Bloom v. Nationstar Mortg.

Full title: FRANCESCA BLOOM, Individually and on behalf of all others similarly…

Court: Supreme Court, Orange County

Date published: Jul 17, 2019

2019 N.Y. Slip Op. 34227 (N.Y. Sup. Ct. 2019)

Opinion

Index EF010147-2018

07-17-2019

FRANCESCA BLOOM, Individually and on behalf of all others similarly situated, Plaintiff, v. NATIONSTAR MORTGAGE LLC d/b/a MR. COOPER, Defendant.

STENGER, ROBERTS, DAVIS & DIAMOND, LLP Attorneys for Plaintiff. McGUIRE WOODS LLP Attorneys for Defendant.

Hon. CRAIG STEPHEN BROWN Acting Supreme Court Justice.

Unpublished Opinion

STENGER, ROBERTS, DAVIS & DIAMOND, LLP Attorneys for Plaintiff.

McGUIRE WOODS LLP Attorneys for Defendant.

DECISION & ORDER

Hon. CRAIG STEPHEN BROWN Acting Supreme Court Justice.

Plaintiff Francesca Bloom moves for an order:

(i) Granting class certification of this action pursuant to Article 9 of the CPLR;

(ii) Certifying two classes pursuant to Article 9 of the CPLR;

(iii) Appointing plaintiff Francesca Bloom as class representative of both classes;

(iv) Appointing the law firm of Stenger, Roberts, Davis & Diamond, LLP as class counsel; and

(v) Directing that the parties "meet and confer" concerning the method of notice of this Class Action to be provided to the Class(es) pursuant to CPLR §904.

The following papers were read:

Notice of Motion- Affirmation of Kenneth M. Stenger, Esq. Annexed Exhibits - 1-3

Aleksandra Kaplan, Esq.'s Affirmation in Opposition Annexed Exhibits - 4 - 5

Jill Lamb's Affidavit in Opposition - Annexed Exhibits 6-7

Defendant's Memorandum of Law 8

Reply Affirmation of Kenneth M. Stenger, Esq. Annexed Exhibits - 9-10

Plaintiff s Reply Memorandum of Law 11

Upon the foregoing papers it is hereby ORDERED that the plaintiffs motion is granted.

CPLR Section 901 provides as follows: "One or more members of a class may sue or be sued as representative parties on behalf of all if:

1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

3. the claims or defenses of parties are typical of the claims or defenses of the class; 4. the representative parties will fairly and adequately protect the interests of the class; and

5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy." In addition, CPLR Section 902 states that an "action may be maintained as a class action only if the court finds that the prerequisites under section 901 have been satisfied; Among the matters which the court shall consider in determining whether the action may proceed as a class action are:

1. the interest of members of the class in individually controlling the prosecution or defense of separate actions;

2. the impracticability or inefficiency of prosecuting or defending separate actions;

3. the extent and nature of any litigation concerning the controversy already commenced by or against members of the classy

4. the desirability or undesirability of concentrating the litigation of the claim in the particular forum;

5. the difficulties likely to be encountered in the management of a class action."

It is well settled that "CPLR article 9, which authorizes and sets forth the criteria to be considered in granting class action certification, is to be liberally construed" (Dowd v. Alliance Mortg. Co., 74 A.D.3d 867, 869 [2^nd Dept., 2010] quoting Seller v. William Penn Life Ins, Co, of N. Y., 37 A.D.3d 747, 748, 830 N.Y.S.2d 759 and citing Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129, 135, 871 N.Y.S.2d 263; Tosner v. Town of Hempstead, 12 A.D.3d 589, 785 N.Y.S.2d 101). Further, '"[t]he determination to grant class action certification rests in the sound discretion of the trial court'" (Dowd v. Alliance Mortg. Co., 74 A.D.3d 867, 869 [2^nd Dept., 2010] quoting Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d at 137, 871 N.Y.S.2d 263 and citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 52, 698 N.Y.S.2d 615, 720 N.E.2d 892; Emilio v. Robison Oil Corp., 63 A.D.3d 667, 667-668, 880 N.Y.S.2d 177).

A review of the submitted papers reveals that the plaintiff has satisfied the prerequisites to a class action set forth in CPLR Section 901." "Members of the class appear to number in the [thousands]. The members share common questions of fact or law regarding the defendant's alleged [charging of a fee for furnishing a payoff statement]. The claims of the representative are typical of those of the class. The representative has demonstrated that [s]he can fairly and adequately protect the interests of the class. Finally, the class action procedure appears to be superior to other potential available methods of adjudicating the controversy" (Emilio v. Robison Oil Corp., 63 A.D.3d 667, 668 [2^nd Dept., 2009]). In addition, upon considering the factors set forth in CPLR Section 902, this Court finds that allowing the action to proceed as a class action is appropriate (see Dowd v. Alliance Mortg. Co., 74 A.D.3d 867 [2^nd Dept., 2010]; Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 137-138, 871 N.Y.S.2d 263; Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191, 683 N.Y.S.2d 179; Dougherty v. North Fork Bank, 301 A.D.2d 491, 753 N.Y.S.2d 130; Negrin v. Norwest Mtge., 263 A.D.2d 39, 700 N.Y.S.2d 184).

Submit Order in accordance herewith.

This matter is scheduled for a Compliance Conference on July 19, 2019, at 9:30 A.M.

So Ordered.