) consisting of:

All individuals who (i) executed a Mortgage Note providing the note holder is entitled to be “paid back ... for all its costs and expenses in enforcing the note ... including] ... reasonable attorneys’ fees;” and (ii) have been subject to an enforcement action concerning the Mortgage Note by Countrywide; (iii) received a demand from Countrywide to pay costs, fees and expenses in excess of those Countrywide and/or its agents actually incurred or were obligated to pay; and (iv) suffered damages as a result [during the Class Period].

(Id. at 1-2; see D.I. 77 at 1) Plaintiff seeks class certification pursuant to Rules 23(a), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure. (D.I. 76 at 1) Additionally, pursuant to Federal Rule of Civil Procedure 23(g), Plaintiff seeks appointment of the law firm of Harwood Feffer LLP (“Harwood Fef-fer”) as class counsel. (D.I. 77 at 19)

The parties completed briefing on the Motion to Certify Class on March 23, 2012. (D.I. 88) The Court held oral argument on May 15, 2012. See Mot. Hr’g Tr., May 15, 2012 (D.I. 89 and, hereinafter, “Tr.”).

II. LEGAL STANDARDS

“Class certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 are met.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir.2008) (internal quotation marks omitted). In reviewing a motion for class certification, such “rigorous analysis may include performing a preliminary inquiry into the merits.” Id. at 317 (internal quotation marks omitted). “Although the district court’s findings for the purpose of class certification are conclusive on that topic, they do not bind the fact-finder on the merits.” Id. at 318.

Class certification under Rule 23 has two principal components. First, the party seeking certification must establish the four requirements of Rule 23(a):

[86]*86(1) the class is so numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy].

Id. at 309 n. 6 (internal quotation marks omitted). “Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011).

Here, Plaintiff relies on Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Id. at 2548-49. Class certification under Rule 23(b)(3) “is permissible when the court finds 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 available methods for fairly and efficiently adjudicating the controversy.” Hydrogen Peroxide,

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282 F.R.D. 81, 2012 WL 2943676, 2012 U.S. Dist. LEXIS 96698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogara-ex-rel-estate-of-portnick-v-countrywide-home-loans-inc-ded-2012.