Aikens v. Panatte, LLC et al
Filing
47
ORDER granting plaintiff's 39 Motion for preliminary approval of the Class Action Settlement Agreement Between Delia Aikens and Mortgage Default Services, LLC. Final Fairness Hearing set for 1/10/2019 at 01:30 PM before Judge Robert S. Lasnik. Signed by Judge Robert S. Lasnik. (PM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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DELIA AIKENS,
Case No. C17-1519RSL
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Plaintiff,
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CLASS ACTION
v.
MORTGAGE DEFAULT SERVICES, LLC,
Defendant.
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ORDER PRELIMINARILY APPROVING CLASS SETTLEMENT
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Before the Court is plaintiff’s motion for preliminary approval of the Class Action
19 Settlement Agreement Between Delia Aikens and Mortgage Default Services, LLC. Dkt. # 39.
20 Based on the Court’s review of the Agreement and all of the files, records, and proceedings
21 herein, the Court concludes that, with the conditions for approving the Agreement provided for
22 in this Order, the motion should be granted. For the parties’ clarity, the Order departs from the
23 Agreement in the following two ways, as provided below. First, the Order requires that the Class
24 Administrator provide email notice to persons in the Settlement Class for whom an email
25 address is available. Second, the Order requires that any excess costs of notice and
26 administration will not be paid from the Settlement Fund. With those conditions, the Court
27 otherwise finds as follows:
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PRELIMINARY APPROVAL ORDER - 1
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WHEREAS, this Court has been advised that Delia Aikens (“Plaintiff” or “Class
2 Representative”) and Mortgage Default Services, LLC (“MDS” or “Defendant”), through their
3 respective counsel, have agreed, subject to court approval following notice to the Class
4 Members and a hearing, to settle the above-captioned lawsuit (“Lawsuit”) upon the terms and
5 conditions set forth in the Class Action Settlement Agreement (“Settlement Agreement”), which
6 has been filed with the Court, and the Court deeming that the definitions set forth in the
7 Settlement Agreement are hereby incorporated by reference herein (with capitalized terms as set
8 forth in the Settlement Agreement);
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NOW, THEREFORE, based upon the Settlement Agreement and all of the files, records,
10 and proceedings herein, and it appearing to this Court that, upon preliminary examination, the
11 proposed settlement appears fair, reasonable, and adequate, and that a hearing should and will be
12 held on January 10, 2019, at 1:30 PM, after Notice to the Class Members, to confirm that the
13 proposed settlement is fair, reasonable, and adequate, and to determine whether a Final
14 Approval Order and Judgment should be entered in this Lawsuit:
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IT IS HEREBY ORDERED:
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This Court has jurisdiction over the subject matter of the Lawsuit and over all settling
17 parties hereto.
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In compliance with the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(D), 1453,
19 and 1711–1715, Defendant will cause to be served written Notice of the proposed class
20 settlement on the United States Attorney General and the Attorneys General of the states of
21 Washington and California.
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Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, the Lawsuit is hereby
23 preliminarily certified, for settlement purposes only, as a class action on behalf of the following
24 class of plaintiffs (“Class Members”) with respect to the claims asserted in the Lawsuit:
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All persons (1) with a Washington or California address, (2) to whom Mortgage
Default Services, LLC sent an initial written communication, (3) between October
10, 2016 and October 10, 2017, (4) in connection with the collection of a consumer
debt, (5) that did not disclose that Mortgage Default Services, LLC is a debt
collector who is attempting to collect a debt and that any information obtained
PRELIMINARY APPROVAL ORDER - 2
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would be used for that purpose, and/or (6) that demanded payment on the debt
within 30 days of the date of the written communication, and/or (7) that failed to
include: (i) a statement that unless the consumer, within thirty days after receipt of
the notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector; and/or (ii) a statement that if the consumer
notifies the debt collector in writing within the thirty-day period that the debt, or
any portion thereof, is disputed, the debt collector will obtain verification of the debt
or a copy of a judgment against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector; and/or (iii) a
statement that, upon the consumer’s written request within the thirty-day period, the
debt collector will provide the consumer with the name and address of the original
creditor, if different from the current creditor.
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MDS represents that there are a total of 62 Class Members, including the Class Representative.
Pursuant to Rule 23, this Court appoints Delia Aikens as the Class Representative. This
Court also appoints Jesse S. Johnson of Greenwald Davidson Radbil PLLC as Class Counsel.
See Ryan v. DeVille Asset Mgmt., Ltd., No. 15-1067, 2016 WL 7165751 (D. Or. Dec. 7, 2016)
(preliminarily approving class settlement under the Fair Debt Collection Practices Act
(“FDCPA”) and appointing Greenwald Davidson Radbil PLLC class counsel); Gonzalez v.
Germaine Law Office PLC, No. 15-1427, 2016 WL 3360700 (D. Ariz. June 1, 2016) (same);
Schuchardt v. Law Office of Rory W. Clark, 314 F.R.D. 673 (N.D. Cal. 2016) (finally approving
FDCPA class settlement and confirming appointment of Greenwald Davidson Radbil PLLC as
class counsel).
This Court preliminarily finds that the Lawsuit satisfies the applicable prerequisites for
class action treatment under Rule 23, namely:
A.
The Class Members are so numerous that joinder of all of them in the Lawsuit is
impracticable;
B.
There are questions of law and fact common to the Class Members, which
predominate over any individual questions;
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C.
The claims of the Plaintiff are typical of the claims of the Class Members;
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D.
The Plaintiff and Class Counsel have fairly and adequately represented and
protected the interests of all of the Class Members; and
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Class treatment of these claims will be efficient and manageable, thereby
achieving an appreciable measure of judicial economy, and a class action is
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superior to other available methods for a fair and efficient adjudication of this
controversy.
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Schuchardt, 314 F.R.D. at 679–80.
With the additional conditions provided for in this Order, the Court preliminarily finds
that the settlement of the Lawsuit, on the terms and conditions set forth in the Settlement
Agreement is in all respects fundamentally fair, reasonable, adequate, and in the best interest of
the Class Members, especially in light of the benefits to the Class Members; the strengths and
weaknesses of Plaintiff’s case; the anticipated complexity, duration and expense of additional
litigation; the risk and delay inherent in possible appeals; the limited amount of any potential
total recovery for the Class Members given the cap on statutory damages for claims brought
pursuant to the FDCPA; and the opinion of Class Counsel, who are highly experienced in this
area of class action litigation. See Catala v. Resurgent Capital Servs. L.P., No. 08-2401, 2010
WL 2524158, at *2 (S.D. Cal. June 22, 2010) (quoting Officers for Justice v. Civil Serv.
Comm’n, 688 F.2d 615, 625 (9th Cir. 1982)).
A third-party class administrator acceptable to the parties will administer the settlement
and notification to Class Members. The class administrator will be responsible for mailing the
approved class action notice and settlement checks to the Class Members. The costs of
administration will be paid by MDS separate and apart from the settlement funds to Class
Members, as provided in the Settlement Agreement. In ¶ 10(D), the Settlement provides that
MDS will be responsible for paying the costs of notice and administration of the settlement, up
to $2,610.00. Should the costs of notice and administration exceed $2,610.00, such excess costs
over $2,610.00 shall not be paid from the Settlement Fund. 1 Upon the recommendation of the
parties, this Court hereby appoints the following class administrator: First Class, Inc.
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Though this is a preliminary approval order, the Court would find that the Class Members
bearing excess notice-and-administration costs, as provided in ¶ 10(D) of the Settlement, is not fair and
reasonable. Given the number of anticipated Class Members and the size of the Settlement Fund, excess
costs of even a few hundred dollars could reduce each Class Member’s award by a meaningful
percentage. Plaintiff represents that “the parties have worked closely with the administrator and thus do
not anticipate any such risk to the class.” Dkt. # 39 at 4 n.1. If that risk is indeed low, the parties are free
to agree that MDS, the Class Administrator, or Class Counsel shall bear the risk of excess costs.
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This Court approves the form and substance of the Notice of Class Action Settlement,
2 attached to the Settlement Agreement as Exhibit C. In addition to the mail notice provided for in
3 ¶ 7(A) of the Settlement, the Class Administrator shall provide email notice to persons in the
4 Settlement Class for whom an email address is available. This form and method for notifying the
5 Class Members of the settlement and its terms and conditions meet the requirements of Rule
6 23(c)(2)(B) and due process, constitute the best notice practicable under the circumstances, and
7 constitute due and sufficient notice to all persons and entities entitled to the notice. See Decohen
8 v. Abbasi, LLC, 299 F.R.D. 469, 479 (D. Md. 2014) (“Under the circumstances of this case,
9 when all class members are known in advance, the Court finds that the method of direct mail
10 notice to each class member’s last known address—and a second notice if the first was returned
11 as undeliverable—was the best practicable notice.”). This Court finds that the proposed notice is
12 clearly designed to advise the Class Members of their rights. In accordance with the Settlement
13 Agreement, the class administrator will mail the notice to the Class Members as expeditiously as
14 possible, but in no event later than 21 days after the Court’s entry of this order, i.e., no later
15 than September 28, 2018. The class administrator will confirm and, if necessary, update the
16 addresses for the Class Members through standard methodology that the class administrator
17 currently uses to update addresses.
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Any Class Member who desires to be excluded from the class must send a written request
19 for exclusion to Class Counsel with a postmark date no later than 60 days after the Court’s entry
20 of this order, i.e., no later than November 6, 2018. To be effective, the written request for
21 exclusion must state the Class Member’s full name, address, telephone number, and email
22 address (if available), along with a statement that the Class Member wishes to be excluded. Any
23 Class Member who submits a valid and timely request for exclusion will not be bound by the
24 terms of the Settlement Agreement.
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Any Class Member who intends to object to the fairness of this settlement must file a
26 written objection with the Court within 60 days after the Court’s entry of this order, i.e., no later
27 than, November 6, 2018. Further, any such Class Member must, within the same time period,
28 provide a copy of the written objection to Class Counsel, attention: Jesse S. Johnson, Greenwald
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1 Davidson Radbil PLLC, 5550 Glades Road, Suite 500, Boca Raton, Florida 33431; and counsel
2 for MDS: J. Scott Miller, Law Offices of J. Scott Miller, PS, 201 W. North River Drive, Suite
3 305, Spokane, Washington 99201-2266.
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To be effective, a notice of intent to object to the settlement must:
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(a)
Contain a heading which includes the name of the case and case number;
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(b)
Provide the name, address, telephone number, and email address (if available) of
the Class Member filing the objection;
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Be filed with the Clerk of the Court no later than 60 days after the Court
preliminarily approves the settlement;
(d)
Be sent to Class Counsel and counsel for Defendant at the addresses designated in
the Notice by first-class mail, postmarked no later than 60 days after the Court
preliminarily approves the settlement; Contain the name, address, bar number, and
telephone number of the objecting Class Member’s counsel, if represented by an
attorney. If the Class Member is represented by an attorney, he/she or it must
comply with all applicable laws and rules for filing pleadings and documents in
the U.S. District Court for the Western District of Washington; and
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(e)
Contain a statement of the specific basis for each objection.
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Any Class Member who has timely filed an objection may appear at the final fairness
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16 hearing, in person or by counsel, to be heard to the extent allowed by the Court, applying
17 applicable law, in opposition to the fairness, reasonableness and adequacy of the settlement, and
18 on the application for an award of attorneys’ fees, costs, and expenses.
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Upon final approval by the Court, the class administrator will mail a settlement check to
20 each Class Member who elects to participate in the settlement. Each Class Member will receive
21 a pro-rata portion of the $3,600 Settlement Fund. Additionally, MDS will pay to the Class
22 Representative the sum of $1,000 as statutory damages pursuant to the Fair Debt Collection
23 Practices Act, 15 U.S.C. § 1692k(a)(2)(B)(i).
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This Court will conduct a fairness hearing on January 10, 2019, at 1:30 PM, at the
25 United States District Court for the Western District of Washington, 700 Stewart Street, Seattle,
26 Washington 98101, to review and rule upon the following issues:
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A.
Whether this action satisfies the applicable prerequisites for class action treatment
for settlement purposes under Rule 23;
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B.
Whether the proposed settlement is fundamentally fair, reasonable, adequate, and
in the best interest of the Class Members and should be approved by the Court;
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Whether a Final Approval Order and Judgment, as provided under the Settlement
Agreement, should be entered, dismissing the Lawsuit with prejudice and
releasing the Released Claims against the Released Parties; and
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To discuss and review other issues as the Court deems appropriate.
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Attendance by Class Members at the Final Approval Hearing is not necessary. Class
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7 Members need not appear at the hearing or take any other action to indicate their approval of the
8 proposed class action settlement. Class Members wishing to be heard are, however, required to
9 appear at the final fairness hearing. The final fairness hearing may be postponed, adjourned,
10 transferred, or continued without further notice to the Class Members.
Consistent with In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988 (9th Cir. 2010),
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12 submissions by the Parties—including memoranda in support of the proposed settlement and
13 petitions for attorneys’ fees and reimbursement of costs and expenses by Class Counsel—must
14 be filed within 30 days after the deadline for dissemination of class notice, i.e., no later than
15 October 28, 2018. Any opposition to any of the foregoing must be filed with the Court no later
16 than 14 days prior to the final fairness hearing, i.e., no later than December 27, 2018.
17 Reply memoranda in support of the foregoing, including responses to any objections, must be
18 filed with the Court no later than 7 days prior to the final fairness hearing, i.e., no later than
19 January 3, 2019.
The Settlement Agreement and this Order will be null and void if any of the following
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A.
The Settlement Agreement is terminated by any of the Parties for cause, or any
specified material condition to the settlement set forth in the Settlement
Agreement is not satisfied and the satisfaction of such condition is not waived in
writing by the Parties;
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The Court rejects any material component of the Settlement Agreement,
including any amendment thereto approved by the Parties; or
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The Court approves the Settlement Agreement, including any amendment thereto
approved by the Parties, but such approval is reversed on appeal and such
reversal becomes final by lapse of time or otherwise.
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If the Settlement Agreement and/or this Order are voided, then the Settlement Agreement
2 will be of no force and effect, and the Parties’ rights and defenses will be restored, without
3 prejudice, to their respective positions as if the Settlement Agreement had never been executed
4 and this order never entered. This Court retains continuing and exclusive jurisdiction over the
5 action to consider all further matters arising out of or connected with the settlement, including
6 the administration and enforcement of the Settlement Agreement.
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This Court sets the following schedule:
Date
Event
Sep. 7, 2018
Preliminary Approval Order Entered
Sep. 28, 2018
Notice Sent (21 days after entry of Preliminary Approval Order)
Oct. 28, 2018
Filing of Motion for Final Approval and Attorneys’ Fees Petition (30
days after deadline for dissemination of class notice)
Nov. 6, 2018
Deadline to Send Exclusion or File Objection (60 days after
entry of Preliminary Approval Order)
Dec. 27, 2018
Filing of Opposition to Final Approval or Attorneys’ Fees Petition
(14 days prior to final fairness hearing)
Jan. 3, 2019
Filing of Replies in support of Final Approval and Attorneys’ Fees
Petition, and responses to any objections (7 days prior to final
fairness hearing)
Jan. 10, 2019
Final Fairness Hearing Held
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At Court’s discretion. Final Approval Order Entered
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IT IS SO ORDERED.
DATED this 7th day of September, 2018.
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A
Robert S. Lasnik
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United States District Judge
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