In applying Rule 23(a)'s commonality requirement for
class certification, at what point in the analysis of the class
members' claims must the common issue arise? A recent decision
by a Massachusetts federal court denying certification to a
putative class of foreclosure victims turned on this very
question.
In Manson v. GMAC Mortgage, LLC, the
plaintiffs sought to certify a class of Massachusetts residents
whose homes were foreclosed, or against whom an invalid foreclosure
process was initiated. The plaintiffs allege that the defendants,
various foreclosing entities and their law firms, repeatedly
violated state law by foreclosing on properties without first
obtaining valid assignments of the underlying mortgages. Their
argument was buoyed by a 2011 decision from the Supreme Judicial
Court of Massachusetts, U.S. Bank Nat'l Ass'n v. Ibanez,
which held that foreclosures not in strict compliance with state
law are void, not merely voidable.
