Joining Multiple Plaintiffs to Fight Wrongful Lender Actions
What is MASS JOINDER?
U.S. Law permits the joining of claims under Rule 20(a)(1) of the Federal Rules of Civil Procedure which allows plaintiffs to join their claims if they occur out of the same transaction, occurrence, or series of transactions or occurrences and any question of law or fact common to all plaintiffs will arise in the action. [Fed. Rule Civ. Proc. 20(a)(1)(A-B).] Permissive joinder under the California Code of Civil Procedure is allowed if parties assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. [Cal. Code Civ. Proc. §378(a)(1).] An example of this is a scheme by Mortgage servicers to name a shell company called Mortgage Electronic Registration Systems Inc. (“MERS”) as a beneficiary on your mortgage or Deed of Trust which has affected millions of borrowers. (MERS Mass-Joinder.)
The Difference Between Mass-Joinder and Class-Action
You may have heard the term “class action lawsuit” before, but probably have not heard of a mass-joinder or mass-tort. Class Action and Mass -Tort are similar in that they both involve large groups of people that share the same grievance and in both instances the group of plaintiffs are alleging harm caused by a common defendant where the lawsuits are consolidated into one action to serve judicial economy which means cutting down on the number of separate law suits. Both types of cases provide similar outcomes and are often confused, but they are handled differently. The main difference between a Class Action and Mass Tort is the way the plaintiffs are treated.
A Mass Tort involves a group of named individuals whereas a class action will only name one person to represent the class. Because of this, a mass tort will usually involve a smaller group than a class action which may involve thousands of unknown defendants who may decide to join the class (“opt in”) after it is designated. In a mass-tort, everyone usually joins the lawsuit before it is filed.
Class Action and Mass Tort are also different in the way they are handled by the Court. In Class Action a large group of plaintiffs are represented by an individual called a class representative who stands in for the rest of the class and all the members are treated as one plaintiff. Plaintiffs in a mass tort may have different factual circumstances resulting from the action of the defendant and so must provide certain facts to show their injury by the defendant because they are being treated as individuals.
CLASS ACTION CHARACTERISTICS AND CRITERIA.
In a Class Action, all individuals in the class must be notified of the suit and given the choice to either opt out or find their own counsel. Before a class action lawsuit is established, a motion must be filed in court for a representative to act as a plaintiff on behalf of the entire class. The Federal Rules of Civil Procedure have established the following criteria for Class Action Lawsuits:
- The class is so numerous that joinder of all members is impracticable;
- There are questions of law or fact common to the class;
- The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- The representative parties will fairly and adequately protect the interests of the class. [Fed Rule Civil Procedure 23(a)(1-4).]
A class action requires the class to be certified by the court and a law firm that will work on a contingency basis. In class actions the plaintiffs don’t pay up front which is why class actions are usually handled by large firms that can carry the costs of the lawsuit and reap the big rewards when the case settles. In mass-tort cases, the plaintiffs do pay their attorney although they may pay a reduced fee based on their number. In class actions, when a settlement arrives, the attorney fee is the first thing paid.
MASS JOINDER CHARACTERISTICS AND CRITERIA.
In most cases, mass tort claims are filed when consumers are injured on a large scale by defective drugs or products. As reactions to defective drugs or products differ greatly from individual to individual, these cases rarely fit into a single class. In a mass joinder lawsuit under Federal Rule 20, clients all pay a litigation fee to maintain their lawsuit. The only additional attorney fees collected are a portion of each client’s cash settlement if damages are received. If a client receives a loan modification or a new mortgage as settlement for their action, they pay nothing additional to their attorneys.
In a mass joinder case, plaintiffs have many different stories of the way the lenders’ actions affected them, but the action for which the lender is being sued must be the same for everyone. If the court finds for the plaintiffs and agrees that the lender’s actions were wrongful, then individual facts and damages will be considered. Mass tort lawsuits are generally more complicated than class action lawsuits and any law firm that treats it as simple is probably running a scam.
Mass Joinder Scams
You may have gotten a flyer in the mail from one of the many firms doing “mass tort” lawsuits. The fliers promise specific results such as principal reductions and lower interest rates. They promise damages for “predatory” lending and that they can “stop foreclosure” with a mass tort lawsuit. When you call the number on the flier, you are encouraged to “sign up” for the lawsuit based on an interview with a salesman. These salesmen make promises and give advice, and are engaged in an illegal practice known as practicing law without a license. It may be months before you speak to an attorney, or you may never speak to one.
Despite the existence of scams, joinder actions can greatly benefit homeowners who hire a qualified attorney. Often, a lawsuit can cost too much for a homeowner already struggling to pay a mortgage and fight their lender. A mass joinder case lets multiple plaintiffs join together to sue a defendant, allowing the attorney to take on each of their cases for a reduced fee so that everyone gets a day in court. Because of the complicated procedures involved with joinder cases, plaintiffs must absolutely engage experienced mass-joinder attorneys to represent them. Even convincing a judge that plaintiffs should be properly joined requires strategic legal skills. Learn about our MERS mass-joinder lawsuit.
When should you join a Mass-joinder lawsuit
Foreclosure lawsuits are fact-specific to the plaintiffs, but a mass joinder case focuses on a specific action by the defendant that may affect each of the plaintiffs in a different way. If you decide to join one of these lawsuits, you should know the action for which the lender is being sued. Some common actions of your lender that might be appropriate for mass joinder may be:
- Corporate policy to fraudulently record assignments of mortgages years after they have actually been sold creating void assignments. See Glaski v. Bank of America, 218 Cal. App 4th 1079 (Cal App. 5th Dist. 2013)
- Corporate policy providing bonuses to employees to trick borrowers into foreclosure. [Business and Professions Code §17200]
- Corporate policy requiring employees to lie to borrowers about loan modification or be fired. [Business and Professions Code §17200]
- Servicer Scheme to transfer away millions of servicing rights while borrowers are in the middle of a modification. [Business and Professions Code §17200]
- Servicer Scheme to switch borrowers to a different loan modification specialist every three months so that they have to begin the process again with a new person. [Business and Professions Code §17200]
- The MERS scheme of recording mortgages with a sham beneficiary that does not hold the promissory note. See MERS Mass-Joinder page.
Homeowners should take the following steps when choosing an attorney for a mass joinder lawsuit:
- Choose an attorney licensed in your state.
- Check with the state bar association for disciplinary actions against the lawyer.
- Speak with the lawyer directly to learn more about the individual’s experience.
- Obtain an evaluation of your case to determine if joinder is right for you.
- Ask what action by the lender is common to all plaintiffs and on what basis they are qualifying you for the mass-joinder case.
Contact Advocate Legal for Personalized Help Today
With over a decade of litigation experience that includes foreclosure, mortgage fraud and title issues, and mass-joinder, our lawyers at Advocate Legal have the knowledge and skill to help decide if a mass-joinder case is right for you.