Hull Barrett’s David E. Hudson Successfully Opposes Class Certification Motion

David E. Hudson garners class certification denial for nationwide mortgage lender client

In December 2009, a borrower from a national mortgage lender filed a complaint as a putative class representative alleging the mortgage lender violated the National Housing Act (NHA).  The borrower alleged that the lender made the loan under section 203(b) and improperly charged up-front mortgage insurance premiums at the time of closing as opposed to offering the borrower a loan under section 238(c) that allows these payments to be made over time.  Section 238(c) applies only to six counties in Georgia and New York that have been designated as “military impact counties.”  The borrower’s loan was secured by a home in one of those counties in Georgia.

Mr. Hudson and Hull Barrett represented the lender and argued that class certification should be denied because there is no implied private right of action for a violation of this provision of the NHA.  Further, Mr. Hudson claimed that even if the plaintiff had a justifiable claim, section 238(c) loans applied only for “construction, repair, rehabilitation or purchase of property.”  Of the 145 loans made by the lender in the six counties, all but nine were for refinancing and thus the case failed the “numerosity” requirement to be certified as a class action.  In an order dated October 7, 2010, the United States District Court for the Southern District of Georgia agreed that the case was not suitable for class certification and denied plaintiff’s class certification motion.  2010 U.S. Dist. Lexis 107188.

David practices in the area of general civil litigation with an emphasis on business and commercial disputes, media law and construction law. He graduated from Harvard Law School in 1971, and has been a trial lawyer since 1974 representing clients at the trial court level in Georgia, South Carolina, Texas, and New York. He has also argued numerous appeals in the appellate courts of Georgia, the United States Courts of Appeals for the Second, Fifth and Eleventh Circuits, and a case before the Supreme Court of the United States.

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