Jordan v. Paul Financial, LLC

Filing 417

ORDER Defining Certified Class and Appointing Class Representatives and Class Counsel; Pursuant to Order (Doc. 413). Signed by Judge Susan Illston on 9/25/12. (tfS, COURT STAFF) (Filed on 9/26/2012)

1 SMOGER & ASSOCIATES
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Gerson H. Smoger (SBN 79196)
[e-mail]
Steven M. Bronson (SBN 246751)
[e-mail]
3175 Monterey Blvd
Oakland, CA, 94602-3560
Tel.: [phone]
Fax: [phone]

6 ARBOGAST BOWEN LLP
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David M. Arbogast (SBN 167571)
[e-mail]
Chumahan B. Bowen (SBN
[e-mail]
11400 W. Olympic Blvd., 2nd Floor
Los Angeles, CA 90064
Tel.: [phone]
Fax: [phone]

BERNS WEISS LLP
Jeffrey K. Berns (SBN 131351)
[e-mail]
20700 Ventura Boulevard, Suite 140
Woodland Hills, California 91364
Tel.: [phone]
Fax: [phone]
-- and -Lee A. Weiss (Admitted Pro Hac Vice)
[e-mail]
626 RXR Plaza
Uniondale, New York 11556
Tel.: [phone]
Fax: [phone]

11 Attorneys for Plaintiffs and the Class
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

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15 GREGORY M. JORDAN, ELI GOLDHABER

Case No. No. C 07-04496 SI

and JOSEPHINA GOLDHABER, individually
16 and on behalf of all others similarly situated,

CLASS ACTION

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[Assigned to Hon. Susan Illston]

Plaintiffs,

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v.

20 PAUL FINANCIAL, LLC, LUMINENT

[PROPOSED] ORDER DEFINING
CERTIFIED CLASS AND APPOINTING
CLASS REPRESENTATIVES AND
CLASS COUNSEL

MORTGAGE CAPITAL, INC., HSBC BANK

21 USA, N.A., AS TRUSTEE OF LUMINENT
MORTGAGE TRUST 2006-2, RBS

22 FINANCIAL PRODUCTS, INC. and DOES 2
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through 10 inclusive,
Defendants.

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[Proposed] Order Defining Certified Class and Appointing Class Representatives and Class
Counsel - C 07-04496 SI

This matter comes before the Court upon motion by Plaintiffs Eli Goldhaber and Josephina

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2 Goldhaber for class certification, pursuant to Rule 23 of the Federal Rules of Civil Procedure; and
3 the Court having reviewed all submissions of the parties; and having conducted a hearing on
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December 2, 2011; and

Motion for Class

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Certification, dated August 23, 2012 [Doc. 413], which is fully incorporated by reference herein;
and based upon the Declaration of Lee A. Weiss in Support of [Proposed] Order Defining

8 Certified Class and Appointing Class Representatives and Class Counsel; and for good cause
9 shown,
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IT IS HEREBY ORDERED that
Certification [Doc. 413] is amended to reflect that after the dismissal of the claims against HSBC
Bank USA, N.A. and Luminent Mortgage Trust 2006-2

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seeking certification only of the Class and the RBS Subclass, as defined below, and that

15 certification of the Class and RBS Subclass is proper under Fed. R. Civ. P. 23 for the reasons set
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IT IS FURTHER ORDERED that the following Class and Subclass are certified in

18 accordance with Fed. R. Civ. P. 23:
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The Class

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All individuals who within the four-

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that either (a)
was secured by real property located in the State of California, or (b) was secured
by real property located outside the State of California where the loan was
approved in or disseminated from California, which loan had the following
characteristics: (i) the yearly numerical interest rate listed on page one of the Note

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pay may
y numerical interest rate listed on page one of the
Note was only effective through the due date for the first monthly payment and

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[Proposed] Order Defining Certified Class and Appointing Class Representatives and Class
Counsel - C 07-04496 SI

Note does not contain any statement that pa

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agents, representatives, and their family members, as well as the Court and its
officers, employees, and relatives.

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The RBS Subclass

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All members of the Class whose Option ARM loans were sold or otherwise
assigned by Paul Financial, LLC to RBS Financial Products, Inc.

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IT IS FURTHER ORDERED that Plaintiffs Eli Goldhaber and Josephina Goldhaber are

8 appointed as representatives of the above-referenced Class and RBS Subclass.
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IT IS FURTHER ORDERED that the law firms of Berns Weiss LLP, Smoger &

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Associates, Arbogast Bowen LLP, and Spiro Moore LLP are appointed as counsel for the above-

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referenced Class and RBS Subclass.
IT IS SO ORDERED.

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14 Dated:

9/25/12
HON. SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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[Proposed] Order Defining Certified Class and Appointing Class Representatives and Class
Counsel - C 07-04496 SI

1 SMOGER & ASSOCIATES
2
3
4
5

Gerson H. Smoger (SBN 79196)
[e-mail]
Steven M. Bronson (SBN 246751)
[e-mail]
3175 Monterey Blvd
Oakland, CA, 94602-3560
Tel.: [phone]
Fax: [phone]

6 ARBOGAST BOWEN LLP
7
8
9
10

David M. Arbogast (SBN 167571)
[e-mail]
Chumahan B. Bowen (SBN
[e-mail]
11400 W. Olympic Blvd., 2nd Floor
Los Angeles, CA 90064
Tel.: [phone]
Fax: [phone]

BERNS WEISS LLP
Jeffrey K. Berns (SBN 131351)
[e-mail]
20700 Ventura Boulevard, Suite 140
Woodland Hills, California 91364
Tel.: [phone]
Fax: [phone]
-- and -Lee A. Weiss (Admitted Pro Hac Vice)
[e-mail]
626 RXR Plaza
Uniondale, New York 11556
Tel.: [phone]
Fax: [phone]

11 Attorneys for Plaintiffs and the Class
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

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15 GREGORY M. JORDAN, ELI GOLDHABER

Case No. No. C 07-04496 SI

and JOSEPHINA GOLDHABER, individually
16 and on behalf of all others similarly situated,

CLASS ACTION

17

[Assigned to Hon. Susan Illston]

Plaintiffs,

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19

v.

20 PAUL FINANCIAL, LLC, LUMINENT
MORTGAGE CAPITAL, INC., HSBC BANK

21 USA, N.A., AS TRUSTEE OF LUMINENT

DECLARATION OF LEE A. WEISS IN
SUPPORT OF [PROPOSED] ORDER
DEFINING CERTIFIED CLASS AND
APPOINTING CLASS
REPRESENTATIVES AND CLASS
COUNSEL

MORTGAGE TRUST 2006-2, RBS

22 FINANCIAL PRODUCTS, INC. and DOES 2
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through 10 inclusive,
Defendants.

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Weiss Decl. i/s/o [Proposed] Order Defining Certified Class and Appointing Class Representatives
and Class Counsel - C 07-04496 SI

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I, Lee A. Weiss, declare as follows, pursuant to 28 U.S.C. § 1746:

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1.

I am one of the attorneys of record for Plaintiffs in the above-entitled action. The

3 matters stated herein are known to me personally, and if called as a witness, I could and would
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competently testify thereto.

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2.

On March 18, 2011, Plaintiffs filed a motion for class certification (Docs. 315 and

321 [as corrected by Doc. 326]) that sought certification of the following Class and Subclasses:

8 The Class:
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All individuals who within the four-

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an Option ARM loan from Paul Financial, LLC that either (a) was secured by real property
located in the State of California, or (b) was secured by real property located outside the
State of California where the loan was approved in or disseminated from California, which
loan had the following characteristics: (i) the yearly numerical interest rate listed on page
one of the Note is 3.0% or less
states that this rate may
will
shall
will pay may
(iii) the yearly numerical interest rate listed on page one of the Note
was only effective through the due date for the first monthly payment and then adjusted to
and (iv) the Note does not contain any
statement that paying the amount
result in negative amortization or deferred interest. Excluded from the Class are

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members, as well as the Court and its officers, employees, and relatives.

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18 The RBS Subclass:
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All Class members whose Option ARM loans were sold or otherwise assigned by Paul
Financial to RBS Financial Products, Inc.

21 HSBC Subclass:
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All Class members whose Option ARM loans are, or at any time were, in the Luminent
Mortgage Trust 2006-2, of which HSBC National Association is the trustee.

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3.

On July 13, 2011, Plaintiff Gregory M. Jordan and Defendant HSBC Bank USA,

25 N.A., as Trustee of Luminent Mortgage Trust 2006-2 filed a Joint Motion for Dismissal (Doc.
26 381), which sought, among other things, dismissal of Plaintiff Jordan and putative class
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Weiss Decl. i/s/o [Proposed] Order Defining Certified Class and Appointing Class Representatives
and Class Counsel - C 07-04496 SI

claims against HSBC Bank and the Luminent Mortgage Trust 2006-2 in their entirety.

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2 The Court granted the motion by Order dated July 27, 2011. Doc. 385. The July 27, 2011 Order
3 mooted the motion to certify the HSBC Subclass. It did not, however, moot the motion to certify
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the Class, vis-à-vis Defendant Paul Financial, LLC.

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4.

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Paul Financial, LLC did not file any papers in response to the class certification

motion. See

Motion

8 for Class Certification. Doc. 363.
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5.

On December 2, 2011, after the class certification motion, and a summary

10 judgment motion filed by Defen
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by Plaintiffs and RBS, the Court held a hearing on the motions. Paul Financial,
was present at the hearing.

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6.

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On August 23, 2012, this Court issued its Order Denying RBS Financial Products

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16 413.

s the class definition has likely

17 changed since HSBC was dismissed as a defendant, the Court orders plaintiffs to submit a
18 proposed order certifying
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8/23/12 Order at 44.

7.

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all respects but one, which deviation is addressed below.

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8.

In the 8/23/12 Order, the Court stated the following concerning the class definition:

In their motion for certification, Plaintiffs stated that they also sought to certify a
subclass consisting of all Class members whose Option ARM loans were sold or
otherwise assigned by Paul
), which Mr. and Mrs. Goldhaber seek to represent; and a second subclass
of all Class members whose Option ARM loans were sold to HSBC, which Jordan
was to represent. Since that time, Jordan has dismissed his claims against HSBC,
and plaintiffs have not sought to join any new class representatives. Therefore, the

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Weiss Decl. i/s/o [Proposed] Order Defining Certified Class and Appointing Class Representatives
and Class Counsel - C 07-04496 SI

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Court understands plaintiffs to be seeking a single class, as described above,
consisting of all Class members whose Option ARM loans were assigned to RBS.

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8/23/12 Order at 27.
9.

The Court was correct that Plaintiffs were no longer pursuing the HSBC Subclass

5 as a result of the dismissal of HSBC from the case. However, after the HSBC Subclass was
6 removed, there still remained the Class (consisting of Option ARM loans originated by Paul
7 Financial, LLC in accordance with the Class definition) (8/23/12 Order at 26) and the RBS
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Subclass (consisting of loans in the Class that were acquired by RBS after origination by Paul

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Financial, LLC).
10.

As Paul Financial, LLC did not oppose the class certification motion, and the
in the Order Granting Class Certification supports

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vides for the certification of the Class and

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Class Certification is amended to reflect that Plaintiffs were seeking certification of the Class and

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RBS Subclass and that the Class and Subclass should be certified for the reason stated therein.

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I declare under penalty of perjury that the foregoing is true and correct and that this declaration

19 was executed on August 31, 2012 at Memphis, Tennessee.
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By:___/s/ Lee A. Weiss _________
Lee A. Weiss

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Weiss Decl. i/s/o [Proposed] Order Defining Certified Class and Appointing Class Representatives
and Class Counsel - C 07-04496 SI