Kilgore et al v. Keybank, National Association et al

Filing 55

STIPULATION AND ORDER extending time to respond to complaint and continuing the Initial Case Management Conference to 4/27/2009 at 01:30 PM. Signed by Judge Thelton E. Henderson on 01/15/09. (rbe, COURT STAFF) (Filed on 1/16/2009)

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Andrew A. August (SBN 112851 [e-mail] Kevin Rooney (SBN 184096) [e-mail] PINNACLE LAW GROUP, LLP 425 California Street, Suite 1800 San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs Matthew C. Kilgore, William Bruce Fuller and Kevin Wilhelmy

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MATTHEW C. KILGORE, individually and on behalf of all others similarly situated; WILLIAM BRUCE FULLER, individually and on behalf of all others similarly situated; KEVIN WILHELMY, individually and on behalf of all others similarly situated,

) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) KEYBANK, NATIONAL ASSOCIATION, a ) national banking association organized under ) the laws of the United States of America and ) successor in interest to KEYBANK USA, N.A.; ) KEY EDUCATION RESOURCES, a division ) of KEYBANK, NATIONAL ASSOCIATION; ) GREAT LAKES EDUCATIONAL LOAN ) SERVICES, INC., a Wisconsin corporation; ) STUDENT LOAN XPRESS, a Delaware ) corporation; AMERICAN EDUCATION ) SERVICES, form of entity unknown; DOES ) 1-25, ) ) Defendants. ) )

Case No. C08-02958 TEH STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND TO CONTINUE CASE MANAGEMENT CONFERENCE [DECLARATION OF ANDREW A. AUGUST FILED CONCURRENTLY HEREWITH]

STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
LA1 1334096v.1

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WHEREAS, the Second Amended Complaint ("Complaint") asserts claims on behalf of a California-only putative class of student-borrowers who were attending a helicopter pilot training school ­ Silver State Helicopters ("SSH") ­ when SSH ceased operations and filed a voluntary petition for relief under chapter 7 of title 11 of the United States Code, 11 U.S.C. § 101 et seq., in the United States District Court for the District of Nevada in February 2008, Case No. BK-S08-10936-MKN ("SSH Bankruptcy Action"); WHEREAS, SSH is not a party to this action, but rather, the Complaint asserts claims against Defendants who are the holders or servicers of loans taken out by students to finance their education at SSH; WHEREAS, the putative class is comprised of two classes: (a) a class of studentborrowers whose loans are held by Defendant Student Loan Xpress, Inc. ("SLX") and serviced by Defendant American Education Services ("AES") (the "SLX Class"); and (b) a class of student borrowers whose loans are held by Defendant KeyBank, N.A. ("KeyBank") and serviced by Defendant Great Lakes Education Loan Services, Inc. ("Great Lakes") (the "KeyBank Class"); WHEREAS, approximately 80% of the putative class members are part of the SLX Class because the vast majority of the loans at issue in this action are held by SLX and serviced by AES; WHEREAS, the Complaint asserts claims based on, among other things, Defendants' alleged involvement with SSH and the absence of the FTC Holder Notice in the students' loan documents; WHEREAS, this action is one of several putative class actions and one collective action pending against SLX arising from the closure and bankruptcy of SSH, including other actions pending in the United States District Court for the Middle District of Florida (the "Florida Action"), and the United States District Court for the District of South Carolina; WHEREAS, on July 11, 2008, the parties filed a stipulation to extend the time for Defendants to respond to the Complaint and to continue the Case Management Conference to afford Plaintiffs and Defendants an opportunity to participate in an early mediation regarding the claims -1STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
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asserted against Defendants; WHEREAS, on July 15, 2008, the Court entered an order setting the Case Management Conference for October 20, 2008 at 1:30 p.m. and requiring Defendants (in accordance with the parties' stipulation) to respond to the Complaint by that same date; WHEREAS, on October 2, 2008, Plaintiffs in this action and the Defendants in the KeyBank Class ­ KeyBank and Great Lakes ­ stipulated to participate in mediation at JAMS; WHEREAS, on October 7, 2008, the parties filed a stipulation to extend the time for Defendants to respond the Complaint to allow the parties to continue the mediation process; WHEREAS, on October 8, 2008, the Court entered a stipulated order extending the time for Defendants to respond to the Complaint to January 20, 2009; WHEREAS, on the same date, the Court sua sponte continued the Case Management Conference to February 2, 2009 at 1:30 p.m.; TENTATIVE SETTLEMENT WITH SLX WHEREAS, Plaintiffs in this action, Plaintiffs in the Florida Action and SLX participated in three full days of mediation before the Honorable William J. Cahill (Ret.) on August 21, September 23, 2008, and December 10, 2008; WHEREAS, as a result of the mediation, Plaintiffs in this action, Plaintiffs in the Florida Action, and SLX have reached an agreement in principle on the material terms of settlement that would resolve the claims asserted against SLX and AES through a proposed nationwide class action settlement; WHEREAS, the settlement between Plaintiffs and SLX would thus dispose of approximately 80% of the claims in this action; WHEREAS, the Plaintiffs in this action, Plaintiffs in the Florida Action, and SLX are presently working to draft the documents necessary to memorialize the settlement terms and seek preliminary approval of the settlement; WHEREAS, the Plaintiffs in this action, Plaintiffs in the Florida Action, and SLX will present the settlement for approval to the Honorable Steven D. Merryday of the Middle District -2STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
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of Florida, where the Florida Action, a putative nationwide class action, has been pending since February 2008; WHEREAS, on January 7, 2009, the Magistrate Judge in the Florida Action conducted a pre-trial conference. After considering counsel's reports as to the status of their settlement negotiations and their intent to submit papers in support of the motion for preliminary approval within the next sixty (60) days; the Magistrate Judge entered an order extending SLX's deadline to respond to the Complaint to April 10, 2009 and continuing the preliminary pretrial conference to the same date; MEDIATION BETWEEN PLAINTIFFS AND KEYBANK WHEREAS, the Defendants in the KeyBank Class previously advised plaintiffs of their desire to review SSH records in order to meaningfully participate in mediation; WHEREAS, Plaintiffs first attempted to obtain SSH records from the Trustee of the SSH Bankruptcy Action in August 2008. Because of difficulties with the Trustee Plaintiffs served a subpoena on the Trustee on October 22, 2008. The Trustee filed a Motion to Quash in response. The initial hearing on the Motion to Quash was heard on November 19, 2008, and the matter was continued to December 5, 2008 to allow time for supplemental briefing. On December 5, 2008 the Bankruptcy Court denied the Motion to Quash and ordered that SSH records be produced to Plaintiffs. Plaintiffs received the first tranche of SSH records on December 10, 2008 and the second tranche on December 30, 2008; WHEREAS, the SSH records will significantly facilitate any efforts to resolve the claims against KeyBank and Great Lakes, including, but not limited to, records that should confirm which student-borrowers were attending SSH at the time the school closed and declared bankruptcy in February 2008 (see Declaration of Andy A. August, ¶ 14); WHEREAS, the Defendants in the KeyBank Class and Plaintiffs have agreed to participate in mediation at JAMS with the Honorable William J. Cahill (Ret.) and are in the process of confirming a date in early April 2009; /// -3STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
LA1 1334096v.1

1 REQUEST FOR CONTINUANCE
2 WHEREAS, in light of the substantial progress that has already been made towards
3 resolving the vast majority of claims in this action and to conserve further the resources of

the

4 parties and this Court, the parties have agreed that the deadline for Defendants' response to the

5 Complaint should be extended until April 24, 2009 to afford (1) Plaintiffs and SLX a reasonable
6 opportunity to finalize and fully document the terms of

their settlement (which, again, would also

7 dispose of the claims asserted against Defendant AES), and (2) Plaintiffs and the remaining

8 Defendants - KeyBank and Great Lakes - an opportunity to resolve their dispute after an
9 opportunity to review records from SSH's Bankruptcy Trustee;

10 WHEREAS, the paries also jointly request that the Court continue the Case
11 Management Conference currently set for February 2, 2009 to April 27, 2009 at 1 :30 p.m.;

12 WHEREAS, all parties agree that this extension wil significantly facilitate their
13 efforts to resolve this matter by allowing them to concentrate on the settlement process without
14 simultaneously being required to fully brief and litigate the threshold legal issues raised in the
15 Complaint.

16 NOW, THEREFORE, IT is HEREBY STIPULATED by and between the parties
17 hereto, through their respective counsel of record, that all Defendants shall have up to and including

18 April 24, 2009 to answer, move, or otherwise respond to the Complaint. The paries also jointly
19 request that the Case Management Conference be continued to April 27, 2009 at 1 :30 p.m.

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Dated: January If, 2009

Respectfully submitted,

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PINNACLE LAW GROUP LLP

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By:

0(2

OJ

Andrew . August (SBN 112851)
Attorneys for Plaintiffs

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-4STIPULATION AND (PROPOSED) ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEn
LA 1 1334096v.1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Dated: January __, 2009

ORDER Based on the foregoing stipulation of counsel and good cause appearing therefore, it is HEREBY ORDERED that all Defendants shall have up to and including April 24, 2009 to answer, move, or otherwise respond to the Complaint. Additionally, the Case Management Conference is hereby continued to April 27, 2009 at 1:30 p.m. PURSUANT TO STIPULATION OF COUNSEL, IT IS SO ORDERED.

UNIT ED

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S DISTRICT TE C Hon. Thelton E. Henderson TA

United States District Court

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STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
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