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Ponte v. American Mortgage Express Corp.

August 17, 2006


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS, Senior District Judge:

The instant action arises from the rejection by Defendant American Mortgage Express Corp. ("AMX") of two loan applications submitted by Plaintiff Bart Dal Ponte ("Dal Ponte") and AMX's subsequent making of the loans to Dal Ponte at a higher interest rate.*fn1 Presently before the Court are Dal Ponte's Motion for Class Certification and AMX's Cross-Motion for Summary Judgment.


On or about June 3, 2003, Dal Ponte called AMX's Mt. Laurel office in response to an AMX newspaper advertisement. Dal Ponte spoke with Robert Lewandowski ("Lewandowski"), an AMX loan officer, seeking to refinance loans on two residential properties owned by Dal Ponte in California. Dal Ponte initiated the application process and paid a fee of $375 for each loan with his credit card. Dal Ponte contends that Lewandowski then informed him that AMX would "lock in" a 4.25% interest rate until July 29, 2003.

AMX sent Dal Ponte standard loan application packages for each property, which included cover letters stating: "Please be advised that due to the time sensitive nature of your rate lock-in agreement, we can only honor your interest rate lock agreement upon receipt of your signed loan application within 10 days (including weekends and holidays) of the date of this letter: 06/15/03." (Opp'n to Mot. for Summ. J., Moffa Decl., Ex. A)(underline in original). The letter also included a list of supporting documents that could be returned with the loan application or sent at a later date.

The application forms enclosed with the letter included: (a) "Interest Rate Lock In Agreement;" (b) "Uniform Residential Loan Application;" (c) "Federal Truth-In-Lending Disclosure Statement; (d) "Application Disclosure;" (e) "Borrower's Certification & Authorization;" (f) "ECOA Notice;" and (g) "Mortgage Servicing Transfer Disclosure." (Cohen Decl., Ex. 4) Dal Ponte executed and returned the signed applications within ten days.

AMX later informed Dal Ponte that his loans were cancelled because he failed to timely submit a subordination agreement for his property in Lake Arrowhead, California. AMX contends that Dal Ponte also failed to submit a title report on his Los Angeles, California, property. Dal Ponte argues that AMX never told him that this was the reason for the declination of his loan application for the Los Angeles property. AMX told Dal Ponte that the 4.25% interest rate was no longer available, but offered to resell the loans at the interest rate of 4.875%.

Dal Ponte contends that his loan applications were part of a mass cancellation scheme instituted by AMX during the summer of 2003. He maintains that due to rising interest rates, AMX cancelled a number of loans subject to interest rate lock in agreements, including his, because the loans were no longer profitable at the locked in rates.

AMX distributed a "Cancelled Loans" list which included loan applications of approximately 250 customers of AMX's Mt. Laurel office. (Opp'n to Mot. for Summ. J., Moffa Decl., Ex. N) Dal Ponte contends the other customers on this list heard the same sales pitch including the interest rate lock in option and received the same application materials, including interest rate lock in agreements.*fn2 He also maintains that AMX managers instructed the loan officers to attempt to resell these cancelled loans at higher interest rates and to "lie, if necessary, to accomplish this." (Pl. Counter-Statement of Material Facts, at ¶ 10)

Dal Ponte filed the instant Complaint on May 6, 2004, on behalf of himself and all other AMX customers who were subject to AMX's alleged mass cancellation scheme in the summer of 2003. Dal Ponte maintains that AMX is liable to each member of the proposed class under the Truth In Lending Act, 15 U.S.C. § § 1601 et seq. ("TILA"), the New Jersey Consumer Fraud Act, N.J.S.A. § § 56:8-2 et seq. ("NJCFA"), and for common law breach of contract and unjust enrichment.*fn3


Dal Ponte seeks certification of a class defined as:

All consumers who applied for a loan with the Mount Laurel office of Defendant American Mortgage Express between May 1, 2003 and July 23, 2003, paid for a locked-in interest rate, and were not given the locked-in interest rate by Defendant.

(Pl. Br., Cert. Mot., at 10.) He alleges that every member of this class "was subject to the same course of conduct -- Defendant's mass cancellation scheme." (Id.)

Fed. R. Civ. P. 23 sets a two-prong standard for class certification. Rule 23(a) sets forth the "threshold requirements for all class actions." In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 183 (D.N.J. 2003). Rule 23(b) describes the three categories of class actions within the Rule and the specific requirements of each category. In order to succeed on his Motion for Class Certification, Dal Ponte must establish that all four requisites of Rule 23(a) and at least one aspect of Rule 23(b) are met. See Chiang v. Veneman, 385 F.3d 256, 264 (3d Cir. 2004).

The Court's focus in deciding a motion under Rule 23 is on whether a class action is an appropriate vehicle for litigation the claims alleged, and not on the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); Chiang, 385 F.3d at 269-70. Nevertheless, in certain instances the Court may need "to analyze the elements of the parties' substantive claims and review facts revealed in discovery in order to evaluate whether the requirements of Rule 23 have been satisfied." In re Ford Motor Co. Ignition Switch Prods. Liab. Litig., 174 F.R.D. 332, 339 (D.N.J. 1997); see also Weisfield v. Sun Chemical Corp., 210 F.R.D. 136, 139 (D.N.J. 2002).

A. Rule 23(a) Requirements

Fed. R. Civ. P. 23(a) creates four requirements for the maintenance of a class action: "(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." These requirements are commonly known as numerosity, commonality, typicality and adequacy. As discussed below, the Court concludes that Dal Ponte has satisfied the requirements of Rule 23(a).

1. Numerosity

"The numerosity requirement is intended to limit the class action device to those cases in which the number of parties makes traditional joinder of parties unworkable. By modern, complex litigation standards the minimum number of parties is not large . . . ." In re Mercedes-Benz, 213 F.R.D. at 185. A plaintiff need not demonstrate that the potential class members are so numerous that joinder of every class member is impossible, but rather, "proof of 'difficulty or inconvenience of joining all members of the class' suffices." Weisfeld, 210 F.R.D. at 139 (citations omitted). Dal Ponte contends that the proposed class consists of the approximately 250 AMX customers on the cancelled loans list, as well as any AMX customers who were "upsold" during the class period and any other customers whose loans were cancelled by AMX.

AMX contends, however, that the majority of these potential class members, including Dal Ponte, must be excluded from the class because "AMX cannot possibly have any legal liability toward any such individual" because they either withdrew their loan applications, failed to timely submit required documentation or were denied loans for "legitimate credit reason[s]." (Def. Br., Cert. Mot., at 26.) It argues that the only proper class members are "individuals who timely submitted applications and underwriting data to AMX; and were denied applications at the lock rate because of rate and not credit reasons." (Id.) AMX's arguments are clearly addressed to the merits of the claims of the proposed class members, but "[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen, 417 U.S. at 178.

The Court concludes that the proposed class, as presently defined, is sufficiently numerous as to satisfy Rule 23(a). The joinder of 250 individuals as plaintiffs would clearly be unworkable, especially given that the proposed class includes individuals from across the country. See Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001)("No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named ...

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