Plascencia et al v. Lending 1st Mortgage et al

Filing 447

ORDER by Judge Claudia Wilken JOINT 436 MOTION FOR FINAL APPROVAL OF PARTIAL CLASS ACTION SETTLEMENT AND FINAL JUDGMENT. (ndr, COURT STAFF) (Filed on 5/13/2013)

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BERNS WEISS LLP
Jeffrey K. Berns (SBN 131351)
[e-mail]
20700 Ventura Boulevard, Suite 140
Woodland Hills, CA 91364
Tel.: [phone]
Fax: [phone]

WILLIAMS CUKER BEREZOFSKY
Mark R. Cuker (admitted pro hac vice)
[e-mail]
1515 Market Street, Suite 1300
Philadelphia, PA 19102
Tel.: [phone]
Fax: [phone]

SMOGER & ASSOCIATES
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]

ARBOGAST BOWEN LLP
David M. Arbogast (SBN 167571)
[e-mail]
Chumahan B. Bowen (SBN 238168)
[e-mail]
11400 W. Olympic Blvd., 2nd Floor
Los Angeles, CA 90064
Tel.: [phone]
Fax: [phone]

[Additional counsel listed on signature page]
Attorneys for Plaintiffs and the Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION

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ARMANDO PLASCENCIA and MELANIA
PLASCENCIA, individually and on behalf of
all others similarly situated,
Plaintiffs,

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v.

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LENDING 1ST MORTGAGE, LENDING 1ST
MORTGAGE LLC, EMC MORTGAGE
CORPORATION, and DOES 1 through 10
inclusive,

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Case No. 4:07-cv-04485-CW
CLASS ACTION
ORDER GRANTING JOINT MOTION FOR
FINAL APPROVAL OF PARTIAL CLASS
ACTION SETTLEMENT AND FINAL
JUDGMENT
May 2, 2013
2:00 p.m.
Courtroom 2-4th Floor
Hon. Claudia Wilken

Complaint Filed:
Trial Date:

Defendants.

Date:
Time:
Location:
Judge:

August 29, 2007
Vacated

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Order Granting Joint Motion for Final Approval of Partial Class Action Settlement and Final Judgment
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ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF PARTIAL CLASS

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ACTION SETTLEMENT
The Court has considered the Joint Motion for Final Approval of Partial Class Action
Settlement (the “Motion”) filed by Class Representatives Armando Plascencia and Melania Plascencia
(the “Class Representatives”), on behalf of themselves and all others similarly situated, and
Defendants Lending 1st Mortgage and Lending 1st Mortgage LLC (collectively “Lending 1st”) (the
Class Representatives and Lending 1st collectively as the “Parties”). In connection with the Motion,
the Court finds that:
A.

The Court entered its Order Granting Joint Motion for Preliminary Approval of Partial

Class Action Settlement on December 28, 2012 (Doc. 429) (the “Preliminary Approval Order”),
granting preliminary approval of the Agreement and Stipulation of Partial Settlement of Class Action
between the Class Representatives and Lending 1st dated September 7, 2012, (the “Settlement
Agreement”) and approving the form and manner of notice of the Settlement Agreement and the
deadline for filing objections for all Class members.
B.

Due notice has been given to the Class of the terms of the proposed Settlement

Agreement, the time, date and location of the final hearing to consider approval of the Settlement
Agreement (the “Final Approval Hearing”), the right to object to the proposed Settlement Agreement
and the right to appear in person or by counsel at the Final Approval Hearing; and no other and further
notice is required, and such notice is deemed proper and sufficient under the circumstances.
C.

The court held a hearing on May 2, 2013 at 2:00 p.m., to consider final approval of the

Settlement Agreement, as well as all timely and valid objections received from Class members.
D.

The terms of the Settlement Agreement are fair, reasonable, and adequate under Federal

Rule of Civil Procedure 23.
E.

The Settlement Agreement was negotiated at arm’s length and in good faith, and it is

fair, equitable and in the best interests of the Class members and Lending 1st.
F.

Other good and sufficient cause exists for granting the relief requested in the Motion.

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ACCORDINGLY, IT IS HEREBY ORDERED THAT:
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This order (“Final Approval Order”) incorporates and makes a part hereof:
(a).
(b).

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the Settlement Agreement filed with this Court on September 10, 2012;
the Notice of Proposed Settlement and Final Approval Hearing (“Settlement

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Notice”), approved by the Court on December 28, 2012; and

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(c).
2.

the Preliminary Approval Order.

The Court has jurisdiction over the subject matter of the Class Claim, the Class Action,

the Settlement Agreement, the Class Representatives, and Lending 1st. The Court also has jurisdiction
over the Class members because adequate notice has been provided and all Class members have been
given notice and the opportunity to object to the Settlement Agreement.
3.

Based on the evidence submitted pursuant to the terms of the Settlement Agreement

and the Preliminary Approval Order, the Court finds that the distribution of the Settlement Notice fully
complied with the applicable provisions of the Settlement Agreement, Rule 23 of the Federal Rules of
Civil Procedure and due process, and constituted the best notice practicable under the circumstances,
and provided due and sufficient notice to all persons entitled to notice of the Settlement Agreement of
the Class Action and Class Claim as against Lending 1st. The Court finds further that Lending 1st has
satisfied the requirements of notice to pertinent government agencies as set forth in the Class Actions
Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715.
4.

The Court finds that, pursuant to Rule 23 of the Federal Rules of Civil Procedure, the

Settlement Agreement is approved as presented and without modification (except insofar as the Parties
have agreed to such modification), and the terms of the Settlement as set forth in the Settlement
Agreement are approved as fair, reasonable, adequate and in the best interests of the Class members,
and the Parties are authorized to implement its terms.
5.

Each Class member who had not effectively excluded himself or herself previously

from the Class shall be bound by the Settlement Agreement, including the releases set forth therein.
Effective upon the Final Order Date, Class members will be deemed to have released their claims (the
"Released Claims") as follows:

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(a).

For good and valuable consideration, the receipt and sufficiency of which are

hereby acknowledged, the Class Representatives and Class members, their respective coborrowers, spouses, or former spouses, who may have or have had an interest in the loan that is
the subject of this Settlement Agreement, and the present, former and future respective heirs,
executors, administrators, representatives, agents, attorneys, partners, successors, predecessorsin-interest, assigns, employees, and insurers of the Class Representatives and the Class
members (collectively, the "Releasing Parties"), hereby remise, release, and forever discharge
Lending 1st, and each of its present, former, and future direct and indirect parent companies,
including but not limited to its shareholders, directors, officers, insurers, affiliates, subsidiaries,
divisions, officers, employees, agents, attorneys, directors, shareholders, assignors, and
predecessors-in-interest (but excluding any assignees or purchasers of loans to Class members)
(collectively the "Released Parties") from any and all duties, obligations, claims,
counterclaims, judgments, demands, lawsuits, actions, causes of action or liabilities, relating to
the failure to disclose that the subject loans guaranteed negative amortization. This release
shall apply whether arising under local, state, or federal law, whether by statute, contract,
common law, or equity. The foregoing Release shall also apply to any and all claims of the
Releasing Parties that would be barred by the doctrines of res judicata and collateral estoppel
had the issues in this case been litigated by each Class member to a final judgment on the
merits, and to any and all past, present, and future claims, administrative or otherwise, actions,
causes of action, rights, or liabilities, known or unknown, based on or arising from the
allegations that are contained in the Complaint, or that could have been asserted in the
Complaint, against any of the Released Parties, provided, however, that nothing in this
Settlement Agreement shall limit or curtail any Class member’s rights with respect to any
claims that he or she may have against any assignee or purchaser of Class member’s loans that
is not a Released Party.
(b).

Without limiting the foregoing, the Released Claims specifically extend to and

include any claims relating to the origination of the loans that the Class Representatives, Class

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members, and the Releasing Parties do not know, or suspect to exist in their favor at the time
that the Settlement Agreement is executed, or at the time that the Settlement Agreement and
the Releases contained therein become effective (i.e., the Final Order Date), which, if known,
might have affected their decision to enter into the Settlement Agreement. The Class
Representatives, Class members, and the Releasing Parties intentionally and knowingly waive
any and all provisions, rights, and benefits conferred by any law of the United States, any state
or territory of the United States, or any law or principle of common law or equity that governs
or limits a person’s release of unknown claims. The Class Representatives, Class members,
and the Releasing Parties understand and acknowledge that they may discover facts in addition
to or different from those that are currently known or believed to be true with respect to the
subject matter of the Released Claims but that it is their intention to fully, finally, and forever
settle and release all of the Released Claims, known and unknown, suspected or unsuspected,
without regard to the subsequent discovery or current existence of any such additional or
different facts, and in furtherance of such intention, the release of these Released Claims shall
remain in effect notwithstanding the discovery or existence of any such additional or different
facts. The provisions of this paragraph include, without limitation, an express, knowing, and
voluntary waiver, to the fullest extent permitted by law, by the Class Representatives and all
Class members and Releasing Parties, of any and all rights or benefits conferred under Section
1542 of the California Civil Code, which provides that:
A general release does not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the release, which if known by him
or her must have materially affected his or her settlement with the debtor.
The Class Representatives, Class members, and the Releasing Parties understand and
acknowledge the significance of this waiver of Section 1542 of the California Civil Code. In
addition, the Class Representatives and all Class members and Releasing Parties also
expressly, knowingly, and voluntarily waive any and all provisions, rights, and benefits
conferred by any law of the United States, any state or territory of the United States, and any

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law or principle of common law or equity, which is similar, comparable, or equivalent to
Section 1542 of the California Civil Code.

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(c).

than the Released Parties is receiving any release or waiver of liability under this Settlement
Agreement.

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Notwithstanding any of the provisions herein, no person, party or entity other

(d).

Further, it is understood and agreed by the Parties that the Class

Representatives, on behalf of themselves and the Class they represent, allege and seek damages
that exceed the amount of the Settlement Fund. Further, the Class Representatives and the
Class contend that the Settlement Fund is substantially less than the amount sought for the
alleged injuries that they claim to have suffered as a result of the alleged conduct at issue in the
Complaint. However, in order to resolve the disputes between the Class Representatives and
Class members on the one hand, and Lending 1st on the other hand, and in view of Lending
1st’s financial condition and potentially uninsured status, the Class Representatives and Class
members have agreed to release the Released Parties (and the Released Parties alone) from the
Released Claims in exchange for compensation for the purported injuries allegedly caused by
Lending 1st.
6.

No fees or costs shall be owing to or payable to the Class Representatives in connection

with the Class Action except as provided in the Settlement Agreement.
7.

The application for an award of an incentive payment to the Class Representatives for

their role in bringing and participating in this litigation, in the amount of $3,000.00 each is granted.
The previously appointed Settlement Administrator, Epiq Class Action and Claims Solutions, Inc., is
authorized to make payment of $3,000.00 to each of the Class Representatives from the Settlement
Fund in accordance with the terms of the Settlement Agreement.
8.

The Settlement Administrator, on behalf of Lending 1st, shall pay all Class members a

pro rata distribution of the Settlement Fund, after deducting from the Settlement Fund: (1) the payment
to the Settlement Administrator of up to Thirty Thousand Dollars and No Cents ($30,000.00); and (2)
a payment of Three Thousand Dollars and No Cents ($3,000.00) to each of the Class Representatives.

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9.

Once the Settlement Administrator makes payments to the Class members under the

terms of the Settlement Agreement, if any Class member, for whatever reason, does not receive his or
her payment check, said Class member is nonetheless considered to have been paid by Lending 1st,
and Lending 1st shall have no further obligation to the Class member, and said check shall not be
considered to be abandoned property subject to escheatment, but shall be deemed part of the remainder
subject to the terms of the Settlement Agreement, and the Settlement Agreement shall in all respects
be fully enforceable against the Class member.
10.

Any check to a Class member that is returned to the Settlement Administrator with a

forwarding address will be re-sent to the address provided and the Settlement Administrator's database
will be updated with the current address information. If any check to a Class member is uncashed
sixty (60) days after the date of the instrument, the Settlement Administrator shall send a reminder
letter to that Class member. The total amount of all checks that are returned as undeliverable, with no
forwarding address, or still uncashed ninety (90) days after the date of the issuance of the instrument
shall become part of a cy pres fund to be distributed to The National Consumer Law Center.
11.

Nothing in this Order, nor the Settlement Agreement, nor any of its terms or provisions,

nor any of the negotiations between the Parties or their counsel, nor any actions taken to carry out this
Order, is or may be construed as, or may be used as an admission or concession by or against any of
the Parties or the Released Parties of any wrongdoing, the validity of any claim or liability, any alleged
violation or failure to comply with any law, any alleged breach of contract, or any legal or factual
argument, contention or assertion, and the Parties deny any wrongdoing or liability on their part. The
execution and implementation of the Settlement Agreement and its terms shall not in any event be
construed as, or deemed evidence of, an admission or concession as to Lending 1st’s denials, defenses,
or factual or legal positions, nor shall the Settlement Agreement be offered or received in evidence in
any action or proceeding against any party in any court, administrative agency or other tribunal for any
purposes whatsoever, except as necessary in a proceeding to enforce the terms of this Order and the
Settlement Agreement; provided, however, that this Order and the Settlement Agreement may be filed
by Lending 1st or the Released Parties to support a defense of res judicata, collateral estoppel, release,

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waiver, good faith settlement, judgment bar, or reduction, full faith and credit, or any other theory of
claim preclusion, issue preclusion or similar defense or counterclaim.

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12.

and all Class members are permanently enjoined and barred from commencing or prosecuting any
action against the Released Parties asserting any of the Released Claims, either directly,
representatively, derivatively, or in any other capacity, whether by a complaint, counterclaim, defense,
or otherwise, in any local, state or federal court, or in any agency or other authority or forum wherever
located. Any person or entity that knowingly violates such injunctions shall pay the costs and
attorneys’ fees incurred by Lending 1st or other Released Parties as a result of the violation. Nothing
in this Final Approval Order, however, shall preclude any action to enforce the terms of the Settlement
Agreement.

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13.

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The Settlement embodied in the Settlement Agreement is in “good faith” within the

meaning of California Code of Civil Procedure Sections 877 and 877.6. All present and prospective
claims with respect to Lending 1st for indemnification and contribution, however denominated,
relating to the events that are the subject of this litigation, are extinguished and barred to the fullest
extent permitted by law.

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Lending 1st is dismissed from this Action with prejudice. The Class Representatives

14.

The Court shall retain continuing jurisdiction over the Parties to the Settlement

Agreement and all Class members to determine all matters relating in any way to this Final Approval
Order, the Preliminary Approval Order or the Settlement Agreement, including, without limitation, to
their administration, implementation, interpretation, or enforcement.

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IT IS SO ORDERED.
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Dated:
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5/13/2013

HON. CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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