Gilmor v. Preferred Credit Corporation et al
Filing
962
ORDER granting 953 motion for Final Approval of Class Action Settlement; granting 955 motion for Approval of Attorney Fees and Costs; granting 957 motion for Approval of Incentive Awards. Signed on 7/2/13 by District Judge Ortrie D. Smith. (Wolfe, Steve)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MICHAEL P. AND SHELLIE GILMOR,
ET AL.,
Plaintiffs,
Case No. 10-0189-CV-W-ODS
vs.
PREFERRED CREDIT CORPORATION,
ET AL.,
Defendants.
FINAL JUDGMENT APPROVING CLASS ACTION SETTLEMENT
AND CERTIFYING A CLASS FOR SETTLEMENT PURPOSES
Upon careful review and consideration of the Settlement and Release Agreement dated
February 8, 2013 (the “Agreement”), between Plaintiffs, Michael P. Gilmor, Shellie Gilmor,
Michael Harris, Lois A. Harris, Leo E. Parvin, Jr., Debra Mooney, Derrick Rockett, Alethia
Rockett, William Hudson, James Woodward, Kathleen Woodward, and Patricia Ann Worthy,
(the “Named Plaintiffs”), and Defendant, Wilmington Trust Company individually and/or as
former trustee, owner trustee, co-owner trustee, or indenture trustee of the following terminated
trusts: Impac Secured Assets CMN Trust Series 1998-1, Impac CMB Trust Series 1999-1, Impac
CMB Trust Series 1999-2, Impac CMB Trust Series 2000-1, Impac CMB Trust Series 2000-2,
Impac CMB Trust Series 2001-4, Impac CMB Trust Series 2002-1, Impac CMB Trust Series
2003-5 (“Wilmington” or “Settling Defendant”), the evidence and arguments of counsel as
presented at the Fairness Hearing held on July 2, 2013, the memoranda filed with this Court, and
all other filings in connection with the Parties’ settlement as memorialized in the Agreement (the
“Settlement”); and for good cause shown,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1.
Incorporation of Other Documents.
This Final Judgment and Order
incorporates and makes the following a part hereof:
a.
The Agreement, filed with the Court on or about February 8, 2013; and
b.
The following exhibits to the Agreement: (i) Schedule A (Proposed
Distribution Schedule of “Net Distributable Settlement Amount,” filed under seal); (ii)
Schedule B (Proposed Schedule of Incentive Awards); (iii) Exhibit A (Proposed Class
Mail Notice); (v) Exhibit B (Proposed Order Preliminarily Approving the Class Action
Settlement); (vi) Exhibit C (Proposed Final Judgment); (vii) Exhibit D (list of members
of the Wilmington Settlement Class, filed under seal);
c.
Unless otherwise provided herein, all capitalized terms in this Order shall
have the same meaning as those terms in the Agreement.
2.
Jurisdiction.
Because adequate notice was disseminated and all potential
members of the Wilmington Settlement Class (as defined below) were given notice of and an
opportunity to opt out of the Settlement, the Court has personal jurisdiction over all members of
the Wilmington Settlement Class. The Court has subject matter jurisdiction over the Litigation,
including, without limitation, jurisdiction to approve the proposed Settlement, to grant final
certification of the Wilmington Settlement Class, and to dismiss the Litigation against
Wilmington with prejudice.
3.
Final Class Certification. The Wilmington Settlement Class, which this Court
previously certified preliminarily, is hereby finally certified for settlement purposes pursuant to
Fed.R.Civ.P. 23, the Court finding that for purposes of settlement the Wilmington Settlement
Class fully satisfies all of the applicable requirements of Rule 23 and due process.
The Wilmington Settlement Class is defined as follows:
2
All persons who, on or after June 27, 1994, obtained a “Second Mortgage Loan,”
as defined in Mo.Rev.Stat. § 408.231.1, that was secured in whole or in part by a
mortgage or a deed of trust on residential real property located in the state of
Missouri, that was originated by Preferred Credit Corporation (f/k/a T.A.R.
Preferred Mortgage Corporation), and that was purchased by, assigned or
conveyed to, or otherwise owned and/or held by or serviced by Wilmington Trust
Company or by any of the following terminated trusts: Impac Secured Assets
CMN Trust Series 1998-1, Impac CMB Trust Series 1999-1, Impac CMB Trust
Series 1999-2, Impac CMB Trust Series 2000-1, Impac CMB Trust Series 2000-2,
Impac CMB Trust Series 2001-4, Impac CMB Trust Series 2002-1, Impac CMB
Trust Series 2003-5, and who did not timely exercise their right and option to opt
out and exclude themselves from the litigation class that the Circuit Court of Clay
County, Missouri certified on January 2, 2003, in Gilmor v. Preferred Credit
Corporation, Case No. CV100-4263-CC.
If a member of the Wilmington Settlement Class has died or otherwise voluntarily or
involuntarily transferred his or her rights under a PCC-Wilmington Loan, such member’s heir,
representative, successor or assign shall also be deemed to be the member of the Wilmington
Settlement Class. If a member of the Wilmington Settlement Class filed for bankruptcy after
obtaining his or her PCC-Wilmington Loan, then the bankruptcy trustee shall also be deemed to
be a member of the Wilmington Settlement Class Member as to the debtor Class Member’s
particular loan.
No members of the Wilmington Settlement Class timely requested to be
excluded from or “opted out” of the Wilmington Settlement Class.
4.
Adequacy of Representation.
There are no apparent conflicts of interest
between the Named Plaintiffs and the Wilmington Settlement Class, or among the members of
the Wilmington Settlement Class. Plaintiffs’ Counsel will fairly and adequately represent and
protect the interests of the Wilmington Settlement Class. Accordingly, the Named Plaintiffs and
R. Frederick Walters, Kip D. Richards, David M. Skeens, J. Michael Vaughan, and Garrett M.
Hodes of the firm Walters Bender Strohbehn & Vaughan, P.C. (“Plaintiffs’ Counsel” or “Class
Counsel”), have satisfied the requirements of Rule 23 and are hereby appointed and approved as
3
representatives of the Wilmington Settlement Class and Counsel for the Wilmington Settlement
Class, respectively.
5.
Class Notice. The Court finds that the Class Mail Notice and its distribution to
the Wilmington Settlement Class as implemented pursuant to the Agreement and the Preliminary
Approval Order:
a.
Constituted the best practicable notice to the members of the Wilmington
Settlement Class under the circumstances of this Litigation;
b.
Constituted
notice
that
was
reasonably
calculated,
under
the
circumstances, to apprise the members of the Wilmington Settlement Class of (i) the
pendency of this Litigation and the proposed Settlement, (ii) their right to exclude
themselves from the Wilmington Settlement Class and the proposed Settlement, (iii) their
right to object to any aspect of the proposed Settlement (including, but not limited to, the
following: final certification of the Wilmington Settlement Class; the fairness,
reasonableness and adequacy of the Settlement as proposed; the adequacy of the Named
Plaintiffs and/or Class Counsels’ representation of the Wilmington Settlement Class; the
proposed awards of attorney’s fees and expenses; and the proposed incentive award), (iv)
their right to appear at the Fairness Hearing if they did not exclude themselves from the
Wilmington Settlement Class, and (v) the binding effect of the Orders and Judgment in
the Litigation on all members of the Wilmington Settlement Class who did not request
exclusion;
c.
Constituted notice that was reasonable and constituted due, adequate and
sufficient notice to all persons and entities entitled to be provided with notice; and
4
d.
Constituted notice that fully satisfied the requirements of Rule 23, due
process, and any other applicable law.
6.
Compliance with CAFA. The Court additionally finds that Wilmington has
served proper notice under, and has complied in all other respects with, 28 U.S.C. § 1715(b) and
CAFA.
7.
Final Settlement Approval.
The terms and provisions of the Agreement,
including all exhibits, have been entered into in good faith and as a result of arm’s length
negotiations, and the Agreement is fully and finally approved as fair, reasonable and adequate as
to, and in the best interests of, each of the Parties and the Wilmington Settlement Class
Members, and in full compliance with all applicable requirements of the laws of the state of
Missouri, the United States Constitution (including the Due Process Clause), and any other
applicable law. The Parties are hereby directed to implement and consummate the Agreement
according to its terms and provisions.
8.
Binding Effect. The terms of the Agreement and this Final Judgment shall be
forever binding on all of the Wilmington Settlement Class Members and the Named Plaintiffs,
individually and as representatives of said Class, as well as on their respective heirs, executors,
administrators, assigns, predecessors, and successors, and any other person claiming by or
through any or all of them. The terms of the Agreement and Final Judgment shall have res
judicata and other preclusive effect as to the “Releasors” for the “Released Claims” as against
the “Released Persons,” all as defined in the Agreement.
9.
Releases. The Releasors, as defined in Paragraph 2.34 of the Agreement, shall be
bound by the Releases provided in Paragraph 6 of the Agreement, which is incorporated herein
in all respects, regardless of whether such persons received any compensation under the
5
Agreement or Settlement. The Releases are effective as of the Effective Date specified in
Paragraph 12 of the Agreement. The Court expressly adopts all defined terms in Paragraph 6 of
the Agreement, including but not limited to, the definitions of the persons and claims covered by
the Releases as set forth at Paragraphs 2.32 (Released Claims), 2.33 (Released Persons) and 2.34
(Releasors).
10.
Enforcement of Settlement. Nothing in this Final Judgment shall preclude any
action by any Party to enforce the terms of the Agreement.
11.
Additional Payment to the Named Plaintiffs. The Court hereby awards the
amounts listed on Schedule B to the Agreement ($22,000.00 total) to be paid from the Settlement
Amount to the Named Plaintiffs as incentive awards for their services as representatives of the
Wilmington Settlement Class in this Litigation.
12.
Attorney’s Fees and Expenses. Plaintiffs’ Counsel are awarded $16,372.88
representing an allocated share of the litigation expenses and court costs that Plaintiffs’ Counsel
has incurred and advanced as of October 15, 2012 in connection with the Litigation and the
Settlement, which shall be deducted from the Settlement Amount as defined in the Agreement.
In addition, the Court awards Plaintiffs’ Counsel Attorney’s fees of $342,732.20, representing
approximately 45% of the “Net Settlement Amount” as defined in the Agreement. The Court
finds and concludes that each of the above awards to Plaintiffs’ Counsel for work and services in
this case and in connection with the Settlement is reasonable for the reasons stated in Plaintiffs’
Application for Award of Attorney’s Fees, Litigation Expenses and Court Costs (Doc. #955, 956)
and finds as follows;
a.
The time and labor required to litigate this matter and obtain the
Settlement was extensive.
6
b.
The legal issues raised in prosecuting the claims of the Wilmington
Settlement Class were (and remain) complex and difficult.
c.
The results obtained for the Wilmington Settlement Class are
exceptional in light of the risks posed by the defenses asserted by the Settling Defendant to
the Wilmington Settlement Class Members’ claims. The Court specifically notes the
Common Fund Recovery and the substantial benefits made available to the Wilmington
Settlement Class. The results achieved are of paramount importance when considering
the fee request and certainly justify the fee request.
d.
The fee in this case was contingent. Class Counsel would have received
no fee had they not been successful. In addition, Class Counsel risked large amounts of
expenses and advances on the successful outcome of this matter.
e.
No member of the Wilmington Settlement Class has objected to any
aspect of the Settlement and no members of the Wilmington Settlement Class have
timely opted out or excluded themselves from the Settlement. The reaction of the Class
to the Settlement has been unanimously favorable.
f.
The litigation costs and expenses are also reasonable and equitable for a
matter of this complexity and duration.
13.
No Other Payments. The preceding paragraphs of this Final Approval Order
cover, without limitation, any and all claims for attorney’s fees and expenses, costs or
disbursements incurred by Plaintiffs’ Counsel or any other counsel representing the Named
Plaintiffs as representatives of the Wilmington Settlement Class or the Wilmington Settlement
Class Members, or incurred by the Wilmington Settlement Class Members, in connection with or
related in any manner to this Litigation, the Settlement of this Litigation, the administration of
7
such Settlement, and/or the Released Claims, except to the extent otherwise specified in this
Final Approval Order or the Agreement.
14.
Retention of Jurisdiction.
The Court has jurisdiction to enter this Final
Judgment. Without in any way affecting the finality of this Final Judgment, this Court expressly
retains jurisdiction as to all matters relating to the administration and enforcement of the
Agreement and Settlement and of this Final Judgment, and for any other necessary purpose as
permitted by Missouri law, including, without limitation:
a.
enforcing the terms and conditions of the Agreement and Settlement and
resolving any disputes, claims or causes of action that, in whole or in part, are related to
the administration and/or enforcement of the Agreement, Settlement, this Final Judgment
(including, without limitation, whether a person is or is not a member of the Wilmington
Settlement Class or a Wilmington Settlement Class Member; and whether any claim or
cause of action is or is not barred by this Final Approval Order and the Final Judgment);
b.
entering such additional Orders as may be necessary or appropriate to
protect or effectuate the Court’s Final Judgment and/or to ensure the fair and orderly
administration of the Settlement and distribution of the Settlement Amount; and
c.
entering any other necessary or appropriate Orders to protect and
effectuate this Court’s retention of continuing jurisdiction.
15.
No Admissions. Neither this Final Judgment, nor the Agreement, nor any of its
terms or provisions, nor any of the negotiations between the Parties or their counsel, nor any
action taken to carry out this Final Judgment, is, may be construed as, or may be used as an
admission or concession by or against any of the Parties or the Released Persons of: (a) the
validity of any claim or liability, any alleged violation or failure to comply with any law, any
8
alleged breach of contract, any legal or factual argument, contention or assertion; (b) the truth or
relevance of any fact alleged by Plaintiffs; (c) the existence of any class alleged by Plaintiffs; (d)
the propriety of class certification if the Litigation were to be litigated rather than settled; (e) the
validity of any claim or any defense that has been or could have been asserted in the Litigation or
in any other litigation; (f) that the consideration to be given to Wilmington Settlement Class
Members hereunder represents the amount which could be or would have been recovered by any
such persons after trial; or (g) the propriety of class certification in any other proceeding or
action. Entering into or carrying out the Agreement, and any negotiations or proceedings related
to it, shall not in any event be construed as, or deemed evidence of, an admission or concession
as to the denials, defenses, factual or legal positions of Wilmington, and shall not be offered or
received in evidence in this litigation or any action or proceeding against any party in any court,
administrative agency or other tribunal for any purpose whatsoever, except as necessary (i) to
enforce the terms of this Order and the Agreement or to prove or show that a compromise in
settlement of the Released Claims per the Agreement, in fact, was reached, or (ii) to show, if
appropriate, the recoveries obtained by the Named Plaintiffs and other Wilmington Class
Members’ hereunder, including, without limitation, the damages, attorney’s fees award and
costs; provided, however, that this Order and the Agreement may be filed by Wilmington in any
action against or by Wilmington or the Released Persons to support a defense of res judicata,
collateral estoppel, release, 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.
16.
Dismissal of Litigation Against Defendant Wilmington. This Litigation and all
individual and class claims being asserted against Defendant Wilmington with respect to the
9
“PCC-Wilmington Loans” are dismissed with prejudice and without fees or costs to any party,
except as otherwise provided in the Agreement or this Final Judgment. The Litigation and all
other claims and causes of action shall remain pending.
17.
Claims Reserved. The dismissal of this Litigation and claims against Wilmington
as provided in the Agreement and this Final Judgment shall in no way stay, bar, preclude, abate
or otherwise operate as a dismissal, release, discharge or adjudication of any claims other than
the Released Claims as to the Released Persons by the Releasors.
18.
Claims of Non-Wilmington Plaintiff Borrowers.
The Court finds and
concludes that the “PCC Loans” of the “Non-Wilmington Plaintiff Borrowers” as defined in
Paragraph 2.22 of the Agreement were not purchased by, assigned or conveyed to, or otherwise
owned and/or held by or serviced by the Settling Defendant and that, given this fact, as stipulated
by the Parties, the Non-Wilmington Plaintiff Borrowers cannot recover any damages, penalties
or other relief from Wilmington with respect to the PCC Loans. This finding and/or conclusion
by the Court shall not be deemed or construed as a holding that any of the Non-Wilmington
Plaintiff Borrowers have in any way released any claims, of whatever type or kind, with respect
to any PCC Loans or otherwise.
19.
Contribution, Indemnity and Other Claims.
All claims for contribution,
indemnity and other claims over, whether asserted, unasserted or asserted in a representative
capacity, inclusive of interest, taxes and costs, related to the Released Claims as defined in
Paragraph 2.32 of the Agreement, which could have been brought in this Litigation by any
person or party against a Released Person as defined in Paragraph 2.33 of the Agreement (unless
such claim over is made with respect to a claim by a person or party who is not a Releasor as
defined in Paragraph 2.34 of the Agreement), are permanently barred, prohibited and enjoined.
10
20.
No Just Reason for Delay. The Court expressly determines that there is no just
reason for delay for purposes of Fed.R.Civ.P. 54(b).
IT IS SO ORDERED.
DATE: July 2, 2013
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?