Genesee, County of et al v. Federal Housing Finance Agency et al

Filing 14

STIPULATED ORDER (1) Certifying Class Action, (2) Permitting Intervention, and (3) Setting Briefing Schedule. Signed by District Judge Victoria A. Roberts. (CPin)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GENESEE COUNTY, a municipal
corporation, and DEBORAH CHERRY,
in her capacity as Genesee County Treasurer,
on behalf of themselves and
all others similarly situated,
Plaintiffs,
v.
FEDERAL HOUSING FINANCE AGENCY,
AS CONSERVATOR FOR FEDERAL
NATIONAL MORTGAGE ASSOCIATION
AND FEDERAL HOME LOAN MORTGAGE
CORPORATION; FEDERAL NATIONAL
MORTGAGE ASSOCIATION, a federally
Chartered corporation; and FEDERAL
HOME LOAN MORTGAGE
CORPORATION, a federally chartered
corporation,

Case No. 2:11-cv-14971-VAR-LJM
Hon. Victoria A. Roberts
Magistrate Judge Laurie J. Michelson
ORDER CERTIFYING CLASS ACTION
AND OTHER MATTERS

Defendants.
WILLIAM H. HORTON (P31567)
Attorney for Plaintiffs
GIARMARCO, MULLINS & HORTON, P.C.
101 West Big Beaver Road, Tenth Floor
Troy, Michigan 48084-5280
[phone]
[e-mail]
KENNETH J. ROBINSON (P19525)
Co-Counsel for Plaintiffs
39577 Woodward Avenue, Suite 300
Bloomfield Hills, Michigan 48304
[phone]
[e-mail]
PETER E. GOODSTEIN (P14180)
Co-Counsel for Deborah Cherry
452 S. Saginaw St., Suite 302
Flint, Michigan 48502

ANN MARIE UETZ (P48922)
Attorney for Federal National Mortgage
Association
FOLEY & LARDNER LLP
500 Woodward Ave., Suite 2700
Detroit, Michigan 48226
[phone]
[e-mail]
BARBARA L. McQUADE
United States Attorney
By: JULIA A. CAROFF (Penna Bar No. 37949)
Assistant U.S. Attorney for Proposed Intervenor
Federal Housing Finance Agency
211 W. Fort Street, Suite 2001
Detroit, Michigan 48226
[phone]
[e-mail]

[phone]
[e-mail]
CLYDE M. METZGER (P31040)
THOMAS J. FOLEY (P31111)
Attorneys for Federal Home Loan Mortgage
Corporation
FOLEY, BARON & METZGER, PLLC
38777 Six Mile Road, Suite 300
Livonia, Michigan 48152
[phone]
[e-mail]
[e-mail]

MICHAEL J. CIATTI
Co-Counsel for Federal Home Loan
Mortgage Corporation
KING & SPALDING LLP
1700 Pennsylvania Avenue NW
Suite 200
Washington, D.C. 20006
[phone]
[e-mail]
MICHAEL A. F. JOHNSON
Attorney for Intervenor Federal Housing Finance
Agency
ARNOLD & PORTER LLP
555 12th Street NW
Washington, DC 20004
[phone]
[e-mail]

ORDER (1) CERTIFYING CLASS ACTION, (2) PERMITTING
INTERVENTION, AND (3)
SETTING BRIEFING SCHEDULE
At a session of Court, held in Detroit, Michigan on:

PRESENT:

HON. VICTORIA A. ROBERTS
U.S. District Court Judge

The parties stipulate and the Court finds that:
A.

The proposed class consists of (1) all counties in Michigan that have recorded

a real estate conveyance from the Federal National Mortgage Association (“Fannie Mae”) or
the Federal Home Loan Mortgage Corporation (“Freddie Mac,” and together with Fannie

Mae, the “Enterprise Defendants”) where the Enterprise Defendants have claimed they are
exempt from the Michigan Transfer Tax, MCL §§ 207.501 et seq., 207.521 et seq.; and (2)
the treasurers for each such county in their official capacity.

There are 83 counties in

Michigan. On information and belief, Fannie Mae and Freddie Mac have recorded such
conveyances in each county. As a result, the proposed class is so numerous that joinder of
all members is impracticable.
B.

The question of law common to the class is whether the Enterprise Defendants

and the Federal Housing Finance Agency in its capacity as Conservator of Fannie Mae and
Freddie Mac (the “Conservator,” and together with the Enterprise Defendants, the
“Defendants”) are exempt from the Michigan Transfer Tax. This common question of law
predominates over the individual issues, if any, in this case.

The claim of the class

representatives is typical of the claim of absent class members.
C.

A class action is a superior method to efficiently and fairly adjudicate this

controversy.
THEREFORE, IT IS ORDERED that:
1. Pursuant to FRCP 23(b)(2) and (3), the Court certifies the following class:
Any Michigan county and county treasurer that has recorded a
deed or other conveyance from Defendants Fannie Mae or
Freddie Mac from November 10, 2005 to the present where
those Defendants have claimed they are exempt from the
Michigan Transfer Tax.
2. Plaintiffs Genesee County and Deborah Cherry, in her capacity as Genesee
County Treasurer are appointed class representatives.

Attorneys William H. Horton and

Kenneth J. Robinson, and the law firm of Giarmarco, Mullins & Horton, P.C. are appointed
class counsel.

3. Plaintiffs shall send a copy of the Notice of Class Action, attached, by first class
mail to the Clerk and Treasurer for each county in Michigan and may also email them. The
Notice shall provide that the final date for opting out is January 31, 2012.
4. Oakland County and its Treasurer, Andrew E. Meisner, have chosen to opt out
of the class and will continue to proceed with their claim through their separate action, Case
No.: 2:11-cv-12666-VAR-LJM (the “Oakland County Action”).
5. Defendants do not waive any counterclaims they may have against class
members. Such counterclaims, if any, are deemed not to be compulsory counterclaims under
Fed. R. Civ. P. 13(a).
6. The intervening Plaintiffs in the Oakland County Action, the Michigan
Department of Attorney General and Michigan Department of Treasury (collectively, the
“State Plaintiffs”), shall be permitted to intervene in this case.
7. The dispositive motions and associated briefs pending in the Oakland County
Action will also serve as the dispositive motions and briefs in this case upon consolidation.
8. With respect to Plaintiffs Genesee County and Deborah Cherry’s Motion for
Summary Judgment, Defendants will file appropriate papers incorporating their opposition to
Plaintiffs’ Motion for Summary Judgment and cross-motion for summary judgment in the
Oakland County Action within five business days after entry of this Order. The parties waive
any further response or reply briefs with respect to Plaintiffs’ Motion for Summary Judgment or
Defendants’ cross-motion.
9. With respect to the State Plaintiffs, the State Plaintiffs will file appropriate
papers incorporating their Motion for Summary Judgment in the Oakland County Action
within five business days after entry of this Order. Defendants will file appropriate papers

incorporating their opposition to the State Plaintiffs’ Motion for Summary Judgment and
cross-motion for summary judgment in the Oakland County Action within five business days
after the State Plaintiffs’ filing. The parties waive any further response or reply briefs with
respect to the State Plaintiffs’ Motion for Summary Judgment or Defendants’ cross-motion.

S/Victoria A. Roberts
HON. VICTORIA A. ROBERTS
U.S. District Court Judge
Dated: December 30, 2011

I STIPULATE TO ENTRY OF THE ABOVE ORDER:
/s/ William H. Horton
WILLIAM H. HORTON (P31567)
Attorney for Plaintiffs
/s/ with consent of Ann Marie Uetz
ANN MARIE UETZ (P48922)
Attorney for Defendant Federal National
Mortgage Association
/s/ with consent of Clyde M. Metzger
CLYDE M. METZGER (P31040)
Attorney for Defendant Federal Home Loan
Mortgage Corporation
/s/ with consent of Michael A. Johnson
MICHAEL A. JOHNSON
Attorney for Federal Housing Finance Agency
/s/ with consent of D. J. Pascoe
D.J. PASCOE (P54041)
Attorney for Intervening State Plaintiffs

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 2:11-cv-14971-VAR-LJM
Hon. Victoria A. Roberts

NOTICE OF PENDENCY OF CLASS ACTION

GENESEE COUNTY, et al
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION (Fannie Mae) and
FEDERAL HOME LOAN MORTGAGE
CORPORATION (Freddie Mac), et al.

To: Any Michigan county and any county Treasurer that has recorded a deed or other
conveyance from Defendants Federal National Mortgage Association (“Fannie Mae”) or
Federal Home Loan Mortgage Corporation (“Freddie Mac”).
On December 29, 2011, the United States District Court for the Eastern District of Michigan
certified this case to proceed as a class action on behalf of any Michigan county and its
Treasurer where that county has recorded a deed or other conveyance from either Defendant
Fannie Mae or Freddie Mac from November 10, 2005 to the present, and where either
Fannie Mae or Freddie Mac has asserted that it is exempt from the Michigan Transfer Tax,
MCL §§ 207.501 et seq., 207.521 et seq.
THIS NOTICE IS PROVIDED TO INFORM YOU OF THE PENDENCY OF THE LAWSUIT, THE
COURT’S DECISION TO HAVE THE LAWSUIT PROCEED AS A CLASS ACTION AND YOUR
RIGHT TO ELECT TO OPT-OUT. PLEASE READ THIS NOTICE CAREFULLY. DO NOT CALL
THE COURT. DO NOT CALL GENESEE COUNTY OR DEBORAH CHERRY. DO NOT CALL
DEFENDANTS’ COUNSEL.

BASIC INFORMATION
1. What is this lawsuit about?
This lawsuit claims that Fannie Mae and Freddie Mac were and are required to pay
the Michigan Transfer Tax when they convey real estate in Michigan. The Transfer Tax
consists of a tax due the county in which the property is located and a tax to be
collected by the county Treasurer to be paid to the State of Michigan. Fannie Mae,
Freddie Mac, and the Federal Housing Finance Agency in its capacity as Conservator
of Fannie Mae and Freddie Mac each contend that it is exempt from paying the
Transfer Tax. The lawsuit seeks to recover the Transfer Tax from Fannie Mae and
Freddie Mac for prior transfers involving each Defendant and to declare that each
must pay the Transfer Tax in the future.
2. How do I know if I am a member of the class?
You are a member of the class if you are:
Any Michigan county Treasurer or county that has recorded a
deed or other conveyance from Fannie Mae or Freddie Mac
from November 10, 2005 to the present where either Defendant
has claimed that it is exempt from the Michigan Transfer Tax.
3. Do I have or need a lawyer in this case?
The Court has named lawyers William H. Horton and Kenneth J. Robinson, and the
law firm of Giarmarco, Mullins & Horton, P.C. as Class Counsel. Class Counsel is
obligated to protect and pursue the interests of all class members. There is no cost to
you to be represented by Class Counsel. If you want to be represented by your own
lawyer, you may hire one at your own expense. If you choose to hire your own lawyer,
he or she must file an appearance by January 31, 2012.
4. What if I do not want to be part of this lawsuit?
If you do not want to participate as a member of the Plaintiff class in this lawsuit, but
you want to keep your right to sue any of the Defendants on your own over the claims
in this case, you must exclude yourself and thus “opt-out.” To opt-out, you must write
a letter or send an email as directed below stating that you wish to be excluded from
Genesee County v. Federal Housing Finance Agency, et al, Case No. 2:11-cv-14971VAR-LJM. In any such letter or email, be sure to include the name of your county and
the county’s address and telephone number. It must be signed by an authorized
county representative and, if separately necessary, an authorized representative of the
county treasurer. The request to be excluded must be mailed by first-class mail or the

equivalent to Transfer Tax Litigation C/O Giarmarco, Mullins & Horton, P.C., 101
West Big Beaver Road, 10th Floor Columbia Center, Troy, Michigan 48084-5280 or
by email at [e-mail]. If you want to opt-out, your request to be
excluded must be post-marked or emailed by January 31, 2012.
If you opt-out of this lawsuit, you will NOT receive any portion of any recovery that
may be awarded to the Plaintiff class. However, you will have the right to sue the
Defendants over the claims raised in this case, either on your own or as part of a
different lawsuit. If you exclude yourself and decide to file your own lawsuit, any
amount that you might recover in that separate suit will be limited to the amount of
Transfer Tax due to you within six years of when you file your own lawsuit (not
November 10, 2005 – six years prior to the date of the filing of this class action).
5. What happens if I do not exclude myself?
If you remain a class member, you will be bound by the Court's rulings in the lawsuit,
including any final judgment or settlement. However, you will be able to object to or
comment on any proposed settlement, if any, and you also will have the right to
appear in Court. In the event that there is a judgment in favor of the Plaintiff class,
Class Counsel will be entitled to seek reasonable attorneys' fees and reimbursement of
expenses from the amount recovered. The Court will determine the amount of such
attorneys' fees and costs.
6. How can I obtain more information?
There is a website that contains more information about this case
–
www.transfertaxlit.com. You can review the complaint, the order certifying the class
and see other selected court papers. You may also email any questions to Class
Counsel at [e-mail].
DO NOT CALL THE COURT. DO NOT CALL GENESEE COUNTY OR DEBORAH CHERRY.
DO NOT CALL DEFENDANTS’ COUNSEL.
YOUR LEGAL RIGHTS AND OBLIGATIONS IN THIS LAWSUIT:
Do
Nothing
Exclude
Yourself

By doing nothing, you automatically become a member of the Plaintiff class. Any
decision or settlement in favor of the Plaintiffs entitles you to receive a share of the
amount recovered, if any.
By giving written notice that you want to opt-out by January 31, 2012, you exclude
yourself from this lawsuit. You will receive no share of any amount recovered, but you
will keep your right to sue the Defendants.

BY ORDER OF THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION
________________