FYI: 3rd Cir Upholds Rejection of Class Settlement of Discriminatory Lending "Discretionary Pricing" Claims Under Dukes

The U.S. Court of Appeals for the Third Circuit recently held that the putative class in an action involving alleged racially discriminatory lending practices lacked commonality, in that the alleged discrimination was based on the exercise of discretion by numerous decision makers, and therefore lacked a common discriminatory mode. 

 

A copy of the opinion is available at http://www2.ca3.uscourts.gov/opinarch/118079p.pdf. 

 

A group of minority borrowers ("borrowers") filed a class action complaint against a bank, alleging that the bank had an established practice or pattern of racial discrimination in its financing of home loan purchases.   Specifically, the borrowers argued that the bank allowed brokers and loan officers to add subjective surcharges to their loans, such that minority applicants were charged more than similarly-situated Caucasian borrowers. 

 

The bank supplied the borrowers' counsel with data as to more than two million of its loans.  The borrowers analyzed this data, and asserted that it supported their contentions.  The two sides entered into settlement negotiations, and the bank agreed to settle the matter for $7,000,000.  Before the lower court approved the settlement, the Supreme Court issued its opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ("Dukes"). 

 

The lower court determined that under the standards articulated in Dukes, the instant class lacked commonality and typicality, and therefore could not be certified.  Accordingly, the lower court declined the parties' motion to approve the settlement agreement.  The borrowers appealed. 

 

As you may recall, Federal Rule of Civil Procedure 23(a) ("Rule 23") requires that the members of a proposed class share a common question of law or fact.  The commonality requirement is satisfied where "the named plaintiffs share at least one question of fact or law with the grievances of the prospective class."  Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). 

 

In Dukes, the Supreme Court held among other things that where a putative class asserts discrimination on the basis of giving discretion to lower-level employees, such claims must do more than "merely prov[e] that the discretionary system has produced a racial or sexual disparity."  In addition, plaintiffs must also identify "the specific practice that is challenged" - and to bring a case as a class action, each member of the class must have been subjected to the specific challenged practice in roughly the same manner.  Dukes, 131 S. Ct. at 2555-56. 

 

On appeal, the borrowers contended that the lower court overstepped its bounds in invalidating the parties' settlement agreement.  They further contended that the lower court misapplied Dukes.  The Third Circuit considered each argument in turn.       

 

The borrowers pointed to the Third Circuit's policy in favor of voluntary settlement to suggest that the lower court had improperly denied their motion to approve the class settlement agreement.  The Third Circuit agreed that it subscribed to the policy, but noted that "while that policy is indeed strong, it cannot alter the strictures of Rule 23." 

 

The borrowers further argued that both parties agreed in their settlement agreement that a more fully developed record would demonstrate that questions of law and fact existed that were common to all class members.  The Third Circuit found this argument unpersuasive, finding that "[t]he mere possibility that evidence of commonality could have been produced does not satisfy [Rule 23]." 

 

In sum, the Third Circuit rejected the borrowers' contentions on the basis that "as much as they might like to, parties cannot choose to avoid the judicial scrutiny demanded by Rule 23." 

 

Next, the Third Circuit turned to borrowers' contention that the lower court misapplied the Supreme Court's holding in Dukes.  Specifically, the borrowers contended that in their analysis of the data they received from the bank, they eliminated all objective credit and risk factors, leaving only a "common mode of exercising discrimination" to explain the loan officers' decisions.   

 

The Third Circuit found this contention unconvincing, noting that as the borrowers had not introduced their data or findings into evidence, their contentions were unsupported by anything in the record.  In addition, the Third Circuit placed emphasis on the fact that in the borrowers' analysis of the relevant data, they "do not even purport to control for individual, subjective considerations."  And even if they had done so, the Third Circuit noted that the borrowers "still have not shown that [the discretionary policy] affected all members in all regions and bank branches in a common way."  

 

Because "the exercise of broad discretion by an untold number of unique decision-makers...undermines the attempt to claim...that the decisions are bound together by a common discriminatory mode," the Third Circuit determined that the putative class lacked commonality, and accordingly affirmed the decision of the lower court.   

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

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FYI: 2nd Cir Rules 4-Yr Federal Catch-All SOL Applied to TCPA Claim In Fed Ct, American Pipe Tolling Does Not Extend to Appeal of Denial of Class Status

The U.S. Court of Appeals for the Second Circuit recently held that:  (1) federal law -- rather than state law -- supplied the appropriate statute of limitations period as to a putative class action brought under the Telephone Consumer Protection Act in federal court; and  (2) American Pipe tolling extends only through a lower court's initial denial of class status, and not also through an appeal of that of that ruling.  

 

A copy of the opinion is available at:  Link to Opinion

 

An individual (the "plaintiff") attempted to bring a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 ("TCPA"), in connection with an unsolicited fax advertisement.  After filing several actions asserting the same claim that were either withdrawn or dismissed, one of which involved a rejection of the plaintiff's attempted putative class claims and related dismissal for lack of subject matter jurisdiction, the plaintiff filed the instant action in U.S. District Court for the District of Connecticut. 

 

The lower court held that the plaintiff's filing was untimely.  Plaintiff appealed.  The Second Circuit agreed, finding that Connecticut law supplied the appropriate statute of limitations period, which had run at the time the instant action was filed.  

 

The plaintiff again appealed.  The U.S. Supreme Court vacated the Second Circuit's disposition, and remanded the matter for consideration consistent with its decision in Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012) ("Mims"). 

 

On remand, the Second Circuit began by analyzing whether federal or state law applied the applicable limitations period.  

 

As you may recall, 28 U.S.C. Sec. 1658(a) provides that "[e]xcept as otherwise provided by law, a civil action arising under an Act of Congress...may not be commenced more than 4 years after the cause of action accrues." 

 

The TCPA does not contain a statute of limitations, but provides that "[a] person or entity may, if otherwise permitted by the laws or rules of court or a State, bring [an action] in an appropriate court of that State."  Sec. 227(b)(3). 

 

The Second Circuit began its analysis by noting that it had previously construed the "if otherwise permitted" language above as creating an exception to the 4-year limitations period provided by 28 U.S.C. Sec. 1658(a).  However, the Second Circuit explained that the Supreme Court's holding in Mims compelled the conclusion that "to vindicate the significant federal interest reflected in the TCPA and to ensure uniformity, TCPA claims in federal court are not subject to the vagaries of state law."  Accordingly, the Second Circuit held that the 4-year limitations period under 28 U.S.C. Sec. 1658(a) governs the instant action, rather than limitations period provided for by state law. 

 

Having determined the applicable limitations period, the Second Circuit analyzed the facts at issue here.  It noted that the plaintiff filed his action more than four years after he received the fax at issue, but that the plaintiff contended that the limitations period was tolled. 

 

As you may recall, American Pipe and Construction Co. v. Utah provides that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class..."  414 U.S. 538, 554 (1974). 

 

The Second Circuit noted that it had not yet had occasion to determine the scope of American Pipe tolling, but that every other federal circuit court that had examined the question held that "American Pipe tolling ends upon denial of class certification."  The Second Circuit reached the same conclusion as its sister circuits.

 

The plaintiff argued that the fact that he appealed the lower court's denial of class certification should further toll the limitations period.  However, the Second Circuit noted that denials of class certifications are rarely reversed, and therefore concluded that "the remote possibility of reversal of the district court's denial of class status" was not sufficient to toll the applicable limitations period further.  The Second Circuit also emphasized the need for a "bright-line rule in this area of law" in reaching its decision. 

 

Accordingly, the Second Circuit determined that because the plaintiff's appeal did not toll the limitations period, the instant action was filed after the 4-year limitations period under 28 U.S.C. Sec. 1658(a) had run.  It therefore affirmed the decision of the lower court. 

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

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FYI: 4th Cir Upholds TCPA Judgment Involving Violations of Identity Disclosure Provision for Pre-Recorded Messages

The U.S. Court of Appeals for the Fourth Circuit recently affirmed (in any unpublished opinion) a $1 million judgment obtained by the State of Maryland for violations of the identity disclosure provisions of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §227, et seq., applicable to artificial or prerecorded voice telephone messages.

 

In so ruling, the Fourth Circuit held that the TCPA empowers state attorney generals to bring an action against "any person" who violates the identity disclosure provision, including individuals using autodialing systems, not just the autodialing services themselves.

 

A copy of the opinion is available at: http://www.ca4.uscourts.gov/Opinions/Unpublished/121791.U.pdf

 

Prior to the 2010 Maryland gubernatorial election, a political candidate hired Appellants to assist with his campaign efforts.  As part of the campaign, Appellants' employee composed and prepared a pre-recorded telephone call, also known as a robocall.  The robocall neither identified the campaign as the sponsor nor included the campaign's phone number.

 

The robocall, along with two lists containing phone numbers for Maryland voters affiliated with the opposing party, were subsequently uploaded to an automatic dialing service ("Autodialer").  On election night, the Autodialer sent the robocall to more than 112,000 Maryland voters.  Subsequently, the State of Maryland filed a civil lawsuit in federal court against Appellants and their employee for violations of the TCPA.

 

Appellants filed a motion to dismiss, challenging among other things the TCPA's constitutionality as applied to political calls, and a motion to stay pending the resolution of related state criminal investigations.  The federal district court located in Maryland denied both motions.

 

The district court eventually entered judgment on behalf of the State.  The court explained that the record unambiguously supported a finding that Appellants had violated the TCPA and that Appellants and their employee may be held jointly and severally liable for any damages.  Judgment was entered against the employee in the amount of $10,000 and against Appellants in the amount of $1,000,000.

 

As you may recall, the TCPA's identity disclosure provision and its implementing regulation generally require all artificial or prerecorded voice telephone messages to identify the entity responsible for initiating the call and provide that entity's telephone number.  47 U.S.C. §227(d)(1), (3)(A); 47 C.F.R. §64.1200(b).

 

On appeal, Appellants raised four issues.  First, Appellants asserted that the TCPA was unconstitutional as applied to political robocalls.  The Fourth Circuit disagreed.

 

"[R]egulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny…"  Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994).  Content-neutral laws are valid so long as they further an important governmental interest.  See United States v. O'Brien, 391 U.S. 367, 377 (1968).  Here, the Fourth Circuit held that the TCPA's identity disclosure provision was a content-neutral law.  Further, it identified three important governmental interests furthered by the TCPA: (i) protecting residential privacy; (ii) promoting disclosure to avoid misleading recipients of recorded calls; and (iii) promoting effective law enforcement.

 

Second, Appellants argued that the lower court improperly denied their motion to dismiss, reiterating several issues raised below.  Rejecting all such arguments, the Fourth Circuit affirmed the district court's denial.

 

Among other issues, Appellants argued that the complaint should have been dismissed because it failed to allege that the robocalls were received by any Maryland citizen.  However, according to the Fourth Circuit, the TCPA does not require the State to "identify particular phone call recipients by name." 

 

In addition, Appellants asserted that defendant-employees cannot be held liable under the TCPA.  In rejecting this argument, the Fourth Circuit noted that Section 227(d) of the TCPA prohibits "any person" from violating its authority identification requirements, and empowers state attorney generals to bring an action against "any person" who violates the TCPA.  See Balt.-Wash. Tel. Co. v. Hot Leads Co., 584 F. Supp. 2d 736, 745 (D. Md. 2008); Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892, 898 (W.D. Tex. 2001); Covington & Burling v. Int'l Mktg. & Research, Inc., 2003 WL 21384825, at *6 (D.C. Super. Ct. 2003).

 

Citing no supporting authority, Appellants also argued that the robocall could not have violated the TCPA because it was a single phone call placed to multiple recipients, rather than multiple phone calls made to the same recipients over time; and that they cannot be liable because the Autodialer, and not Appellants, actually placed the offending calls.  Again, the Fourth Circuit disagreed, holding that the TCPA's identity disclosure provision applies to "any telephone call" and to individuals using autodialing systems, not just the autodialing services themselves.  Additionally, the Fourth Circuit held that the Autodialer was not a necessary party to the lawsuit.

 

Third, Appellants suggested that the district court erred by denying their motion to stay the proceedings.  However, because no indictment had been issued, the Fourth Circuit affirmed the denial.  See Ashworth v. Albers Med., Inc., 229 F.R.D. 527, 530 (S.D. W. Va. 2005).

 

Lastly, although Appellants challenged the district court's grant of summary judgment, the Fourth Circuit held that it had sufficient grounds to establish Appellants' liability under the TCPA.  According to the Court, because the facts showed that Appellants created and distributed the robocall, which failed to identify either the message's sponsor or a phone number at which the sponsor could be reached, such facts were sufficient to hold Appellants liable under the TCPA's identity disclosure provision.

 

Accordingly, the Fourth Circuit affirmed the district court's denial of Appellants' motions to dismiss and to stay the proceedings, and affirmed the district court's grant of the State of Maryland's motion for summary judgment.

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

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FYI: 9th Cir Follows Wigod in HAMP/TPP Case, Rules Mortgage Servicer's Alleged Loan Mod Activities Subject to California's Rosenthal Act

Reversing the lower court's order dismissing the borrowers' allegations, the U.S. Court of Appeals for the Ninth Circuit recently ruled that a bank was contractually obligated to offer borrowers a permanent mortgage modification after the borrowers complied with the requirements of a trial period plan ("TPP") under the Home Affordable Modification Program ("HAMP").

 

In so ruling, the Ninth Circuit also held that the defendant bank's alleged activities were subject to California's Rosenthal Fair Debt Collection Practices Act, Cal Civ. Code §§ 1788, et seq. ("Rosenthal Act"), because they amounted to more than a mere "informational circulation."

 

A copy of the opinion is available at:  http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/08/11-16234.pdf

 

Two separate borrowers filed suit against a bank ("Bank") in federal court under diversity jurisdiction grounds, alleging that the borrowers fully satisfied their requirements under the TPP, and that Bank failed to provide a permanent loan modification, or failed to provide notice that the borrowers did not qualify for a HAMP modification, as contractually required.  The two lawsuits were consolidated.

 

One of the borrowers alleged he sent his financial information via a financial worksheet to the Bank for a loan modification under HAMP.  The Bank then allegedly sent Borrower a TPP, which provided that if the borrower's representations are accurate and if the borrower complied with the terms of the trial plan, he would receive a modification offer.  The TPP further provided that, as required by the applicable Treasury Directive, the Bank would inform the borrower one way or another on his eligibility for a modification.

 

In addition, Paragraph 2F of the TPP provided that in addition to the borrower making payments and maintaining the accuracy of his representations, the Bank must provide an executed copy of the TPP and Modification Agreement to the borrower.  According to Paragraph 2G of the TPP, no modification would take effect until the borrower received the Modification Agreement.

 

The borrower alleged he signed and returned the TPP, and that Bank never told him whether he qualified for a modification.  The borrower also alleged he complied with the TPP's terms and made all three payments on time.  The borrower sought a permanent modification and damages for payments made to Bank.

 

The second set of borrowers ("Foreclosed Borrowers") made similar allegations, albeit through alleged oral communications with the Bank.  They alleged that Bank offered a trial plan, with the promise of a permanent modification upon full compliance.  Foreclosed Borrowers alleged they met the required payments and submitted all requested documents.  However, despite supposed full performance of their TPP obligations, Bank allegedly neither offered a loan modification nor did the Bank alert Foreclosed Borrowers that there were not eligible for a modification.  The Bank foreclosed on the property.  Foreclosed Borrowers sought rescission of the foreclosure, a permanent modification, and damages.

 

Borrower and Foreclosed Borrowers (collectively, "Borrowers") alleged that because they fully complied with their requirements of their respective TPPs through submitting accurate documentation and making trial payments, there was an enforceable contract that bound the Bank to offer permanent modifications.

 

As you may recall, the Treasury Department initiated the HAMP program to incentivize banks to refinance mortgages of distressed homeowners.  Under Treasury Supplement Directive 09-01, the process of applying for and receiving a permanent modification begins with a borrower providing its financial information and inability to pay to the servicer.  The servicer must then evaluate whether a borrower qualifies for a loan modification.

 

For a borrower that appears eligible under HAMP, the servicer then prepares a TPP.  The TPP requires a borrower to submit documentation to confirm the accuracy of their initial financial representations, and to make trial payments of the modified amount to the servicer.  Next, the servicer must use the provided documentation to confirm that borrower meets the criteria for a permanent modification.

 

The servicer must then report the results of the eligibility determinations.  If a borrower does not qualify for the HAMP program, the servicer must alert the borrower and also consider alternative options.  For a borrower that makes all requisite trial payments and whose representations remain accurate, the servicer must offer a permanent home loan modification.

 

The district court dismissed the Borrowers' claims, holding that even accepting their allegations as true, the language of the TPP could not support a contract for a permanent loan modification.  According to the district court, Paragraph 2G of the TPP stated that the loan would not be modified "unless and until" Borrowers received a "fully executed copy of a Modification Agreement."  The district court concluded that under this provision, the Bank's promise of a permanent modification offer was conditioned on the Bank sending the executed Modification Agreement.  Because the Bank did not send the Modification Agreement, the Bank was not required to offer a permanent modification, and the lower court dismissed the breach of contract claims.

 

Moreover, the district court dismissed claims for promissory estoppel, breach of the covenant of good faith and fair dealing, and violations of California's Unfair Competition Law and Foreclosed Borrowers' claim under the Rosenthal Fair Debt Collection Practices Act because these claims depended upon the non-existent promise by the Bank to offer a permanent modification if Borrowers met the conditions of the TPP.

 

Borrowers appealed.  In reversing the district court's ruling, the Ninth Circuit held that Bank was contractually obligated under the terms of the TPP to offer a permanent modification to borrowers who complied with the TPP by submitting accurate documentation and making trial payments.

 

The Ninth Circuit first examined the U.S. Court of Appeals for the Seventh Circuit's decision on the contractual obligations of banks under TPP agreements in Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012).

 

The Seventh Circuit in Wigod held that banks "were required to offer permanent modifications to borrowers who completed their obligations under the TPPs, unless the banks timely notified those borrowers that they did not qualify for a HAMP modification."  Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012).

 

The Ninth Circuit noted that the Seventh Circuit's decision rejected the very same arguments advanced by the Bank.  The Bank contended that under the language of Paragraph 2G of the TPP "the Loan Documents will not be modified unless and until… (ii) [the borrower] receive[s] a fully executed copy of a Modification Agreement."  Because no Modification Agreement was sent, the Bank argued, there was no requirement to offer a permanent modification.  The Seventh Circuit rejected this argument, because it made the existence of any obligation conditional solely on the action of the Bank, and conflicted with another provision of the TPP – the Bank's promise to send borrower a Modification Agreement if borrower fully complied with the obligations of the TPP and borrower's representations were true.

 

The Ninth Circuit further noted that the Bank's argument would allow banks to avoid their obligations to borrowers merely by choosing not to send a copy of the executed Modification Agreement even if borrowers fully complied with their requirements under the TPP. 

 

Based upon the Seventh Circuit's ruling, the Ninth Circuit concluded that the TPP does not contemplate such an unfair result – Paragraph 2G cannot convert a purported agreement setting forth clear obligations into a decision left to the unfettered discretion of the Bank.  The Ninth Circuit held a fair interpretation of the TPP is that the servicer must send a signed Modification Agreement once the borrowers meet their obligations under the TPP. 

 

Moreover, although the Seventh Circuit decision interpreted Illinois law, the Ninth Circuit found that there was no material difference between Illinois and California law, citing to the California Court of Appeal's decision in West v. JPMorgan Chase Bank, N.A., 154 Cal. Rptr. 3d 285, 299 (Ct. App. 2013), where the state appellate court expressly adopted the Seventh Circuit ruling.  Specifically, the California appellate court found that once the servicer determined that a borrower had complied and the representations were still true, then the servicer was required by the agreement to offer a permanent modification.

 

Bank argued the West decision was not controlling because it is not a California Supreme Court decision, citing Nungaray v. Litton Loan Servicing, LP, 135 Cal. Rptr. 3d 442 (Ct. App. 2011) evidencing a conflict among the California Courts of Appeal.  However, the Ninth Circuit found Nungaray distinguishable, because in that case, borrowers had failed to submit documents required by the TPP, whereas in the case at hand the Borrowers alleged they fully complied with their requirements.

 

The Bank further argued that the Seventh Circuit's ruling was distinguishable because there, the bank actually sent the borrowers a signed copy of the TPP.  The Ninth Circuit was not persuaded, finding that the Seventh Circuit's ruling did not turn on this fact.  Rather, according to the Ninth Circuit, it was the bank's failure to tell borrowers that they did not qualify for a permanent modification that was determinative.  The Ninth Circuit noted that the TPP gives the servicer a chance, after borrowers submit the completed TPP, to notify the borrowers if they do not qualify.  The Ninth Circuit noted tis notification requirement is also set out in the applicable Treasury Directive.

 

As such, the Bank's own failure to fulfill the notification obligation does not deprive Borrowers of the benefits of the TPP agreement.

 

Next, the Bank argued that the Foreclosed Borrowers' breach of contract claim cannot survive the statute of frauds because it is an oral agreement to modify a mortgage.  The Ninth Circuit rejected this argument because the Foreclosed Borrowers alleged full performance of their obligations and therefore that they may enforce the Bank's promises.

 

The Bank also argued that the Foreclosed Borrowers' claim for violation of the Rosenthal Act, California's version of the federal Fair Debt Collection Practices Act, must be dismissed because the Bank was not engaged in debt collection activities when it offered the TPP.  The Ninth Circuit rejected this argument, finding that the TPP was more than a mere "informational circulation," citing In re Bank  of Am. Home Affordable Modification Program (HAMP)  Contract Litig., No. 10-MD-02193-RWZ,2011WL 2637222,at *6 (D. Mass.July6,2011), and Reyes v. Wells Fargo Bank, N.A., No. C-10-01667JCS, 2011 WL30759, at

*20 (N.D. Cal. Jan. 3, 2011) (activities by a debt collector that are "beyond the scope of the ordinary foreclosure process" are "debt collection" activities subject to the Rosenthal Act).

 

 

Accordingly, the Ninth Circuit reversed the district court's ruling because the Borrowers alleged that they complied with all requirements under the TPP, the Bank was contractually obligated to offer Borrowers a permanent modification or inform Borrowers that they did not qualify for a permanent modification.

 

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

Admitted to practice law in Illinois

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

Our updates are available on the internet, in searchable format, at:
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