Parker v. Bank of America, N.A.
99 F. Supp. 3d 69
D.D.C.2015Background
- Plaintiff David H. Parker (borrower) entered a mortgage modification with Bank of America (BOA) in 2009, returned signed documents, and began making reduced payments per the modification.
- BOA did not reflect the modification on statements and, about a year later, sent notices of intent to accelerate, threatened foreclosure, demanded large retroactive sums, and reported derogatory credit information; BOA at times denied the modification or said it could not locate it.
- Parker sued alleging breach of contract and tortious interference and moved to certify a nationwide class of borrowers whose valid modifications were not timely implemented and who suffered acceleration, derogatory reporting, and/or late fees.
- Parker’s class theory: BOA used a common two-stage process — (1) designate files as “Completed” to indicate a binding modification, then (2) perform a standardized Post Loan Modification Review that often found errors and prevented implementation, causing uniform harm (late fees, credit reporting).
- BOA’s defense: modification agreements and servicing practices are highly individualized, the “Completed” code does not uniformly indicate a binding contract, and there is no uniform post-modification practice that systematically injured all putative class members.
- The Court denied class certification for failure to satisfy Rule 23(a)’s commonality requirement: Parker failed to produce “significant proof” of a uniform BOA policy or practice that caused the same injury across the putative class. Motions to strike/exclude expert and certain fact testimony were denied as moot or denied where addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether commonality under Rule 23(a)(2) is satisfied for a nationwide class of borrowers whose valid modification agreements were not timely implemented | Parker: BOA applied uniform practices (standard form mods; “Completed” code = binding agreement; systematic Post Loan Modification Review that withheld implementation), producing the same injuries classwide | BOA: Contracts, conditions, and processes vary by loan, noteholder, and time; “Completed” means returned docs, not a binding contract; no uniform post-modification practice exists | Denied — Plaintiff failed to provide significant proof of a uniform policy or practice producing the same injury for all class members; commonality not satisfied |
| Whether the “Completed” database designation establishes, classwide, that a binding modification existed | Parker: “Completed” identifies loans where conditions precedent satisfied and agreement is binding | BOA: “Completed” merely records that borrower returned documents; meaning changed over time and does not reliably show a binding contract | Denied — Record does not show “Completed” consistently denotes a binding modification across the putative class |
| Whether BOA conducts a uniform Post Loan Modification Review that systematically prevents implementation of valid modifications | Parker: BOA routinely reviews completed files for accounting or noteholder-rule errors and declines to implement when errors found, causing identical harms | BOA: Closing/review procedures differ by program/loan; any review is part of contract-formation or individualized error resolution, not a uniform post-formation policy to reject agreements | Denied — No internal documents or testimony provide significant proof of a consistent, injurious post-modification review applied classwide |
| Whether the Court must resolve outstanding evidentiary motions concerning experts/fact witnesses to decide certification | Parker: Seeks to exclude BOA fact witness and BOA seeks to strike Parker’s experts (relevance to class issues) | BOA: Expert testimony matters to damages and class identification but not to commonality showing; Sunlin affidavit is permissible | Court: Denial of certification on commonality grounds makes many evidentiary disputes moot; motion to strike Sunlin denied on its merits; other motions denied without prejudice as moot |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (commonality requires a common contention capable of classwide resolution; plaintiffs must show the class suffered the same injury)
- Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455 (2013) (Rule 23(a) requirements include typicality and commonality standards applied with rigor)
- DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013) (Wal-Mart’s commonality analysis applies beyond Title VII; plaintiff must show a policy or practice affecting class members the same way)
- Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) (examples of Rule 23(b)(1)(B) class where separate adjudications could bind others)
- Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481 (7th Cir. 2012) (applied Wal-Mart significant-proof standard to IDEA class certification)
- Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159 (11th Cir. 2010) (uniform form contracts facilitate class treatment; material variation defeats commonality)