279 F.R.D. 320
D. Maryland2012Background
- Prosperity Mortgage Co. is a Wells Fargo/Long & Foster joint venture alleged to be a sham front to disguise RESPA violations.
- Plaintiffs allege RESPA, RICO, Maryland CPA, and derivative tort claims arising from Prosperity’s operations.
- The court bifurcated proposed class into a Timely Class (claims within SOL) and a Tolling Class (pre-12/26/2006 claims needing equitable tolling).
- Named Plaintiffs initially lacked a tolling-period representative; Lizbeth Binks was added with a pre-2006 transaction and proposed as tolling-class representative.
- Defendants argue for Tolling Class only on RESPA claims 8(c) and 8(c)(4)(A); the 8(a) kickback claim is not pursued for tolling; DC-property transactions are excluded from tolling consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Tolling Class should be certified | Binks and class share tolling theory; common conduct tolled claims | Individualized inquiries predominate; no uniform tolling | Partially granted; Tolling Class certified for RESPA 8(c) and 8(c)(4)(A) claims (subject to DC exclusion) |
| Whether Ms. Binks is typical and adequate as class representative | Binks’ claims arise from same conduct and timing as class | Potential conflicts and tolling viability could undermine representativeness | Satisfied: Binks typical and adequate for the Tolling Class |
| Whether common questions predominate and class treatment is feasible | Uniform concealment theory regarding Prosperity’s sham status supports common tolling issues | Need for individualized inquiries on due diligence and notice would overwhelm common issues | Yes: common issues predominate; tolling theory centers on uniform course of conduct |
| Whether DC properties should be excluded from the Tolling Class | If tolling applies outside DC, DC members may be included | D.C. RESPA tolling not available; jurisdictional limits apply | DC properties excluded from Tolling Class absent alternate tolling viability. |
Key Cases Cited
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (class certification requires careful balancing of interests and adequacy of representation)
- Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) (class certification failures due to individualized showings and conflicts)
- Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) (predominance not shown due to need for individualized accrual notices)
- Veal v. Crown Auto Dealerships, Inc., 236 F.R.D. 572 (M.D. Fla. 2006) (tolling common scheme supports class certification)
- Robinson v. Fountainhead Title Group Corp., 252 F.R.D. 275 (D. Md. 2008) (typicality and adequacy require common conduct analysis)
- Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990) (abuse-of-discretion standard for class-cert decisions)