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Jorge Garcia, et al v. Freedom Mortgage Corporation.

June 10, 2011

JORGE GARCIA, ET AL.,
PLAINTIFFS,
v.
FREEDOM MORTGAGE CORPORATION.
DEFENDANT.



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

OPINION

IRENAS, Senior District Judge:

This matter comes before the Court on Plaintiffs' Motion for Class Certification of a New Jersey Class Pursuant to Federal Rule of Civil Procedure 23. For the reasons set forth below, Plaintiffs' motion will be denied.*fn1

I.

Plaintiffs are loan officers and loan processors that were employed by Defendant Freedom Mortgage Corporation. (Memorandum in Support of Plaintiffs' Motion For Class Certification ¶ 2) Defendant Freedom Mortgage Company is a lender licensed as a mortgage broker in all 50 states with more than 100 locations throughout the United States. (Id. at 4) Defendant's headquarters is located in Mount Laurel, New Jersey. (Id.) Plaintiffs claim that Defendant denied them proper overtime compensation. (Id.)

In order to generate business for its loan products, Defendant would purchase lists of potential customers. (Id. at 5). Defendant used an automated dialing system to dial these potential customers. (Id.) When a potential customer answered the phone, he or she would be automatically connected to a loan officer. (Id.) The loan officer would gather basic information about the potential customer, as well as access the potential customer's credit report. (Id. at 6) All of this information would be entered into Defendant's computer system, which would then indicate to the loan officer the potential customer's eligibility for different loan products. (Id.) The loan officer would then advise the potential customer of the loan products for which they are eligible, as well as the available interest rates. (Id.) If the potential customer was interested in moving forward on a loan application following discussions with the loan officer, the potential customer would be passed along to a loan processor. (Id.) Loan officers were all compensated with a salary and a commission or bonus based on the number of closed loans for which they were responsible. (Id.)

The loan processor would collect information related to the potential customer's compensation and tax history. (Id.) The loan processor would then organize the potential customer's application and pass it along to the underwriter, who determined whether the potential customer would receive a loan. (Id. at 7) If the underwriter needed any more information in coming to his or her decision, the loan processor would be responsible for gathering that information. (Id.) Once a loan was approved, the loan processor was also responsible for scheduling the closing and arranging the appraisal and title work. (Id.) Loan processors were all compensated with a salary and a bonus based on the number of closed loans for which they were responsible. (Id.)

Plaintiffs each assert that they regularly worked in excess of 40 hours per week without receiving overtime compensation. (Id.)

Plaintiffs filed their original Complaint on January 29, 2009, in the United States District Court for the Central District of California against Defendant.*fn2 The Complaint has since been amended on numerous occasions.

Count One of the Fourth Amended Complaint asserts a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for failure to properly pay overtime compensation to all the plaintiffs. Count Two asserts a class action under the New Jersey Wage and Hour Laws ("NJWHL"), N.J.S.A. § 34:11-56a et seq, for failure to properly pay overtime compensation to the New Jersey Plaintiffs. Count Three, Four and Five, brought by those Plaintiffs that were employed by Defendant in California, assert claims under the California Labor Code, California Unfair Practices Act and California Unfair Competition Laws, respectively.

The Court conditionally certified for the purposes of collective action under FLSA a class of employees of Defendant who served as loan officers and loan processors at any time from January 28, 2006 to November 2, 2009. The Court approved notice for the potential class, ordered that such notice be mailed to potential class members, set the opt-in period for the class at 120 days, and ordered Defendant to provide contact information for all past and present loan officers and loan processors.

Of the 230 individuals that Plaintiffs sought to certify as a subclass of loan officers, 100 such loan officers filed opt-in consents for the FLSA action. (Declaration of Phillip G. Ray ¶ 20) Of the 119 individuals that Plaintiffs sought to certify as a subclass of loan processors, 20 such loan processors filed opt-in consents for the FLSA action. (Id. at 21)

On December 22, 2011, Plaintiffs filed the present motion.*fn3

Plaintiffs seek to certify a class under Rule 23(b)(3) divided ...


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