MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v. MERSCORP, INC. et al | Pennsylvania MERS Class Action CERTIFIED

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MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v. MERSCORP, INC. et al | Pennsylvania MERS Class Action CERTIFIED

MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v. MERSCORP, INC. et al | Pennsylvania MERS Class Action CERTIFIED

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MONTGOMERY COUNTY, PENNSYLVANIA,
RECORDER OF DEEDS, by and through
Nancy J. Becker in her official
capacity as Recorder of Deeds of
Montgomery County, on its own
behalf and on behalf of all others
similarly situated,

Plaintiff,

v.

MERSCORP, INC., and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC.,

Defendants.

MEMORANDUM AND ORDER

JOYNER, J. February 11, 2014

This matter is presently before the Court on Motion of the
Plaintiff for Class Certification. After careful consideration
of the arguments and evidentiary materials submitted by the
parties, we shall grant the motion.

Statement of Relevant Facts

Plaintiff Nancy J. Becker is the duly-elected Recorder of
Deeds for Montgomery County, Pennsylvania. Purporting to act in
her official capacity on behalf of herself and all other
similarly situated Pennsylvania County Recorder of Deeds Offices,
Plaintiff’s Complaint seeks to compel Defendants to record all
mortgage assignments that were, are now and will in the future
be, registered within the MERS “system” and pay the attendant
recording fees . With that goal in mind, Plaintiff seeks 1
primarily equitable relief in the form of a declaration and/or
permanent injunction compelling Defendants to record the disputed
mortgage assignments, and an order quieting title and finding
that Defendants were unjustly enriched.

Plaintiff filed her complaint on November 7, 2011.
Defendants moved to dismiss the complaint in its entirety for
failure to state a claim upon which relief may be granted which
was, for the most part denied, on October 19, 2012. 2
Contemporaneous to filing an Answer to Plaintiff’s Complaint,
Defendants filed a Second Motion to Dismiss Plaintiff’s quiet
title claim on December 10, 2012. Following the denial of this
second motion on March 6, 2013, the Plaintiff filed the instant
Motion to Certify Class on April 26, 2013. Specifically, the
proposed class would consist of each county Recorder of Deeds in
Pennsylvania in his or her official capacity and would therefore
consist of 67 members in all. Not surprisingly, Defendants
oppose the motion.

Standards Applicable to Class Certification Requests
“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, 133 S. Ct. 1426, 1432,
185 L. Ed.2d 515, 521 (2013)(quoting Califano v. Yamasaki, 442
U.S. 682, 700-701, 99 S. Ct. 2545, 61 L. Ed.2d 176 (1979)). “In
order to justify a departure from that rule, ‘a class
representative must be part of the class and possess the same
interest and suffer the same injury as the class members.’” Wal-
Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550, 180 L. Ed.2d
374, 388-389 (2011)(quoting, inter alia, East Texas Motor Freight
System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S. Ct. 1891, 52
L. Ed.2d 453 (1977)).

The principles and procedures governing class actions are
clearly delineated in Fed. R. Civ. P. 23. The initial
prerequisites are set forth in Rule 23(a), which reads as
follows:

One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:

(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.
Thereafter, under Rule 23(b),

A class action may be maintained if Rule 23(a) is satisfied
and if:

(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with respect
to individual class members that would establish
incompatible standards of conduct for the party
opposing the class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members not
parties to the individual adjudications or would
substantially impair or impede their ability to protect
their interests;
(2) the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole; or
(3) the court finds that the 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. The matters pertinent to
these findings include:

(A) the class members’ interests in individually
controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation concerning
the controversy already begun by or against class
members;
(C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum;
and
(D) the likely difficulties in managing a class action.

Under these parameters, “the class action device saves the
resources of both the courts and the parties by permitting an
issue potentially affecting every class member to be litigated in
an economical fashion.” Carrera v. Bayer Corp., 727 F.3d 300,
306 (3d Cir. 2013)(quoting, General Telephone Company of the
Southwest v. Falcon, 457 U.S. 147, 155, 102 S. Ct. 2364, 72 L.
Ed. 2d 740 (1982)). It has been observed that the requirements
set out in Rule 23 are not mere pleading rules – the party
seeking certification bears the burden of establishing each
element of Rule 23 by a preponderance of the evidence. Marcus v.
BMW of North America, LLC, 687 F.3d 583, 591 (3d Cir. 2012). A
party’s assurances to the court that it intends or plans to meet
the requirements is insufficient and thus it has been said that
“[t]he evidence and arguments a district court considers in the
class certification decision call for rigorous analysis.” In re
Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 318 (3d
Cir. 2008).

The trial courts are well-positioned to decide which facts
and legal arguments are most important to each Rule 23
requirement and possess broad discretion to control proceedings
and frame issues for consideration. Id., 552 F.3d at 310.
“Careful application of Rule 23 accords with the pivotal status
of class certification in large-scale litigation, because
‘denying or granting class certification is often the defining
moment in class actions for it may sound the “death knell” of the
litigation on the part of plaintiffs or create unwarranted
pressure to settle nonmeritorious claims on the part of
defendants.’” Id, (quoting Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 154, 162 (3d Cir. 2001)). In
conducting its rigorous analysis, the district courts “must
resolve all factual or legal disputes relevant to class
certification, even if they overlap with the merits – including
disputes touching on elements of the cause of action.” Marcus v.
BMW of North America, 687 F.3d 583, 591 (3d Cir. 2012)(quoting In
re Hydrogen Peroxide, 552 F.3d at 307). Indeed, “Rule 23 gives no
license to shy away from making factual findings that are
necessary to determine whether the Rule’s requirements have been
met.” Id.

[…]

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