Garcia v. Autovest, LLC

Filing 63

ORDER Granting 62 Motion to Modify 60 Order. Fairness Hearing set for 10/2/2017 at 01:30 PM in LV Courtroom 6D before Judge Jennifer A. Dorsey. Signed by Judge Jennifer A. Dorsey on 6/23/17. (Copies have been distributed pursuant to the NEF - MMM)

1 LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.

JOSEPH P. GARIN, ESQ.

2 Nevada Bar No. 6653

JESSICA A. GREEN, ESQ.

3 Nevada Bar No. 12383

9900 Covington Cross Drive, Suite 120

4 Las Vegas, NV 89144

Telephone: [phone]

5 Facsimile: [phone]

[e-mail]

6 [e-mail]
7 SIMMONDS & NARITA LLP

R. TRAVIS CAMPBELL (pro hac vice)

8 California Bar No. 271580

44 Montgomery Street, Suite 3010

9 San Francisco, CA 94104

Telephone: [phone]

10 [e-mail]

11 Attorneys for Defendant

AUTOVEST, LLC

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CARLOS EFRAIN LEONEL
GARCIA, an individual, on behalf of
himself and all those similarly
situated,
Plaintiff,
vs.

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AUTOVEST, LLC, a foreign limited
liability company;

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Defendant.

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CASE NO.: 2:16-cv-00601-JAD-CWH
ORDER GRANTING JOINT MOTION
TO MODIFY ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT AND
NOTICE TO CLASS [DOC. NO. 60]
[ECF No. 62]

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GARCIA v. AUTOVEST, LLC (CASE NO. 2:16-cv-00601-JAD-CWH)
JOINT MOTION AND ORDER TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND NOTICE TO CLASS [DOC. NO. 60]

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Plaintiff Carlos Efrain Leonel Garcia (“Plaintiff”), intervenor Lorraine Belt

2 (“Belt”) and defendant Autovest, L.L.C. (“Autovest”) (collectively, “the Parties”), by
3 and through their undersigned counsel, hereby stipulate and jointly move for an
4 Order modifying the Court’s Order preliminarily approving the class action
5 settlement and class action notice in this matter (Doc. No. 60). In support of the joint
6 motion, the Parties state the following:
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1.

On March 13, 2017, the Court granted the Parties’ Joint Motion for

8 Preliminary Approval of Class Action Settlement and Notice to Class (“Preliminary
9 Approval Order”). Doc. No. 60. The Preliminary Approval Order set the following
10 deadlines:

(a)

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March 27, 2017 - deadline for settlement administrator to mail

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notice to class members via first class United States Mail, postage

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prepaid, at each class member’s last known address as contained

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in Autovest’s records;

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(b)

May 1, 2017 - deadline for class members to opt out of the class;

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(c)

July 7, 2017 - deadline for class members to object to the
proposed settlement and file all papers in support of objection;

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(d)

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July 14, 2017 - deadline for filings in support of the proposed

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settlement and for class counsel to file a motion for attorneys’

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fees and costs; and
(e)

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July 28, 2017 at 9:00 a.m. - hearing on the fairness and

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reasonableness of the settlement and to determine whether final

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approval shall been given to it and on the request for attorneys’

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fees and costs by class counsel.

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2.

The “Class” is defined as all persons who were sued by Autovest

26 between March 17, 2015 and the future date of entry of a final judgment in this
27 action for the deficiency balance owed under a Simple Interest Vehicle Contract
28 Security Agreement (“Contract(s)”) and where the Contracts were secured by a lien
GARCIA v. AUTOVEST, LLC (CASE NO. 2:16-cv-00601-JAD-CWH)
JOINT MOTION AND ORDER TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND NOTICE TO CLASS [DOC. NO. 60]

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1 on a motor vehicle. Excluded from the Class are persons who filed for bankruptcy
2 and whose debts under the Contracts were discharged, and individuals who already
3 executed a release of any such claims against Autovest.
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3.

The Class is composed of two subclasses: a “Judgment Subclass” and a

5 “Non-Judgment Subclass.” The Judgment Subclass is comprised of class members
6 against whom Autovest obtained a judgment before the date of a final judgment in
7 this action. The Non-Judgment Subclass is comprised of class members against
8 whom Autovest had not obtained a judgment before the date of a final judgment in
9 this action. Based on a review of its records, Autovest initially believed that the
10 Class consisted of 16 Judgment Subclass members and 52 Non-Judgment Subclass
11 Members, as identified in paragraphs 4 and 5 of the Class Action Settlement
12 Agreement (“Settlement Agreement”). Doc. No. 55-1 at ECF p. 5.
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4.

Pursuant to the Settlement Agreement, Autovest agreed to apply a credit

14 of $100 to the account of each Judgment Subclass member, and waive the amounts
15 owed by each Non-Judgment Subclass member.
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5.

On March 27, 2017, the settlement administrator mailed the class notice

17 approved by the Court to the class members. Doc. No. 61.
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6.

On April 19, 2017, counsel for Plaintiff and Belt provided a list to

19 Autovest’s counsel of persons they believed should have been included in the class
20 list, but were not. Upon reviewing the list, Autovest concluded that some class
21 members had been inadvertently left off the class list.
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7.

On May 3, 2017, the Parties agreed that, after Autovest conducted

23 further investigation to determine the identity and number of additional class
24 members, the Parties would execute an amendment to the Settlement Agreement that
25 includes the previously omitted class members, jointly move the Court to approve the
26 amendment and an amended class notice, and request a continuance of the settlement
27 deadlines in order to provide the amended notice to the Class.
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GARCIA v. AUTOVEST, LLC (CASE NO. 2:16-cv-00601-JAD-CWH)
JOINT MOTION AND ORDER TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND NOTICE TO CLASS [DOC. NO. 60]

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8.

Based on the information provided by Plaintiff and Belt’s counsel, and

after performing its own further investigation, Autovest determined that 31 class
members had been inadvertently excluded from the class list (9 Judgment Subclass
members and 22 Non-Judgment Subclass members), and one person had been
incorrectly included on the list. Accordingly, the Class consists of 25 Judgment
Subclass members and 73 Non-Judgment Subclass Members.
9.

The vast majority of class members that were omitted were co-

borrowers on the same loan as a class member who had been included on the original
class list. As a result, those co-borrowers were already scheduled to receive relief as
part of the settlement, however, they have not been provided notice of the settlement.
10.

The Amendment to the Class Action Settlement Agreement executed by

the Parties (“Amendment”), which is attached hereto as Exhibit 1, makes the
following changes to the Settlement Agreement: (1) the number of Non-Judgment
Subclass members has been increased from 52 to 73; (2) the number of Judgment
Subclass members has been increased from 16 to 25; and (3) the amount of the debts
of Non-Judgment Subclass members being waived by Autovest has been increased
from $710,467.34 to $738,096.74. The Amendment attaches as Exhibit A an
Amended Notice of Proposed Class Action Settlement and Court Hearing
(“Amended Notice”), which reflects the increase in the total amount of debt waiver
for the Non-Judgment Subclass. These are the only substantive changes to the
previously approved Settlement Agreement and class notice.
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The Parties stipulate and jointly request that the Court enter an Order

approving the Amendment, Amended Notice and continuing the class settlement
deadlines (“Order”), as follows:
(a)

class members = 10 days from Order;

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deadline for settlement administrator to mail Amended Notice to

(b)

deadline for class members to opt out of the class = 40 days from
Order;

GARCIA v. AUTOVEST, LLC (CASE NO. 2:16-cv-00601-JAD-CWH)
JOINT MOTION AND ORDER TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND NOTICE TO CLASS [DOC. NO. 60]

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(c)

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70 days from Order;

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(d)

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days from Order; and

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(e)

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deadline for filings in support of the proposed settlement and for
class counsel to file a motion for attorneys’ fees and costs = 80

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deadline for class members to object to the proposed settlement =

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final approval hearing = 100 days from order.

Good cause exists for the Court to approve the Amendment and

Amended Notice, because they do not materially change the terms of the settlement.
The Amendment and Amended Notice simply seek to include certain class members
that were inadvertently excluded from the original class list. The class settlement
deadlines and final approval hearing should be continued so that class members have
an opportunity to receive and, if they choose, respond to the Amended Notice.
Accordingly, for the reasons stated herein, the Parties stipulate and jointly
request the Court approve the Amendment, the Amended Notice and reset the class
settlement schedule as discussed herein.
IT IS SO STIPULATED.
DATED: June 16, 2017

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/s/R. Travis Campbell
R. TRAVIS CAMPBELL (pro hac vice)
California Bar #271580
Attorneys for Defendant
44 Montgomery Street, Suite 3010
San Francisco, CA 94104

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SIMMONDS & NARITA LLP

LEGAL AID CENTER OF
SOUTHERN NEVADA, INC.
/s/Dan L. Wulz
DAN L. WULZ
Nevada Bar #5557
Attorneys for Plaintiff and Intervenor
Lorraine Belt
725 E. Charleston Blvd.
Las Vegas, NV 89104

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GARCIA v. AUTOVEST, LLC (CASE NO. 2:16-cv-00601-JAD-CWH)
JOINT MOTION AND ORDER TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND NOTICE TO CLASS [DOC. NO. 60]

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ORDER

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Pursuant to the Stipulation and Joint Request of the Parties, the Court hereby

3 ORDERS as follows:
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1.

(“Amendment”) executed by the Parties is preliminarily approved.

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2.

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The Amended Notice of Proposed Class Action Settlement and Court
Hearing attached to the Amendment as Exhibit A is approved.

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The Amendment to the Class Action Settlement Agreement

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The schedule set forth in the Order Granting the Parties’ Joint Motion for
Preliminary Approval of Class Action Settlement and Notice to Class

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(Doc. No. 60) is hereby amended was follows:

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(a)

July 3, 2017 - deadline for settlement administrator to

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mail notice to class members via first class United States Mail,

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postage prepaid, at each class member’s last known address as

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contained in Autovest’s records;

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(b)

class;

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(c)

September 1, 2017 - deadline for class members to object to the
proposed settlement and file all papers in support of objection;

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August 2, 2017 - deadline for class members to opt out of the

(d)

September 11, 2017 - deadline for filings in support of the

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proposed settlement and for class counsel to file a motion for

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attorneys’ fees and costs; and

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(e)

October 2, 2017 at 1:30 p.m. - hearing on the fairness and

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reasonableness of the settlement and to determine whether final

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approval shall been given to it and on the request for attorneys’

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fees and costs by class counsel.

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IT IS SO ORDERED.

27 Dated: June 23, 2017

_______________________________

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U.S. District Judge Jennifer A. Dorsey
GARCIA v. AUTOVEST, LLC (CASE NO. 2:16-cv-00601-JAD-CWH)
JOINT MOTION AND ORDER TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND NOTICE TO CLASS [DOC. NO. 60]

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