Oravecz v. Action Financial Services LLC

Filing 36

FINAL ORDER APPROVING CLASS ACTION SETTLEMENT signed by Magistrate Judge William E Duffin finding as moot 3 Motion to Certify Class; finding as moot 12 Motion to Strike ; granting 30 Motion for Settlement. (cc: all counsel) (asc)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN

CYNTHIA ORAVECZ, Individually and on
Behalf of All Others Similarly Situated,
Case No. 14-cv-1124

Plaintiff,
v.

Hon. William E. Duffin

ACTION FINANCIAL SERVICES, LLC,
Defendant.

FINAL ORDER APPROVING CLASS ACTION SETTLEMENT

1.

On March 2, 2015, the Court preliminarily approved the Class Settlement

Agreement reached between Plaintiff Cynthia Oravecz and Defendant Action Financial
Services, LLC (“AFS”). The Court approved a form of notice for mailing to the class
certified for purposes of this settlement. The Court is informed that actual notice was
sent by first class mail, postage prepaid, forwarding service requested, to 2,594 class
members. A total of 748 envelopes were returned by the United States Postal Service.
One class member requested exclusion and zero objections were filed or received. A
total of 189 class members timely returned the proof of claim form and are therefore
entitled to a pro rata share of the monetary benefits of the settlement. As of June 23,
2015, seven late claim forms were returned by class members.

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2.

The class is defined as:

(a) all natural persons in the State of Wisconsin (b) who were sent a
collection letter by Action Financial Services, LLC, (c) stating that Action
Financial Services, LLC is licensed by the Division of Banking in
Wisconsin, (d) seeking to collect a debt for personal, family or household
purposes, (e) on or after September 15, 2013, (f) that was not returned by
the postal service.

3.

On June 30, 2015, the Court held a fairness hearing to which class

members, including any with objections, were invited. No class members appeared.
4.

The Court finds that provisions for notice to the class satisfy the

requirements of Federal Rules of Civil Procedure 23 and due process.
5.

The Court finds the class settlement is fair, reasonable, and adequate and

hereby approves the Class Settlement Agreement submitted by the parties, including
the Release and payments out of the Settlement Fund by Class Counsel as follows:
i.

Class Representative Cynthia Oravecz will receive $3,000.00
in settlement of her individual claims and for her service as
Class Representative. These funds shall be paid by check
within thirty (30) days of the Effective Date, as that term is
defined in the Settlement Agreement.

ii.

Based on their petition, Class Counsel shall receive $32,000.00
as reasonable attorneys’ fees and costs and expenses of this
lawsuit. Class Counsel will not request additional fees or
costs from Defendants or the Class Members other than the
court awarded fees and costs. If no appeal is taken from this
Order, these attorneys’ fees and costs awarded by the Court
shall be paid by check within ten (10) days of the Effective
Date, as that term is defined in the Settlement Agreement.

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iii.

iv.

The total amount of any funds remaining that result from
uncashed checks sent to class members will be contributed to
University of Wisconsin Law School Consumer Law Clinic as
a cy pres award.

v.

6.

After the payments to the Class Representative and Class
Counsel, including the costs of Class Notice and
administration, $15,000 shall be distributed pro rata by checks
among those members of the Class (excluding Plaintiff) who
returned a duly executed claim form as described in the
Settlement Agreement, that was timely or that was otherwise
approved by the Court (“Claimants”). All checks issued to
these Claimants in accordance with this paragraph shall
indicate on their face that they are void after one hundred
and twenty (120) days from the date issued (“void date”),
and shall be sent to the Claimants by first-class mail by
Defendants within thirty (30) days of the Effective Date.

The parties do not object to treating late claimants received
by June 23, 2015 as if their claim was timely and including
them in the distribution of class funds. Based upon the
absence of dispute, and because the difference per class
member between allowing or rejecting the late claims is
minimal, the Court finds that the claimants whose claim
forms were received by class counsel on or before June 23,
2015 shall be included in the distribution of class funds.

The Class Representative and the Class grant Defendants the following

releases:
Class Representative Cynthia Oravecz and the Class hereby
remise, release and forever discharge Defendant, as well as
its predecessors and successors in interest and present and
former affiliates, subsidiaries, insurers, officers, directors,
agents, employees, members, shareholders, general partners,
limited partners, beneficiaries, representatives, heirs,
attorneys, assigns, or entities for which Defendant performs
portfolio servicing activities (including, without limitation,
any investors, trusts, or other similar entities) (collectively,
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"Releasees") from any causes of action, suits, claims or
demands whatsoever, in law or in equity, known or
unknown at this time, based on or arising out of the FDCPA,
the WCA, or other federal, state, or municipal statutory,
regulatory, or common law regulating debt collection, which
the Class now have or ever had against the Releasees,
(“Released Claims”), excluding those persons who timely
opted out..
7.

The Court finds the Class Settlement Agreement fair, reasonable,

adequate, and made in good faith.
8.

The Court dismisses the claims of Class Representatives and the Class as

set forth in the Class Settlement Agreement against Defendant and the Releasees with
prejudice and with costs pursuant to the provisions set forth in paragraph 8 below.
9.

The Court has reviewed the documents submitted by Class Counsel

reflecting Class Counsel’s hourly rates, attorney time spent on this action, and expenses,
including the costs of notice and administration of the class action settlement. The Court
finds Class Counsel’s rates, time and expenses are reasonable. The Court awards
attorneys’ fees and costs of $32,000.00 to Ademi & O’Reilly, LLP. Class Counsel is not
entitled to payment of any additional fees and costs other than the Court-awarded fees
and costs.
10.

The plaintiff’s “Motion to Certify Class filed with the complaint pursuant

to Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011)” (ECF No. 3) is denied as
moot, the class having been certified in accordance with the parties’ settlement
agreement.
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11.

The plaintiff’s “Motion to Strike several of Defendant's affirmative

defenses” (ECF No. 12) is denied as moot.
12.

The parties’ motion for final approval of class action settlement (ECF No.

30) is granted.
13.

The Clerk shall enter judgment accordingly.

SO ORDERED.
Dated at Milwaukee, Wisconsin this 30th day of June, 2015.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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