Alhassid v. Bank of America, N.A.
307 F.R.D. 684
S.D. Fla.2015Background
- Plaintiffs Sarah Alhassid and Sarah Drennen sued Nationstar alleging it improperly assessed default-related fees (inspection, preservation, appraisal, taxes, attorney’s fees) and pursued wrongful foreclosure after acquiring servicing from Bank of America. Plaintiffs seek certification of nine nationwide classes challenging those practices.
- Alhassid (reverse mortgage) alleged she maintained required flood insurance via condominium fees, but Bank of America and then Nationstar kept her loan in default, assessed fees, and Nationstar initiated foreclosure; Nationstar later dismissed the foreclosure and reversed fees.
- Drennen (forward mortgage) defaulted, received a loan modification, had escrow/payment increases, was charged inspection and attorney fees, then sold her home and paid off the loan (the sale proceeds paid several disputed inspection fees).
- Plaintiffs’ proposed class definitions tie membership to violations of HUD guidelines and Nationstar’s internal policies; this linkage to liability is new in the motion and was not pled in earlier complaints.
- Nationstar’s servicing data resides in LSAMS/Celink; the Court found those systems cannot reliably identify, without individualized inquiry, whether (or how often) underlying vendor actions occurred, whether charges were reversed/paid, or whether HUD rules actually applied to particular loans.
- The Court denied class certification, concluding the proposed classes were not ascertainable, and that commonality, typicality, adequacy, and predominance were not satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ascertainability of proposed classes | Classes are identifiable by Nationstar records of fees/assessments and by reference to HUD/guidelines and Nationstar policies | Class definitions are impermissibly "fail-safe," vague, reference liability, and cannot be determined from records without individualized inquiry | Denied — classes are not adequately defined or administratively ascertainable; definitions are fail-safe and unworkable |
| Commonality under Rule 23(a)(2) | Nationstar followed standardized practices that led to systematic improper fee assessments and departures from policy | Even if Nationstar has written policies, alleged violations are individualized departures requiring loan-by-loan proof; no common proof will resolve liability in one stroke | Denied — plaintiffs failed to show common questions capable of common, class‑wide resolution |
| Typicality and adequacy of representatives | Alhassid and Drennen represent typical victims of Nationstar practices; counsel is adequate | Alhassid’s facts are idiosyncratic; Drennen paid disputed fees and her modification/escrow issues differ; lead counsel are inexperienced and have potential conflict (Alhassid’s daughter and son‑in‑law are proposed counsel) | Denied — representatives’ claims are not typical of proposed classes and adequacy is undermined by potential familial conflict and counsel inexperience |
| Predominance and superiority under Rule 23(b)(3) | Common legal issues (breach, FDUTPA, FDCPA) predominate and class adjudication is superior to individual suits | Proof requires individualized inquiries into whether each borrower was actually in default and whether HUD/policy rules applied — defeating predominance | Denied — individualized issues predominate; class action is not a superior method |
Key Cases Cited
- Little v. T-Mobile USA, Inc., 691 F.3d 1302 (11th Cir.) (Rule 23 requirements must be satisfied before certification)
- Fitzpatrick v. General Mills, Inc., 635 F.3d 1279 (11th Cir.) (class must meet Rule 23(a) and at least one subsection of Rule 23(b))
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (plaintiff bears burden to demonstrate, by admissible evidence, that damages model is consistent with theory of liability)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (commonality requires common answers capable of driving resolution of litigation)
- Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347 (6th Cir.) (discussing fail‑safe class problems)
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir.) (fail‑safe class issue often cured by refining definitions)
- Eubank v. Pella Corp., 753 F.3d 718 (7th Cir.) (family relationship between class representative and class counsel creates a conflict warranting close scrutiny)