UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________ ) DAVID H. PARKER, Jr., ) ) Plaintiff, ) ) v. ) Civil Action No. 11-CV-0520 (KBJ) ) BANK OF AMERICA, N.A., ) ) Defendant. ) ) _________________________________ )

MEMORANDUM OPINION

During the severe economic downturn of the last decade, Plaintiff David H.

Parker fell behind in paying his home mortgage. Parker reached an agreement with the

loan servicer, Defendant Bank of America (“BOA”), to modify his monthly mortgage

payments; however, unbeknownst to Parker, BOA did not implement the terms of the

mortgage modification agreement for nearly two years. In the interim, Parker received

from BOA a series of foreclosure notices, demands for balloon payments and late fees,

and statements threatening to report his alleged delinquency to credit agencies—none of

which would have happened if BOA had promptly and properly executed the loan

modification agreement. Parker has filed this civil action against BOA, alleging that

BOA breached and/or tortiously interfered with the terms of his mortgage modification

agreement causing him injury, and that BOA’s failure to implement the agreement was

the result of uniform and systematic policies that have injured many other borrowers.

Before this Court at present is a motion for class certification that Parker filed on

March 4, 2014. Parker seeks to certify a class of borrowers whose valid, binding

mortgage modifications were not implemented by BOA in a timely fashion and who, as a result, “experienced the acceleration of their full mortgage balances, derogatory credit

reporting, and/or late fees.” (Pl.’s Mot. to Certify the Class, Mot. to Appoint Class

Counsel, and Mot. to Appoint Class Representative (“Pl.’s Mot.”), ECF No. 62, at 3.) 1

BOA opposes Parker’s class certification motion on the grounds that, regardless of the

merits of Parker’s individual claim, Parker has failed to establish that BOA breached or

tortiously interfered with valid, binding mortgage loan modification agreements on a

classwide basis.

On March 31, 2014, this Court entered an order that, among other things,

DENIED Parker’s motion for class certification. (Order, ECF No. 86.) In the instant

Memorandum Opinion, the Court explains the reasoning behind that ruling. In short,

this Court has concluded that Parker has failed to satisfy the commonality requirement

of Federal Rule of Civil Procedure 23(a) because he has not demonstrated that BOA

systematically applied common policies or practices to the mortgage modification

agreements it entered into with borrowers in a manner that breached those contracts

systemically and thereby injured each putative class member in a similar way.

Consequently, class certification is not appropriate. The Court has also determined that

Parker’s related motion to exclude the testimony of BOA’s fact witness Michael Sunlin

should be DENIED because the record evidence does not support the assertion that

Sunlin’s testimony is improper and should be stricken. In addition, having denied

Parker’s motion for class certification on commonality grounds, the Court also

DENIED AS MOOT and without prejudice the remaining motions to strike and/or to

exclude certain evidence that both parties filed to bolster their other class certification

1 Page numbers throughout this Opinion, with the exception of deposition page numbers, refer to those that the Court’s electronic filing system assigns. 2 arguments—these motions can be refiled if the same evidentiary issues arise in the

context of Parker’s individual claim.

I. BACKGROUND

A. Facts Regarding Parker’s Mortgage Modification

David Parker is a firefighter with the District of Columbia Fire Department and a

District of Columbia resident. (Am. Compl., ECF No. 19, ¶¶ 10, 15.) Parker purchased

a piece of real estate in the District in 1999, and he currently has two mortgages on that

property. (Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem.”), ECF No. 62, at 17.)

Fannie Mae owns Parker’s first mortgage—which is the loan at issue here—and BOA

services that mortgage loan. (Id.) 2

In 2008, Parker suffered a number of personal hardships that made it difficult for

him to keep up with the monthly mortgage payments, including his wife’s discharge

from her job and his having to pay considerable additional expenses related to his

mother’s funeral. (Id.) Parker contacted BOA to request a modification of his

mortgage loan payments, and Parker and BOA commenced a process designed to result

in the modification of the mortgage loan’s terms. (Id. at 17–18; Am. Compl. ¶ 16.) 3

The modification under consideration in Parker’s case reduced Parker’s monthly

mortgage payments by over $400—from $1,761.62 a month to $1,342.74. (Pl.’s Mem.

at 18.)

2 A mortgage servicer manages loans owned by third parties (hereinafter referred to as “noteholders”) in exchange for a servicing fee and ancillary fees such as late fees charged to a borrower. See Mortg. Bankers Ass’n, Residential Mortgage Servicing in the 21st Century 5 (2011). Parker ’s noteholder, Fannie Mae, is not a party to this case, and the identities of the various noteholders of the putative class members are irrelevant to the instant class action motion. 3 BOA is the successor by merger of BAC Home Loan Servicing, LP, which was formerly known as Countrywide Home Loans Servicing LP. BAC was the initial Defendant in this lawsuit; for the purpose of this opinion, Parker’s loan servicer is hereinafter refer red to as “BOA.” 3 In the summer of 2009, BOA approved Parker’s loan modification, and sent him

a letter dated July 11, 2009, stating that “[i]n order for the modification to be valid, the

enclosed documents need to be signed and returned.” (Ex. 7 to Pl.’s Mot., ECF No. 60-

13, at 6.) The letter specified that Parker’s “new modified monthly payment will be

$1,342.74, effective with your September 1, 2009 payment.” (Id.) The letter also

clarified that Parker’s interest rate was being reduced from the then-existing market rate

of 6% to a “new reduced rate of 4.000%[,]” which would “be effective as of the

September 1, 2009 payment.” (Id.) In addition, the letter specifically instructed Parker

to “sign, date, and return one (1) complete set of enclosed docum ents to us in the re-

usable Fed-Ex envelope . . . no later than August 10, 2009[,]” and it warned that “[i]n

the event that you do not or cannot fulfill ALL of the terms and conditions of this letter

no later than August 10, 2009, we will continue our collections actions without giving

you additional notices or response periods.” (Id. at 8).

Parker duly signed and returned the documents, which included copies of the

modified mortgage agreement, as instructed. (Pl.’s Mem. at 19.) Parker also called

BOA and received confirmation that his documents had been received. (Am. Compl.

¶ 18.) Shortly thereafter, Parker received additional correspondence from BOA,

including “documents welcoming him into Defendant’s modification plan on a

permanent basis[.]” (Id. ¶ 19.) Parker began making payments in accordance with the

modified terms of the mortgage agreement as of September of 2009. (Pl.’s Mem. at 18.)

Notably, the first mortgage statement that Parker received from BOA after the

effective date of his modification agreement did not reflect the change to his loan

payment terms. (Id. at 19.) However, the statement did include prominent language to

the effect that if the borrower and BOA “have entered into an agreement to address [the

4 borrower’s] monthly payments, please make payments in accordance with this

agreement.” (Ex. 8 to Pl.’s Mot., ECF No. 60-14, at 2 (emphasis added).) Every

mortgage statement that arrived in Parker’s mailbox thereafter would similarly fail to

reflect the modified terms, but the statement would also include this language

indicating that the borrower should assume that the modification is in effect and should

pay in accordance with the modified mortgage agreement. (Pl.’s Mem. at 19.)

On August 2, 2010, nearly twelve months after the modification agreement

supposedly had taken effect, Parker received a “Notice of Intent to Accelerate” from

BOA. (Id. at 22.) This letter informed Parker that he was “in serious default” on his

mortgage payments, to the tune of more than $23,000. (Ex. 12 to Pl.’s Mot., ECF No.

60-18, at 2.) A week later, Parker received a second “Notice of Intent to Accelerate,”

and that notice contained a slightly lower calculation of payments due, but still

demanded more than $22,000. (Id. at 4–5.) The amounts in both letters approximated

what Parker would have owed if there had not been any modification agreement at all.

Furthermore, as another indication that his loan modification agreement was not in

effect, Parker received from BOA on August 27, 2010, a proposal to modify the terms

of his mortgage loan, and the suggested modification proposed a higher monthly

payment amount than the amount Parker was paying pursuant to the 2009 modification

agreement. (See Ex. 14 to Pl.’s Mot., ECF No. 60-20, at 2; Pl.’s Mem. at 23.) Parker

also received a letter dated October 6, 2010, from a law firm representing BOA that

threatened foreclosure if Parker did not make the required payments. (See Ex. 13 to

Pl.’s Mot., ECF No. 60-19.)

Through all this, Parker repeatedly contacted BOA in an attempt to clear up the

apparent misunderstanding regarding the effective terms of his mortgage loan. When

5 Parker first contacted BOA in August of 2010, a BOA representative denied the

existence of a modification agreement. (Am. Compl. ¶ 23.) Parker contacted BOA

once again in October of 2010, and thereafter he received a letter informing him that, if

a modification agreement existed, BOA was not able to locate it. (Ex. 15 to Pl.’s Mot.,

ECF No. 60-21.) Parker persisted in making monthly payments in accordance with the

terms of the 2009 modification agreement until November of 2010, when BOA rejected

his payment entirely because his mortgage was considered delinquent. (Am. Compl.

¶¶ 26, 29, 31; Pl.’s Mem. at 24.)

B. Procedural History

On February 8, 2011, Parker filed suit in District of Columbia Superior Court

seeking to enforce the terms of the agreement that he had made with BOA regarding

modification of his mortgage loan payments. Parker’s initial complaint alleged breach

of contract claims and similar claims that pertained only to his own mortgage

modification experience. BOA removed the case to federal court on diversity and

federal question grounds (see Notice of Removal, ECF No. 1), and on July 20, 2011,

Parker was permitted to amend his complaint (see Order, ECF No. 18). In so doing,

Parker raised the possibility of classwide claims for the first time. (See Am. Compl.

¶¶ 58–65.)

Parker’s amended complaint contained four separate counts against BOA:

breach of contract (Count I), tortious interference with contract (Count II), and two

violations of the Fair Debt Collection Practices Act (Counts III and IV). ( Id. ¶¶ 66–

109.) BOA moved to dismiss Counts II, III, and IV shortly after the amended complaint

was filed (see Def.’s Mot. to Dismiss Counts Two, Three, and Four of Pl.’s Am.

Compl., ECF No. 23), and the Court granted BOA’s motion to dismiss the Federal Debt

6 Collection Practices Act claims (Counts III and IV), but denied BOA’s motion to

dismiss the tortious interference with contract claim (Count II), see Parker v. BAC

Home Loans Servicing LP,

, 94–95 (D.D.C. 2011) (Boasberg, J.).

Following this ruling, BOA filed an answer to Parker ’s amended complaint (Am.

Answer, ECF No. 40), and the parties entered into class-certification-related discovery,

which lasted until November of 2013.

Parker filed a motion for class certification on March 4, 2014. Parker ’s motion

requests certification of two classes—one under Federal Rule of Civil Procedure

23(b)(1)(B) and the other under Rule 23(b)(3)—and the requested class definition is the

same for both proposed classes:

(a) All current and former borrowers of residential mortgage loans since August 1, 2008, (b) across the United States of America (c) whose loans were serviced by Defendant BOA, N.A., (d) were coded “Complete” (e) and who despite having paid on time, in full thereunder, (f) experienced the acceleration of their full mortgage balances, derogatory credit reporting, and/or late fees.

(Pl.’s Cert. Mot. at 3.) 4 Parker’s class certification motion has now been fully briefed

(see Def.’s Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 68; Pl.’s Reply in Supp. of

Pl.’s Mot. (“Pl.’s Reply”), ECF No. 77), and in addition, the parties have filed and

briefed motions seeking to strike or exclude various witnesses that each side has

identified in support of their respective positions regarding class certification. 5 This

Court held a hearing on all of the pending motions on December 16, 2014.

4 Parker’s class certification motion suggests that he is seeking the certification of two classes with identical definitions under two different certification rules in order to be able to recover punitive damages on a classwide basis. (See Pl.’s Mem. at 3, 80.) 5 The parties have, collectively, proffered four expert witnesses with respect to class certification, and Defendant BOA has also presented additional fact witnesses. At this point, a motion to exclude is pending with respect to each expert witness and al so one of BOA’s fact witnesses. BOA has filed a single motion requesting that all three of Parker ’s expert witnesses be stricken. ( See Def.’s Mot. to Strike the Purported Expert Witness Reports of Keshav Raghunathan, Mark Riley, and Dean Binder, 7 C. BOA’s Mortgage Modification Process

Significantly for present purposes, the parties’ class certification briefs present

strikingly different assertions of fact regarding BOA’s mortgage modification process.

Because there is such stark disagreement about whether, and to what extent, BOA

applies a standardized process in a systematic way when it implements loan

modification agreements—an issue of fact that lies at the heart of the instant class

certification dispute—a brief description of the parties’ widely differing views of the

applicable mortgage modification procedures is warranted.

1. Parker’s View: BOA Uniformly Implements A Staged Post-Modification Review Process

According to Parker, after BOA receives a signed modification agreement back

from a borrower, two significant and uniform internal processing steps occur. First,

BOA reviews the executed agreement to ensure that any conditions precedent to the

modification—conditions such as the submission of additional documentation, income

verification, or resolution of bankruptcy issues—have been satisfied. (See Pl.’s Reply

at 7–9.) If so, according to Parker, BOA will mark that borrower’s electronic file

“Completed.” (Pl.’s Mem. at 28.) Parker attributes substantial significance to the

“Completed” designation because, in Parker’s view, any account that has been coded as

“Completed” is an account in which the borrower and BOA have both consented to the

terms of the modification agreement and have fulfilled any conditions precedent such

that there is a binding contractual agreement. (Id. at 29 n.12; see also id. at 28

(emphasizing one internal BOA document that appears to define the term “Completed”

ECF No. 67.) Parker has filed two separate motions, one that seeks to exclude the testimony of BOA ’s one expert witness (see Pl.’s Mot. In Limine to Exclude Test. of David Skanderson, ECF No. 79), and another that seeks to exclude the testimony of BOA ’s fact witness Michael Sunlin (see Pl.’s Mot. In Limine to Exclude Test. of Michael Sunlin (“Pl. ’s Mot. to Strike Sunlin”), ECF No. 78). The parties ’ three evidentiary motions have been fully briefed. 8 as meaning “[f]iles that have accepted an offer, a decision has been made, agre ed by all

parties and correctly executed documents have been returned by the customer”).

Parker maintains that after a file has been marked “Completed,” BOA moves on

to a second uniform procedural step: it engages in what Parker calls a “Post Loan

Modification Review.” (See id. at 33.) This process allegedly involves a review of the

binding modification agreement by BOA in order to determine whether there have been

any errors in the making of the agreement. (See id.) Parker contends that there are two

basic errors that BOA looks for during the Post Loan Modification Review: (a) an

accounting or mathematical error, such as a miscalculation of how much principal

remains or of what the borrower’s monthly payments will be, or (b) a violation of the

noteholder’s rules. (Id. at 34–35.) 6

According to Parker, if no errors are detected during the Post Loan Modification

Review, BOA ensures that the borrower’s electronic file reflects that fact by changing

the “Warning Code” in the borrower’s account to “0.” (Id. at 34.) Then, according to

Parker, that borrower’s file is “returned to normal servicing[,]” meaning that the terms

of the modification agreement are put into effect. (Id. at 32–33.) But, says Parker, if

one of the aforementioned errors is identified as part of the Post Loan Modification

Review, BOA will not change the borrower’s Warning Code to “0” and the borrower’s

file will not be returned to normal servicing. (Id. at 35.) Instead, with respect to

6 As noted earlier, see footnote 2, supra, the mortgage servicer is an agent of a noteholder. As such, the servicer’s ability to manage a mortgage is subject to rules that the noteholder imposes, and one of the primarily responsibilities of a mortgage servicer is to offer modifications to borrowers in accordance with the noteholder’s rules. (See Dep. of Charles Kelly (“Kelly Dep.”), Ex. 21 to Pl. ’s Motion, ECF No. 60-27, at 62:24–63:2 (noting examples of noteholder rules for modifications such as “can’t modify more than once every two years” or “not allowed to reduce a payment by X% or an interest rate by X%”).) It is undisputed that, if a mortgage servicer breaches a noteholder ’s rules for modifying a contract, the noteholder might impose a fine on the mortgage servicer or force the mortgage servicer to purchase the modified loan from the noteholder. (See id. at 133:24–25, 136:5–8.) Parker alleges that BOA engages in a Post Loan Modification Review partly to avoid this result. (See Pl.’s Mem. at 42.) 9 borrowers who find themselves in this circumstance, BOA will intentionally refuse to

execute the borrower’s mortgage modification agreement despite the fact that a valid

and binding contract exists, and BOA may even propose to the borrower a new

modification agreement, usually on worse terms than the original agreement. (See id. at

35–36; see also Dep. of John Goodrum (“Goodrum Dep.”), Ex. 19 to Pl.’s Mot., ECF

No. 60-25, at 80:17–21 (speculating that the 2011 modification proposal that was sent

to Parker was likely in response to BOA’s rejection of the earlier modification).)

According to Parker, at least two separate injuries to the borrower occur as a

result of BOA’s failure to effectuate the terms of a modification agreement if errors are

detected during the Post Loan Modification Review, both of which Parker asserts

require classwide compensation. First, BOA’s failure to implement the terms of a

modification agreement leads to the imposition of allegedly inappropriate and unlawful

late fees. (See Pl.’s Mem. at 89–90.) Such fees are imposed as a consequence of

BOA’s standard policy of not crediting partial payments as timely; specifically, Parker

asserts that if the mortgage modification is not made effective as a result of the Post

Loan Modification Review and the borrower unwittingly pays the lower modification

amount on time in accordance with the modified mortgage agreement, such payment is

reflected as an untimely partial payment in BOA’s internal systems and late fees are

incurred. (See id.) The second injury, Parker says, is the fact that BOA’s failure to

implement a modification agreement damages a borrower’s credit score. (See id. at 44–

46.) For example, Parker claims that he was injured because, although he was making

prompt payments in accordance with the modification agreement, BOA did not

acknowledge his payments as being made in satisfaction of the modified mortgage

10 agreement and was simultaneously filing credit reports that falsely stated that Parker

was behind on his mortgage payments. (Id. at 44.)

2. BOA’s Position: A Mortgage Loan Modification Is A Customized Process Tailored To Each Borrower’s Particular Circumstances

BOA vehemently denies that it engages in any uniform process when it enters

loan modification agreements with borrowers, much less the systemic two-stage post-

modification review process that Parker relies upon in support of his class certification

request. Instead, according to BOA, its mortgage modification programs involve a

highly individualized assessment of each borrower’s mortgage loan terms and

circumstances, and whether or not an enforceable modification agreement is ever

reached “depends upon an array of contractual conditions which differ from borrower to

borrower depending on the terms of the loan, the modification program, the time period,

and other factors.” (Def.’s Opp’n. at 13; see also id. at 25 (maintaining that “there is

enormous variation in the contractual language used in the million -plus modification

agreements Bank of America has completed over the last 5 ½ years” (emphasis in

original)).)

BOA also takes direct aim at the twin linchpins of Parker’s argument that class

certification is appropriate in this case, to wit—(1) Parker’s assertion that BOA marks a

borrower’s file “Completed” once it has determined that all of the contractual

conditions are satisfied and a binding agreement has been formed , and (2) Parker’s

contention that, after such a binding contract is formed, BOA undertakes a review for

errors that can, and does, result in the binding loan modification not being put into

effect. First, in direct contrast with Parker’s position, BOA maintains that there is no

legal significance whatsoever to a borrower’s file being coded “Completed” in BOA’s

internal systems, and that this designation has no bearing on BOA’s own view of

11 whether a valid modification agreement has been formed. In this regard, BOA points to

a later version of the same document that Parker relies upon to establish the meaning of

“Completed,” and this later version states merely that “[t]he completed status is how the

associates are aware that the customer successfully returned the agreement.” ( See Ex.

15 to Def.’s Opp’n, ECF No. 63-36, at 19.) Thus, according to BOA, a “Completed”

designation simply reflects that a borrower’s application is at a particular stage of the

modification process, not that there is necessarily a binding modification contract at

that point in time. (See Def.’s Opp’n at 18 (explaining that the “Completed” status “has

meant different things at different times, as Bank of America ’s policies and IT systems

have evolved, but it has never meant that the parties have reached a ‘binding

agreement’ or that a loan must be modified”).)

BOA additionally asserts that there is simply no such thing as the “Post Loan

Modification Review” stage of BOA’s mortgage modification process; it charges that

Parker has invented the notion that BOA has any sort of uniform review policy when

processing loan modifications entirely out of whole cloth. (Def.’s Opp’n at 19; see also

id. at 44 (“Lacking anything in the record to suggest any such policy exists, Plaintiff

made one up.”).) BOA admits that there are processes that it follows when modifying

mortgage loans; however, BOA contends that these processes differ according to the

type of loan, the identity of the noteholder, the type of modification sought, and when

the modification is sought. (Id. at 19–21.) Moreover, as to the two types of “errors”

that Parker says are identified at this alleged second stage of the modification process,

BOA acknowledges that errors sometimes are made in the loan modification process, as

with any other complicated transaction, but maintains that these errors are resolved in

any number of ways, without application of any uniform policy. (Id. at 20.) BOA also

12 asserts that it does not engage in a review of a modification agreement to ensure

compliance with noteholder rules after that agreement is executed (id. at 21), and that,

in any event, BOA’s approach to late-discovered errors is not to prevent the loan from

being serviced in accordance with the modification but “to take whatever steps are

necessary to resolve the issue so that the loan can be returned to normal servicing”

(Def.’s Opp’n at 23 (emphasis omitted))—steps that BOA says vary from case to case.

In sum, whereas Parker contends that BOA follows a standardized process for

loan modifications pursuant to which each modification agreement goes through at least

two common steps, BOA presents a portrait of a mortgage modification process that is

specific to the characteristics of the individual borrower, and that changes over the

prescribed class period. In light of this dispute, the primary issue for this Court in

ruling on Parker’s motion for class certification is whether Parker has satisfied his

burden of demonstrating that BOA’s failure to implement the loan modification

agreement in his individual case derives from a policy or practice that BOA has applied

consistently with respect to other borrowers’ mortgage modification agreements and

that has resulted in injuries to other borrowers such that Parker’s suit can properly

proceed as a class action.

II. CLASS CERTIFICATION MOTIONS

A. Federal Rule of Civil Procedure 23(a)

“The class action is an exception to the usual rule that litigation is conducted by

and on behalf of the individual named parties only.” Comcast Corp. v. Behrend,

(2013) (internal quotation marks and citation omitted). The Federal

Rules of Civil Procedure specifically delineate the requirements that must be satisfied

in order for a court to conclude that the exceptional class action litigation procedure is

13 warranted. First and foremost, every class action must satisfy four basic requirements

that are set forth in Rule 23(a) of the Federal Rules of Civil Procedure :

(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.

Fed. R. Civ. P. 23(a). These four requirements are referred to colloquially as

numerosity, commonality, typicality, and adequacy of representation. Amgen Inc. v.

Conn. Ret. Plans & Trust Funds,

(2013). Moreover, in addition

to these four requirements, there is an “implied requirement” that the proposed class

must be definite and ascertainable. Thorpe v. District of Columbia,

(D.D.C. 2014). These threshold requirements are mandatory: if any is not

satisfied, then a class cannot be certified.

Among these threshold requirements, the “commonality” mandate has caused

considerable confusion, stemming partly from the fact that whether or not common

questions of law or fact that can support a class action exist relates largely to the

underlying claims that are being brought. See Wal-Mart Stores, Inc. v. Dukes,

(2011) (explaining that the relevant “common” question is “an issue that

is central to the validity of each one of the claims”). So for example, where, as here,

the plaintiff contends that the defendant has engaged in widespread and systematic

breaches of contract and tortious interference with contracts that can be addressed on a

classwide basis, the plaintiff must, at a minimum, offer evidence that the class members

have in common the elements of those claims—e.g., for breach of contract, that there is

“(1) a valid contract between the parties; (2) an obligation or duty arising out of the

contract; (3) a breach of that duty; and (4) damages caused by breach.” Tsintolas

14 Realty Co. v. Mendez,

(D.C. 2009) (citation omitted); see also Casco

Marina Dev., LLC v. D.C. Redevelopment Land Agency,

(D.C. 2003)

(“[T]he elements of tortious interference with contract are: ‘(1) the existence of a

contract; (2) knowledge of the contract; (3) intentional procurement of a breach of the

contract; and (4) damages resulting from the breach.’” (quoting Paul v. Howard Univ.,

(D.C. 2000))). 7 Moreover and in this regard, a factor to consider

when deciding whether a breach of contract claim can properly proceed as a class action

is whether the terms of the putative class members’ contracts are relatively uniform

such that the circumstances of the alleged breach are virtually identical or,

alternatively, whether there are material differences in the contract terms that will

necessitate individual review of each contract and the circumstances under which it may

have been breached. Compare In re Cablevision Consumer Litig., No. 10-cv-4992,

, at *6–8 (E.D.N.Y. Mar. 31, 2014) (finding presence of standard

form contracts satisfies commonality), with Spread Enters. v. First Data Merch. Servs.

Corp.,

, 72–73 (E.D.N.Y. 2014) (finding material differences in

contractual terms defeats commonality).

In the relatively recent landmark case of Wal-Mart Stores, Inc. v. Dukes, the

Supreme Court provided substantial guidance regarding what a movant seeking

certification of a putative class action must do to satisfy Rule 23(a)’s commonality

requirement. Wal-Mart involved a class certification petition filed on behalf of millions

of current and former Wal-Mart employees in the context of a lawsuit that alleged that

7 Because Parker has requested a nationwide class action, application of the laws of all fifty states would be required to assess true commonality. See In re Bridgestone/Firestone, Inc.,

(7th Cir. 2002) (“No class action is proper unles s all litigants are governed by the same legal rules. Otherwise the class cannot satisfy the commonality and superiority requirements of Fed. R. Civ. P. 23(a), (b)(3).”). This Court will assume for the purpose of the instant motion that the basic elements of a breach of contract action are the same in every state, as Parker asserts. ( See Pl.’s Mem. at 98– 100.) 15 Wal-Mart had engaged in a pattern or practice of gender discrimination in violation of

Title VII. The Supreme Court explained that common questions such as “Do all of us

plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? [and]

Is that an unlawful employment practice?” were insufficient to establish commonality

for Rule 23(a) purposes because Title VII “can be violated in many ways” and

“[c]ommonality requires the plaintiff to demonstrate that the class members have

suffered the same injury[.]” Wal-Mart,

(emphasis added) (internal

quotation marks and citation omitted). Thus, the relevant commonality criterion is not

merely whether members of the putative class “have all suffered a violation of the same

provision of law” but whether the legal action is based upon “a common contention”

that “is capable of classwide resolution” because its establishment “will resolve an

issue that is central to the validity of each one of the claims in one stroke.” Id.; see

also

(“[T]he mere claim by employees of the same company that they have suffered

a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe

that all their claims can productively be litigated at once.”).

In the context of the claims being made in the Wal-Mart litigation, the Supreme

Court determined that one such common contention—i.e., the “glue” that had the

potential of “holding the alleged reasons for the [challenged employment] decisions

together”—was the plaintiffs’ assertion that Wal-Mart “engages in a pattern or practice

of discrimination.”

(emphasis omitted); see also

(explaining that

an allegation “‘that an employer operated under a general policy of discrimination

conceivably could justify a class . . . if the discrimination manifested itself in hiring and

promotion practices in the same general fashion’” (quoting Gen. Tel. Co. of Sw. v.

Falcon,

, 159 n.15 (1982)).). Accordingly, the Wal-Mart Court clearly

16 emphasized that is not enough that a class certification motion raises common

questions; what matters is “‘the capacity of a classwide proceeding to generate common

answers apt to drive the resolution of the litigation.’” Id. at 2251 (emphasis in original)

(quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof,

, 132 (2009)).

The D.C. Circuit has recognized that the Supreme Court’s Wal-Mart analysis

extends beyond the Title VII context. See DL v. District of Columbia,

(D.C. Cir. 2013) (noting that “Wal–Mart’s interpretation of Rule 23(a)(2) has

changed the landscape”). For example, the Circuit decided that an allegation that the

District of Columbia government had violated the Individuals with Disabilities

Education Act (“IDEA”) with respect to a putative class of students who allegedly had

been discriminated against in a variety of ways “speaks too broadly because it

constitutes only an allegation that the class members ‘have all suffered a violation of

the same provision of law,’ which . . . is insufficient to establish commonality given

that the same provision of law ‘can be violated in many different ways.’”

(quoting

Wal-Mart,

). Thus, binding precedent in this jurisdiction establishes

that a plaintiff must allege that the “policy or practice affects all members of the class”

in the same way to establish commonality, and that anything less “is not faithful to the

[Supreme] Court’s interpretation of Rule 23(a)[.]”

B. Federal Rule of Civil Procedure 23(b)

Beyond the initial requirements of Rule 23(a), there are also additional

certification requirements that vary depending on the type of class the plaintiff wishes

to have certified. The instant action involves a request for certification under Rule s

23(b)(1)(B) and 23(b)(3).

17 Rule 23(b)(1)(B) generally permits certification if there is a risk that separate

actions by individual class members will lead to binding adjudications of the rights of

other individuals. See Fed. R. Civ. P. 23(b)(1). “Classic examples” of when

certification under Rule 23(b)(1)(B) is appropriate include “actions by shareholders to

declare a dividend” or “actions charging a breach of trust by an indenture trustee or

other fiduciary similarly affecting the members of a large class of beneficiaries[.]”

Ortiz v. Fibreboard Corp.,

, 833–34 (1999) (internal quotation marks and

citations omitted).

A Rule 23(b)(3) class is appropriate where the movant can establish that

“questions of law or fact common to class members predominate over any questions

affecting only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3). Rule 23(b)(3) “allows class certification in a much wider set of

circumstances” than permitted by the other subsections of Rule 23(b) “but with greater

procedural protections[.]” Wal-Mart,

. Class actions under Rule

23(b)(3) require that all class members receive a notice informing them of the nature of

the case and their right to opt out. See Fed. R. Civ. P. 23(c)(2).

C. Standard Of Proof

Class certification motions have their own distinct burdens and fact finding

requirements. The D.C. Circuit has not yet spoken to the precise burden of proof

applicable to establishing that the requirements of Rule 23 have been met; however,

courts in this Circuit have routinely applied a preponderance of the evidence standard.

See In re Navy Chaplaincy, No. 07-mc-269,

(D.D.C. Sept. 4,

2014) (“The proponent of class certification must prove by a preponderance of the

18 evidence that the requirements of Rule 23 are satisfied.”); In re Rail Freight Fuel

Surcharge Antitrust Litig.,

(D.D.C. 2012) (“Although the D.C. Circuit

has not yet had occasion to provide much guidance on these questions . . . the Court

concludes . . . that it should apply a preponderance of the evidence standard of proof[.]”

(internal citations omitted)), vacated on other grounds,

(D.C. Cir. 2013).

Further, courts are permitted to make factual findings to the extent necessary to rule on

a motion for class certification. See In re Rail Freight Fuel Surcharge Antitrust Litig.,

. (“[T]he Court concludes . . . that it can and must resolve any factual

disputes relevant to the requirements for class certification —even if that requires

considerations enmeshed in the factual and legal issues comprising plaintiffs ’ claim on

the merits[.]”); see also Artis v. Yellen, No. 01-cv-400,

, at *7 n.11

(D.D.C. Sept. 29, 2014) (“[P]laintiffs wrongly assert that the y are entitled to have a jury

determine the facts at this stage. A jury may be the ultimate fact finder, but ‘at the

class certification stage . . . the judge is the decision maker.’” (alteration in original)

(internal citations omitted) (quoting In re Zurn Pex Plumbing Prods. Liab. Litig.,

(8th Cir. 2011))).

Notably, when the commonality element of a class certification motion hinges on

the plaintiff’s contention that the defendant has engaged in a policy or practice that has

consistently and uniformly injured the putative class members, the plaintiff must

provide “significant proof” that such a policy or practice exists. Wal-Mart,

(emphasis added). In other words, the movant must do more than merely allege

a common contention that conceivably could give rise to the conclusion that there has

been the same classwide injury; he must support that allegation with significant

evidence.

; see also id. at 2251 (“Rule 23 does not set forth a mere pleading

19 standard. A party seeking class certification must affirmatively demonstrate his

compliance with the Rule—that is, he must be prepared to prove that there are in fact

sufficiently numerous parties, common questions of law or fact, etc.”). Although it

appears that “[c]ourts have taken different views of whether Wal–Mart’s significant

proof standard applies to all class certification decisions or only to claims alleging

systemic discrimination[,]” Parsons v. Ryan,

, 684 n.29 (9th Cir. 2014),

Parker has not argued that the “significant proof” standard applies only to actions

alleging a general policy of discrimination, and this Court sees no reason to make any

such distinction. Consequently, this Court agrees with those cases that have held that

the “significant proof” standard applies where, as here, a movant seeks class

certification based on classwide injuries allegedly caused by a general policy or

practice. See Jamie S. v. Milwaukee Pub. Sch.,

(7th Cir. 2012)

(applying the “significant proof” standard to a class action arising under the IDEA);

NBL Flooring, Inc. v. Trumbull Ins. Co., No. 10-cv-4398,

, at *3 (E.D.

Pa. Feb. 12, 2014) (applying the “significant proof” standard to a breach of contract

class action). Accordingly, when a plaintiff seeks class certification based on an

allegation that a defendant has a policy or practice that results in the systematic breach

of binding contractual agreements, the plaintiff must support his certification motion

with significant evidence that such policy or practice exists. See, e.g., NBL Flooring,

Inc.,

, at *3.

III. ANALYSIS

As explained above, in order for Parker to establish that his breach of contract

and tortious interference claims raise common questions of law and fact that are

suitable for class certification under Rule 23(a), Parker must provide significant proof

20 that BOA engages in a practice or policy that has breached the putative class members ’

mortgage modification agreements in the same way. See Wal-Mart, 131 S. Ct. at 2553–

54; see also In re Cablevision Consumer Litig.,

, at *6–7. To mount

this hurdle, Parker maintains that BOA systematically determines which mortgage

modification agreements are valid and binding; reviews those binding agreements for

errors; and, if certain errors are found, refuses to execute the terms of those agreements

to the borrowers’ detriment. (See Pl.’s Mem. at 33.) However, as explained fully

below, this Court finds that Parker has not provided s ufficient proof that BOA has any

such policy or practice. Thus, Parker has failed to satisfy Rule 23(a)’s commonality

mandate, and for this reason alone, Parker’s certification motion must fail.

A. Parker Has Failed To Satisfy The Commonality Requirement Of Rule 23(a)

To understand Parker’s commonality contentions—and why they are deficient—

it is important to note that Parker primarily relies on the following three fact-based

arguments and related evidence to demonstrate commonality for the purpose of Rule

23(a): (1) he maintains that BOA’s modification agreements are essentially standard

form contracts that do not differ materially from one another and thus do not require

individualized review (see Pl.’s Mem. at 37–38); (2) he argues that BOA consistently

engages in the practice of identifying borrowers who have valid and enforceable

modification agreements by coding their files as “Completed” (see id. at 28, 33); and

(3) he contends that BOA systematically reviews the “Completed” mortgage

modification files and intentionally refrains from effectuating the terms of these binding

modification agreements if errors are detected, in breach of the borrowers’ contracts

(see id. at 34–36). This Court has examined the record evidence related to each of these

prongs of Parker’s commonality argument, and for the reasons explained below, it has

21 determined that Parker’s contention that BOA has a policy or practice of subjecting

borrowers with valid modification contracts to additional scrutiny and of systematically

breaching those contracts in a manner that causes identical harm to members of the

putative class is insufficiently supported. (Id.)

1. Parker Has Not Shown That BOA Uses A Small Number Of Substantially Similar Standard Form Modification Contracts

Class certification motions brought against mortgage servicers alleging breach of

contract are regularly denied for lack of commonality when the underlying claims turn

on the classwide interpretation of a large number of mortgage agreements. See, e.g.,

Gustafson v. BAC Home Loans Servicing, LP,

, 542–43 (C.D. Cal.

2013); Campusano v. BAC Home Loans Servicing LP, No. 11-cv-4609,

, at *5–6 (C.D. Cal. Apr. 29, 2013). This is so because the terms of mortgage

agreements tend to vary across borrowers, making it difficult to determine “in one

stroke” whether a defendant’s actions have resulted in the breach of every class

member’s contract. Wal-Mart,

. To be sure, a class action may still

satisfy the commonality requirement if the material terms of the disputed agreements

are essentially identical across all class members. See In re Bank of Am. Home

Affordable Modification Program (HAMP) Contract Litig., MDL No. 10-2193,

, at *4 (D. Mass. Sept. 4, 2013); Gaudin v. Saxon Mortg. Servs., Inc.,

, 424–25 (N.D. Cal. 2013); see also Sacred Heart Health Sys., Inc. v.

Humana Military Healthcare Servs., Inc.,

(11th Cir. 2010) (“It is

the form contract, executed under like conditions by all class members, that best

facilitates class treatment.”). However, the plaintiff who seeks class action certification

of a breach of contract claim bears the burden of establishing that there are no material

22 variations in the class members’ agreements. See Campusano,

, at

*5–6.

Given the importance of uniform contract terms to the classwide resolution of a

breach of contract action, it is not surprising that Parker asserts here that BOA relies on

a limited number of standard form contracts when it enters into an agreement to modify

the terms of a borrower’s mortgage. (Pl.’s Mem. at 37–38.) To support this allegation,

Parker has submitted a “voluminous” number of “pre-printed, form agreements” that he

purportedly obtained through discovery. (Id. at 38; see also Exs. 28–39 to Pl.’s Mot.,

ECF No. 60-34–60-45.) 8 BOA argues that the contracts Parker points to are hardly

“standard” in form (Def.’s Opp’n at 33), and indeed, this Court finds that even the most

cursory review of the thousands of pages that Parker has offered reveals significant

variations between the templates (compare, e.g., Ex. 36 to Pl.’s Mot., ECF No. 60-42, at

221 (containing requirement that borrowers certify that they are suffering financial

hardship), with Ex. 35 to Pl.’s Mot., ECF No. 60-41, at 124 (containing no requirement

that borrowers certify that they are suffering financial hardship)).

Moreover, and perhaps most significantly for present purposes, not only do

BOA’s mortgage modification contract templates vary, they also appear to contain a

wide variety of conditions precedent to the formation of a valid agreement—i.e.,

conditions that “must occur, unless [their] non-occurrence is excused, before

performance under a contract becomes due.” Restatement (Second) of Contracts § 224

(1981). Where a contract contains a condition precedent, the offer and an acceptance

alone are not enough for the agreement to be valid and take effect; the condition

precedent must also be satisfied. And, here, those conditions vary widely—for

8 Although neither party details the precise number of form modification agreements contained in these exhibits, Parker’s submission totals well over 2,500 pages. 23 example, some of the templates require that the borrower undergo an income

verification process before the modification agreement becomes binding. (See, e.g., Ex.

34 to Pl.’s Mot., ECF No. 60-40, at 149 (“Please note that this offer is contingent upon

verification of your income.”).) Others require that the borrower submit further

documentation. (See e.g., Ex. 35 to Pl.’s Mot. at 119 (“This offer is contingent on . . .

[a c]opy of your most recent supporting income receipts (pay stubs)[.]” ) Still others

condition implementation of the modification agreement on BOA countersigning the

contract after the borrower returns it. (See, e.g., Ex. 37 to Pl.’s Mot., ECF No. 60-43, at

75 (“This modification agreement will not be binding or effective unless and until it has

been signed by both you and [BOA].”).) And some, like Parker’s own mortgage

modification agreement, do not contain any of these preconditions. (See Ex. 7 to Pl.’s

Mot.)

Thus, rather than supporting Parker’s assertion that certification is appropriate

because BOA utilizes various standard form contracts when it reaches mortgage

modification agreements with borrowers, “[t]he sheer number of [different] form

contracts at issue here counsels against certification” of Parker’s breach of contract

action. Gustafson,

. Put another way, this Court finds that, with

respect to Parker’s burden of demonstrating commonality, the form contracts here don’t

help, because there really is no difference between the wide variety of form contracts

that BOA uses for modification agreements (which likely would still need to be

reviewed individually to determine which terms apply to various members of the class)

and individually-tailored, non-form contracts (which typically are not amenable to class

certification treatment). See

Consequently, to the extent that Parker is seeking to

satisfy Rule 23(a)’s commonality requirement by making an initial showing that the

24 contracts of the putative class members have no significant variations that would

require individualized review of each agreement, Parker’s effort fails.

2. Parker Has Not Shown That The “Completed” Designation Indicates The Existence Of A Valid, Binding Modification Agreement

In order for Parker to provide the requisite significant proof that the putative

class members have been injured as a result of BOA’s systematic breach of valid

modification agreements, it must first be established that each member of the class

actually had a valid modification agreement, which is a formidable task in light of the

prior discussion regarding the variation among BOA’s mortgage modification offers.

Undaunted, Parker maintains that the existence of a valid, binding contract (a

prerequisite to any breach of contract action) can easily be ascertained on a classwide

basis under the circumstances presented here based on BOA’s alleged practice of

coding a borrower’s file as “Completed” once a borrower has returned a signed

modification agreement and after any conditions to the formation of a valid contract

have been satisfied. In other words, according to Parker, the fact that members of the

putative class may have had different form contracts containing various conditions

precedent such that their modification agreements became valid and binding at

potentially different times is no impediment to class action treatment because BOA

“uses the term ‘Completed’ to show that the parties have reached a binding agreement”

(Pl.’s Mem. at 28), and the “Completed” designation is only made in BOA’s internal

systems when a borrower has no other obligation than “paying on time and in full” (id.

at 97). BOA responds that the “Completed” designation indicates nothing more than

that the borrower has properly returned the modification agreement (Def. ’s Opp’n at

18–19), and this Court has little trouble concluding that the record does not support

25 Parker’s contentions regarding the significance of the “Completed” designation for

several reasons.

First of all, Parker’s primary evidence for the proposition that the “Completed”

designation indicates the existence of a valid, binding contract is a document that says

no such thing when it is considered as a whole and in context. The document—which is

entitled “Loan Modification Master Procedure” and dated November 24, 2009—appears

to be an instruction guide of sorts for the BOA employees who process loan

modification agreements. (See Ex. 20 to Pl.’s Mot.; see also Pl.’s Mem. at 28.) The

document itself states that a file is to be coded “Completed” when a modification

agreement has been returned to BOA and BOA determines that the agreement “is

properly signed, dated, and notarized[.]” (Ex. 20 to Pl.’s Mot. at 33.) Parker primarily

relies on the fact that the Master Procedure document also contains a glossary in which

the term “Completed” is defined more broadly: “[f]iles that have accepted an offer, a

decision has been made, agreed by all parties and correctly executed documents have

been returned by the customer.” (Id. at 46; see also Pl.’s Mem. at 28.) But that

glossary definition says nothing about whether all conditions precedent must have been

satisfied by the time a file is coded as “Completed.” And even setting aside the fact

that the glossary definition fails to convey that “Completed” necessarily means that a

binding contract has been reached, it is not at all clear how the glossary relates to the

underlying Master Procedure document, given that a number of words that the glossary

purports to define (such as “Decisioned,” “Rejected,” and “Qualified”) appear nowhere

in the record copy of the Master Procedure document.

What is more, even if it was clear that the glossary’s definition of “Completed”

referenced and related to the database code discussed in the Master Procedure

26 document, there is no dispute that less than one week after BOA issued the Master

Procedure document, BOA issued a revised version that was identical to the prior

document in every respect except for the fact that it did not include the glossary. (See

Ex. 14 to Def.’s Opp’n, ECF No. 63-35.) Then, just six months later, BOA issued

another revised version of the same Master Procedure document—and this version not

only lacked the glossary, it also clearly stated that “Completed” means “that the

[borrower] successfully returned the agreement” period—i.e., without any reference to

offer and acceptance. (Ex. 15 to Def.’s Opp’n at 19.) Thus, Parker’s reliance on the

2009 glossary definition of “Completed” is clearly misplaced: the glossary is not only

internally ambiguous, it was also essentially repealed less than a week after it was

issued, and Parker has not shown that that same “Completed” definition was ever again

in effect throughout the class period.

Second, the record testimony regarding the meaning of the “Completed”

designation simply does not support Parker’s version of how BOA used that term in

processing modification agreements. For example, BOA has offered an affidavit from

Michael Sunlin, a BOA Vice President whose department specializes in locating and

extracting data from BOA’s databases, in which Sunlin testifies that “Completed”

indicates only that the borrower has signed and returned a modification agreement and

does “not [reflect] that the loan can or should immediately be r eturned to normal

servicing.” (Ex. 3 to Def.’s Opp’n, ECF No. 63-24, ¶ 6.) And the purportedly

contrasting deposition testimony that Parker points to—specifically, deposition

testimony from Charles Kelly, a BOA senior vice president acting as a corporate

representative for BOA under Federal Rule of Civil Procedure 30(b)(6) (see Pl.’s Mem.

at 28)—is not to the contrary. Although Kelly does state that modification agreements

27 such as Parker’s are “not complete until all parties agree to the terms” (id.; see also

Dep. of Charles Kelly (“Kelly Dep.”), Ex. 21 to Pl.’s Motion, ECF No. 60-27, at 96:19–

20), there is no indication from the question presented or otherwise that Kelly is

discussing the meaning of BOA’s “Completed” designation. Regardless, when Kelly’s

statements are considered in context, it is clear that Kelly used the term “complete” to

indicate that the parties have agreed to the terms of the modification agreement; he is

not asserting that the files BOA marks “Completed” are those in which all of the

conditions have been satisfied and a binding contract exists. 9

Finally, to the extent that Parker is suggesting that the evidence shows that the

fulfillment of the conditions precedent to a binding modification agreement (such as

income verification and a countersignature) necessarily occurs prior to the “Completed”

designation—and thus one can infer that all such conditions have been deemed satisfied

and the parties have a binding agreement when the “Completed” designation is made—

Parker is mistaken. For example, Parker relies primarily on deposition testimony to

establish that the borrower’s income is verified prior to BOA coding his file as

“Completed.” (Pl.’s Reply at 11–12.) However, nearly every deponent who references

income verification does so in the context of qualifying for a mortgage modification in

the first place, not in the context of BOA’s review of an already-approved modification

9 Parker has moved to have Sunlin’s testimony stricken on the grounds that it contradicts the deposition testimony of Kelly and of certain other BOA employees and therefore implicates the sham affidavit doctrine. (See Pl.’s Mem. in Supp. of Pl.’s Mot. to Strike Sunlin, ECF No. 78, at 6 –7, 15–18.) Parker has not established that the sham affidavit doctrine —which is clearly tied to the legal standard for summary judgment—applies in the context of class certification. See In re Front Loading Washing Mach. Class Action Litig., No. 08-51,

, at *9 (D.N.J. July 10, 2013); see also Raymond v. Architect of Capitol, No. 11-CV-01088,

, at *2 n.5 (D.D.C. June 23, 2014) (internal quotation marks and citations omitted) (“The sham affidavit rule precludes a party from creating an issue of material fact by contradicting prior sworn testi mony unless the shifting party can offer persuasive reasons for believing the supposed correction is more accurate than the prior testimony.”). Moreover and in any event, this Court concludes that nothing in Sunlin ’s affidavit is inconsistent with the deposition testimony of other BOA employees, as discussed here and infra. Accordingly, Parker’s [78] motion to strike has been DENIED. 28 offer. (See, e.g., Kelly Dep. at 36:4–8; Dep. of Suzanne Haumesser (“Haumesser

Dep.”), Ex. 22 to Pl.’s Mot., ECF No. 60-28, at 17:4–18:4.) And the one deponent who

does mention income verification in the context of a borrower returning a signed

modification agreement says nothing about whether this condition must be satisfied

before a borrower’s file is coded as “Completed.” (See Goodrum Dep. at 20:13–16.)

Nor has Parker shown that the “Completed” designation itself satisfies the

countersignature requirement (where such a condition exists) and thus necessarily

indicates that a binding modification agreement is in effect once that designa tion is

made. BOA points to four different clauses contained within various modification

agreements that require the bank’s countersignature before they go into effect. For

example, one form agreement states that “[t]his modification agreement will not be

binding or effective unless and until it has been signed by both” the borrower and Bank

of America (Ex. 37 to Pl.’s Mot., at 75), while another agreement requires a borrower to

attest that “I understand that the Loan Documents will not be modified unless and until

. . . the Lender accepts this Agreement by signing and returning a copy of it to me” (Ex.

29 to Pl.’s Mot., ECF No. 60-35, at 206). To avoid the implications of this

countersignature condition on his argument that “Completed” signifies a binding

contract, Parker argues that Bank of America uses the “Completed” designation instead

of a physical signature as its way of countersigning modification agreements and

satisfying any countersignature requirement. (See Pl.’s Reply at 16–17.) But it is well

established that an electronic signature such as a database code cannot constitute a valid

signature unless the signing party intends for the “electronic sound, symbol, or process”

to constitute a signature, Unif. Elec. Transactions Act § 2(8) (1999); see also

Restatement (Second) of Contracts § 134; 10 Williston on Contracts § 29:36 (4th ed.

29 2011), and Parker gives this Court no basis for concluding that BOA intended the

coding of a borrower’s file as “Completed” to serve as a countersignature, and, indeed,

indicates to the contrary. (See Pl.’s Mem. at 72 (admitting that “the evidence suggests

that [BOA] does not consider the loan modification contracts as binding until [the Post

Loan Modification Review] ha[s] run [its] course”).)

The bottom line is this: although Parker struggles valiantly to advance his own

interpretation of BOA’s “Completed” designation in an attempt to satisfy his burden of

providing significant proof that BOA has a systematic policy or practice that harmed all

class members in the same way, Parker has not demonstrated that BOA has any sort of

consistent internal process for determining that a valid modification agreement has been

reached, much less that the “Completed” designation properly identifies those

borrowers who have binding modification agreements as a matter of law. Therefore,

Parker has not shown that this Court can, in one stroke, determine that each class

member has a binding modification agreement that BOA then systematically breached.

3. Parker Has Not Offered Significant Proof That BOA Conducts Any “Post Loan Modification Review” That Results In Systematic Breach Of Valid Modification Agreements

The crux of a classwide breach of contract claim is, of course, the assertion that

the defendant engaged in conduct that amounts to a systematic violation of the terms of

the class members’ binding contractual agreements. See, e.g., Trombley v. Nat’l City

Bank,

(D.D.C. 2011) (certifying settlement class where bank

systematically imposed improper overdraft fees). Here, Parker insists that his breach of

contract and tortious interference with contract claims raise questions of law and fact

that are common to all members of the putative class because a factfinder could

conclude that the mortgage modification agreements of all of the putative class

members were breached in the same way—specifically, as a result of the additional 30 inappropriate scrutiny that BOA allegedly applies once a valid modification agreement

is entered into (the so-called “Post Loan Modification Review”). However, Parker has

done little to establish that BOA actually engages in any systematic post-modification

review process with respect to valid and binding modification agreements, and this

failure, too, dooms Parker’s quest to satisfy Rule 23(a)’s commonality element.

Parker’s view of BOA’s loan modification review process is explained fully

above, see Part I.C.2, supra; suffice it to say here that, by Parker’s telling, BOA has a

policy or practice whereby binding loan modification agreements are reviewed for

errors and BOA determines whether or not to proceed with implementing the terms of

those contracts. And if BOA does, in fact, systematically place binding loan

modification agreements that have been designated “Completed” into this critical

“Review” phase, as Parker alleges, then one would certainly and reasonably expect that

the details of such a review procedure would be memorialized in writing to ensure

consistent application or would at least be made clear t o those who are tasked with

assessing and implementing BOA’s mortgage modification contracts. But Parker has

not offered a single internal BOA document that describes or references any such

review process, or that otherwise proves its existence, let alone any significant proof

that BOA consistently applied such policy to the putative class members ’ modification

agreements, as the commonality element requires. Rather, Parker mentions only two

allegedly supporting documents in the section of his certification motion that addresses

BOA’s “systems and practices in servicing loan modifications” (Pl.’s Mem. at 33), and

neither says anything about an automatic or systematic review of binding modification

agreements. 10

10 BOA’s “Loan Modification Overview” (Ex 24 to Pl. ’s Mot., ECF No. 60-30), states only the obvious—that “loan mod[ification] documentation can be calculated incorrectly” ( id. at 2)—which by 31 The deposition testimony that Parker points to is also devoid of any statements

that establish the general modification review practice that Parker describes. In this

regard, Parker primarily relies on the testimony of Lourdes Duarte, an operations team

manager at BOA and Rule 30(b)(6) deponent, and John Goodrum, a unit manager who

interacted with Parker in the course of Parker’s attempts to have BOA implement his

modification agreement. (See Pl.’s Mem. at 33–36.) However, when these deponents’

testimony is read closely and in context, it is clear that neither actually supports

Parker’s vision of a post-modification review process to which valid and binding

modification agreements are systematically subjected.

For example, Duarte describes a process whereby modification agreements are

“reviewed by the closing team” in order to determine whether a modification agreement

is “valid” and complies with applicable requirements. (Dep. of Lourdes Duarte

(“Duarte Dep.”), Ex. 23 to Pl.’s Mot., ECF No. 60-29, at 43:10–12, 43:22–25.)

According to Duarte, the closing team will ensure that a modification agreement has

been properly signed and returned on time (id. at 44:15–19); that nothing “within the

loan” has changed (id. at 78:8–9); and that the terms of the modification agreement

satisfy requirements such as the noteholder’s rules (id. at 78:8–10). Duarte also states

that, upon finishing this review, the closing team will “complete [the modification] with

an approval or a decline.” (Id. at 43:13–14.) Goodrum describes a somewhat similar

process whereby a modification agreement is sent to BOA ’s closing team “once the

modification documents are returned.” (Goodrum Dep. at 74:6 –7.) Goodrum admits

that he has not personally participated in the closing process (see id. at 75:1–2, 75:8–9),

no means supports the contention that BOA actively or systematically searches for errors after it reaches binding agreements with borrowers. Li kewise, the “Modification Correction Template” (Ex. 25 to Pl.’s Mot., ECF No. 60-31), provides merely one example of one possible solution if an error is made at some point in the modification process. 32 but it is his understanding that the closing team is responsible for reviewing the

modification documents that a borrower returns to ensure that everything is in order (id.

at 74:13–21), and the closing team’s review involves such steps as making sure that the

various terms and conditions contained in the proposed modification agreement are

accurate (id. at 75:2–8) and that the agreement complies with noteholder rules (id. at

75:14–16). 11

With respect to Parker’s burden of establishing the existence of the allegedly

improper Post Loan Modification Review procedure, what is missing from both

Duarte’s and Goodrum’s testimony is any indication that the “closing” process occurs

after valid and binding modification agreements have been reached, as Parker contends.

To the contrary, Duarte states that part of the closing process entails reviewing returned

modification documents to ensure that they have been properly executed (Duarte Dep.

at 44:14–18), which necessarily means that the closing team is actively involved in

evaluating the returned modification materials prior to the formation of a binding

modification contract. Similarly, Duarte explains that it is the closing team that

“complete[s] the modification,” and that a modification agreement is not deemed

“valid” until the closing team determines that the documents that BOA receives from

the borrower comply with the applicable requirements (id. at 43:8–14)—a determination

that appears to be part of the contract formation process rather than a post -hoc

procedure designed to undermine the modification agreement. Goodrum’s testimony

11 BOA’s brief explains that such a closing process is required even after a modification offer has been tendered and the borrower has returned related documents because changing a mortgage agreement is a complex endeavor in which “[e]rrors will inevitably arise[.]” (Def.’s Opp’n at 20.) BOA claims that, contrary to Parker’s suggestion, these errors are not merely BOA’s own errors but also include borrower errors such as a failure to properly keep up with current monthly mortgage loan payments. (Id.) “Closing” is designed to “find those errors and address them” prior to finalizing the terms of the modification agreement. (Id.) To this extent, then, BOA’s argument is that “closing” is part of the process of forming a binding agreement to modify the terms of a mortgage loan. 33 also strongly suggests that the closing process occurs, at least in part, pr ior to contract

formation. (See Goodrum Dep. at 74:6–7 (explaining that closing occurs when a

borrower returns the modification agreement).) Thus, Duarte’s and Goodrum’s

statements do not constitute significant proof that BOA subjects already valid and

binding modification agreements to a Post Loan Modification Review process, as Parker

maintains. 12

Parker has also failed to establish that BOA’s “closing” process is a uniform and

systematic procedure. In this regard, Parker again relies entirely on the testimony of

Duarte and Goodrum (see Pl.’s Mem. at 33), and once again the proffered testimony

falls short. For example, Duarte speaks only of what the closing team “could” do as

part of its review (Duarte Dep. at 44:12–13), which clearly indicates that the substance

of any review can vary. For his part, Goodrum avers that he does not have any

knowledge of the specifics of the closing process (Goodrum Dep. at 75:1–2, 75:8–9),

and Laurence Reichenbach, an Operations Project Manager at BOA, expressly denies

that BOA conducts any sort of systematic, uniform review. (See Ex. 4 to Def.’s Opp’n,

ECF No. 63-25, ¶ 2.)

At the end of the day, this Court has come to the conclusion that the picture of a

systematic and injurious post-modification review process that Parker attempts to paint

in his motion for class certification appears in the record only in the broadest of strokes,

and is based solely on snippets of deposition testimony that Parker’s certification

12 If Parker is also attempting to rely on the deposition testimony of Suzanne Haumesser —another BOA employee and Rule 30(b)(6) deponent (see Pl.’s Mem. at 33–36)—this Court does not know why, because as far as this Court can tell, Haumesser does not refer to any sort of review of returned modification agreements at all. Instead, the Haumesser testimony that Parker cites describes BOA ’s process of returning a borrower’s file to normal servicing by changing a borrower ’s “Warning Code” to “0.” (See Haumesser Dep. at 107:12–18.) And although this process of a return to normal servicing is one part of Parker’s broader narrative, Haumesser’s testimony in no way relates to Parker ’s description of BOA’s Post Loan Modification Review. 34 motion extracts and embellishes. There are no internal BOA documents that

definitively establish any such process, and the deponents’ full statements bear little

resemblance to the contentions that their testimony purportedly supports. Put another

way, while Parker’s depiction of the systematic manner in which BOA undertakes to

breach binding loan modification agreements is bold, vibrant, and compelling, the

record evidence shows only the faintest traces of any systematic review of modification

terms, and it is entirely unclear both as to when, exactly, BOA’s supposed Post Loan

Modification Review occurs or what, if anything, it entails. Consequently, Parker has

failed to provide significant proof that BOA engages in a uniform, systematic review of

binding modification agreements that would support a finding of commonality in

satisfaction of the Rule 23(a) requirement under the Suprem e Court’s Wal-Mart

standard.

B. This Court Need Not Address The Other Class Action Certification Requirements, Nor Must It Reach The Parties’ Evidentiary Motions

It is clear beyond cavil that the “[f]ailure to meet any of Rule 23(a) or 23(b)’s

requirements precludes certification.” Danvers Motor Co. v. Ford Motor Co.,

(3d Cir. 2008); accord In re LifeUSA Holding Inc.,

(3d Cir.

2001); Harriston v. Chicago Tribune Co.,

(7th Cir. 1993). This

means that, having determined that Parker has failed to satisfy the essential prerequisite

of commonality, this Court need not proceed to address each of the other certification

requirements. See Wal-Mart,

n.5 (“In light of our disposition of the

commonality question, however, it is unnecessary to resol ve whether respondents have

satisfied the typicality and adequate-representation requirements of Rule 23(a).”); see

also Eastman v. First Data Corp.,

(D.N.J.) (“Because of the lack

of commonality, the Court need not reach the other Rule 23(a) questions of typicality

35 and adequacy of representation or Rule 23(b).”); Cook v. Boorstin,

(D.D.C. 1983) (“In the present case, the Court need not reach the issues of

numerosity, commonality, and adequacy-of-representation, as the resolution of the

question of typicality prevents the certification of a class action.”) .

This Court also need not decide the remaining evidentiary motions that the

parties have filed with respect to the four expert witnesses they have collectively

commissioned to support arguments related to other aspects of the class certification

question. BOA seeks to strike the testimony of Parker’s three expert witnesses, who

have testified regarding the identification of class members, calculation of damages

arising out of late fees, and calculation of damages arising out of false credit reports

(see Def.’s Mot. to Strike the Purported Expert Witness Reports of Keshav

Raghunathan, Mark Riley, and Dean Binder, ECF No. 67), while Parker seeks to strike

the testimony of a rebuttal expert witness that BOA has procured to discredit Parker’s

expert testimony (see Pl.’s Mot. In Limine to Exclude Test. of David Skanderson, ECF

No. 79). None of these four expert witnesses speaks to the commonality inquiry, which

means that their testimony is not relevant to the instant denial of class certification and

the parties objections can be set aside as moot. Nevertheless, to the extent that the

parties might somehow seek to rely upon this expert testimony in the context of

Parker’s individual claim, the evidentiary motions have been denied without prejudice

to raising these objections again.

IV. CONCLUSION

For the reasons explained in this Memorandum Opinion, the Court has issued an

order denying Parker’s motion for class certification. Parker can proceed to litigate the

issue of whether BOA breached or tortuously interfered with his own mortgage

36 modification agreement, but Parker has not provided significant proof of the existence

of a general policy or practice on the part of BOA that resulted in the systematic breach

of, or tortious interference with, the modification agreements of other borrowers. The

Supreme Court requires such a showing after Wal-Mart, and without it, Parker cannot

satisfy the commonality requirement of Rule 23(a).

DATE: April 16, 2015 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

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