In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig.

Martin C. Bryce, Jr., Esq. [Argued], Joel E. Tasca, Esq., Ballard Spahr, Philadelphia, PA, for Appellant.

Scott C. Borison, Esq., Legg Law Firm, Frederick, MD, R. Bruce Carlson, Esq. [Argued], Gary F. Lynch, Esq., Carlson Lynch Sweet & Kipela, Pittsburgh, PA, Daniel O. Myers, Esq., Traverse City, MI, David M. Skeens, Esq., Roy F. Walters, Esq. [Argued], Walters, Bender, Strohbehn & Vaughan, Kansas City, MO, Robert S. Wood, Esq., Richardson, Patrick, Westbrook & Brickman, Mount Pleasant, SC, for Appellees.

Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

PNC Bank, N.A. (“PNC”) challenges an order of the United States District Court for the Western District of Pennsylvania certifying a nationwide litigation class of individuals who received residential mortgage loans from Community Bank of Northern Virginia (“CBNV”), a financial institution whose interests were later acquired by PNC. The appeal presents several arguments against certification. First, PNC contends that there is a fundamental class conflict that undermines the adequacy of representation provided by class counsel. Second, PNC claims that the District Court conditionally certified the class and thus erred. Third, PNC says that the putative class does not meet the ascertainability, commonality, predominance, superiority, or manageability requirements of Rule 23 of the Federal Rules of Civil Procedure. We have considered each of those arguments and a number of subsidiary ones and find them unpersuasive. We will therefore affirm.

I. Background

This is the third appeal from the certification of a class based on allegations of an illegal home equity lending scheme involving two banks, specifically CBNV and Guaranty National Bank of Tallahassee (“Guaranty”), and also involving GMAC–Residential Funding Corporation n/k/a Residential Funding Corporation, LLC (“Residential Funding”), a company that purchased mortgage loans from those banks. See In re Cmty. Bank of N. Va. (Community Bank I ), 418 F.3d 277 (3d Cir.2005) ; In re Cmty. Bank of N. Va. (Community Bank II ), 622 F.3d 275 (3d Cir.2010). The two previous appeals involved certification of settlement classes, but this appeal involves certification of a litigation class. Much of the factual and procedural history of this case is set out in detail in our two prior opinions, but we reiterate the relevant portions here.

A. The Alleged Illegal Lending Scheme

The Plaintiffs describe a predatory lending scheme affecting numerous borrowers nationwide and allegedly masterminded by the Shumway Organization (“Shumway”), a residential mortgage loan business operating in Chantilly, Virginia. Through a variety of entities, including EquityPlus Financial, Inc. (“Equity Plus”), Equity Guaranty, LLC (“Equity Guaranty”), and various title companies, Shumway offered high-interest mortgage-backed loans to financially strapped homeowners.

As a non-depository lender, Shumway was subject to fee caps and interest ceilings imposed by various state mortgage lending laws. The Plaintiffs aver that, in an effort to circumvent those limitations, Shumway formed associations with several banks, including CBNV and Guaranty. Shumway allegedly arranged payments to CBNV and Guaranty to disguise the source of its loan origination services so that fees for those services would appear to be paid solely to the banks, which were depository institutions. The Plaintiffs allege that, in reality, the overwhelming majority of fees and other charges associated with the loans were funneled through the two banks to Shumway via Equity Plus (in the case of loans made by CBNV) and...