Piotrowski v. Wells Fargo Bank, NA
Filing
67
REDACTED MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/29/2015. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROBERT PIOTROWSKI
:
v.
:
Civil Action No. DKC 11-3758
:
WELLS FARGO BANK, NA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this mortgage
loan modification case are: (1) a motion for class certification
filed by Plaintiffs (ECF No. 50); and (2) three motions to seal
(ECF Nos. 58, 59, 61).
The issues have been fully briefed, and
the court now rules, no hearing being deemed necessary.
Rule 105.6.
Local
For the following reasons, Plaintiffs’ motion for
class certification will be denied.
The three motions to seal
will be granted.
I.
Background
The factual background was explained in the January 22,
2013 memorandum opinion, thus only those facts relevant to the
instant dispute will be discussed.
(See ECF No. 20).
Robert
Piotrowski filed a complaint on December 29, 2011, asserting
claims on behalf of a putative class of homeowners who have been
damaged
by
applicable
Wells
federal
Fargo’s
and
alleged
state
laws
failures
in
to
connection
comply
with
with
their
mortgage
action
loan
modification
complaint
Opportunity
Act,
asserted
15
U.S.C.
requests.
claims
§
The
under
1691(d)
four-count
the
(“ECOA”);
Equal
the
class
Credit
Maryland
Consumer Debt Collection Act, Md. Code Ann., Com. Law § 14-201
et seq. (“MCDCA”); the Maryland Consumer Protection Act, Md.
Code Ann., Com. Law § 13-101 et seq. (“MCPA”); and the Maryland
Mortgage Fraud Protection Act, Md. Code Ann., Real Prop. § 7-401
et seq. (“MMFPA”).
Mr. Piotrowski and his wife, Iwona Piotrowski, own property
located
became
in
North
concerned
Potomac,
about
Maryland
their
(“the
mortgage
in
Property”).
December
2010
They
and
allegedly submitted a completed loan modification application to
Wells Fargo, the servicer of their mortgage loan, in January
2011, at a time when they were current on their mortgage loan.
In
response
to
certain
correspondence
from
Wells
Fargo,
the
Piotrowskis later submitted two more loan modification requests
on April 26, 2011 and May 25, 2011, respectively.
As relevant
to the ECOA claims, the Piotrowskis asserted that: (1) Wells
Fargo failed to provide timely notice of its action in response
to each of his three modification requests, in violation of 28
U.S.C. § 1691(d)(1); and (2) Wells Fargo failed to provide an
explanation for declining each of the loan modification requests
in violation of 28 U.S.C. § 1691(d)(2).
2
Wells Fargo moved to dismiss the complaint.
A memorandum
opinion and order were issued on January 22, 2013, granting in
part and denying in part the motion to dismiss.
21).
(ECF Nos. 20 &
Leave to amend was granted to allow Mr. Piotrowski to join
Iwona Piotrowski as an additional plaintiff.
The court agreed
with the Piotrowskis that Subsections (d)(1) and (d)(2) of the
ECOA impose separate obligations on creditors.
17).
(ECF No. 20, at
The January 22 opinion held, in relevant part, that: (1)
the complaint failed to state a claim under either Subsection
1691(d)(1)
or
Subsection
1691(d)(2)
as
to
the
first
loan
modification request (id. at 18-21); (2) with respect to the
second
loan
modification
request,
the
complaint
stated
a
plausible ECOA claim under Subsection 1691(d)(1) only (id. at
21-23); and (3) the complaint stated a plausible ECOA claim
under both Subsections 1691(d)(1) and 1691(d)(2) with respect to
the third loan modification request (id. at 23-24).
Consistent
with
the
memorandum
opinion,
an
amended
complaint was filed on February 12, 2013 to add Iwona Piotrowski
as an additional plaintiff, “correct misnomers in the original
complaint, and clarify certain factual allegations.”
(ECF No.
22).
A scheduling order was issued and discovery commenced.
After
several
motions
to
modify
the
scheduling
order
were
granted, on January 30, 2015 Plaintiffs moved to certify a class
only as to the ECOA claims.
(ECF Nos. 50 & 51).
3
Defendant
opposed the motion (ECF No. 54), and Plaintiffs replied (ECF No.
60).
Plaintiffs and Defendant moved to seal in their entirety
their respective memoranda and exhibits in connection with the
motion for class certification.
The court issued a memorandum
opinion and order on January 19, 2015 denying both motions to
seal without prejudice to the filing of a property supported
motion.
(ECF
No.
57).
supplemental motions to seal.
II.
The
parties
subsequently
filed
(See ECF Nos. 58, 59, 61).
Analysis
A.
Rule 23 Certification
A district court has “wide discretion” in deciding whether
class certification is appropriate.
Ward v. Dixie Nat’l Life
Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010) (quoting Central
Wesleyan College v. W.R. Grace & Co., 6 F.3d 177, 185 (4th Cir.
1993)
(internal
quotation
marks
omitted)).
The
burden
of
establishing class status is on Plaintiffs, Bullock v. Bd. of
Educ. of Montgomery County, 210 F.R.D. 556, 558 (D.Md. 2002),
and “[t]he court has a duty to undertake a ‘rigorous analysis’”
to ensure that the requirements of class certification have been
met.
Hewlett v. Premier Salons Int’l, Inc., 185 F.R.D. 211, 215
(D.Md. 1997) (citing Gen. Tel. Co. of Southwest v. Falcon, 457
U.S. 147, 161 (1982)).
The United States Court of Appeals for
the Fourth Circuit has noted:
4
If it were appropriate for a court simply to
accept the allegations of a complaint at
face value in making class action findings,
every complaint asserting the requirements
of Rule 23(a) or (b) would automatically
lead to a certification order, frustrating
the district court’s responsibilities for
taking a “close look” at relevant matters,
Amchem [Prods., Inc. v. Windsor], 521 U.S.
[591,]
615
[1997],
for
conducting
a
“rigorous analysis” of such matters, Falcon,
457 U.S. at 161, and for making “findings”
that the requirements of Rule 23 have been
satisfied. . . . “it is appropriate to
conduct
controlled
discovery
into
the
‘merits,’ limited to those aspects relevant
to making the certification decision on an
informed basis.”
Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365 (4th Cir. 2004)
(quoting
Fed.R.Civ.P.
amendments)
23
in
(emphasis
advisory
committee’s
original);
see
also
note
Amgen
to
2003
Inc.
v.
Connecticut Retirement Plans and Trust Funds, 133 S.Ct. 1184,
1194-95
(2013)
district
(noting
courts
a
that
“license
although
to
Rule
engage
in
23
does
not
free-ranging
give
merits
inquiries at the certification stage,” a court should consider
merits
questions
determining
certification
to
the
extent
whether
the
Rule
are
“that
23
satisfied.”).
they
are
prerequisites
“A
party
relevant
to
for
class
seeking
class
certification must do more than plead compliance with the []
Rule 23 requirements. . . .
Rather, the party must present
evidence that the putative class complies with Rule 23.”
Production Co., 764 F.3d at 357.
5
EQT
The
23(a):
class
must
numerosity,
satisfy
the
commonality,
four
prerequisites
typicality,
and
of
Rule
adequacy.
Specifically, Rule 23(a) provides:
(a)Prerequisites.
One or more members of a
class may sue or be sued as representative
parties on behalf of all members only if:
(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.
If those requirements are met, the class must satisfy at least
one
of
the
three
sub-parts
of
Rule
23(b),
which
will
be
discussed below.
Moreover, although not specified in Rule 23, the proposed
class
must
be
adequately
defined
and
clearly
ascertainable.
Bailey v. Patterson, 369 U.S. 31, 33 (1962); In re A.H. Robins
Co., Inc., 880 F.2d 709, 728 (4th Cir. 1989).
recently
discussed
the
ascertainability
The Fourth Circuit
requirement
in
Production Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014):
We have repeatedly recognized that Rule
23
contains
an
implicit
threshold
requirement that the members of a proposed
class be “readily identifiable.” Hammond v.
Powell, 462 F.2d 1053, 1055 (4th Cir. 1972);
see also In re A.H. Robins Co., 880 F.2d
709, 729 (4th Cir. 1989) (“though not
specified in [Rule 23], establishment of a
class action implicitly requires . . . that
there be an identifiable class . . .”),
6
EQT
abrogated on other grounds, Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591 (1977).
Our
sister circuits have described this rule as
an “ascertainability” requirement.
See,
e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d
583, 592-94 (3d Cir. 2012); John v. Nat’l
Sec. Fire & Cas. Co., 501 F.3d 443, 445 (4th
Cir. 2007); In re Initial Pub. Offerings
Sec. Litig., 471 F.3d 24, 44-45 (2d Cir.
2006).
However phrased, the requirement is the
same. A class cannot be certified unless a
court can readily identify the class members
in reference to objective criteria.
See
Marcus, 687 F.3d at 593; see also Crosby v.
Soc. Sec. Admin., 796 F.2d 576, 579-80 (1st
Cir. 1986) (finding that a class failed to
satisfy Rule 23 requirements because it
would
be
impossible
to
identify
class
members without “individualized fact-finding
and litigation”).
The plaintiffs need not be able to
identify every class member at the time of
certification.
But “[i]f the class members
are impossible to identify without extensive
and individualized fact-finding or ‘minitrials,’
then
a
class
action
is
inappropriate.”
Marcus, 687 F.3d at 593;
see also 7A Charles Alan Wright et al.,
Federal Practice & Procedure § 1760 (3d ed.
2005) (“[T]he requirement that there be a
class will not be deemed satisfied unless .
. . it is administratively feasible for the
court to determine whether a particular
individual is a member.”).
The Eleventh Circuit recently explained the administrative
feasibility
requirement
in
Bussey
v.
Macon
County
Park, Inc., 562 F.App’x 782, 787-88 (11th Cir. 2014):
“An identifiable class exists if its
members can be ascertained by reference to
objective criteria.”
Fogarazzo v. Lehman
7
Greyhound
Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y.
2009).
The analysis of the objective
criteria also should be administratively
feasible.
“Administrative
feasibility”
means “that identifying class members is a
manageable process that does not require
much, if any, individual inquiry.”
Newberg
th
on Class Actions § 3.3 p. 164 (5 ed. 2012).
Where a plaintiff satisfies this threshold
issue, the district court then “conducts a
rigorous
analysis
of
the
[R]ule
23
prerequisites.” Vega v. T-Mobile USA, Inc.,
564
F.3d
1256,
1266
(11th
Cir.
2009)
(citation
and
internal
quotation
marks
omitted).
(citing trial court opinion); Karhu v. Vital Pharmaceuticals,
Inc., ---F.App’x----, 2015 WL 3560722 (11th Cir. 2015) (same).
1. Ascertainability
a. Class Definition
Plaintiffs’ class definition has evolved over time.
memorandum
accompanying
the
motion
for
class
In the
certification,
Plaintiffs define the class as follows:
All individuals who obtained a loan secured
by property located in Maryland whose loans
(i) have been serviced by Wells Fargo; (ii)
since two years[1] preceding this action; and
(iii) have submitted an application to
change the terms of their existing mortgage
without requesting additional advances or
credit; and (iv) were not provided written
notice within 30 days of submitting an
application regarding the action taken on
the application; or (v) were not provided
within 60 days of submitting the application
1
Plaintiffs do not specify a precise time frame, but the
complaint was brought on December 29, 2011, so presumably the
class period would cover the period from December 29, 2009 until
December 29, 2011.
8
with a written statement of reasons (or a
disclosure that a borrower can request such
a statement) regarding an adverse action
taken on the application.
(ECF No. 51, at 2).
Based on objections raised by Defendant in
its
the
opposition,
in
reply
memorandum
Plaintiffs
propose
adding the following qualifier to the end of subpart (v):
(v) were not provided with a written
statement of reasons (or a disclosure that a
borrower can request such a statement)
regarding an adverse action taken on the
application within 60 days of submitting the
application and were not delinquent or in
default at the time of the action.
(ECF No. 60, at 27).2
Defendant
argues
that
the
amended
complaint
lacks
any
allegations relating to the notice requirements under the ECOA
for incomplete applications, but that based on the arguments in
their motion for class certification, Plaintiffs appear to have
expanded the class definition beyond what was alleged in the
amended
complaint.
Specifically,
Defendant
asserts
that
the
amended complaint only alleged violations of Sections 1691(d)(1)
and (d)(2) and 12 C.F.R. § 202.9(a)(1)(i) pertaining to complete
applications, whereas Plaintiffs seek to expand the class to
2
Plaintiffs added the qualifier that the class cover
persons who were not delinquent or in default at the time of the
action because under the ECOA, an adverse action “does not
include a refusal to extend additional credit under an existing
credit arrangement where the applicant is delinquent or
otherwise in default, or where such additional credit would
exceed a previously established credit limit.”
15 U.S.C. §
1691(d)(6).
9
cover purported violations of notice requirements pertaining to
incomplete applications.
The
beyond
fact
what
that
was
Plaintiffs
included
necessarily
class
the
F.Supp.
480,
in
the
The
dispositive.
modify
modified
court
definition.
487
(D.Md.
amended
See
1984);
the
class
complaint
possesses
Jenkins
Peoples
definition
v.
v.
not
power
the
is
to
Massinga,
Wendover
592
Funding,
Inc., 179 F.R.D. 492, 497 (D.Md. 1998); Givens v. Van Devere,
Inc., No. 5:11CV666, 2012 WL 4092738, at *15 (N.D.Ohio Sept. 17,
2012)
(“Courts
have
discretion
to
modify
proposed
class
definitions to make it administratively feasible to determine
class membership.”).
cited
by
Defendant
Indeed, in EQT, 764 F.3d at 360, a case
in
support
of
certification
denial,
the
Fourth Circuit remanded with instructions to the district court
to
“determine
whether
it
is
possible
to
adjust
the
class
definitions to avoid or mitigate the administrative challenges
we have identified.”
Dioxide
Antitrust
Judge Bennett explained in In re Titanium
Litig.,
962
F.Supp.2d
840,
860-61
2013):
Rule 23(c)(1)(C) of the Federal Rules of
Civil Procedure provides that “[a]n order
that grants or denies class certification
may be altered or amended before final
judgment.
Fed.R.Civ.P. 23(c)(1)(C).
This
Court has previously held that a federal
district court possesses “broad discretion
in determining whether to modify or even
decertify a class.”
Wu v. MAMSI Life &
10
(D.Md.
Health Ins. Co., 256 F.R.D. 158, 162 (D.Md.
2008) (citing Gen. Tel. Co. of the Sw. v.
Falcon, 457 U.S. 147, 160 (1982) (“Even
after a certification order is entered, the
judge remains free to modify it in light of
subsequent
developments
in
the
litigation.”)).
In fact this Court has “an
affirmative obligation to ensure that the
class
membership
remains
at
all
times
consistent with the underlying facts and
procedural posture of the case.”
Id. at
162-63 (citing Richardson v. Byrd, 709 F.2d
1016, 1019 (5th Cir. 1983) (“Under Rule 23 .
.
.
the
district
judge
must
define,
redefine,
subclass,
and
decertify
as
appropriate in response to the progression
of the case from assertion to facts.”));
Chisolm v. TranSouth Fin. Corp., 194 F.R.D.
538, 544 (E.D.Va. 2000) (same).
Accordingly,
proposed
class
the
proper
definition
inquiry
results
is
in
whether
an
Plaintiffs’
ascertainable
and
administratively feasible class and meets Rule 23 requirements,
not
whether
it
precisely
tracks
the
definition in the amended complaint.
Life
Ins.
Co.,
365
F.3d
408,
414
allegations
and
class
See also In re Monumental
(5th
Cir.
2004)
(“Holding
plaintiffs to the plain language of the class definition would
be overly formalistic. . . .
plain
language
refinement
of
and
their
Second, holding plaintiffs to the
definition
give-and-take
would
inherent
ignore
in
the
ongoing
class
action
litigation, particularly in the formation of a workable class
definition.
class
District courts are permitted to limit or modify
definitions
to
provide
the
necessary
precision.”);
Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993) (“A court is
11
not bound by the class definition proposed in the complaint and
should not dismiss the action simply because the complaint seeks
to define the class too broadly.”); Harris v. Gen. Dev. Corp.,
127 F.R.D. 655, 659 (N.D.Ill. 1989) (“[I]t is certainly within
this court’s discretion to limit or redefine the scope of the
class”).
sought
various
Moreover, as Plaintiffs argue, the amended complaint
class
treatment
Maryland
for
the
statutory
ECOA
claims
claims
and
as
the
well
“amended
as
the
class
definition tailors the criteria to the ECOA claim by shortening
the class period, removing mention of foreclosure which does not
relate
to
the
Piotrowskis’
ECOA
claims,
and
including
an
additional criterion for those individuals who suffered only a
violation of § 1691(d)(2).”
(ECF No. 60, at 27).
b. Notice Requirements under the ECOA
Next, Defendant argues that the proposed class definition
mischaracterizes the notice requirements under the ECOA:
Plaintiffs continuously mischaracterize
ECOA, particularly in the Proposed Expanded
Class Definition which includes individuals
who “have submitted an application . . . and
were not provided written notice within 30
days of submitting an application regarding
the action taken on the application. . .” .
. .
As is evident from the plain language
of
Section
1691(d)
of
ECOA
and
its
implementing regulations, however, notice of
an incomplete submission can initially be
provided
orally.
See,
12
C.F.R.
§§
202.9(a)(1)(ii)
and
202.9(c)
.
.
.
Otherwise, written notice is only required
within 30 days of an “adverse action” taken
12
on a complete application under 15 U.S.C. §§
1691(d)(1) and (d)(2) of ECOA and 12 C.F.R.
§
202.9(a)(1)(i)
of
its
underlying
regulations . . . and then, only if, a
borrower is not then in default.
(ECF No. 55, at 17)(emphasis in original).
Sections
1691(d)(1)
and
(d)(2)
and
the
implementing
regulations impose separate obligations on creditors.
1691(d)(1)
requires
that
“[w]ithin
thirty
days
.
Section
.
.
after
receipt of a completed application for credit, a creditor shall
notify the applicant of its action taken on the application.”
(emphasis added).
Under Section 1691(d)(1), creditors have an
obligation to provide a timely response as to any action taken
on an application, whatever that action may be.
See, e.g.,
Offiah v. Bank of Am., N.A., Civ. Action No. DKC 13-2261, 2014
WL 4295020, at *7 (D.Md. Aug. 29, 2014).
A creditor also has a
duty to notify an applicant if an application is incomplete.
See, e.g., Kaswell v. Wells Fargo Bank, N.A., Civ. Action No.
RDB-13-2315,
(“Defendant’s
2014
WL
argument
3889183,
that
at
*3
Plaintiff’s
(D.Md.
Aug.
Complaint
6,
is
2014)
lacking
because it does not allege that Plaintiff submitted a completed
application does not relieve Defendant of its duties under §
1691(d)(1).”).
12 C.F.R. § 202.9(a) provides, in relevant part:
(1) When notification is required.
A
creditor shall notify an applicant of action
taken within:
13
(i) 30 days after receiving a completed
application
concerning
the
creditor’s
approval of, counteroffer to, or adverse
action on the application;
(ii) 30 days after taking adverse action on
an incomplete application, unless notice is
provided in accordance with paragraph (c) of
this section.
When an application is incomplete, paragraph (c) provides that:
(1) Notice alternatives.
Within 30 days
after receiving an application that is
incomplete
regarding
matters
that
an
applicant can complete, the creditor shall
notify the applicant either:
(i) Of action taken, in accordance with
paragraph (a) of this section [regarding
notice of adverse action on an incomplete
application]; or
(ii) Of the incompleteness, in accordance
with paragraph (c)(2) of this section.
12 C.F.R. § 202.9(c)(1).
Paragraph (c)(2) covers notice of
incompleteness and provides:
If additional information is needed
from an applicant, the creditor shall send a
written notice to the applicant specifying
the
information
needed,
designating
a
reasonable period of time for the applicant
to provide the information, and informing
the applicant that failure to provide the
information requested will result in no
further consideration being given to the
application.
The creditor shall have no
further obligation under this section if the
applicant
fails
to
respond
within
the
designated time period.
If the applicant
supplies the requested information within
the designated time period, the creditor
shall take action on the application and
14
notify the applicant in accordance
paragraph (a) of this section.
12 C.F.R. § 202.9(c)(2) (emphases added).
with
Although paragraph
(c)(2) states that notice of the incompleteness needs to be in
writing,
Paragraph
creditor
may
(c)(3)
inform
the
additional information.
provides
applicant
that
“[a]t
orally
its
of
the
option,
need
a
for
If the application remains incomplete
the creditor shall send a notice in accordance with paragraph
(c)(1) of this section.”
added).
12 C.F.R. § 202.9(c)(3) (emphasis
Thus, the creditor has a duty to notify an applicant if
the application is incomplete, but it can elect to do so orally
and only if the application remains incomplete is the creditor
required
to
send
written
notice
of
the
incompleteness.
To
summarize, Regulation 202.9(c) provides that a creditor must do
one
of
two
things
when
confronted
with
an
incomplete
application: (1) the creditor can notify the applicant within
thirty (30) days of receiving the application of its approval
of, counteroffer to, or adverse action on the application in
accordance with Section 202.9(a); or (2) the creditor can notify
the applicant of the required information within thirty days of
receiving the incomplete application in accordance with Section
202.9(c)(2),
requiring
written
notice,
or
Section
allowing creditor to inform the applicant orally.
15
202(c)(3),
See Kirk v.
Kelley Buick of Atlanta, Inc., 336 F.Supp.2d 1327, 1332 (N.D.Ga.
2004).
Section
1691(d)(2)
of
the
ECOA,
on
the
other
discusses the notification requirements concerning an
hand,
adverse
action taken after a creditor receives a completed application.
Specifically, 15 U.S.C. § 1691(d)(2) provides:
(2) Each applicant against whom adverse
action is taken shall be entitled to a
statement of reasons for such action from
the creditor.
A creditor satisfies this
obligation by –(A) providing statements of reasons in
writing as a matter of course to applicants
against whom adverse action is taken; or
(B) giving written notification of adverse
action which discloses (i) the applicant’s
right to a statement of reasons within
thirty days after receipt by the creditor of
a request made within sixty days after such
notification, and (ii) the identity of the
person or office from which such statement
may be obtained.
Such statement may be
given orally if the written notification
advises the applicant of his right to have
the
statement
of
reasons
confirmed
in
writing on written request.
(emphases added).
Subpart
covering
statement
(v)
of
applicants
of
reasons
Plaintiffs’
who
(or
“were
a
not
proposed
provided
disclosure
that
class
with
a
definition
a
written
borrower
can
request such a statement) regarding an adverse action taken on
the application within 60 days of submitting the application”
16
misstates
the
1691(d)(2).
creditor’s
obligations
pursuant
to
Section
An applicant against whom adverse action is taken
is entitled to: (1) be given a statement of reasons in writing;
or (2) be given written notification of the adverse action which
discloses the applicant’s right to a statement of reasons from
the creditor within thirty days, provided the applicant requests
the statement of reasons from the creditor within sixty days of
receiving
the
written
notification
of
the
adverse
action.
Accordingly, the statement of reasons does not have to be in
writing
provided
the
applicant
is
advised
in
the
written
notification of an adverse action of his right to request a
statement of reasons.3
Moreover, Plaintiffs’ wording of subpart
(v) of their proposed class definition is imprecise and may
suggest that it would cover only notification of adverse action
taken
on
incomplete
applications,
due
to
the
reference
to
“submission of an application” as opposed to submission of a
“complete application.”
3
15 U.S.C. § 1691(d)(5) provides, in relevant part, that
the requirements of Section 1691(d)(2) “may be satisfied by
verbal statements or notifications in the case of any creditor
who did not act on more than one hundred and fifty applications
during the calendar year preceding the calendar year in which
the adverse action is taken, as determined under regulations of
the Bureau.” (emphasis added). Wells Fargo has not argued that
it meets this exception to the notification requirement.
17
c.
Analysis
Feasibility
With
these
of
Ascertainability
principles
in
ascertainability requirement.
proposed
class
mind,
and
court
the
Administrative
turns
to
the
It is not clear at all from the
definition
whether
Plaintiffs
intend
the
definition to cover those individuals who submitted incomplete
applications, but were not provided notice either of an adverse
action
taken
on
the
incomplete
application
or
regarding
incompleteness pursuant to 12 C.F.R. § 202.9(c).
Plaintiffs
argue
certification
in
their
that
a
memorandum
common
question
in
For instance,
support
among
the
the
of
class
class
is
“[w]hether Wells Fargo violated 12 C.F.R. § 202.9(a) or (c) of
Regulation B by failing to provide written notice to a borrower
within 30 days of receiving an incomplete application.”
No. 51, at 10) (emphasis added).
creditors
may
provide
notice
At least initially, however,
of
incompleteness
additional information from the applicant orally.
§ 202.9(c)(3).
that
individuals
application
was
(ECF
and
request
See 12 C.F.R.
Moreover, Plaintiffs have provided no evidence
who
were
incomplete
provided
could
be
notice
orally
ascertained.
that
their
Plaintiffs
also have provided no evidence that a class could be ascertained
consisting of individuals who were not notified within thirty
(30)
days
of
an
adverse
action
18
taken
on
an
incomplete
application or were notified in writing that their application
was incomplete.
Subpart (iv) of the proposed class definition - covering
individuals who were not provided written notice within 30 days
of
submitting
application
an
–
application
also
is
regarding
lacking
in
action
taken
precision
and
accurately capture the requirements of the ECOA.
on
the
does
not
As set forth
above, “Section 1691 provides two rights to applicants.
First,
it requires a creditor to notify the applicant of its ‘action’
on
the
application
application.
creditor
within
30
days
of
receiving
See 11 U.S.C. § 1691(d)(1).
takes
an
‘adverse
action’
a
completed
Second, where the
with
respect
to
an
application, it is required to provide a statement of reasons
for the denial.
Id. at § 1691(d)(2).”
MacDonald v. Wells Fargo
Bank N.A., Case No. 14-cv-04970-HSG, 2015 WL 1886000, at *2
(N.D.
Cal.
Apr.
24,
2015)
(emphasis
added).
Receipt
of
a
complete application by the creditor triggers the running of the
thirty (30) day time-frame to provide notice of any action on
the loan modification application.
Plaintiffs take the position that a class of individuals
who were not provided notice of any action taken by the creditor
after
the
applicant
submitted
a
complete
application
in
violation of Section 1691(d)(1) can be ascertained through a
code -
- in the Wells Fargo database.
19
Plaintiffs believe
that
this
application
code
is
allows
complete,
Wells
which
Fargo
to
triggers
determine
the
when
running
of
an
the
thirty (30) day period for notifying an applicant of any action
pursuant to Section 1691(d)(1).
Citing to a regulation under
the Real Estate Settlement Procedures Act (“RESPA”) pertaining
to
a
“complete
erroneously
argues
loss
that
“completed application.”
mitigation
the
ECOA
application,”
does
not
Defendant
define
the
term
12 C.F.R. § 202.2(f), an implementing
regulation of the ECOA, defines a “completed application” as:
an application in connection with which a
creditor has received all the information
that the creditor regularly obtains and
considers in evaluating applications for the
amount
and
type
of
credit
requested
(including, but not limited to, credit
reports,
any
additional
information
requested
from
the
applicant,
and
any
approvals
or
reports
by
governmental
agencies or other persons that are necessary
to guarantee, insure, or provide security
for the credit or collateral). The creditor
shall
exercise
reasonable
diligence
in
obtaining such information.
(emphases added).
Kerri
Crabtree,
a
Senior
Vice
President
of
Default
Decisioning at Wells Fargo, provided the following deposition
testimony explaining the process Wells Fargo uses to determine
when an application is “complete”:
Q: Well, for a loan modification, what you
understand a loan modification to be, what
triggers the 30 day period running from your
20
understanding
policy?
of
bank
policy,
Wells
Fargo
A:
.
.
.
So
the
home
preservation
specialist, HPS collects all the docs. They
believe that they have what constitutes a
complete
package
to
send
on
to
the
underwriter.
The underwriter then goes
through that package with a fine tooth comb
and reviews it.
They at times believe, yes, we have a full
package and they make the decision. They at
times say no, we don’t, and we need to
ta[ke] that back to the home preservation
specialist to go back to the customer for
additional documentation. When that happens
and they go back to the customer for
additional documentation, that restarts the
30 day clock.
It did then and it does now
with the AG settlement.[4]
So that application is not deemed complete
until the underwriter makes the decision,
totally. Now, you can go back now with the
AG settlement and say all the docs were in,
the underwriter agrees with that. They make
the decision and we do have a code now that
pertains to we believe we have a complete
ap[plication],
but
that’s
from
the
AG
Settlement
forward,
but
until
that
underwriter really reviews the package and
deems
they
have
everything
that
that
investor
group
requires
to
make
that
decision, it is not deemed a complete
application and that is the way the AG
settlement sees it, as well.
4
In February 2012, Wells Fargo entered into a Consent
Judgment in United States of America et al. v. Bank of America
Corp., et al., Case No. 1:12-cv-00361-RMC in the United States
District Court for the District of Columbia.
(See Exh. A10 to
Defendant’s opposition, filed in hard copy with the Clerk’s
Office).
The Consent Judgment was part of a larger settlement
with forty-nine attorneys general in the Mortgage Servicer
Litigation.
21
Q: So before the AG Settlement, what was the
bank’s policy?
A: It’s the same as I stated.
Until that
underwriter underwrote that file and deemed
that everything necessary was there to make
a decision, that constituted a complete
applica[tion.] . . .
(ECF No. 51-1, at 61-62) (emphases added).
Defendant
argues
that
“Plaintiffs’
claims
and
the
identification of the proposed class are subject to a subjective
assessment of when a borrower’s loan modification application is
complete.”
(ECF No. 55, at 19).
Plaintiffs
counter
that
“[t]he term regularly [in Section 202.2(f)] is an objective term
that refers to the core set of documents that a creditor, such
as Wells Fargo, collects from applicants as opposed to every
document that may be needed to ultimately decide a specific
application.
Thus, an application is complete when Wells Fargo
has
that
received
core
set
collects from applicants.”
original).
point
of
documents
that
it
regularly
(ECF NO. 60, at 10) (emphasis in
in
Plaintiffs attempt to show that there is a specific
according
time
Specialist
to
when
the
Plaintiffs,
obtains
all
application
happens
of
the
when
is
“complete,”
the
documents
Home
which,
Preservation
requested
from
the
applicant and the application is forwarded to an underwriter for
review.
Plaintiffs contend that the information collected by
the Home Preservation Specialist is that which “the creditor
22
regularly obtains” under 12 C.F.R. § 202.2(f), thus at the point
when such information is obtained, the application is “complete”
and notice of any action taken on the application should be
provided within thirty (30) days.
Both
parties’
arguments
are
misguided.
“[C]ourts
have
interpreted th[e] language [in Section 202.2(f)] to mean that
‘an application is considered ‘complete’ not when the applicant
completes it . . . but when the creditor has obtained verifying
information and whatever other types of reports or information
it ordinarily requires to evaluate a loan.’”
King v. JPMorgan
Chase Bank, Civ. Action No. 11-cv-01880-KLM, 2013 WL 3353879, at
*3 (D.Colo. July 3, 2013) (citing High v. McLean Fin. Corp., 659
F.Supp. 1561, 1563-64 (D.D.C. 1987)); Faulkner v. Glickman, 172
F.Supp.2d 732, 740-41 (D.Md. 2001) (finding that there was a
genuine dispute of material fact as to whether an application
was
complete;
evidence
“Plaintiff
indicating
that
has
not
in
the
this
document
record
presented
in
question
was
not
something which defendant ‘regularly obtains and considers in
evaluating
applications
requested.’”).
for
the
amount
and
type
of
credit
Thus, an application may not be complete until
the creditor has obtained corroborating information.
Plaintiffs
have provided no evidence as to what information Wells Fargo
regularly
modification
obtained
and
applications
considered
during
23
the
in
evaluating
applicable
time
loan
period
(from December 29, 2009 through December 29, 2011), and whether
the Home Preservation Specialists or the underwriters collected
such information.
information
that
The only evidence on the record related to
Wells
Fargo
regularly
obtains
and
considers
relates to what it currently collects (as opposed to what it
collected
from
underwriter
2009
through
occasionally
2011)
requires
and
suggests
additional
information
applicants to evaluate and/or verify an application:
Interrogatory No. 2: Identify in detail the
procedures in place at Wells Fargo for
providing responses to modification requests
on distressed credits.
Answer No. 2: It is assumed that the terms
distressed
credits
as
used
in
this
interrogatory
means
loans
that
are
in
default or in imminent risk of default.
Those procedures applicable to modification
requests on such loans have changed over
time.
Currently, Wells Fargo attempts to
promptly acknowledge a modification request
and to provide the borrower(s) with the name
and contact information for the person(s)
assigned
to
their
modification.
The
borrower(s) is requested to complete a
Request for Mortgage Assistance (RMA) and to
provide information and documentation needed
to evaluate them for loan modification
options applicable to their loan and other
loss mitigation options, which can vary
depending on the investor which holds the
loan. This may include:
·Documentation verifying income, such
as bank statements, paystubs, profit-andloss statements, and statements for any
benefits
the
borrower
and
co-borrower
receive.
24
that
an
from
·The most recent statement for each the
borrower’s
and
co-borrower’s
bank,
retirement and investment accounts, such as
savings, money market, CD, bond, stock, IRA,
and 401k
·The borrower’s[] most recently filed
and signed federal tax return with all
schedules
(including
Schedule
E
–
Supplemental Income and Loss)
·Documents
verifying
the
amount,
duration, and frequency of payments for
child
support,
alimony,
or
separation
maintenance if the borrowers want them to be
considered
·A
list
of
all
monthly
household
expenses, including payments for credit
cards, car loans, other mortgages, or any
other debt obligations
·A signed and
financial hardship.
dated
description
of
. . .
Borrowers are requested to provide the
information sought and to complete and
return required forms by a specified date.
Often borrowers fail to provide all the
information and documentation requested of
them or the information provided by them
leads
to
additional
requests
for
information.
When
information
becomes
stale, requests are also made for updated
information. . . .
If timely information requested by the
contact person assigned to the borrower’s
modification
request
is
received,
the
borrower’s modification request is then
reviewed by an underwriter to determine if
the
borrower
is
eligible
for
the
modification sought.
Occasionally this
review results in additional requests for
information or updated information.
25
(ECF
No.
51-1,
at
243-44,
Wells
interrogatories) (emphases added).
Fargo’s
responses
to
It is possible that for a
subset of borrowers, the loan modification application may have
been “complete” at the time the
code was entered by the Home
Preservation Specialist, but, as will be seen, identifying that
subset requires reviewing individualized loan files.
Defendant
subjective
is
mistaken,
assessment
of
however,
when
an
application
triggers ECOA’s notice requirements.
United
(E.D.Pa.
Companies
1998),
Financial
provided
Corp.,
helpful
that
a
creditor’s
is
“complete”
The court in Newton v.
24
F.Supp.2d
guidance
444,
regarding
“completed application” under Section 12.202(f):
[I]mplicit in the Board’s definition of
“completed application” is the possibility
that a creditor might base credit decisions
on different considerations and on different
amounts and types of information, depending
on the amount and on the type of credit
requested. The commentary further instructs
that “[a] creditor has the latitude under
the
regulation
to
establish
its
own
application process and to decide the type
and amount of information it will require
from credit applicants.” 12 C.F.R. Pt. 202,
Supp. I, Staff Commentary, 2(f)(1). . .
United relies heavily on the fact that the
Regulations give it “wide latitude” in
determining its application procedure and
what constitutes a completed application.
This is true, but the Regulations instruct
equally that the lender is bound by the
substance of its actual practices, not
merely what it chooses to call a completed
application.
26
460-61
the
term
(emphasis added).
Plaintiffs contend that “[b]y Wells Fargo’s logic, all that
is required to undermine the entire ECOA’s notice requirements
is subjectively defining an application to be complete only when
written notice is sent to the borrower – however long that may
be after the borrower submits the application.”
10).
(ECF No. 60, at
Both parties overlook that Regulation B also mandates that
“[t]he creditor shall use reasonable diligence in obtaining such
information,” thus the creditor may not delay obtaining all of
the required information to “complete” the application.
See,
e.g., King, 2013 WL 3353879, at *3 (“If Defendant has not used
reasonable diligence in obtaining the information necessary to
complete
Plaintiff’s
credit
application,
the
Court
will
not
allow Defendant to use incompleteness to shield itself from ECOA
liability.”).
The
commentary
to
Section
202.2(f)
explains:
6.
Completed
application
–
diligence
requirement.
The regulation defines a
completed application in terms that give a
creditor the latitude to establish its own
information requirements.
Nevertheless, the
creditor must act with reasonable diligence
to collect information needed to complete
the application.
For example, the creditor
should
request
information
from
third
parties, such as credit reports promptly
after
receiving
the
application.
If
additional information is needed from the
applicant, such as an address or a telephone
27
further
number to verify employment, the creditor
should contact the applicant promptly.
12 C.F.R. § Pt. 202, Supp. 1 (emphasis added).
Here, Wells Fargo’s practice was that the Home Preservation
Specialist would collect a “core” set of documents from loan
modification
applicants,
forward
the
application
to
the
Underwriter for review, at which point the Underwriter (based on
his/her review) may determine that additional information was
needed
from
an
applicant
to
complete
application and make a decision.
and/or
verify
the
See, e.g., Torgerson v. Wells
Fargo Bank South Dakota, N.S., No. CIV 05-1050, 2009 WL 255995,
at *11 (D.S.D. Feb. 3, 2009) (interpreting 12 C.F.R. § 202.2(f)
and
reasoning
that
“Wells
Fargo
may
have
been
request the information requested by Wolff . . .
entitled
to
The Big Talk
loan application may not have been ‘complete’ at that time since
Torgerson
declined
to
provide
the
additional
information
requested by the bank.
Questions exist as to whether Wells
Fargo
the
itself
application
F.Supp.2d
considered
was
at
forwarded
1332
(“[I]t
to
application
its
appears
complete
underwriter.”);
that
when
the
Kirk,
336
verification
of
an
applicant’s salary, references, and phone number are sometimes
required by Capital One before granting credit and, therefore,
an
application
verifications.”).
is
incomplete
without
the
required
The record does not clarify whether, during
28
the applicable time period as defined by Plaintiffs, the Home
Preservation
Specialist
or
an
underwriter
obtained
an
applicant’s credit report to verify the information provided.
Multiple witnesses provided deposition testimony that although
the Home Preservation Specialist collects specific information
from
applicants,
underwriter
for
when
the
application
“decisioning,”
the
is
transferred
underwriter
that additional information is needed.
may
Q: So that package goes out from the home
modification
or
the
Home
Preservation
Specialist and that package goes out and the
borrower only sends back half the documents
to the Home Preservation Specialist.
Does
the Home Preservation Specialist then say
look, your application is not complete.
You’re missing all these documents?
A: Yes.
Q: So that’s clearly not a completed
application.
If the package goes out and
the
borrower
doesn’t
include
all
the
documents requested in the package, then
that won’t go to underwriting; correct?
A: That is correct.
Q: The Home Preservation Specialist sends it
to underwriting when the Home Preservation
Specialist believes that all the documents
the preservation specialist has requested of
the borrower have been provided by the
borrower; correct?
29
the
determine
For instance, Kerri
Crabtree explained:
A: That is correct.
to
Q: Okay.
system?
And is that event recorded in the
A: Yes.
. . .
Q: And does the system have in place a
particular letter saying this is the date
that the Home Preservation Specialist said
the application was complete and send it to
underwriting, we got to get back to the
borrowers in 30 days with something during
the period before the AG Settlement?
A: Well, no, because in all times we
wouldn’t really have deemed that a complete
application yet until the underwriter looked
at it.
The HPS would believe they had
everything but until the underwriter looked
at it, we would not have known that it was a
complete
application
–
not
a
complete
application – I guess that’s the way we view
it – that all documents were there to make a
decision.
Q: But your Home Preservation Specialist has
made a determination that all the documents
they
had
requested
for
a
complete
application were there and was sending that
on to the underwriter to make a decision;
correct?
A: But sir, they don’t have the
expertise that the underwriter does to deem
that
a
complete
ap[plication]
that
everything is there to make a decision.
They are the document collectors.
They are
not the decisioner.
(ECF No. 51-1, at 65-66) (emphasis added).
Courtney Weaver, a research remediation analyst with Wells
Fargo, provided the following deposition testimony explaining
30
Defendant’s process concerning the transfer of applications and
when they are considered “complete”:
A: So to walk you through a process,
the home preservation specialist is going to
try to gather as much of the required
documents from the borrower for review;
however, the home preservation specialist
does not have the training to underwrite the
file. They can identify documents to ensure
that they think they have everything that is
needed for a decision.
Example being, they
will gather your last year’s tax return, the
home preservation specialist isn’t going to
have full knowledge to decide do I have all
the documents, if this borrower is selfemployed, to know it if they have business
tax
returns
or
need
additional
bank
statements. The underwriter will decide and
review that in fine detail to ensure we have
all of the documentation from the borrower
necessary to make a complete decision.
(ECF No. 55-8, at 5) (emphasis added); (ECF No. 51-1, at 66 (“Q:
And then underwriting may look at these documents and say, hey,
we
need
something
more
from
this
borrower
because
there’s
something I see on these documents that the borrower gave us
that tells us – that tells me I need some more documents from
them to make a decision; is that right? A: That’s true.”)).
Similarly,
Philip
specialist,
home
Cargioli,
who
preservation
served
as
a
loan
underwriter,
and
servicing
a
loan
verification analyst with Wells Fargo, gave deposition testimony
stating
that
an
application
may
underwriter has reviewed it:
31
not
be
complete
until
an
A: That would be marked as ready by the HPS,
but ultimately, it would need to be reviewed
by an underwriter who would really dig in
and find inconsistencies in the income.
I
mean, it’s a multitude of things that – or
questions that could come up. Sometimes the
underwriter would still need a letter of
explanation.
So when the HPS would send it and say
all documents received, it would then go to
an underwriter like myself, who would review
the documents with a fine-toothed comb, make
sure that there was -- every I was dotted
and every T was crossed, every document was
signed, everything made sense.
At that point, [] I would be able to
review all of the documents and be satisfied
with those documents.
At that point, I
would [] decision the file.
. . .
Q:
So
you’re
saying
the
underwriting
department
makes
the
decision
that
an
application -- that you have sufficient
documents that’s been completed, and that’s
when the 30-day period starts?
As far as
your understanding of the procedure is?
A: Yes.
After the underwriter has reviewed
the documents submitted by the HPS and it
meets the standards of that underwriter for
that particular investor and that particular
timeframe, then an underwriter would make
the decision that, you know, this loan can
be processed for a review.
. . .
Q: How does the bank track whether or not,
from the date that the application is
completed, that it’s 30 days -- that the
approval or denial is made within 30 days of
the date the application is completed?
32
A: That would require an individual like
myself
who
has
familiarity
with
loss
mitigation reviews and systems of record to
go through the notes as well as the image
folder to determine what was required and
when
the
last
of
the
documents
were
submitted it to deem it complete by the
underwriter.
(ECF No. 55-5, at 13-14) (emphases added).
Ms. Weaver emphasized that the Home Preservation Specialist
collects only the minimum amount of documents from an applicant
and that at the time the
code is entered into the database
the application still may not be complete:
Q: And the home preservation specialists are
instructed on a lender-by-lender basis the
documents that need to be regularly obtained
so that those lenders – that lender’s
criteria
can
be
considered
by
the
underwriting department, correct?
. . .
A: . . . So, yes, each investor is going to
have certain documents based off of the
review that is being sought out and obtained
by the borrower that the home preservation
specialist would have to obtain from the
borrower.
. . .
A: Next to
decision.
the
,
it
says,
ready
for
Q: So what – how does
get entered into
the workstation, what happens?
A: Can I ask what time period you’re asking
from?
Q: Well, when did
first go into use?
33
A: I’ve actually researched that, and I
don’t have the exact date that it was
created; however, if you refer to some of
the documents and in Mr. McCall’s testimony,
there is – from 2009 that code was in use.
Q: Okay.
And it gets entered – does that
code get entered into a workstation by a
home preservation specialist?
A: The home preservation
enter that code.
specialist
would
Q: And when would they do that?
A:
After
they’ve
received
the
minimum
documents from the borrower and sent it to
the underwriter for review.
Q: So after they’ve received the documents
that they’ve been instructed to regularly
obtain for a particular investor for it to
go to the underwriting department to be
considered for review, then they enter the
code?
A: Correct.
. . .
Q: []
Are there any codes that you could
search that would say when a correspondence
had gone out to a borrower from Wells Fargo
or one of its related entities after the
or similar code has been entered in the
database?
A: So, no. There’s no letter code that’s –
or code that’s entered for that.
. . .
A: I do want to clarify with the list and
how you’re speaking to it, there is a
package that does go to the borrower that
gives the description of what they need to
34
send in.
If they send in all those
documents and the HPS feels it is everything
that they need to have the underwriter
review, they will send it for review.
The
underwriter
will
then
also
review
the
documents. And at that point in time if it
does not satisfy all the requirements or if
the
documents
present
discrepancies
or
questions or need further information, that
is when it is sent back to the HPS to
communicate with the borrower to request
additional documents.
(ECF No. 51-1, at 82-83, 86) (emphases added); (see also ECF No.
55-6, at 11, McCall depo, “Q: Okay.
Have you seen in the data
that you have pulled codes which reflect that an underwriter has
returned a file to an HPS or SPOC, single point of contact, to
ask for additional information in order to underwrite a loan
modification request? A: I have seen examples in the data where
the workflow goes back and forth between the internal parties,
the underwriters, and the specialists for numerous reasons, that
being one of them.”).
Moreover, Ms. Weaver testified that the
code differed as to meaning over time.
For instance, when
first used in 2009, it meant “filed to negotiator,” and then it
changed into “ready for decision” in 2010, again becoming “sent
to negotiator” sometime between 2010 and July of 2014.
(ECF No.
55-8, at 6-7).
One
of
Plaintiffs’
attorneys
submitted
a
declaration
stating that he reviewed a spreadsheet containing a list of
loans for which the borrower sought modification of the terms of
35
the loan sometime between January 2009 and November 2013.
No. 60-1, at 52, declaration of Andrew Murphy).
(ECF
The applicable
time period here is December 2009 until December 2011, however.
Plaintiffs’ counsel further declares:
3. After reviewing only 753 of the 8,543
pages of that spreadsheet (approximately
8.8% of the total number of pages), I was
able to identify 114 unique loans meeting
the following criteria: (1) containing an
Activity Step Code
date after December
28, 2009; (2) containing a gap of more than
thirty day between the
date and entry of
the next code by the Underwriter; and (3)
application submitted for the purpose of
seeking a loan modification as opposed to
liquidation.
(Id. at 52-53).
Plaintiffs argue that “the class will consist
of some subset of those borrowers whose loan files contain more
than 30 days between the
date entered by the HPS and the
date of the next code entered by the Underwriter.”
at 12).
(ECF No. 60,
While that might be true, it would require examination
of each file to determine whether additional information was
regularly obtained after that date.
Plaintiffs also do not
specify how many of the 114 loans that they reviewed (of the
8,543 pages provided) fall into the applicable time frame as
defined by them.
(“Without
even
See, e.g., EQT Production Co., 764 F.3d at 359
a
rough
estimate
of
the
number
of
potential
successors-in-interest, we have little conception of the nature
of the proposed classes or who may be bound by a potential
36
merits ruling.
size
and
Lacking even a rough outline of the classes’
composition,
we
cannot
conclude
that
they
are
sufficiently ascertainable.”).
Wells
Fargo
provides
evidence
that
servicing
or
imaging
notes of individual loan files would need to be reviewed to
determine whether a loan modification application was complete
depending on the information the creditor regularly obtained and
considered for the amount and type of credit requested.
Thus,
determining when an application became “complete” would require
fact-intensive,
basis.
individualized
inquiries
on
a
loan
by
loan
See, e.g., Murfitt v. Bank of America NA, No. EDCV 13-
01182 JGB (SPx), 2013 WL 7098636, at *4 (C.D.Cal. Oct. 22, 2013)
(“Whether Plaintiff’s application was ‘complete’ pursuant to the
statute is a question of fact, and will depend on the type of
information
evaluating
the
Defendant
credit
regularly
applications”);
obtains
Errico
and
v.
considers
Pacific
in
Capital
Bank, N.A., 753 F.Supp.2d 1034, 1043 (N.D.Cal. 2010) (“[W]hether
Plaintiffs’ application for the loan as to the condominium was,
in
fact,
complete
will
depend
on
the
type
of
information
Defendants regularly obtain and consider in evaluating credit
applications.”).
This record demonstrates that Wells Fargo did
not utilize a “one size fits all” approach to collection of
documents
in
connection
with
loan
modification
applications.
Instead, the Underwriters could determine – based on the minimum
37
documentation
that
an
applicant
submitted
to
an
HPS
–
additional information was needed from the applicant.
that
Section
12 C.F.R. 202.2(f) also does not appear to contemplate a “one
size
fits
all”
obtains
regularly
because
and
the
information
considers
in
that
evaluating
the
creditor
applications
varies based on “the amount and type of credit requested.”
The
fact that Wells Fargo cannot determine apart from performing a
loan-by-loan
review
when
a
loan
modification
application
was
complete poses an administrative barrier to ascertaining a class
who were not provided written notice of any action on their
completed application within thirty (30) days from submission.
Along the same lines, identifying potential class members
as to whom Wells Fargo violated the distinct notice requirements
under
thirty
the
ECOA
days
essentially
concerning
after
entail
notification
receiving
“mini
administratively feasible.
a
of
completed
trials”
and
any
action
within
application
would
not
would
be
An individual loan-by-loan review
would have to be undertaken as to what correspondence was sent
by Wells Fargo (and when) after a completed application was
received.
Mr. Cargioli explained:
Q: [] Could you go to a borrower and look
quickly to see if they have received a
letter turning them down for a loan or a
modification?
. . .
38
Q: I don’t want to know how much time it
would take. Just tell me what you would do,
sir.
A: I would open up the image viewer, enter
in the loan number that corresponds with
that loan, and that would pull up the imaged
documents for that file. I would then have
to sort through and find the correct label
for that letter.
And then I would, of
course, open up the letter and verify that
it was what the descriptor said.
Q: But is there a way to find that letter
other than -- are you saying you have to
scan through every single document in the
file? Isn’t there a faster way to find that
letter?
A: . . . [A]ll the documents are input
separately with descriptors, so I would be
able to – I would not need to go through
every single document, but would need to,
you know – what I would do personally is
look through a certain number of documents
that I felt, you know, pertained to a loss
mitigation denial letter or approval letter
and I would – I would open those up and
inspect them.
Q: You’re saying -- is there a list in the
image of every document there where you
could see – and a specific document called
loss – loan modification denial?
. . .
A: . . . It’s a list of descriptors, and
when you click on the descriptor like a
link, an image of that – of that descriptor
will pop up, and you are able to view that
image that you selected.
So if I was looking for a denial letter
or a letter notifying the borrower of a loss
mitigation option, I would look at letter
correspondance.
I would look at all the
39
letter correspondence documents, and I would
need to find the ones that pertain to
denials.
Q: So in other words, there’s this index of
the documents, but if you click on a
particular document, it’ll take you right to
the imaged document?
A: That’s correct.
Q: And there’s a section, and there’s a
table – there’s sort of a topic category,
and one is correspondence or letters to the
borrower,
and
there’s
other
document
categories that are imaged in addition to
letters, correct?
A: Yes.
Q: So there would be loan application –there
would
be
applications
for
loan
modification?
Would that be a separate
category?
. . .
A: For -- a loan application would not have
its own name.
If the – the document was
identifiable as a specific document such as
-- an example would be a hardship letter,
the document would be input as a hardship
letter.
If the document could not be
identified
by
the
person
placing
the
document into imaging, then it would be
labeled
as,
you
know,
loss
mitigation
package, or it could be labeled as just sort
of like a general – we would know what the
purpose of the package was for, but we
wouldn’t know exactly what documents were
inside.
(ECF No. 55-5, at 10-11) (emphasis added); (see also ECF No. 556, at 12, McCall depo (“Q: In your efforts to pull data in this
case for the purpose of discovery, were you able to find data
40
queryable
codes
which
borrowers? A: No.”).
scanned
documents
ascertain
the
may
Fargo’s
not
on
an
specific
be
when
individual
were
sent
loan-by-loan
correspondence
to
that
basis
sent
was
to
to
Plaintiffs suggest that even though the
maintained
in
a
database,
as
long
queryable
letters
Wells Fargo would have to review imaged or
applicants and when.
data
reflected
searchable
as
format
Wells
in
Fargo
Wells
has
the
records to identify the applicable information, the class is
ascertainable.
Plaintiffs’
argument
is
unpersuasive.
“A
plaintiff cannot establish ascertainability simply by asserting
that
class
members
can
be
identified
using
the
defendant’s
records; the plaintiff must also establish that the records are
in
fact
useful
for
identification
purposes,
and
identification will be administratively feasible.”
F.App’x----, 2015 WL 3560722, at *3.
that
Kahru, ---
For the reasons explained,
identifying class members based on the parameters identified by
Plaintiffs
would
not
be
administratively
feasible
and
essentially require “mini trials” to determine whether borrowers
belong in the proposed class.
2. Commonality
The
commonality
plaintiff
common
to
to
show
the
requirement
that
class.”
“there
To
under
are
Rule
questions
establish
23(a)
of
requires
law
commonality,
or
the
a
fact
party
seeking certification must “demonstrate that the class members
41
have suffered the same injury” and that their claims “depend
upon a common contention.”
S.Ct.
2541,
2551
(2011)
Wal-Mart Stores, Inc. v. Dukes, 131
(internal
quotation
marks
omitted).
“That common contention, moreover must be of such a nature that
it
is
capable
of
classwide
resolution
–
which
means
that
determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one
stroke.”
Id.
“Factual differences among class members will not
necessarily preclude certification ‘if the class members share
the same legal theory.’”
Stanley, 891 F.Supp.2d 757, 770 (D.Md.
2012) (quoting Mitchell-Tracey v. United Gen. Title Ins. Co.,
237 F.R.D. 551, 556 (D.Md. 2006)).
The Fourth Circuit explained in EQT Production Co., 764
F.3d at 360:
Although the rule speaks in terms of common
questions,
“what
matters
to
class
certification . . . [is] the capacity of a
classwide proceeding to generate common
answers apt to drive the resolution of the
litigation.”
Wal-Mart, 131 S.Ct. at 2551
(internal quotation marks omitted).
A
single common question will suffice, id. at
2556, but it must be of such a nature that
its determination “will resolve an issue
that is central to the validity of each one
of the claims in one stroke,” id. at 2551.
(emphasis in original).
Here, as framed by Plaintiffs’ proposed
class, there is no single question – legal or factual – that
will generate a common answer as to all of the class members
42
because whether Defendant violated the notice requirements of
the ECOA turns on individual fact-intensive inquiries as to when
a complete loan modification application was received for each
class member, what correspondence Defendant sent in response,
and when.
Plaintiffs assert that “[o]ne question common to
all members of the proposed class is: when does the clock start
on
the
deadline
[for
when
written
pursuant to Section 1691(d)(1).
notice]
must
be
given”
(ECF No. 60, at 16).
This
question will not generate a common answer, however, because, as
explained
above,
individualized
modification
Wells
reviews
Fargo
of
loan
applications
were
would
files
have
to
to
undertake
determine
when
loan
whether
they
were
received,
complete or incomplete, what correspondence Defendant sent to
each
applicant,
and
whether
provisions of the ECOA.
question
again,
whether
is
that
the
incomplete.
whether
loan
violated
the
notice
Plaintiffs contend that another common
the
involves
Defendant
a
notice
needs
fact-intensive
modification
to
be
in
inquiry
application
was
writing,
but
depending
on
complete
or
Plaintiffs also assert that another common question
relates to punitive damages, but that assumes that liability can
be established for each class member based on common answers.
Defendant’s liability will vary widely depending on the factual
circumstances surrounding each loan modification application.
43
Based
on
the
foregoing,
burden under Rule 23(a).
Plaintiffs
have
not
met
their
If a movant fails to meet any of Rule
23(a)’s requirements, analysis under Rule 23(b) is unnecessary.
Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331,
337
n.3
(4th
Cir.
1998).
The
court
will
briefly
analyze
Plaintiffs’ claims under Rule 23(b) as well.
3. Rule 23(b)
Plaintiffs contend that the facts here are sufficient to
support certification under Rule 23(b)(1) or (b)(3).
a.
Rule 23(b)(1)
Rule 23(b)(1) permits a class action to be maintained only
if it can be concluded that:
prosecuting separate actions by or against
individual class members would create a risk
of:
(A) inconsistent or varying adjudications
with respect to individual class members
that would establish incompatible standards
of conduct for the party opposing the class;
or
(B) adjudications with respect to individual
class members that, as a practical matter,
would be dispositive of the interests of the
other members not parties to the individual
adjudications or would substantially impair
or impede their ability to protect their
interests.
Thus, subsection A seeks to avoid possible prejudice to the
defendants, while subsection B attempts to eliminate prejudice
to the putative class members.
44
Plaintiffs contend that:
Requiring individual claims could create
incompatible standards of conduct for Wells
Fargo.
For instance, one court might grant
an individual plaintiff injunctive relief
requiring Wells Fargo to do X while another
court may rule that doing X violates the
ECOA. Individual litigation could result in
inconsistent
interpretations
of
ECOA’s
requirements leaving Wells Fargo unsure what
its obligations are under the ECOA or what
triggers those obligations[.]
(ECF No. 51, at 14).
Defendant does not argue that if the class
is
it
not
certified,
will
be
subject
to
inconsistent
adjudications with respect to varying class members.
Defendant
believes
that
there
is
no
risk
that
Instead,
lesser
or
“incompatible standards of conduct” will be established through
other litigation, citing to the Consent Judgment entered against
Wells Fargo in the District of Columbia, with which Wells Fargo
allegedly
has
complied.
(ECF
No.
55,
at
45).
Moreover,
Defendant contends that whether it violated the ECOA as to each
class
member
inquiry,
will
making
require
class
a
fact-intensive,
action
an
adjudicate the ECOA claims here.
800
F.2d
386,
389
(4th
Cir.
inappropriate
individualized
mechanism
to
See, e.g, Zimmerman v. Bell,
1986)
(finding
Rule
23(b)(1)(A)
inapplicable because defendants did not argue that they would be
prejudiced if the class was not certified).
not the proper basis for class certification.
45
Rule 23(b)(1)(A) is
Plaintiffs
also
have
not
established
that
under Rule 23(b)(1)(B) would be appropriate.
certification
They provide no
evidence (or argument for that matter) that adjudication with
respect
to
dispositive
individual
of
the
class
interests
members
of
those
practically
outside
would
the
be
class
or
substantially would impair the ability of non-members to assert
violations under the ECOA.
Plaintiffs broadly state in their
memorandum in support of class certification that “Wells Fargo
acted identically towards all class members; it failed to comply
with the ECOA’s requirements,” (ECF No. 51, at 13), but whether
Wells Fargo violated the notice provisions of the ECOA and its
implementing regulations involves a fact-intensive inquiry as
demonstrated above.
Defendant argues in its opposition that
Plaintiffs have offered nothing to demonstrate the applicability
of Rule 23(b)(1)(B), and, indeed, other plaintiffs have asserted
similar claims against Wells Fargo.
(ECF No. 55, at 45-46); see
James Dempsey v. Wells Fargo Bank, Case No. 13-cv-1363-CCB.5
Plaintiffs
appear
23(b)(1)(B)
is
memorandum
that
to
concede
inappropriate,
the
two
that
as
certification
they
requirements
state
in
Rule
under
in
Rule
the
reply
23(b)(1)
are
“disjunctive and a plaintiff need only meet one of them,” and
5
Plaintiff in Dempsey has since filed a stipulation of
dismissal.
46
that “[t]he Piotrowskis meet Rule 23(b)(1)(A)’s requirement.”
(ECF No. 60, at 19).
Based on the foregoing, certification under Rule 23(b)(1)
would be improper.
b.
Rule 23(b)(3)
The Fourth Circuit recently explained the requirements of
Rule 23(b)(3) in EQT Production Co., 764 F.3d at 357:
[C]ertification
under
Rule
23(b)(3)
is
appropriate when all of the prerequisites of
Rule 23(a) are satisfied and two other
requirements are met. . . .
Specifically,
(1) common questions of law or fact must
predominate over any questions affecting
only individual class members; and (2)
proceeding as a class must be superior to
other available methods of litigation.
See
Fed.R.Civ.P. 23(b)(3).
i. Predominance
The
predominance
inquiry
focuses
on
whether
liability
issues are subject to class-wide proof or require individualized
and
fact-intensive
determinations.
Cuthie
v.
Fleet
Reserve
Ass’n, 743 F.Supp.2d 486, 499 (D.Md. 2010).
Deciding whether
common
ones
questions
qualitative,
predominate
rather
than
over
individual
quantitative,
inquiry.
involves
Gunnells
Healthplan Servs., Inc., 348 F.3d 417, 429 (4th Cir. 2003).
predominance
requirement
was
recently
analyzed
in
Soutter
a
v.
The
v.
Equifax Info Servs., LLC, ---F.R.D.----, 2015 WL 1787236, at *25
(E.D.Va. Apr. 15, 2015):
47
Whether common questions predominate
over individual questions “is a separate
inquiry, distinct from the requirements in
Rule 23(a).”
Ealy [v. Pinkerton Government
Services, Inc.], 514 Fed.Appx. [299,] 305
[4th Cir. 2013] (citing Wal-Mart, 131 S.Ct.
at 2556).
This requirement is “even more
demanding than Rule 23(a),” Comcast Corp. v.
Behrend, 133 S.Ct. 1426, 1432 (2013), and
“tests
whether
proposed
classes
are
sufficiently
cohesive
to
warrant
adjudication by representation,” Amchem, 521
U.S. at 623. This is not simply a matter of
counting common versus noncommon questions
and checking the final tally.
“Rule
23(b)(3)’s commonality-predominance test is
qualitative
rather
than
quantitative.”
Stillmock [v. Weis Markets, Inc.], 385
Fed.Appx. [267,] 272 [4th Cir. 2010] (citing
Gunnells, 348 F.3d at 429). In other words,
Rule 23(b)(3) “compares the quality of the
common questions to those of the noncommon
questions.” Newberg § 327.
“In order to meet the predominance prong of Rule 23(b)(3),
a plaintiff must ‘demonstrate that the element[s] of [the legal
claim] [are] capable of proof at trial through evidence that is
common to the class rather than individual.’”
Dioxide
Antitrust
Litig.,
284
F.R.D.
328,
In re Titanium
340
(D.Md.
2012)
(quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305,
311 (3d Cir. 2008)).
will
suffice
to
“Because the nature of the evidence that
resolve
a
question
determines
whether
the
question is common or individual, . . . a district court must
formulate some prediction as to how specific issues will play
out in order to determine whether common or individual issues
48
predominate in a given case.”
In re Hydrogen Peroxide Antitrust
Litig., 552 F.3d at 311 (internal quotations omitted).
Plaintiffs
attempt
to
show
that
common
questions
will
predominate because Wells Fargo dealt uniformly with all loan
modification applicants:
Wells Fargo had the same policy and
practice when reviewing the applications
submitted by all proposed class members: an
application
is
not
complete
until
the
Underwriter subjectively determines that it
is and thus notice is not required until 30
days
after
the
Underwriter’s
decision.
Wells Fargo stakes virtually its entire
defense against liability on the propriety
of this policy and practice.
This will be
the determinative issue for liability and
predominates over any individual issue.
(ECF No. 60, at 21).
As explained above, however, whether a
loan modification application was complete and what subsequent
correspondence
followed
from
Wells
intensive individualize inquiry.
Fargo
will
be
a
fact-
Wells Fargo’s liability as to
each class member for violating the distinct notice provisions
of
the
ECOA
will
vary
depending
on
what
information
was
regularly obtained to make the application complete during the
applicable
time
frame
(two
years
preceding
this
action
as
defined by Plaintiffs), what, if any, correspondence Wells Fargo
sent, and when.
been
complete
Preservation
at
In some instances, the application may have
the
Specialist
time
it
to
an
49
was
forwarded
Underwriter
from
and
no
the
Home
further
information
was
required.
In
other
instances,
however,
additional information may have been required from the applicant
to complete the application and enable Wells Fargo to inform the
applicant of any action on the application in accordance with
Section 1691(d)(1).
establish
Wells
As stated above, Plaintiffs’ attempt to
Fargo’s
liability
for
violating
the
notice
provisions of the ECOA erroneously relies on a “one size fits
all”
approach
for
compliance
with
the
ECOA.
The
analysis
undertaken by the Fourth Circuit in EQT Production Co., 764 F.3d
at 366, is instructive:
But the mere fact that the defendants
engaged in uniform conduct is not, by
itself,
sufficient
to
satisfy
Rule
23(b)(3)’s
more
demanding
predominance
requirement.
The
predominance
inquiry
focuses not only on the existence of common
questions, but also on how those questions
relate to the controversy at the heart of
the litigation. See Amchem Prods., 521 U.S.
at 623 (noting that the predominance inquiry
“trains on the legal or factual questions
that qualify each class member’s case as a
genuine controversy”).
Even a plethora of
identical practices will not satisfy the
predominance requirement if the defendants’
common conduct has little bearing on the
central issue in the litigation – in this
case,
whether
the
defendants
underpaid
royalties.
Absent such a relationship,
there is no basis for concluding that
individual issues will not predominate.
See also Gresser v. Wells Fargo Bank, N.A., Civ. No. CCB-12-987,
2014
WL
1320092,
at
*6
(D.Md.
Mar.
31,
2014)
(“Although
determining whether Wells Fargo breached the contract and caused
50
KH’s losses is a class-wide inquiry, its liability to some class
members
class
requires
members
individualized
waived,
or
are
inquiries
estopped
into
from
whether
those
bringing
their
claims.”).
Moreover, Plaintiffs generalize the requirements under the
ECOA,
without
specifying
the
obligations from creditors.
acts
that
trigger
certain
For instance, Plaintiffs argue that
all class members suffered a common injury:
All members of the class had a right to
receive written notice within 30 days of
submitting their applications; Wells Fargo
uniformly violated that right. Accordingly,
Plaintiffs and members of the class share a
common question of liability: whether Wells
Fargo violated the ECOA by failing to
provide class members with written notice
within
30
days
of
receiving
a
loan
modification application.
(ECF No. 51, at 16).
Different obligations under the ECOA and
its implementing regulations are triggered depending on whether
an application is complete or incomplete and the clock does not
necessarily begin to run when the loan modification application
first is submitted.
orally
initially
notice
of
completed
any
and
action
application
Notice of incompleteness may be provided
the
thirty-day
taken
is
by
the
submitted.
requirement
creditor
to
applies
Accordingly,
provide
after
a
Plaintiffs
improperly generalize and/or conflate the requirements of the
ECOA and base their arguments that common questions predominate
51
on these overgeneralizations.
Plaintiffs’ additional argument
regarding common questions concerning Wells Fargo’s purported
violations
of
Section
1691(d)(2)
similarly
is
flawed.
Plaintiffs contend that:
In many cases, Wells Fargo’s failure to
review
and
decide
on
an
application
constituted a de facto denial of that
application
which
required
a
specific
statement of reasons for the denial.
Wells
Fargo did not provide many borrowers with
that statement of reasons in violation of
the ECOA. Proof of Wells Fargo’s failure to
implement
the
proper
procedures
and
implementation of an improper policy are
subject to common proof.
(ECF No. 51, at 16).
As explained above, in some instances,
however, a statement of reasons may be provided orally if the
written notification advises the applicant of his right to a
statement
of
reasons.
Whether
Wells
Fargo
violated
Section
1691(d)(2) by failing to provide a statement of reasons (orally
or in writing) also is subject to individualized proof.
e.g.,
Gresser,
2014
WL
1320092,
at
*8
(“[D]etermining
See,
Wells
Fargo’s liability to all class members would only begin with
common evidence as to breach, but would quickly require many
mini-trials
recover.
as
to
whether
any
class
members
could
actually
Certification is improper in such a case.”).
Based
on
the
foregoing,
Plaintiffs
have
not
established
that common questions of law or fact predominate over individual
ones.
52
ii. Superiority
With respect to the superiority prong of Rule 23(b)(3),
four factors generally should be considered:
(i) the strength of the individual class
members’
interest
in
controlling
the
prosecution
and
defense
of
a
separate
action, (ii) the extent and nature of
existing litigation already begun by or
against
class
members,
(iii)
the
desirability
or
undesirability
of
concentrating the litigation in the single
forum selected by the class plaintiffs, and
(iv) the likely difficulties in managing the
class action.
Lloyd v. Gen. Motors Corp., 275 F.R.D. 224, 228 (D.Md. 2011).
The Fourth Circuit explained in Stillmock, 385 F.App’x at 274:
Although a determination of superiority
necessarily
depends
greatly
on
the
circumstances surrounding each case, some
generalizations can be made about the kinds
of factors the courts will consider in
evaluating this portion of Rule 23(b)(3).
The rule requires the court to find
that the objectives of the class-action
procedure really will be achieved in the
particular case. In determining whether the
answer to this inquiry is to be affirmative,
the court initially must consider what other
procedures, if any, exist for disposing of
the dispute before it.
The court must
compare
the
possible
alternatives
to
determine whether Rule 23 is sufficiently
effective to justify the expenditure of the
judicial time and energy that is necessary
to adjudicate a class action and to assume
the risk of prejudice to the rights of those
who are not directly before the court.
53
(quoting 7AA Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice and Procedure § 1779 (3d ed. 2005)).
Plaintiffs
argue
that
an
individual
plaintiff
would
not
have the resources or incentives to pursue his or her claims
individually, and “[g]iven the common questions of liability and
damages,
litigating
conserve
the
this
resources
case
of
as
the
a
class
judiciary
action
and
the
serves
to
parties
by
preventing the same issues from having to be litigated over and
over in individual lawsuits.”
acknowledge
that
two
other
(ECF No. 51, at 18).
cases
have
been
Plaintiffs
brought
in
the
District of Maryland alleging similar violations, but contend
that the instant litigation predates those cases and “should the
Court certify a class in the instant class, the plaintiffs in
the other two lawsuits would be free to opt out and continue to
pursue their individual lawsuits against Wells Fargo.”
19).
(Id. at
Both cases that Plaintiffs cite have been terminated,
however.
The two cases are Kaswell v. Wells Fargo Bank, N.A.,
Case. No. 13-cv-02315-RDB, and Walton v. Wells Fargo Bank, N.A.,
Case
No.
13-cv-00428-AW.
In
Kaswell,
plaintiff’s stipulation of dismissal.
Judge
Bennett
granted
In Walton, Judge Williams
issued an order dismissing the case due to plaintiff’s failure
to file an amended complaint.
On balance, class certification is not a superior method to
adjudicating
the
highly
individualized
54
questions
of
whether
Wells Fargo violated the notice provisions of the ECOA during
the specific time frame, as defined by Plaintiffs, depending on
whether a complete or incomplete application was received, what
correspondence followed from Wells Fargo, and when.
The type of
claims at issue here are best suited for individual treatment.
As
the
record
borrower’s
makes
loan
incomplete),
clear,
modification
let
alone
even
determining
application
ascertaining
was
what
whether
the
complete
(or
Wells
Fargo
communicated to the applicant and when, would entail “a review
of
servicing
differing
notes,
investor
imaged
standards
(ECF No. 55, at 50).
files,
for
correspondence
each
class
logs,
member’s
and
loan.”
There would be significant manageability
problems with this case due to the predominance of individual
issues.
rather
See, e.g, Zimmerman, 800 F.2d at 390 (“When individual
than
common
issues
predominate,
the
economy
and
efficiency of class action treatment are lost and the need for
judicial supervision and the risk of confusion are magnified.”
(quoting 7A Wright & Miller, Federal Practice and Procedure §
1778 at 56)); Gresser, 2014 WL 1320092, at *9 (“Wells Fargo’s
liability to any individual Noteholder turns not just on breach,
but on whether or not a class member waived or can be estopped
from bringing a breach of contract claim.
Breach would only
begin the inquiry, therefore, into Wells Fargo’s liability to
any single class member.
For that reason, liability issues are
55
not resolvable on a class-wide basis such that a clear divide
between
common
and
individual
issues
can
divide between liability and damages.”).
be
made
along
the
Plaintiffs also have
failed to satisfy the two prongs of Rule 23(b)(3).
Based
on
the
foregoing,
Plaintiffs’
motion
for
class
certification will be denied.
B.
Motions to Seal
The standard for sealing was set forth in the March 19,
2015 memorandum opinion and need not be repeated.
(ECF No. 57).
The parties have submitted renewed motions to seal portions of
their motion papers and exhibits in connection with Plaintiffs’
motion for class certification.
(See ECF Nos. 58, 59, 61).
1.
Wells Fargo’s Motion to Seal
Accompanying Exhibits (ECF No. 58)
its
Opposition
and
Defendant has filed on the public docket redacted versions
of its opposition memorandum and five of the exhibits, which
include
minimal
redactions
contain
proprietary
on
financial
Fargo’s database codes.
the
basis
information,
that
these
filings
specifically
Wells
(See ECF Nos. 58 through 58-6, proposed
redacted filings); see, e.g, Pittston Co. v. United States, 368
F.3d 385, 406 (4th Cir. 2004) (affirming decision to seal certain
“confidential, proprietary, commercial, or financial data” that
was produced under a protective order).
Defendant also seeks to
redact
testimony
those
portions
of
deposition
56
provided
by
Plaintiffs
which
discuss
confidential
income
information relating to their mortgage loan.
and
payment
Having reviewed
the documents, Wells Fargo’s proposed redactions are minimal and
will be accepted.
Defendant also requests that the following seven exhibits
remain fully sealed: ECF Nos. 55-136; 55-14; 55-16; 55-17; 55-18;
55-19;
and
contain
55-20.
details
Defendant
regarding
specific
borrowers’
mortgage
loans,
the
loan,
account
represents
loss
payment
activity
that
these
filings
mitigation
history
of
information
related
to
statements,
documents
and
servicing notes from the borrower’s loan file, and are replete
with personal financial information relating to the borrower’s
loan.
(ECF No. 58, at 4).
Based on an independent review, the
court agrees that these filings contain confidential financial
data and should remain under seal.
The remaining exhibits will
be unsealed.
2.
Plaintiffs’ Motion to Seal (ECF No. 59)
Plaintiffs have provided redacted versions of Exhibits 4,
5,
6,
8,
Plaintiffs
and
9
to
represent
their
that
motion
these
for
exhibits
class
certification.
contain
information
relating to third party borrowers, such as proprietary codes,
loan numbers, and details of the loss mitigation history of
6
ECF No. 55-13 exceeds 100 pages and was filed in hard copy
with the Clerk’s Office.
57
certain borrower loans which Wells Fargo provided in discovery.
Based on an independent review, the redacted portions of these
filings
refer
borrowers’
either
financial
modification
to
Wells
account
applications.
Fargo’s
database
information
The
redacted
codes
related
versions
or
to
to
loan
have
been
filed on the public docket, (ECF Nos. 59-1 through 59-5), are
minimal, and will be accepted.
submitted
a
redacted
appear that they have.
version
Plaintiffs indicate that they
of
Exhibit
3,
but
it
does
not
Accordingly, they should file promptly a
redacted version of this exhibit on the public record.
The remaining exhibits will be unsealed.
The complication
is that Plaintiffs have filed all of their exhibits to their
initial motion to certify in bulk as one exhibit.
Plaintiffs
must
file
promptly
on
the
public
Accordingly,
docket
fully
unredacted versions of the following exhibits: Exhibits 1, 2, 7,
10, 11, and 12.
The clerk will be directed to unseal their
memorandum in support of the motion for class certification.
3. Plaintiffs’ Motion to Seal
Accompanying Exhibits (ECF No. 61)
Plaintiffs
have
submitted
on
the
Reply
public
Memorandum
record
and
redacted
versions of their reply memorandum and the four accompanying
exhibits.
(See ECF No. 61-1 and 61-2).
The redacted portions
of these filings contain Wells Fargo’s database codes and loan
numbers which reflect confidential consumer information.
58
Upon
an independent review, the redactions are minimal and justified,
and will be accepted.
The unredacted versions of these filings
will remain under seal.
4. Memorandum Opinion
The
undersigned
will
not
endeavor
to
determine
what
portions (if any) of this Memorandum Opinion contain information
that is under seal.
Rather, the Memorandum Opinion will be
filed under seal temporarily, and the parties are directed to
review it and within fourteen (14) days suggest
jointly
any
necessary redactions that should be made before it is released
to the public docket.
III. Conclusion
For
the
certification
granted.
foregoing
will
be
reasons,
motion
The
denied.
Plaintiffs’
to
motions
for
seal
will
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
59
class
be
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