Vess v. Bank of America, N.A. et al

Filing 51

PRELIMINARY APPROVAL AND PROVISIONAL CERTIFICATION ORDER. Final Approval Hearing set for 9/6/13 at 1:30PM in Courtroom 3B before Judge Anthony J. Battaglia. Signed by Judge Anthony J. Battaglia on 4/29/13.(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BRYAN VESS, on behalf of himself
and all others similarly situated,
Plaintiff,

v.

BANK OF AMERICA, N.A.; and
DOES 1 through 50, inclusive,
Defendants.

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Civil No.10cv0920 AJB (WVG)
PRELIMINARY APPROVAL AND
PROVISIONAL CERTIFICATION
ORDER

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This Court considered plaintiff Bryan Vess' unopposed motion for preliminary

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approval of class settlement and provisional class certification under Rule 23 of the

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Federal Rules of Civil Procedure. This Court reviewed the motion, including the

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Settlement Agreement. Based on this review and the findings below, the Court found

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good cause to grant the motion.

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FINDINGS:

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1.

The Settlement Agreement was the product of serious, informed,

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non-collusive negotiations, has no obvious deficiencies, does not improperly grant

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preferential treatment to the proposed class representatives or segments of the class, and

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falls within the range of possible approval;

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2.

The Notice, attached to the Settlement Agreement, complies with due

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process because the notices and forms are reasonably calculated to adequately apprise

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class members of (i) the pending lawsuit, (ii) the proposed settlement, and (iii) their

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rights, including the right to either participate in the settlement, exclude themselves from

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the settlement, or object to the settlement;

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3.

The Class is so numerous that joinder of all Class embers is impracticable;

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4.

Plaintiff's claims are typical of the Class's claims;

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5.

There are questions of law and fact common to the Class, which predomi-

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nate over any questions affecting only individual Class Members; and
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Class Certification is superior to other available methods for the fair and

efficient adjudication of the controversy.
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Defendant Bank of America, N.A. gave notice pursuant to 28 U.S.C. §

1715(b) on April 26, 2013.

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IT IS ORDERED THAT:

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1.

Preliminary Settlement Approval. The Court preliminarily approves the

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Settlement Agreement, including the Notice attached to the Settlement Agreement as

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Exhibit B.

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2.

Provisional Certification. The Class is provisionally certified as:

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All current Bank of America customers in the United States that have HELOC Accounts

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that were suspended or reduced based on Bank of America's claim that the property

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securing the HELOC had significantly declined in value.

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Excluded from the Class are the Judges presiding over this case and any of their employ-

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ees or immediate family members.

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3.

Provision of Class Notice. No later than sixty (60) days after the Court

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enters this Order, Defendant will notify Class Members of the settlement via first class

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mail to the Class' last known mailing addresses. Defendant shall re-mail any returned

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mail after obtaining updated addresses via the United States Postal Service's national

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change of address registry. Defendant will pay for all costs associated with providing

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notice to the Class.

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4.

Objection to Settlement. Any Settlement Class Member who does not

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opt-out and who wishes to object to the Settlement must file a written Objection ("Objec-

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tion") with the Court, and mail and serve it upon Class Counsel and Counsel for Defen-

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dant. The Objection must be postmarked no later than forty-five (45) days after the Class

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Notice. To be considered valid, each Objection must be timely filed and served and must

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(i) set forth the Settlement Class Member's full name, current address, and telephone

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number; (ii) contain the signatures of all living borrowers on the account; (iii) state that

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the Settlement Class Member objects to the Settlement, in whole or in part; (iv) set forth

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the legal and factual bases for the objection; and (v) provide copies of all documents or

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writings that such Settlement Class Member desires the Court to consider in support of

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his/her position. All living borrowers to a loan must object for the objection to be valid.

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Any Settlement Class Member who wishes to object and appear at the final approval

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hearing in person instead of submitting only written objections must include in the

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written objection a notice of intention to appear at the final approval hearing. Class

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Counsel is to respond to any Objections and file any additional materials in support of

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final approval no later than seven (7) days before the final approval hearing.

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5.

Failure to Object to Settlement. Class Members who fail to object to the

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Settlement Agreement in the manner specified above will: (1) be deemed to have waived

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their right to object to the Settlement Agreement; (2) be foreclosed from objecting

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(whether by a subsequent objection, intervention, appeal, or any other process) to the

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Settlement Agreement; and (3) not be entitled to speak at the Fairness Hearing.

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6.

Exclusion Requests. All Class members who want to be excluded from the

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Settlement must send a letter to the address set forth in the Notice (which will be a

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secured P.O. Box address provided by Defendant), postmarked no later than forty-five

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(45) days after the Notice is mailed. The letter must include: (i) signatures of all loan

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debtors (including joint debtors and co-debtors) on the account; (ii) the full name,
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address, and Defendant's account number(s) of the person requesting exclusion; and (iii)

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a written statement that he or she does not want to participate in the Settlement. A

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request for exclusion that does not comply with all the foregoing requirements shall be

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invalid, and the person(s) serving such a request shall be bound by the Settlement

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Agreement, if finally approved. No Class member may purport to exercise any exclusion

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rights of any other person, or purport to exclude other Class members as a group,

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aggregate, or class involving more than one person, or as an agent or representative.

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Any such purported exclusion shall be invalid.
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Valid Exclusion Requests. Any Class member who successfully opts out

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of the Settlement shall be deemed to have waived any rights or benefits under the

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Settlement, and will have no standing to object to the Settlement.
8.

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Modifications to Settlement. The Court reserves the right to approve the

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Settlement with such modifications, if any, as may be agreed to by Class Counsel and

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Counsel for Bank of America and without future notice to the Settlement Class Mem-

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bers.

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9.

Appointment of Class Representative and Class Counsel. Plaintiff Bryan

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Vess is provisionally appointed as the Class Representative to implement the Parties'

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proposed Settlement in accordance with the Settlement Agreement. Plaintiff's Counsel,

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James R. Patterson and Alisa A. Martin of Patterson Law Group, APC and Steven L.

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Woodrow of Edelson LLC are appointed as Class Counsel. Plaintiff and Class Counsel

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must fairly and adequately protect the Class' interests.

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10.

Termination. If the Settlement Agreement terminates by its terms for any

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reason, including, but not limited to, if Court does not approve the Settlement or enter

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the Final Order and Judgment, or if the Final Settlement Date under the Settlement

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Agreement does not occur for any reason, the following will occur: (a) this Order will be

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vacated; (b) class certification will automatically be vacated. Plaintiff will stop function-

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ing as a class representative and Class Counsel will revert to interim class counsel; and

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(c) this Action will revert to its previous status in all respects as it existed immediately

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before the Parties executed the Settlement Agreement.

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No Admission. Nothing in this Order, the Settlement, or the Settlement

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Agreement, is or may be construed as, an admission or concession on any point of fact or

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law by or against any Party.

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12.

Stay of Dates and Deadlines. All discovery and pretrial proceedings and

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deadlines, are stayed and suspended until further notice from the Court, except for such

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actions as necessary to implement the Settlement Agreement and this Order.

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13.

CAFA Notice. Defendants have complied with 28 U.S.C. § 1715(b).

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Final Approval Hearing. A Final Approval Hearing shall be held before

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this Court on September 6, 2013 at 1:30 p.m. in Courtroom 3B to determine whether

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the Settlement Agreement should be finally approved as fair, reasonable, and adequate.

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All papers supporting Plaintiffs' request for attorneys' fees and costs must be filed no

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later than fourteen (14) calendar days before the deadline for Class Members to object to

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the settlement. All other papers supporting Final Approval of the Settlement Agreement

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must be filed no later than seven (7) calendar days before the Fairness Hearing. This

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Court may order the Fairness Hearing to be postponed, adjourned, or continued. If that

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occurs, Defendant will not be required to provide additional notice to class members.

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IT IS SO ORDERED.

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DATED: April 29, 2013
Hon. Anthony J. Battaglia
U.S. District Judge

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