Plascencia et al v. Lending 1st Mortgage et al

Filing 449

ORDER by Judge Claudia Wilken RE 448 JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND GRANTING STIPULATION TO VACATE DEADLINES AND DENYING PENDING ( 356 , 357 , 358 , 364 , AND 368 ) MOTIONS WITHOUT PREJUDICE AS MOOT. (ndr, COURT STAFF) (Filed on 5/30/2013)

1 BERNS WEISS LLP
Jeffrey K. Berns (SBN 131351)
2 [e-mail]
20700 Ventura Boulevard, Suite 140
3 Woodland Hills, CA 91364
Tel.: [phone]
4 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]

5 - and 6 Lee A. Weiss (admitted pro hac vice)
[e-mail]
7 585 Stewart Avenue, Suite L-20
Garden City, New York 11530
8 Tel.: [phone]
Fax: [phone]
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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]

[Additional counsel listed on signature page]
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Attorneys for Plaintiffs and the Class
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION

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

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v.

Case No. 4:07-cv-04485-CW
CLASS ACTION
JOINT NOTICE OF PROPOSED CLASS
ACTION SETTLEMENT AND
STIPULATION TO VACATE DEADLINES
AND STAY ALL PENDING MOTIONS

19 LENDING 1ST MORTGAGE, LENDING 1ST
MORTGAGE LLC, EMC MORTGAGE
Judge:
CORPORATION, and DOES 1 through 10
Courtroom:
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inclusive,
Complaint Filed:
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Trial Date:
Defendants.
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Hon. Claudia Wilken
2, 4th Floor
August 29, 2007
Vacated

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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

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Pursuant to Federal Rule of Civil Procedure 6(b) and Local Rule 6-1(b), plaintiffs

2 Armando Plascencia and Melania Plascencia (“Plaintiffs”), and defendant EMC Mortgage
3 Corporation (“EMC”) (together, with Plaintiffs, the “Parties”), through their undersigned counsel,
4 stipulate as follows:
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WHEREAS, on August 21, 2009, the Court entered an Order granting in part and denying

6 in part Plaintiffs’ class certification motion (Dkt. No. 178), certifying a Class to pursue claims for
7 violations of Cal. Bus. & Prof. Code §§ 17200, et seq. and common law fraud.
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WHEREAS, on October 16, 2009, the Court appointed Plaintiffs Armando Plascencia and

9 Melania Plascencia as the Class Representatives, the law firms of Smoger & Associates, Arbogast
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10 & Berns LLP , Seeger Weiss LLP, and Williams Cuker Berezofsky as Class Counsel, and certified

11 the following Class:
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All individuals who, between August 29, 2003 and May 12, 2011, have or have had a
Monthly Option ARM loan that: (a) was originated by LENDING 1st MORTGAGE and
then sold or owned by LENDING 1st MORTGAGE OR EMC MORTGAGE
CORPORATION; (b) was secured by real property in the United States; and (c) was
originated or otherwise approved by Defendant LENDING 1st MORTGAGE within the
State of California.

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On November 29, 2010, the Court appointed J. Mark Moore of Spiro Moss LLP(now known as
Spiro Moore LLP) as an additional class counsel. (Dkt. No. 246.)
WHEREAS, on February 24, 2012, the Court entered an order (Dkt. No. 328) granting the
parties’ joint motion for administrative relief from the case management order (Dkt. No. 327)
setting the final pretrial conference for October 24, 2012 at 2:00 p.m. and setting the trial date for
November 5, 2012 at 8:30 a.m.
WHEREAS, on July 2, 2012, Plaintiffs filed their Motion for Partial Summary Judgment,
or, in the Alternative, Summary Adjudication (Dkt. Nos. 349, 368);

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On November 1, 2011, Notices of Firm and Address Change and of Change of Firm Name were
27 filed documenting the change of class counsel from “Arbogast & Berns LLP” to “Arbogast Bowen
28 LLP” and “Berns Weiss LLP.” (Dkt. Nos. 282, 283, and 284.)
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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

WHEREAS, on July 13, 2012, EMC filed its Motion to Decertify the Class and Motion for

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2 Summary Judgment (Dkt. No. 356), Motion to Exclude the Testimony of Leonard Lyons (Dkt.
3 No. 357), Motion to Exclude the Testimony of Jonathan Macey (Dkt. No. 358);
WHEREAS, on July 19, 2012, Plaintiffs filed their Motion to Exclude Testimony of Carol

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5 Young (Dkt. No. 364);
WHEREAS, on August 23, 2012, the Court took the Parties motions for partial summary

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7 judgment and motions to exclude the testimony of certain witnesses under submission (Dkt. No.
8 395);
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WHEREAS, on September 19, 2012, upon the Parties’ stipulation, the Court vacated the

10 October 24, 2012 final pretrial conference, the November 5, 2012 trial, and the deadlines
11 enumerated in the Court's Order for Pretrial Preparation, and ordered that within seven (7) days of
12 the Court's ruling on the parties' cross motions for summary judgment and motions to exclude, the
13 parties were to submit a joint proposed schedule for the final pretrial conference and trial date, or
14 if an agreement cannot be reached, separate proposed schedules (Dkt. Nos. 405, 406)
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WHEREAS, the Parties participated in mediation in Philadelphia, Pennsylvania before the

16 Hon. Diane M. Welsh (Ret.) of JAMS on May 22, 2013, and continued having settlement
17 discussions thereafter with Judge Welsh’s assistance (See Declaration of Lee A. Weiss, filed
18 concurrently with this Stipulation, ¶6.);
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WHEREAS, on May 28, 2013, the Parties agreed to a proposed class action settlement, but

20 require additional time to prepare and execute a formal settlement agreement, and to prepare and
21 file a motion for preliminary approval (See Declaration of Lee A. Weiss, filed concurrently with
22 this Stipulation, ¶7.);
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WHEREAS, no Party will be prejudiced by the relief requested in this Notice of Settlement

24 and Stipulation; and
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WHEREAS, this Notice of Settlement and Stipulation is without prejudice to, or waiver of,

26 any rights or defenses otherwise available to the Parties in this action;
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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, between Plaintiffs,

2 by their undersigned counsel, and Defendant, by their undersigned counsel, that, subject to the
3 approval of this Court:
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(1)

All pending motions currently under submission shall be taken off calendar

5 pending the Court’s consideration of the Parties’ proposed class action settlement;
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(2)

a motion for preliminary approval of the parties’ settlement shall be filed on or

7 before July 8, 2013; and
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(3)

the proceedings in this action, except as they relate to consideration of the Parties’

9 proposed settlement, shall be stayed in their entirety.
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Respectfully submitted,
Dated: May 29, 2013

/s/ Lee A. Weiss
Lee A. Weiss (admitted pro hac vice)
[e-mail]
BERNS WEISS LLP
585 Stewart Avenue, Suite L-20
Garden City, New York 11530
Tel.: [phone]
Fax: [phone]
- and -

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Jeffrey K. Berns (SBN 131351)
[e-mail]
BERNS WEISS LLP
20700 Ventura Blvd., Suite 140
Woodland Hills, CA 91364
Tel.: [phone]
Fax: [phone]
J. Mark Moore (SBN 180473)
[e-mail]
SPIRO MOORE LLP
11377 W. Olympic Blvd., 5th Floor
Los Angeles, CA 90064
Tel.: [phone]
Fax: [phone]
Mark R. Cuker (admitted pro hac vice)
[e-mail]
WILLIAMS CUKER BEREZOFSKY
1515 Market Street, Suite 1300
Philadelphia, PA 19102
Tel.: [phone]
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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

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Fax: [phone]

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

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

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Christopher A. Seeger (admitted pro hac vice)
[e-mail]
SEEGER WEISS LLP
77 Water Street, 26th Floor
New York, NY 10005
Tel.: [phone]

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- and 15

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Jonathan Shub (SBN 237708)
[e-mail]
SEEGER WEISS LLP
1818 Market Street, 13th Floor
Philadelphia, PA 19103
Tel.: [phone]

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Attorneys for Plaintiffs and the Class

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Dated: May 29, 2013

/s/ Stephen R. Meinertzhagen
Stephen R. Meinertzhagen (Admitted Pro Hac Vice)
[e-mail]
LeAnn Pedersen Pope (Admitted Pro Hac Vice)
[e-mail]
Susan Miller Overbey (Admitted Pro Hac Vice)
[e-mail]
BURKE, WARREN, MACKAY &
SERRITELLA, P.C.
330 North Wabash, 22nd Floor
Chicago, Illinois 60611
Tel.: [phone]
Fax: [phone]
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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

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Gail E. Lees (SBN 90363)
[e-mail]
Theodore J. Boutrous, Jr. (SBN 132099)
[e-mail]
Christopher Chorba (SBN 216692)
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
Tel.: [phone]
Fax: [phone]

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Attorneys for Defendants:
EMC MORTGAGE LLC, formerly known as EMC
MORTGAGE CORPORATION

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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

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ECF CERTIFICATION
Pursuant to Local Rule 5-1(i)(3), the filing attorney attests that he has obtained
concurrence regarding the filing of this document from the signatories to the document.

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5 Dated: May 29, 2013
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/s/
Lee A. Weiss
Lee A. Weiss (admitted pro hac vice)
[e-mail]
BERNS WEISS LLP
585 Stewart Avenue, Suite L-20
Garden City, New York 11530
Tel.: [phone]
Fax: [phone]

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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW

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ORDER
Pursuant to the Stipulation of counsel and for good cause shown, IT IS HEREBY

3 ORDERED that:
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(1) all pending motions currently under submission are denied without prejudice as moot

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pending the Court’s consideration of the Parties’ proposed class action settlement;

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(2) a motion for preliminary approval of the parties’ settlement is to be filed on or before

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July 8, 2013; and
(3) the proceedings in this action, except as they relate to consideration of the Parties’
proposed settlement, are stayed in their entirety.
IT IS SO ORDERED.

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May 30
Dated: ______________, 2013

______________________________________
HON. CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE
DEADLINES AND STAY ALL PENDING MOTIONS
Case No. 4:07-cv-04485-CW