Kilgore et al v. Keybank, National Association et al

Filing 76

STIPULATION AND ORDER extending time to respond to complaint and continuing the case management conference to 08/17/09 at 1:30 PM as to dfts SLX and AES. Signed by Judge Thelton E. Henderson on 05/29/09. (rbe, COURT STAFF) (Filed on 5/29/2009)

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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 FOR DEFENDANTS STUDENT LOAN XPRESS, INC. AND AMERICAN EDUCATION SERVICES [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 1580923v.2

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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 ("Silver State") ­ when Silver State 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-S-08-10936-MKN ("Silver State Bankruptcy Action"); WHEREAS, Silver State 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 Silver State; 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 Silver State and the absence of the FTC Holder Notice in the students' loan documents; WHEREAS, as the Court is aware, this action is one of several putative class actions and one collective action pending against SLX arising from the closure and bankruptcy of Silver State, 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, in light of the parties efforts to resolve the claims asserted against SLX and AES through a proposed nationwide class action settlement that would be presented for -1STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
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preliminary approval to the court in the Florida Action, the parties have filed several stipulations requesting an extension of time for SLX and AES to respond to the Complaint and a continuance of the Case Management Conference; WHEREAS, the current deadline for SLX and AES to respond to the Complaint is June 5, 2009 (see Dkt. 57) and the Case Management Conference for SLX and AES is currently set for July 6, 2009 at 10:00 a.m. (see Dkt. 70); STATUS OF FLORIDA ACTION WHEREAS, on May 19, 2009, the parties in the Florida Action submitted a joint motion (the "Joint Motion") requesting an extension of time for SLX to respond to the complaint in that action until July 31, 2009; WHEREAS, the Joint Motion advised the Court that although the parties had contemplated submitting the proposed nationwide settlement for preliminary approval on or before May 28, 2009, additional time was necessary because (a) certain state Attorneys General have undertaken a cooperative investigation into the business practices of Silver State and the events relating to its closure in February 2008 (the "AG Task Force"); (b) because SLX would be required to provide notice of the proposed nationwide settlement to certain federal and state regulators, including the AG Task Force, pursuant to the Class Action Fairness Act (28 U.S.C. §§ 1332(d), 1453, 1711-1715), SLX had engaged in discussions and is currently engaged in discussions with the AG Task Force to determine whether the AG Task Force is comfortable with the terms of the proposed nationwide settlement; (c) in connection with these discussions, in late April, the AG Task Force requested, and SLX has since provided, non-private information regarding certain of the putative class members; (d) plaintiffs' counsel in the Florida Action and this Action have had, and continue to have, contact with the AG Task Force regarding the terms of the proposed nationwide settlement; and (e) both SLX and plaintiffs' counsel required additional time to continue their respective discussions with the AG Task Force to ensure that the AG Task Force is comfortable with the terms of the proposed settlement; WHEREAS, on May 26, 2009, the Court in the Florida Action entered an order -2STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
LA1 1580923v.2

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extending the time for SLX to respond to the complaint until July 31, 2009; REQUEST FOR CONTINUANCE WHEREAS, this stipulation is only between Plaintiffs, SLX and AES, and Plaintiffs and Defendants KeyBank and Great Lakes continue to litigate their respective claims; WHEREAS, the parties request this extension in order to allow SLX and plaintiffs' counsel to continue their respective discussions with the AG Task Force to ensure that the AG Task Force is comfortable with the terms of the proposed nationwide settlement ­ a settlement that would resolve (and would result in the dismissal of) the claims asserted against SLX and AES in this Action; WHEREAS, the parties have already expended considerable time and resources in their efforts to reach a settlement that is more than fair, reasonable, and adequate, conserves private and judicial resources, and ensures speedy relief for the proposed nationwide settlement class; and WHEREAS, a further extension will allow the parties to continue with those efforts and to continue to work towards presenting the proposed nationwide settlement to the court in the Florida Action, rather than immediately undertake motion practice and other litigation activity; NOW, THEREFORE, IT IS HEREBY STIPULATED by and between Plaintiffs, SLX and AES, through their respective counsel of record, that SLX and AES shall have up to and including August 10, 2009 to answer, move, or otherwise respond to the Complaint. The parties also jointly request that the Case Management Conference for SLX and AES be continued to August 17, 2009 at 1:30 p.m. Dated: May 28, 2009 Respectfully submitted, PINNACLE LAW GROUP LLP

By: /s/ Andrew A. August______________ Andrew A. August (SBN 112851) Attorneys for Plaintiffs

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Dated: May 28, 2009

SIDLEY AUSTIN LLP

By: /s/ Robert M. Stone ______________ Robert M. Stone (SBN 205365) Attorneys for Defendant STUDENT LOAN XPRESS, INC. Dated: May 28, 2009 MCKENNA LONG & ALDRIDGE LLP

By: /s/ Ann G. Grimaldi_______________ Ann G. Grimaldi (SBN 160893) Attorneys for Defendant AMERICAN EDUCATION SERVICES

-4STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT AND CONTINUE CMC CASE NO. C08-02958 TEH
LA1 1580923v.2

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ORDER Based on the foregoing stipulation of counsel and good cause appearing therefore, it is HEREBY ORDERED that Student Loan Xpress, Inc. ("SLX") and American Education Services ("AES") shall have up to and including August 10, 2009 to answer, move, or otherwise respond to the Complaint. Additionally, the Case Management Conference is hereby continued for SLX and AES until August 17, 2009 at 1:30 p.m. PURSUANT TO STIPULATION OF COUNSEL, IT IS SO ORDERED.

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S DISTRICT TE C TA Thelton E. Henderson Hon.

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United States District Court

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