Mora v. Harley-Davidson Credit Corp.

Filing 148

STIPULATION and ORDER to Modify Settlement Agreement and Release, signed by Magistrate Judge Barbara A. McAuliffe on 6/3/2014. (Kusamura, W)

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William M. Krieg, SBN 066485
Eric M. Kapigian, SBN 238733
KEMNITZER, BARRON & KRIEG, LLP
2014 Tulare Street, Suite 700
Fresno, CA 93721
Telephone [phone]
Facsimile [phone]

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Attorneys for LUIS MANUEL MORA, individually, and on behalf of the class

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS MANUEL MORA, individually, and on ) Case No.: 1:08-CV-01453-AWI-BAM
)
behalf of the class,
) STIPULATION AND ORDER TO
) MODIFY SETTLEMENT AGREEMENT
Plaintiff,
) AND RELEASE
)
vs.
)
HARLEY-DAVIDSON CREDIT CORP., a )
)
corporation; and DOES 1 through 10,
)
inclusive,
)
)
)
Defendants.

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IT IS HEREBY STIPULATED AND AGREED BY AND BETWEEN THE PARTIES
THROUGH THEIR RESPECTIVE COUNSEL AS FOLLOWS:

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WHEREAS, the Settlement Agreement and Release herein dated June 5, 2013
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(“Settlement Agreement”)1 states, in part, at Para 5.01.c.: “If there are two borrowers on an
account, then the reimbursement shall be made payable jointly to all borrowers”;
WHEREAS, after settlement checks were issued by the Class Administrator pursuant to
the terms of the Settlement Agreement, the parties were advised that in some cases, one co-

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Unless otherwise specified, the capitalized terms used herein have the meaning set
forth in the Settlement Agreement.

STIPULATION AND ORDER TO MODIFY SETTLEMENT AGREEMENT AND RELEASE - 1

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borrower listed as a payee on a jointly-issued check could not be located and therefore the other

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co-borrower who received the settlement check was unable negotiate it without the missing co-

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borrower’s signature;

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WHEREAS, under the Settlement Agreement, settlement checks that are not cashed by
Settlement Class Members will be reissued to cy pres recipients in possible derogation of
claiming co-borrowers’ rights; and
WHEREAS, it appears fair and reasonable that claiming co-borrowers should not forfeit

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his or her right to settlement funds because his or her co-borrower cannot be located or because it
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is otherwise impractical or impossible to obtain his or her signature.
NOW THEREFORE, IT IS HEREBY STIPULATED that:
1.

In the event a co-borrower in receipt of a check issued jointly pursuant to

Paragraph 5.01.c. of the Settlement Agreement (“Claiming Co-Borrower”) submits a complaint

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to the Class Administrator or Class Counsel on or before the date of this Stipulation asserting

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that the co-payee on the check cannot be located (“Missing Co-Borrower”), the Class

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Administrator shall, solely at the direction of Class Counsel, issue a new check made payable to

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the Claiming Co-Borrower alone, provided all the following conditions are first satisfied:

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a.

Class Counsel receives from the Claiming Co-Borrower a signed

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statement (i) specifying the amount he or she paid to HDCC on his or her deficiency balance, and

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(ii) affirming that he or she made a diligent effort to locate the Missing Co-Borrower and obtain

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his or her signature on the jointly issued check;

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b.

Class Counsel determines based on all available information,

including the above-referenced statement from the Claiming Co-Borrower, that the Claiming CoBorrower (i) made some or all the payments on his or her deficiency balance and is entitled to a
refund of the full or partial amount claimed by the Claiming Co-Borrower, and (ii) made a

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diligent effort to locate the Missing Co-Borrower and obtain his or her signature on the jointly
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issued check; and

STIPULATION AND ORDER TO MODIFY SETTLEMENT AGREEMENT AND RELEASE - 2

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c.

Class Counsel has confirmed that the check initially issued jointly

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to the Claiming Co-Borrower and Missing Co-Borrower (i) has not been negotiated, and (ii) has

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expired by its terms.

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2.

If Class Counsel determines that a Claiming Co-Borrower has satisfied the

terms contained in Paragraph 1 above, Class Counsel shall instruct the Class Administrator to
issue a replacement check to such Claiming Co-Borrower of an amount specified by Class
Counsel not to exceed the amount of the check initially issued jointly to the Claiming Co-

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Borrower and his or her Missing Co-Borrower. The replacement check shall have an expiration
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date of sixty (60) days or less.
3.

Class Counsel shall promptly advise the Class Administrator and counsel

for HDCC as to any demands for and decisions regarding issuance of replacement checks
pursuant to this Stipulation. Class Counsel shall further submit a declaration to the Court

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identifying any checks that have been or will be reissued to Claiming Co-Borrowers pursuant to

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this Stipulation and confirming that the terms contained in Paragraph 1 of this Stipulation were

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satisfied in each instance.

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4.

In the event that one or more replacement checks are issued pursuant to

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this Stipulation, the calculation and distribution of the residual or cy pres funds shall be delayed

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until such time as all replacement checks have been cashed, expired, or otherwise accounted for.

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5.

All Missing Co-Borrowers and Claiming Co-Borrowers, on behalf of

themselves and their respective heirs, executors, administrators, representatives, agents,
attorneys, partners, successors, predecessors-in-interest and assigns, shall and hereby do release
any and all claims, liens, demands, causes of action, obligations, damages, and liabilities, known
or unknown, that they have or may have against HDCC and any of its present and former
officers, directors, attorneys, accountants, agents, representatives, employees, heirs, insurance

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carriers, predecessors, affiliates, agents, parents, subsidiaries and successors in interest arising
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out of any replacement checks issued by the Class Administrator pursuant to this Stipulation.

STIPULATION AND ORDER TO MODIFY SETTLEMENT AGREEMENT AND RELEASE - 3

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This specific release supplements the Settlement Class Members’ general release contained in

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Paragraph 5.07 of the Settlement Agreement, which is incorporated herein by this reference.

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6.

This Stipulation is executed in accordance with Paragraph Except as

specifically modified in this Stipulation, the Settlement Agreement and every provision thereof
are unchanged and remain in full force and effect.
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This Stipulation may be executed by duplicate or facsimile copies in place

of original signatures.

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Dated: May24, 2014

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By:

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/s/ Luis Manuel Mora
______________________________
LUIS MANUEL MORA, individually and on
behalf of the Settlement Class and Settlement
Sub-Class

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Dated: May21, 2014

/s/ Thomas E. Fleming
By:
______________________________
Name: Thomas E. Fleming
Title: Director, Loss Mitigation

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HARLEY-DAVIDSON CREDIT CORP.

Dated: May29, 2014

KEMNITZER, BARRON & KRIEG, LLP

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By:

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/s/ William M. Krieg
______________________________
WILLIAM M. KRIEG
Attorneys for Plaintiff, the Settlement Class and
Settlement Sub-Class

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Dated: May 29, 2014

REED SMITH LLP

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By:

/s/ Alicia A. Baiardo
______________________________
DAVID C. POWELL
ALICIA A. BAIARDO
Attorneys for Defendant HARLEY-DAVIDSON
CREDIT CORP.

STIPULATION AND ORDER TO MODIFY SETTLEMENT AGREEMENT AND RELEASE - 4

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ORDER

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Based on the Stipulation of the parties, and for good cause shown, the Settlement
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Agreement and Release June 5, 2013 shall be modified in the manner described in the above
stipulation.

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IT IS SO ORDERED.

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Dated:

June 3, 2014

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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STIPULATION AND ORDER TO MODIFY SETTLEMENT AGREEMENT AND RELEASE - 5