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In Re: Wachovia Corp. "Pick-A- Payment" Mortgage Marketing and Sales Practices Litigation.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


April 3, 2013

IN RE: WACHOVIA CORP. "PICK-A- PAYMENT" MORTGAGE MARKETING AND SALES PRACTICES LITIGATION.

The opinion of the court was delivered by: Jeremy Fogel United States District Judge

**E-Filed 4/3/2013**

ORDER REFERRING TO MAGISTRATE JUDGE GREWAL THE ISSUE OF THE RELIABILITY OF LOAN MODIFICATION STATISTICS PROVIDED BY DEFENDANT

On May 17, 2011, this Court granted final approval of a class action settlement in this case.

Order, ECF No. 207. Under the terms of the settlement, Defendant is required to use certain agreed-20 upon procedures when considering a class member for modification of his or her "Pick-A-Payment" 21 home mortgage loan. Id. A number of class members ("Movants") claim that Defendant is not 22 following the agreed-upon loan modification procedures. Movants seek injunctive relief in the form 23 of an order precluding Defendant from foreclosing on class members' properties without first 24 allowing class counsel to evaluate all instances in which a potential loan modification covered by 25 the settlement has been denied.*fn1 See Mot. for Prelim. Inj. 25:25-28, ECF No. 394. 26

In the course of briefing and arguing the motion for preliminary injunction, the parties presented conflicting statistics with respect to the number of applications for loan modification that 2 had been requested by class members and the outcomes of those applications. Toward the end of 3 the hearing on the motion for preliminary injunction, the Court ordered a three-step process for 4 resolving the conflict. First, Movants were to take the deposition of Michael Dolan, Defendant's 5 representative, with respect to his methodology in producing Defendant's figures relating to 6 applications for loan modification. Hr'g Tr. 40:9-16, ECF No. 418. Second, Movants were to 7 submit supplemental declarations describing what they believe should be in their mortgage files. Id. 8 at 40:17-19. Third, Defendant was to produce Movants' files to the Court for in camera review. Id. 9 at 40:20-22.

telephonic Case Management Conference to discuss alleged discrepancies in Mr. Dolan's

declaration and deposition statements. Defendant filed a response to that request, and Movants filed 13 a reply. The parties continue to challenge each other's figures with respect to the number of loan 14 modification applications requested, the number of such applications actually mailed to class 15 members, and the outcomes of those applications.

The Court conducted a telephonic Case Management Conference on April 3, 2013, at which time the Court proposed referring the question 17 of the reliability of Defendant's statistics to Magistrate Judge Grewal. The parties agreed to this 18 limited referral.

Accordingly, the following issue is HEREBY REFERRED to Magistrate Judge Grewal for

20 disposition by Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of 21

Civil Procedure 72(b): whether the figures provided by Defendant with respect to the number of 22 loan modification applications requested by class members, the number of such applications actually 23 mailed to class members, and the outcomes of those applications, are sufficiently reliable that this 24

Court should continue with the three-step process outlined at the hearing on the motion for 25 preliminary injunction. Both parties have indicated a desire to submit additional briefing on this 26 issue, as their briefs relating to whether the Court should conduct a Case Management Conference 27 did not address all aspects of the issue. The Court leaves it to Judge Grewal to set an appropriate 28 briefing schedule and, if necessary, a hearing date.

ORDER REFERRING TO MAGISTRATE JUDGE GREWAL THE ISSUE OF THE RELIABILITY OF STATISTICS

Following completion of Mr. Dolan's deposition, Movants requested that the Court set a

IT IS SO ORDERED.


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