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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Huntington Division DAVID J. TRIPLETT,
Plaintiff, individually, and on behalf of a class of similarly-situated persons,
v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC,
Defendant.
MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CLASS CERTIFICATION AND ENTRY OF SCHEDULING ORDER
Plaintiff David J. Triplett, by counsel and on behalf of the class proposed below, hereby
respectfully submits this Motion for Preliminary Approval of Settlement, Conditional Class
Certification and Entry of Scheduling Order. After conducting extensive discovery and
proceedings in this Court, the Plaintiff and Defendant Nationstar Mortgage LLC (“Nationstar”)
(collectively, the “Parties”) have reached a proposed settlement agreement.1 Accordingly, for
the reasons stated in the Plaintiff’s Memorandum in Support, which is incorporated by reference
herein, the Plaintiff respectfully request that the Court:
1. Enter an order preliminarily approving the proposed Class Settlement Agreement
and Release, attached hereto as Exhibit A, and directing the Parties to carry out their obligations
pursuant to the terms of the Settlement Agreement.
2. Appoint Plaintiff David J. Triplett as class representative.
1 In addition to the class claims, Plaintiff’s Complaint included individual claims for
illegal debt collection and negligent/fraudulent misrepresentations. The Parties negotiated a separate settlement of Plaintiff’s individual claims.
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3. Appoint John W. Barrett, Jonathan R. Marshall, and Bailey and Glasser LLP as
class counsel.
4. Certify the following class for settlement purposes only2:
All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the “Class Period”), and who fall into one or more of the following subclasses:
Subclass A – Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00).
Subclass B – Persons with accounts having instances of form debt-collection letters mailed that include the terms “expenses of collection.”
Subclass C – Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower’s loan.
Class Members who believe that they actually paid improper default expenses that
were not waived, reimbursed, or otherwise credited to the Class Members’ loan accounts
may contact the Settlement Administrator and request a Claim Form to describe the
number and nature of the default fees that they claim were improperly imposed on their
loan accounts and that they actually paid.
5. Adopt the following schedule for completion of remaining tasks, the Court’s
calendar permitting:
Class Notice Mailed by: Twenty-one (21) days after entry of the Court’s Order granting preliminary approval of the Settlement.
Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice.
2 Pursuant to the Parties’ Settlement Agreement, Nationstar does not consent to the
certification of any class asserted by Plaintiff, other than solely for settlement purposes. Nationstar denies that the facts of this case meet the requirements of certification of any class. Nothing contained in this Motion, Memorandum in Support, or the Parties’ Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits.
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Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date.
Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date.
The following exhibits are attached in support of this Motion:
Exhibit A: Class Settlement Agreement and Release;
Exhibit B: Proposed Form of Class Notice;
Exhibit C: Proposed Claim Form;
Exhibit D: Kurtzman Carson Consultants (“KCC”) Cost Estimate;
Exhibit E: Declaration of John W. Barrett; and
Exhibit F: Proposed Order
WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and enter
the submitted Proposed Order, and conditionally certify this class action for settlement purposes
only, preliminarily approve the proposed Settlement and Release Agreement, appoint Plaintiff’s
counsel as class counsel, establish a schedule to complete the tasks necessary to effectuate the
proposed settlement, and for such other and further relief as the Court may deem equitable and
just.
Respectfully Submitted, DAVID J. TRIPLETT By: s/ John W. Barrett______ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301 Counsel for Plaintiff
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433210v1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division
DAVID J. TRIPLETT,
Plaintiff, individually, and on behalf of a class of similarly-situated persons,
v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of May, 2012, I electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participants:
Counsel for Defendant
John C. Lynch (W. Va. Bar No. 6627)
Jason E. Manning (W. Va. Bar No. 11277) TROUTMAN SANDERS LLP
222 Central Park Avenue, Suite 2000 Virginia Beach, VA 23462 Telephone: (757) 687-7500 Facsimile: (757) 687-7510
E-mail: [email protected] E-mail: [email protected]
s/ John W. Barrett________ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Huntington Division DAVID J. TRIPLETT,
Plaintiff, individually, and on behalf of a class of similarly-situated persons,
v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC,
Defendant.
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL
CLASS CERTIFICATION AND ENTRY OF SCHEDULING ORDER
Plaintiff David J. Triplett, by counsel and on behalf of the class proposed below, hereby
respectfully submits this Memorandum in Support of his Motion for Preliminary Approval of
Settlement, Conditional Class Certification and Entry of Scheduling Order. After conducting
extensive discovery and proceedings in this Court, the Plaintiff and Defendant Nationstar
Mortgage LLC (“Nationstar”), by counsel, (collectively, the “Parties”) have reached a proposed
settlement agreement. Plaintiff respectfully requests that the Court enter an Order (1)
conditionally certifying a class action for settlement purposes only1; (2) preliminarily approving
the Parties’ proposed Settlement and Release Agreement (the “Settlement Agreement”); (3)
appointing Plaintiff as class representative and Plaintiff’s counsel as class counsel; and (4)
establishing a schedule to complete the tasks necessary to effectuate the proposed settlement.
For the reasons set forth more particularly below, the Plaintiff respectfully requests that the
1 Pursuant to the Parties’ Settlement Agreement, Nationstar does not consent to the certification of any class asserted by Plaintiff, other than solely for settlement purposes. Nationstar denies that the facts of this case meet the requirements of certification of any class. Nothing contained in this Memorandum in Support or the Parties’ Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits.
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Court grant his Motion.2 Nationstar has agreed to the proposed order of preliminary approval
attached to this motion, for settlement purposes only.
I. INTRODUCTION
Plaintiff purports to bring his Complaint on behalf of himself and a class of similarly
situated individuals (the “Lawsuit”). Plaintiff alleges, among other things, that Nationstar
violated various provisions of the West Virginia Consumer Credit and Protection Act, W. Va.
Code § 46A-1-101 et seq. (“WVCCPA”), with respect to its servicing of loans entered into by
West Virginia borrowers.
After conducting extensive discovery into Plaintiff’s claims and Nationstar’s loan
servicing practices, including the deposition of Plaintiff, Plaintiff’s spouse, and Nationstar’s
corporate representative, A.J. Loll, and in light of Plaintiff’s Motion to Certify Class (ECF Nos.
41-42) and Nationstar’s Brief in Opposition thereto (ECF No. 53), the Parties turned their
collective attention to negotiating a resolution of the Lawsuit. The resulting proposed settlement
provides that each Class Member who was allegedly charged a late fee exceeding $15, issued a
form demand letter that included the term “expenses of collection,” and/or whose partial loan
payments were returned by Nationstar prior to the date of acceleration, in violation of the
WVCCPA, will recover, before deductions for court-approved attorneys’ fees and other
reasonable expenses, an estimated $133.23 for each alleged instance. Class Members who
believe that they were charged improper default expenses that were not waived, reimbursed, or
otherwise credited to the Class Members’ loan accounts may also contact the Settlement
2 All exhibits referenced in this Memorandum are attached to the Motion per the Local
Civil Rules.
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Administrator to request a Claim Form for any instance of an improper default expense charged
to their account and that they actually paid.3
Pursuant to the terms of the Parties’ Settlement Agreement, Nationstar denies any and all
allegations and claims asserted against it in the Complaint, opposes class certification for
litigation purposes, and denies any and all wrongdoing. Nationstar denies that the facts of this
case meet the requirements of certification of any class other than for settlement purposes.
According to the Parties’ Settlement Agreement, nothing contained in this Memorandum or the
Parties’ Settlement shall be construed in any manner as precedent, persuasive authority, or an
admission by Nationstar of the propriety of certification of any class on the merits.
As stated in the Parties’ Settlement Agreement, the Parties, solely in order to avoid the
cost, burden, expense, and uncertainty of further litigation, desire to compromise and settle
Plaintiff’s claims asserted in the Lawsuit and have entered into the Settlement Agreement to
resolve the disputes between them, pending approval of the Court, and to achieve complete
peace. Plaintiff submits that this is an outstanding settlement worthy of preliminary approval,
especially considering the continued expense, risks, and burdens of protracted and contested
litigation.
II. PROCEDURAL BACKGROUND
On February 15, 2011, Triplett commenced this action against Nationstar in the Circuit
Court of Putnam County, West Virginia, Case No. 11-C-46, asserting various claims pertaining to
the servicing of the Loan, including claims for alleged violations of the WVCCPA. On April 8,
2011, Nationstar removed the Lawsuit to the United States District Court for the Southern
District of West Virginia, Huntington Division, Case No. 3:11-cv-238, pursuant to 28 U.S.C. §§
3 Note: the estimated gross distribution amount per instance is subject to change and may be reduced depending on the number of improper default fee claims submitted by Class Members.
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1441 and 1446, and the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d)(1)-(11)
(“CAFA”).
In his Complaint, Plaintiff alleges, among other things, that Nationstar assessed late fees in
excess of the $15 statutory maximum, in violation of W. Va. Code § 46A-3-112(1)(a). Plaintiff also
alleges that Nationstar issued form demand letters threatening to collect “expenses of collection,” in
violation of W. Va. Code §§ 46A-2-115(a), -127(g), and -128(c). Plaintiff further alleges that
Nationstar returned partial loan payments to borrowers prior to the date of acceleration of their
loans, in violation of W. Va. Code § 46A-3-111(1).
The Parties have engaged in extensive written discovery concerning Plaintiff’s claims.
(ECF Nos. 8, 13-16). In fact, Nationstar has supplemented its responses to Plaintiff’s discovery
requests on at least three occasions, providing Plaintiff with all relevant, non-privileged documents.
(ECF Nos. 23, 33, 36). Plaintiff conducted a Rule 30(b)(6) deposition of Nationstar’s corporate
representative, A.J. Loll. (ECF No. 29). Nationstar deposed both Plaintiff and his wife, Elke
Triplett. (ECF Nos. 37-38). Nationstar also served Plaintiff with its Rule 26(a)(2) expert
disclosures. (ECF No. 50). Plaintiff has filed his Motion to Certify Class, and Nationstar has filed
its Brief in Opposition. (ECF Nos. 42-43, 53).
As a proposed class representative, Plaintiff has been assessed late fees exceeding $15, was
issued form demand letters that included the term “expenses of collection,” and had a partial loan
payment returned prior to acceleration of his Loan. The discovery and other information informally
exchanged between the parties for settlement purposes has revealed that from February 15, 2007
through July 1, 2011, Nationstar: assessed late fees over $15 to West Virginia borrowers on
approximately 7,539 occasions, representing 836 loans; issued approximately 3,674 form debt
collection letters to West Virginia borrowers that included the term “expenses of collection,”
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representing 709 loans; and returned partial loan payments to West Virginia borrowers prior to the
date of acceleration of their loans on approximately 46 occasions, representing 27 loans. (Ex. A –
Settlement Agreement ¶ C-2).
For the reasons stated in Nationstar’s Brief in Opposition to Plaintiff’s Motion to Certify
Class, Nationstar maintains that Plaintiff’s class claims are not certifiable. (ECF No. 53).
Further, Nationstar has asserted various defenses against Plaintiff’s class claims, including the
statute of limitations, bankruptcy preclusion, contractual defenses, and preemption under the
National Bank Act (“NBA”), Home Owners Loan Act (“HOLA”), and the Depository
Institutions Deregulation and Monetary Control Act, 12 U.S.C. § 1831d (“DIDA”). Nationstar’s
defenses are set forth with particularity in its Brief in Opposition. (ECF No. 53).
Nationstar does not, by virtue of entering into the Settlement Agreement or by agreeing
to the attached proposed order, concede the truth or validity of any of Plaintiff’s allegations or
the propriety of certification of any class other than solely for settlement purposes. In the event
that, for any reason whatsoever, the Parties’ settlement does not become final, Nationstar will not
in any manner be barred from disputing any of Plaintiff’s allegations or Plaintiff’s attempt to
certify his class claims, as a result of the proposed settlement or by agreeing to the proposed
order . (Settlement Agreement ¶¶ B-4, C-22, C-28).
III. PROPOSED SETTLEMENT
A. Terms of Parties’ Settlement Agreement
The proposed class action settlement requires Nationstar to pay $1,500,000 into a
Common Fund. The settlement amount is a lump sum, “all-in” payment that will cover all of
Nationstar’s settlement obligations to Plaintiff and the Class Members, including a proposed
$5,000 service award to Plaintiff and attorneys’ fees and costs. In addition to the $1,500,000
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settlement payment, Nationstar will be responsible to pay for the costs of administration of the
settlement. (Settlement Agreement ¶¶ C-3 – C-6).
The proposed settlement contemplates the creation of three subclasses: Subclass A –
borrowers who were assessed late fees exceeding $15; Subclass B – borrowers who were mailed
form debt collection letters including the term, “expenses of collection”; and
Subclass C – borrowers whose partial loan payments were returned prior to the date of
acceleration of their loans in violation of the WVCCPA.4 Class Members who believe that they
were charged improper default expenses may also submit a Claim Form describing the number
and nature of the default fees that they claim were improperly imposed on their loan accounts.
Class Members are entitled to receive a pro rata distribution of the $1,500,000 settlement
amount, after deductions for the service award and attorneys’ fees and costs, for each qualifying
instance of a late fee over $15, demand letter including the term “expenses of collection,” and
returned partial loan payment prior to the date of acceleration. Class Members who submit
Claim Forms for reimbursement of improper default expenses charged to their loan accounts that
they actually paid may be reimbursed out of the settlement amount. (Settlement Agreement ¶¶
C-1, C-5(a)& (h)).
Accordingly, the gross distribution, before deduction for the court-approved attorneys’
fees and service award, is an estimated $133.23 per instance ($1,500,000 divided by 11,259),
excluding claims for improper default expenses. In other words, each Class Member would
receive an estimated $133.23, before deductions, for each late fee over $15, demand letter
4 See supra at Section V for the precise language of the proposed class definition.
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including the term “expenses of collection,” and returned partial payment prior to the date of
acceleration.5
Based on currently available information, the Parties estimate that the average loan was
charged a late fee over $15, issued a demand letter including the terms, “expenses of collection,”
or had a partial loan payment returned prior to the date of acceleration on 10.34 occasions. Thus,
the gross average payment per loan is an estimated $1,377.60, excluding claims for default
expenses.
Nationstar’s records identify Class Members who were charged late fees over $15,
issued the demand letters including the term “expenses of collection,” and whose partial loan
payments were returned prior to the date of acceleration, as well as the number of late fees,
demand letters, and returned partial payments prior to acceleration for each Class Member. For
this reason, the Class Members will not be required to submit claim forms to obtain their share of
the settlement proceeds. Instead, the Settlement Administrator will mail checks to all Class
Members who do not opt out of the settlement. Further, Class Members may elect to request a
Claim Form for any instance of an improper default expense, such as foreclosure attorneys’ fees,
charged to their account that they actually paid. Any such instance will be paid out of the
Common Fund. Only one distribution per qualifying instance shall be made. (Settlement
5 If the Court awards a fee of one-third the amount of the settlement ($500,000), and a
service award of $5,000, Class Members will receive a net cash payment of an estimated $88.37 for each qualifying late fee, demand letter, and returned partial loan payment prior to the date of acceleration. Note: the estimated gross and net distribution amounts per instance are subject to change and may be reduced depending on the number of default fee claims submitted by Class Members.
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Agreement, ¶ C-10). These procedures will guarantee that a vast majority, if not all, of the Class
Members enjoy the financial fruits of the settlement.6
B. Notice and Administration Provisions
“In the context of a class action, the due process requirements of the Fifth Amendment
require ‘[r]easonable notice combined with an opportunity to be heard and withdraw from the
class.’” Groves v. Roy G. Hildreth & Son, Inc., No. 2:08-cv-820, 2011 U.S. Dist. LEXIS
106875, at *9 (S.D.W. Va. Sept. 20, 2011) (quoting In re Serzone Prods. Liability Litig., 231
F.R.D. 221, 231 (S.D.W. Va. 2005)); see also Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d
466, 472 (W.D. Va. 2011). Rule 23(c)(2) requires “the best notice practicable under the
circumstances, including individual notice to all members who can be identified through
reasonable effort.” Fed. R. Civ. P. 23(c)(2); see also Helmick v. Columbia Gas Transmission,
No. 2:07-cv-743, 2010 U.S. Dist. LEXIS 65808, at *21 (S.D.W. Va. July 1, 2010); Muhammad
v. Nat’l City Mortgage, Inc., No. 2:07-cv-423, 2008 U.S. Dist. LEXIS 103534, at *6-7 (S.D.W.
Va. Dec. 19, 2008). The notice must “inform potential class members of the nature of the action,
that class members may make an appearance through counsel, that class members may exclude
themselves from the settlement, and that the class judgment will have a binding effect on class
members who are not excluded.” Groves, 2011 U.S. Dist. LEXIS 106875, at *9; Helmick, 2010
U.S. Dist. LEXIS 65808, at *21. Silence on the part of potential class members receiving the
notice equates to “tacit consent to the court’s jurisdiction.” In re Serzone Prods. Liability Litig.,
231 F.R.D. at 231; see also Krell v. Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am.
Sales Practice Litig. Agent Actions), 148 F.3d 283, 306 (3d Cir. 1998).
6 In addition to the class claims, Plaintiff’s Complaint included individual claims for
illegal debt collection and negligent/fraudulent misrepresentations. The Parties negotiated a separate settlement of Plaintiff’s individual claims.
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The type of notice to which a member of a class is entitled depends upon the information
available to the parties about that person, and the possible methods of identification. See In re
Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1098 (5th Cir. 1977) (citing Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). In determining the reasonableness of
the effort required, the court must look to the “anticipated results, costs, and amount involved.”
In re Nissan, 552 F.2d at 1099. “[D]ue process is satisfied ‘where a fully descriptive notice is
sent first-class mail to each class member, with an explanation of the right to opt out.’”
Domonoske, 790 F. Supp. 2d at 472 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812
(1985)).
Nationstar’s loan servicing records reveal the name, address and pertinent account
information for all Class Members. Nationstar will provide the Settlement Administrator with
the last known address of each Class Member. With such detailed information, the first-class
mailed notice proposed in the Settlement Agreement will provide the best notice to class
members. Notices returned with forwarding addresses shall be promptly re-mailed. Any notices
returned without a forwarding address shall be re-mailed after the Administrator searches the
National Change of Address database maintained by the United States Postal Service and
performs a LexisNexis records search. The Parties’ plan further provides for the establishment
of an informational website and toll-free telephone support number. These procedures are
clearly designed to reach the maximum number of Class Members at a reasonable expense.
The Parties’ proposed Notice of Class Settlement provides a full description of the nature
of the action, proposed settlement, and requested attorneys’ fees. See Domonoske, 790 F. Supp.
2d at 472. The Notice describes in plain English the terms and operation of the settlement, the
considerations that caused Class Counsel to conclude that the settlement is fair and adequate, the
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procedure for objecting to and opting out of the settlement, and the date of the fairness hearing.
(Ex. B – Notice). The Notice also explains the process through which any Class Members who
actually paid an improper default expense, such as foreclosure attorneys’ fees, may request
reimbursement. (Ex. C – Claim Form).
To administer the settlement, the Parties have selected and propose an experienced class
action administration firm, Kurtzman Carson Consultants (“KCC”). KCC has estimated that the
cost of administration will not exceed $18,785.00. (Ex. D – KCC Cost Estimate).
IV. THE SETTLEMENT MERITS PRELIMINARY APPROVAL
Settlement of class actions must be approved by the Court. Fed. R. Civ. P. 23(e);
Scardelletti v. Debarr, 43 Fed. Appx. 525, 528 (4th Cir. 2002); In re Jiffy Lube Sec. Litig., 927
F.2d 155, 158 (4th Cir. 1991); Domonoske, 790 F. Supp. 2d at 472; Muhammad, 2008 U.S. Dist.
LEXIS 103534, at *8. “The primary concern addressed by Rule 23(e) is the protection of class
members whose rights may not have been given adequate consideration during the settlement.”
In re Jiffy Lube Sec. Litig., 927 F.2d at 158; see also Groves, 2011 U.S. Dist. LEXIS 106875, at
*14.
Such approval typically involves a two-step process of “preliminary” and “final”
approval. See Manual for Complex Litigation § 21.632, at 414 (4th ed. 2004); Grice v. PNC
Mortgage Corp. of Am., No. 97-3804, 1998 WL 350581, at *2 (D. Md. May 21, 1998)
(endorsing Manual’s two-step process); Horton v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
855 F. Supp. 825, 827 (E.D.N.C. 1992). In the first stage, the Parties submit the proposed
settlement to the Court for preliminary approval. In the second stage, following preliminary
approval, the Class is notified and a fairness hearing scheduled at which the Court will determine
whether to approve the settlement. See Bicking v. Mitchell Rubenstein & Assocs., No. 3:11-cv-
78, 2011 U.S. Dist. LEXIS 127173, at *12 (E.D. Va. Nov. 3, 2011) (“Prior to granting final
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approval, the court must direct reasonable notice to all potentially affected class members, allow
time for objection, and provide a ‘fairness hearing.’”).
Upon submission to the court of the parties’ proposed settlement, a court will undertake a
preliminary evaluation to determine whether the proposed settlement “appears to fall within the
range of possible approval.” Manual for Complex Litigation § 30.41, at 265 (3d ed. 2000); see
also All Bromine Antitrust Plaintiffs v. All Bromine Antitrust Defendants, 203 F.R.D. 403, 416
(S.D. Ind. 2001). The power to preliminarily approve a settlement lies “within the sound
discretion of the Court.” In re Vitamins Antitrust Litig., MDL No. 1285, 2001 U.S. Dist. LEXIS
25071, at *30 (D.D.C. July 25, 2001). “[T]here is a strong initial presumption that the
compromise is fair and reasonable.” In re Microstrategy, Inc. Sec. Litig., 148 F. Supp. 2d 654,
663 (E.D. Va. 2001) (quoting S.C. Nat’l Bank v. Stone, 139 F.R.D. 335, 339 (D.S.C. 1991));
Horton, 855 F. Supp. at 827 (holding that question at preliminary approval stage is simply
whether there is “probable cause” to justify notifying class members of proposed settlement); In
re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1384 (D. Md. 1983). The bar for
obtaining preliminary approval is low. All Bromine Antitrust Plaintiffs, 203 F.R.D. at 416.
In determining whether a settlement meets the requirements of Rule 23, the Fourth
Circuit has adopted a bifurcated analysis involving inquiries into the fairness and adequacy of the
settlement. Scardelletti, 43 Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 158;
Groves, 2011 U.S. Dist. LEXIS 106875, at *15. A class settlement is fair when it is “reached as
a result of good faith bargaining at arm’s length, without collusion.” In re Jiffy Lube Sec. Litig.,
927 F.2d at 159; Bicking, 2011 U.S. Dist. LEXIS 127173, at *12. The Court should be satisfied
that “the proposed settlement appears to be the product of serious, informed, non-collusive
negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to
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class representatives or segments of the class, and falls within the range of possible approval.”
Samuel v. Equicredit Corp., No. 00-6196, 2002 U.S. Dist. LEXIS 8234, at *1 n.1 (E.D. Pa.
2002); In re Vitamins Antitrust Litig., MDL No. 1285, 2001 U.S. Dist. LEXIS 25071, at *29-30;
In re Shell Oil Refinery, 155 F.R.D. 552, 555 (E.D. La. 1993). “Absent evidence to the contrary,
the court may presume that settlement negotiations were conducted in good faith and that the
resulting agreement was reached without collusion.” Muhammad, 2008 U.S. Dist. LEXIS
103534, at *9-10.
In assessing the fairness of a proposed settlement, the Court must look to the following
factors: (1) posture of the case at the time the settlement is proposed; (2) extent of discovery that
has been conducted; (3) circumstances surrounding the negotiations; and (4) experience of
counsel in the relevant area of class action litigation. Scardelletti, 43 Fed. Appx. at 528; In re
Jiffy Lube Sec. Litig., 927 F.2d at 159; Groves, 2011 U.S. Dist. LEXIS 106875, at *16;
Loudermilk Servs., Inc., No. 3:04-cv-966, 2009 U.S. Dist. LEXIS 25520, at *8 (S.D.W. Va. Mar.
18, 2009). In determining the adequacy of the proposed settlement, the Court must consider: (1)
relative strength of Plaintiff’s case on the merits; (2) existence of any difficulties of proof or
strong defenses Plaintiff is likely to encounter if the case proceeds to trial; (3) anticipated
duration and expense of additional litigation; (4) solvency of defendant and likelihood of
recovery of a litigated judgment; and (5) degree of opposition to the settlement. Scardelletti, 43
Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 159; Groves, 2011 U.S. Dist. LEXIS
106875, at *16-17; Loudermilk Servs., Inc., 2009 U.S. Dist. LEXIS 25520, at *8-9.
Consideration of the applicable factors reveals that the Parties’ proposed Settlement
Agreement should be preliminarily approved. The Parties’ settlement was indeed the product of
serious, informed, arm’s-length, and non-collusive negotiations. In fact, the Parties did not
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engage in settlement negotiations until the daylong mediation conducted by the Honorable Chief
Judge Joseph R. Goodwin on February 15, 2012, exactly one year to the day that Plaintiff filed
the Lawsuit in Putnam County. The Parties submitted separate mediation statements to Judge
Goodwin in preparation for the mediation. Prior to the mediation, Plaintiff had obtained all
relevant documents from Nationstar and completed a critical Rule 30(b)(6) deposition regarding
Nationstar’s loan servicing practices. (Ex. E – Decl. of John W. Barrett).
The settlement has no obvious deficiencies, and does not grant preferential treatment to
the class representative or any segments of the class. All Class Members will be treated equally,
and will enjoy the same recovery for each late fee, demand letter, partial loan payment returned
prior to the date of acceleration, and improper default expense. The $1,500,000 recovery itself is
substantial. Further, if the Court grants requested fee and service awards, the Parties expect that
the Class Members will receive an estimated net cash payment of $88.37 for each late fee,
demand letter, and returned partial loan payment prior to the date of acceleration (excluding
claims for improper default fees). This sum is almost six times the amount of each alleged
unlawful late fee. The adequacy of the net settlement payment also compares favorably with the
statutory damages range of $450 to $4,500 per violation. See W. Va. Code §§ 46A-5-101(1) &
106. The intrinsic value of the net settlement payment to Class Members is readily apparent
when one considers the risks inherent in continued and protracted litigation, including that the
Court could deny Plaintiff’s Motion to Certify Class and foreclose any possibility of class
recovery, the costs and uncertainty of litigation, and the expense and delay that accompany the
appeal process.
The settlement is particularly valuable to absent Class Members who, but for the
settlement, likely would be unaware of the existence of their legal claims. Even if they were
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aware, given the relatively small amounts of money involved (i.e., the imposition of a $15 late
fee), absent class members, and attorneys who may represent them, would have little financial
incentive to prosecute individual actions. The alternative to bringing this case as a class action is
bringing hundreds of individual claims against Nationstar. Realistically, the alternative to a class
action under the present circumstances is no action at all. The relatively small amount of the
disputed fees and returned payments makes it unlikely that Class Members would pursue their
claims on an individual basis.
“[C]ompromise and settlement are favored by the law.” Groves, 2011 U.S. Dist. LEXIS
106875, at *16-17. The proposed settlement serves the overriding public interest in settling
litigation. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976). The complexity,
expense, and duration of class action litigation are factors that mitigate in favor of preliminary
approval of a settlement. In re Corp. Litig., 264 F.3d 201, 231, 233 (3d Cir. 2001); Girsh v.
Jepson, 521 F.3d 153, 157 (3d Cir. 1975); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463
(2d Cir. 1974). While the Parties could have litigated the case to judgment and taxed the
resources of the litigants and the Court, they chose instead to rationally and reasonably forgo the
expense and uncertainty of continued litigation and focus their efforts on achieving a fair and
adequate settlement that took the risks of further litigation into account.
Finally, the “opinion of class action counsel, with substantial experience in litigation of
similar size and scope, is an important consideration.” Muhammad, 2008 U.S. Dist. LEXIS
103534, at *10. “‘When the parties’ attorneys are experienced and knowledgeable about the
facts and claims, their representations to the court that the settlement provides class relief which
is fair, reasonable and adequate should be given significant weight.’” Id. at *10-11 (quoting
Rolland v. Cellucci, 191 F.R.D. 3, 10 (D. Mass. 2000)). In the present case, proposed class
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counsel, who recommends the settlement, is skilled and experienced in consumer lending class
actions. (Ex. E – Decl. of John W. Barrett ¶ 6). See Muhammad, 2008 U.S. Dist. LEXIS
103534, at *11 (recognizing that Plaintiff’s counsel, Bailey & Glasser, particularly John W.
Barrett and Jonathan R. Marshall, are “skilled and experienced in class action litigation, and have
served as class counsel in several cases, including consumer lending cases”).
V. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE
The Parties’ proposed settlement contemplates the certification of a settlement class
defined as follows:
All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the “Class Period”), and who fall into one or more of the following subclasses:
Subclass A – Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00).
Subclass B – Persons with accounts having instances of form debt-collection letters mailed that include the terms “expenses of collection.”
Subclass C – Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower’s loan.
(Settlement Agreement ¶ C-1).
As stated above, Class Members who believe that they were charged improper default
expenses may request a Claim Form describing the number and nature of the default fees that
they claim were improperly imposed on their loan accounts and that they actually paid.
The proposed settlement class must meet the requirements for certification under Rule
23. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 620 (1997); In re Serzone Prods. Liability
Litig., 231 F.R.D. at 236-37. The Parties have agreed to the certification of the class for
settlement purposes only. In the event that this settlement does not become finally effective,
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Nationstar has retained the right to oppose any future motion to certify any class, and nothing in
Nationstar’s agreement not to oppose certification at this time will be construed as a waiver of
that right. (Settlement Agreement ¶ C-22, C-28).
A. The Class Satisfies the Numerosity, Commonality, Typicality and Adequacy Elements of Rule 23(a)
1. Numerosity
Rule 23(a)(1) requires that the class be of sufficient size that joinder of all members is
“impracticable.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; Bicking, 2011 U.S.
Dist. LEXIS 127173, at *5. “In determining whether joinder is impracticable, a court should
analyze the factual circumstances of the case rather than relying on numbers alone.” In re
Serzone Prods. Liability Litig., 231 F.R.D. at 237; see also Brady v. Thurston Motor Lines, 726
F.2d 136, 145 (4th Cir.1984); Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375
F.2d 648 (4th Cir. 1967). Factors to consider are “the estimated size of the class, the geographic
diversity of class members, the difficulty of identifying class members, and the negative impact
of judicial economy if individual suits were required.” Christman v. Am. Cyanamid Co., 92
F.R.D. 441, 451 (N.D.W. Va. 1981); see also McGlothlin v. Connors, 142 F.R.D. 626, 632
(W.D. Va. 1992).
In the present case, Class Members hold a total of 1,089 loans. Individual joinder of all
of these persons is impracticable, especially considering the relatively small amount of the
disputed charges and the geographic dispersal of Class Members across the state of West
Virginia. Courts have certified class actions with fewer members. See, e.g., Cypress, 375 F.2d at
653 (eighteen class members). Clearly, the proposed class satisfies the numerosity requirement.
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2. Commonality
Rule 23(a)(2) requires a showing of the existence of “questions of law or fact common to
the class.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; see also Lienhart v. Dryvit
Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001). Either common questions of law or fact can
establish commonality. Black v. Rhone-Poulenc, Inc., 173 F.R.D. 156, 161 (S.D.W. Va. 1996).
Factual differences among the class members’ cases will not preclude certification if the class
members share the same legal theory. Peoples v. Wendover Funding, Inc., 179 F.R.D. 492, 498
(D. Md. 1998); see also Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984); Christman,
92 F.R.D. at 452 n.28. The commonality requirement is subsumed under the more stringent
predominance requirement of Rule 23(b). Lienhart, 255 F.3d at 147 n.4; In re Serzone Prods.
Liability Litig., 231 F.R.D. at 237.
This action implicates the central and overriding common question of whether
Nationstar’s alleged practices and procedures regarding late fees, demand letters, and return of
partial loan payments prior to the date of acceleration violate West Virginia law. This question
is common to all putative Class Members, as all have been assessed a late fee over $15, issued a
demand letter demanding payment of “expenses of collection,” or had a partial loan payment
returned prior to the date of acceleration, or a combination of these three categories. The
resolution of these common questions can be determined by evidence concerning Nationstar’s
alleged servicing practices and procedures. Accordingly, commonality is satisfied.
3. Typicality
To establish typicality under Rule 23(a)(3), the “claims or defenses of the representative
parties [must be] typical of the claims or defenses of the class.” In re Serzone Prods. Liability
Litig., 231 F.R.D. at 238. “When it is alleged that the same unlawful conduct was directed at or
affected both the named plaintiff and the class sought to be represented, the typicality
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requirement is usually met irrespective of varying fact patterns which underlie individual
claims.” Black, 173 F.R.D. at 162. For purposes of typicality, there is a “‘sufficient nexus . . . if
the claims or defenses of the class and class representatives arise from the same event or pattern
or practice and are based on the same legal theory.’” In re Serzone Prods. Liability Litig., 231
F.R.D. at 238 (quoting In re Trazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D.
Fla. 2004)). Thus, the typicality rule assures that the class representatives’ interests are
“aligned” with those of the class. Kennedy v. Sullivan, 138 F.R.D. 484, 488 (N.D.W. Va. 1991).
Plaintiff’s claims are clearly aligned with those of the putative Class Members. The facts
supporting Plaintiff’s claims are straightforward and typical of, if not identical to, the claims of
the Class Members. All claims are based upon the same legal theories, and arise out of an
alleged common and standard course of conduct by Nationstar over the duration of the class
period. As such, the proposed class satisfies the Rule 23(a)(3) typicality requirement.
4. Adequacy of Representation
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect
the interests of the class.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 238. The
representative must show that there are no conflicts of interest between his interests and those of
the class he seeks to represent and that he has the willingness and ability to play an active role in
the litigation and vigorously represent the class, while protecting the interests of the absentee
class members. Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 129-30 (5th Cir. 2005); see also
Rhone-Poulenc, 173 F.R.D at 162.
Plaintiff has no interests that are antagonistic to or conflict in any way with the interests
of the proposed class as a whole. Plaintiff shares an interest with the other Class Members in
opposing Nationstar’s alleged loan servicing practices, and has willingly stepped forward to
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pursue his claims on a class-wide basis. Plaintiff will thus fairly and adequately protect the
interests of the class.
B. The Proposed Class Satisfies Rule 23(b)(3) Requirements of Predominance and Superiority
In order for Plaintiff to satisfy Rule 23(b), the Court must find that (1) questions of law or
fact common to the members of the class predominate over any questions affecting only
individual members, and (2) a class action is superior to other available methods for the fair and
efficient adjudication of the controversy. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311,
319 (4th Cir. 2006); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004); In re
Serzone Prods. Liability Litig., 231 F.R.D. at 239-40.
1. Common Questions of Law or Fact Predominate
Rule 23(b)(3) requires that the questions of law or fact common to all Class Members
predominate over questions pertaining to individual members. In re Serzone Prods. Liability
Litig., 231 F.R.D. at 239. Common questions predominate if class-wide adjudication of the
common issues will significantly advance the adjudication of the merits of all class members’
claims. “The predominance inquiry ‘tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.’” Lienhart, 255 F.3d at 142 (quoting Amchem Prod.,
Inc., 521 U.S. at 623); Gariety, 368 F.3d at 362. When certifying a class for settlement purposes
only, manageability problems that would arise if the class were litigated, and that would prevent
certification of a litigation class, need not be considered. See Newberg on Class Actions s. 13:36,
p. 438 (4th ed. 2002) (stating that “for a settlement class there are fewer procedural barriers for
certification . . . . Where class counsel must still prove there are common questions of law or
fact, manageability concerns should not prevent a settlement class from being certified.”);
Amchem Prods. v. Windsor, 521 U.S. 591, 620 (U.S. 1997) (“Confronted with a request for
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settlement-only class certification, a district court need not inquire whether the case, if tried,
would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the
proposal is that there be no trial.”).
The common questions outlined above are broad and apply to all Class Members, and are
readily capable of determination on a class-wide basis. Nationstar has identified relevant Class
Members and the number of instances of common alleged violations. While Nationstar
opposed class certification and asserted that its individualized affirmative defenses present
management problems for certification of a class for litigation purposes, that is not relevant to
certification of the class for settlement purposes. Therefore common questions predominate for
purposes of the class settlement satisfying the requirements of Rule 23(b)(3).
2. The Class Action is the Superior Method to Adjudicate Plaintiff’s Claims
Rule 23(b)(3) also requires the Court to find that a class action is superior to other
available methods for the fair and efficient adjudication of the controversy. Lienhart, 255 F.3d at
147; Bicking, 2011 U.S. Dist. LEXIS 127173, at *10. Factors to be considered by the Court
include: (1) class members’ interests in individually controlling the prosecution or defense of
separate actions; (2) extent and nature of any litigation concerning the controversy already begun
by or against class members; (3) desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and (4) likely difficulties in managing a class action. Fed. R.
Civ. P. 23(b). Because this Lawsuit concerns a settlement class, there is no concern with
manageability of the case related to individualized affirmative defenses asserted by Nationstar in
opposition to certification. Amchem Prods., Inc., 521 U.S. at 620.
In the present case, as stated above, Class Members have little interest in prosecuting
individual actions. As such, there is no better method available for the adjudication of the claims
which might be brought by each individual Class Member. The alternative to bringing this case
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as a class action is bringing nearly 1,100 individual claims. The relatively small amount of the
disputed late fees and returned payments makes it highly unlikely that Class Members would
pursue their claims on an individual basis. Accordingly, it is desirable to concentrate the
litigation of these claims in this Court. See Amchem Prods., Inc., 521 U.S. at 617 (observing that
Rule 23(b) allows “vindication of the rights of groups of people who individually would be
without effective strength to bring their opponents into court at all.”); Bicking, 2011 U.S. Dist.
LEXIS 127173, at *11 (same). Further, “[s]ettling this case as a class action will achieve
economies for both the litigants and the court” through a significant reduction in the “overall cost
of complex litigation, allowing plaintiffs’ attorneys to pool their resources and requiring
defendants to litigate all potential claims at once, thereby leveling the playing field between the
two sides.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 240; see also In re “Agent
Orange” Prod. Liab. Litig., 597 F. Supp. 740, 842 (E.D.N.Y. 1984). Therefore, there is no other
superior method of adjudicating the controversy because class settlement provides an efficient
and appropriate resolution of the controversy. Plaintiff has thus met the requirements of Rule
23(b)(3) for settlement purposes.7
C. Proposed Class Counsel Are Qualified to Represent the Class
Rule 23(g) requires that the Court appoint class counsel upon certification of the class.
Factors for the Court to consider include: the work counsel has done in identifying or
investigating potential claims in the action; counsel’s experience in handling class actions, other
complex litigation, and claims of the type asserted in the action; counsel’s knowledge of the
applicable law; and the resources counsel will commit to representation of the class. Fed. R. Civ.
P. 23(g)(1)(C)(i).
7 As stated above, Nationstar denies that the facts of this case meet the requirements of certification of any class on the merits. Nationstar consents to the attached proposed order solely for settlement purposes.
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Proposed class counsel, Bailey & Glasser LLP, is qualified and able to represent the
class. Proposed class counsel has submitted a declaration outlining his and the firm’s work on
the case and wide-ranging experience litigating consumer protection, class action, and other
complex cases. (Ex. E – Decl. of John W. Barrett Decl. ¶ 6). As stated above, Plaintiff’s counsel
performed substantial work in investigating, prosecuting and negotiating settlement of the case,
and is qualified to serve as class counsel. See Muhammad, 2008 U.S. Dist. LEXIS 103534, at
*11 (recognizing skill and experience of Plaintiff’s counsel).
VI. PROPOSED SCHEDULE TO COMPLETE SETTLEMENT
The Court’s calendar permitting, the Parties’ propose the following schedule to complete
the tasks necessary to effectuate the proposed settlement:
Class Notice Mailed by: Twenty-one (21) days after entry of the Court’s Order granting preliminary approval of the Settlement.
Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice.
Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date.
Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date.
VII. CONCLUSION
For the reasons stated above, Plaintiff respectfully requests that the Court grant this
Motion and enter the submitted Proposed Order (attached as Exhibit F to the Joint Motion), and
conditionally certify this class action for settlement purposes only, preliminarily approve the
Parties’ proposed Settlement and Release Agreement, appoint Plaintiff’s counsel as class
counsel, establish a schedule to complete the tasks necessary to effectuate the proposed
settlement, and for such other and further relief as the Court may deem equitable and just.
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Respectfully Submitted,
DAVID J. TRIPLETT By: s/ John W. Barrett_____ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301 Counsel for Plaintiff
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433203v1 04/11/12
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Huntington Division DAVID J. TRIPLETT,
Plaintiff, individually, and on behalf of a class of similarly-situated persons,
v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of May, 2012, I electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to the following CM/ECF participants:
Counsel for Defendant
John C. Lynch (W. Va. Bar No. 6627) Jason E. Manning (W. Va. Bar No. 11277)
TROUTMAN SANDERS LLP 222 Central Park Avenue, Suite 2000
Virginia Beach, VA 23462 Telephone: (757) 687-7765 Facsimile: (757) 687-1504
E-mail: [email protected]
s/ John W. Barrett______ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301
Counsel for Plaintiff
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EXHIBIT A
Case 3:11-cv-00238 Document 70-1 Filed 05/14/12 Page 1 of 27 PageID #: 1295
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Huntington Division DAVID J. TRIPLETT,
Plaintiff, individually, and on behalf of a class of similarly-situated persons,
v. Civil Action No. 3:11-cv-238 NATIONSTAR MORTGAGE, LLC,
Defendant.
CLASS SETTLEMENT AND RELEASE AGREEMENT
A. Parties
This Class Settlement and Release Agreement (the “Agreement”) is made and entered
into as of the Effective Date, as defined herein, by and between Plaintiff David J. Triplett
(“Triplett” or “Plaintiff”), the Settlement Class, as defined herein (the “Settlement Class” or
“Class Members”) and Defendant Nationstar Mortgage LLC (“Nationstar” or the “Defendant”)
(individually, a “Party,” and collectively, the “Parties”) for the purpose of resolving by
compromise and settlement all claims, controversies and alleged liabilities arising out of a
dispute as set forth below.
B. Recitals This Agreement is entered into with reference to the following facts.
1. On February 15, 2011, Triplett commenced this action (the “Lawsuit”) against
Nationstar in the Circuit Court of Putnam County, West Virginia, Case No. 11-C-46, asserting
various claims pertaining to the servicing of the Loan, including claims for alleged violations of the
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2
West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq.
(“WVCCPA”).
2. On April 8, 2011, Nationstar removed the Lawsuit to the United States District
Court for the Southern District of West Virginia, Huntington Division, Case No. 3:11-cv-238,
pursuant to 28 U.S.C. §§ 1441 and 1446, and the Class Action Fairness Act of 2005, 28 U.S.C. §§
1332(d)(1)-(11) (“CAFA”).
3. The Lawsuit purports to be brought on behalf of Triplett and a class of similarly
situated individuals. Triplett alleges in the Lawsuit that Nationstar violated various provisions of
West Virginia statutory law and breached contractual obligations with respect to Triplett and the
class on whose behalf the Lawsuit purports to be brought.
4. Nationstar denies any and all allegations and claims asserted against it in the
Lawsuit and denies any and all wrongdoing. Neither the fact nor the terms of this Agreement
shall be used or offered or received in evidence in any action or proceeding for any purpose,
except in an action or proceeding to enforce this Agreement.
5. Notwithstanding the above, solely in order to avoid the cost, burden, expense, and
uncertainty of further litigation, the Parties desire to compromise and settle the Lawsuit and have
reached this Agreement to resolve the disputes between them, pending approval of the Court, and
to achieve complete peace.
C. Agreements, Releases and Promises
THEREFORE, in consideration of the facts and releases and promises contained herein,
and for other good and valuable consideration, the receipt of which is acknowledged by each
Party hereto, the Parties promise and agree as follows:
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3
1. Class Members
Triplett and Nationstar will seek certification of a Settlement Class as set forth below:
All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the “Class Period”), and who fall into one or more of the following subclasses:
Subclass A – Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00).
Subclass B – Persons with accounts having instances of form debt-collection letters mailed that include the terms “expenses of collection.”
Subclass C – Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower’s loan.
Class Members who believe that they actually paid improper default expenses that were
not waived, reimbursed, or otherwise credited to the Class Members’ loan accounts may contact
the Settlement Administrator and request a Claim Form to describe the number and nature of the
default fees that they claim were improperly imposed on their loan accounts and that they
actually paid.
The terms, effectiveness and validity of this Agreement are subject to the certification of
the Settlement Class as defined in this Paragraph No. C-1, the entry of an order granting a
Motion For Preliminary Approval of Settlement, Conditional Class Certification, and Entry of
Scheduling Order (“Preliminary Approval Motion”), and the entry of an order granting a Motion
For Final Certification of Settlement Class and Approval of Class Settlement (“Final Approval
Motion”). The Agreement becomes effective as of the Effective Date, as defined in Paragraph
No. C-8 of this Agreement.
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2. Class Composition
The Parties agree that, based on the information currently available to them, the
Settlement Class is composed of the Loan Accounts and instances enumerated in this paragraph.
Subclass A consists of approximately 836 Loan Accounts and 7,539 instances.
Subclass B consists of approximately 709 Loan Accounts and 3,674 instances.
Subclass C consists of approximately 27 Loan Accounts and 46 instances.
In Total, there are approximately 1,089 Loan Accounts with instances in one or more of
the subclasses and approximately 11,259 instances overall.
Plaintiff shall be allowed to conduct reasonable confirmatory discovery to confirm the
number of Loan Accounts and instances set forth above. A duly sworn affidavit or sworn
declaration, made by an appropriate representative of Nationstar, attesting to the number of Loan
Accounts and instances as set forth above, shall be sufficient to fulfill Nationstar’s obligations to
provide reasonable confirmatory discovery pursuant to this Agreement.
3. Settlement Amount
Nationstar, its successors, and assigns will pay ONE MILLION AND FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($1,500,000.00) to a “Common Fund” in full settlement
of all class claims that were asserted or arose from the claims asserted in the Lawsuit (the
“Settlement Amount”). In no event shall the Settlement Amount exceed $1,500,000.00.
The Settlement Amount is an “all-in” payment. In no event shall Nationstar be liable for
any amount greater than the Settlement Amount, with the exception of the Administrative Costs
referenced in Paragraph No. C-6 below.
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4. Common Fund
The Common Fund shall be maintained in a trust account established by Nationstar
within thirty (30) business days after full execution of this Agreement. The parties shall have
joint control of the Common Fund. The principal in the Common Fund shall be used to make
settlement payments and to pay fee and service awards. All interest accruing in the Common
Fund shall be paid to Nationstar.
Should the Class Settlement be denied for any reason, or otherwise not approved by the
Court, then all monies placed into the Common Fund shall be returned to Nationstar.
Should the Class Settlement be approved, and should any principal monies remain in the
Common Fund after disbursement of funds in accordance with the terms of this Agreement, the
remaining principal funds shall not revert to Nationstar. Any such remaining principal funds
shall be donated as a cy pres award to Legal Aid of West Virginia, Inc., and shall be earmarked
to provide legal assistance in the following case areas only: domestic violence, coal miner
claims, and/or claims for benefit programs such as Temporary Assistance to Needy Families
(“TANF”), Medicaid, and Social Security Disability, as provided for in Paragraph No. C-19.
5. Distribution of Settlement Amount
The Settlement Amount shall be distributed as follows:
(a) Each Class Member shall receive a pro rata distribution for each instance as set
forth in Paragraph No. C-1 above. Each Class Member shall receive an estimated pro
rata distribution per qualified instance in the approximate amount of $88.37,1 after
1 Note: the estimated net distribution amount per instance is subject to change and may be reduced depending on the number of default fee claims submitted by Class Members, and depending on the amount of attorneys’ fees, costs, and service award authorized by the Court.
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6
payment of proposed attorneys’ fees, costs, and the service award, except as otherwise
provided in this Paragraph No. C-5. Only one distribution per qualified instance shall be
made.
(b) That distribution shall be made jointly payable to all co-borrowers on any Loan
Account in which the qualified instance was imposed, unless a surviving co-borrower
provides to the Administrator certified copies of records establishing that a co-borrower
has died.
(c) Co-borrowers on a single Loan Account shall be entitled to a single settlement
payment per qualified instance, and no Class Member is entitled to more than one
settlement payment per instance. Class Members who receive a settlement payment shall
be solely responsible for distributing or allocating such payment between or among all
co-borrowers.
(d) As payment for attorney fees, Plaintiff’s counsel shall apply to the Court for a
distribution of no more than one-third (33 ⅓ %), or Five Hundred Thousand and 00/100
Dollars ($500,000.00), of the Settlement Amount as a percentage of the Common Fund.
Plaintiff’s attorneys’ fees shall be paid out of the Common fund.
(e) Triplett will receive a service award of Five Thousand and 00/100 Dollars
($5,000.00), subject to approval by the Court, in addition to his pro-rata share of the
Settlement Amount. Triplett’s service award shall be paid out of the Common Fund.
(f) The size and composition of the Settlement Class and the number of qualifying
instances is based on the best information available to the Parties. If any class
notification or claims process should result in an addition to or subtraction from these
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numbers, the total Settlement Amount shall remain the same, except to the extent to
which (i) Nationstar retains the right to void the Settlement Agreement due to the number
of class members objecting or opting out of the settlement pursuant to Paragraph No. C-
11 of this Agreement, or (ii) either Party reserves the right to void the Settlement
Agreement if the assumptions, representations, and warranties set forth below prove to be
incorrect:
(1) That there are no more than Seven Thousand and Five Hundred (7,500)
instances of late fees exceeding Fifteen and 00/100 Dollars ($15.00)
charged to West Virginia borrowers during the Class Period, plus or minus
ten percent (10%);
(2) That there are no more than Three Thousand and Six Hundred (3,600)
instances of form demand letters including the term “expenses of
collection” mailed to West Virginia borrowers during the Class Period,
plus or minus ten percent (10%); and
(3) That there are no more than Fifty-five (55) instances of partial loan
payments returned to West Virginia borrowers prior to the date of
acceleration of their loans during the Class Period, plus or minus ten
percent (10%).
(g) Except as set forth in Paragraph No. C-5(f) above, any increase or decrease in the
distribution made to Plaintiff’s counsel, whether as the result of objections to the
Settlement Agreement, the Court’s disposition on Plaintiff’s counsel’s fee request, or
otherwise, shall have no effect on the total Settlement Amount.
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(h) Total aggregate reimbursements of Class Member claims of having actually paid
improper default charges under Paragraph No. C-1 shall be capped at One Hundred and
Fifty Thousand and 00/100 Dollars ($150,000.00). Any such reimbursements shall be
made out of the Common Fund. Should the total aggregate amount of reimbursements
claimed exceed $150,000.00, then reimbursements shall be distributed proportionally out
of the $150,000.00.
6. Administrative Costs
In addition to the Settlement Amount, Nationstar shall pay the costs associated with
providing notice to the Class Members and disbursement of the Settlement Amount
(“Administrative Costs”), including all costs and expenses related to class notice, distribution of
settlement proceeds, reasonable measures to locate Class Members, and retaining any class or
claims administrator.
7. Administrator
The parties agree, subject to the Court’s approval, that Kurtzman Carson Consultants
(“KCC”) shall serve as Settlement administrator (the “Administrator”). The Administrator shall
manage all facets of class notice and settlement administration. KCC has estimated the cost of
providing mailed notice, investigation of Class Members’ current addresses, skip-tracing,
reasonable measures to locate Class Members, processing claim forms, responding to Class
Member inquiries, distributing checks to Class Members, and reporting to Plaintiff’s counsel and
Nationstar’s counsel about administrative issues, to be approximately $18,785.00.
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8. Effective Date
The “Effective Date” of this Agreement and any order granting a Motion For Final
Certification of Settlement Class and Approval of Class Settlement (the “Final Approval Order”)
is the date on which this Agreement and the Final Approval Order are effective pursuant to this
Paragraph No. C-8. This Agreement shall become effective as of the later of: (a) 31 days after
the docketing and entry of the Final Approval Order, or (b) 31 days after the exhaustion of all
appeal rights and the final termination of any appeal from the Final Approval Order.
9. Preliminary Approval Motion
Plaintiff will submit to the Court a Motion for Preliminary Approval of Settlement,
Conditional Class Certification, and Entry of Scheduling Order (“Preliminary Approval
Motion”) no later than thirty (30) days after full execution of this Agreement. The Motion will
request that the Court:
(a) Preliminarily approve the certification of the Settlement Class as described in this
Agreement for the purposes of settling the Lawsuit, on the terms described in this
Agreement;
(b) Find that the Settlement Class representative, and Settlement Class counsel, fairly
and adequately represent the interests of the Settlement Class;
(c) Find preliminarily that the Agreement is fair, reasonable and adequate to the
Settlement Class;
(d) Schedule a Final Approval Hearing approximately one hundred and twenty (120)
days after entry of an Order granting the Preliminary Approval Motion; and
(e) Approve the form of notice to be provided to members of the Settlement Class.
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10. Notice to Class Members
If the Court grants the Preliminary Approval Motion, the Administrator will, within
twenty-one (21) days of the Order, mail to each Class Member at his or her last known address a
Notice of Proposed Class Settlement and Certification of Settlement Class (“Notice”).
Nationstar shall provide the Administrator with the last known address of each Class Member.
Any notices returned as undeliverable, but with a forwarding address, shall be promptly re-
mailed to the forwarding address. The Administrator shall perform a National Change of
Address Registry and LexisNexis/Death Records Search for all Notices returned as
undeliverable, without a forwarding address. Such Notices shall be re-mailed upon discovery of
a valid mailing address for the Class Member. The Administrator shall also maintain a
settlement website and toll-free number for Class Member inquiries.
The Notice shall apprise the Settlement Class Members of their right to opt out of the
Settlement Class, of their right to object to the Class Settlement, of the fact that any objections or
opt outs must be sent to the Administrator and postmarked no later than sixty (60) days after the
initial date of mailing of the Notice, and that any failure to object or to opt out in accordance
with applicable deadlines for opt outs and objections constitutes a knowing and voluntary waiver
of any right to opt out of the Settlement Class or to appeal from the Final Approval Order.
The Notice shall further apprise the Settlement Class Members of their right to make a
claim for reimbursement of any instance of a default expense as set forth in Paragraph No. C-1,
such as foreclosure attorneys’ fees, charged to their account, and to request a Claim Form from
the Administrator. Any instance of an improper default expense is waived if not actually paid by
the Class Member. Any reimbursement of improper default expenses actually paid by the Class
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Member shall be distributed out of the Common Fund in the distribution amount set forth in
Paragraph No. C-5(h). Only one reimbursement distribution per qualified instance shall be
made. Any Claim Form must be submitted to the Administrator and postmarked no later than
sixty (60) days after the initial date of mailing of the Notice. Failure to submit a Claim Form by
that date shall constitute a knowing and voluntary waiver of any such claim.
11. Service of Notice of Opt Out and Notice of Claim Form
At least ten (10) days after the date the opt outs, objections, and Claim Forms are due, the
Administrator shall notify Plaintiff’s counsel and Nationstar’s counsel of any persons who have
objected to the Class Settlement, opted out of the Settlement Class, or submitted a Claim Form,
and shall serve Plaintiff’s counsel, Nationstar’s counsel, and the Court with copies of all
objections, notices of opt out, Claim Forms, and supporting documentation.
12. Final Approval Motion
No later than twenty-one (21) days after the date the opt outs, objections, and Claim
Forms are due, the Plaintiff will file a Motion for Final Approval of Settlement (“Final Approval
Motion”). The Motion will request that the Court approve the Settlement and enter a Final Order
and Judgment that will, among other things:
(a) Adjudge and approve in all respects the final settlement of this action on the terms described in this Agreement;
(b) Dismiss on the merits and with prejudice all Class Claims of the named Plaintiff and the Class Members in this action;
(c) Include all relief to be provided as part of this Settlement; and (d) Retain jurisdiction of all matters relating to the interpretation and enforcement of
the Settlement and this Agreement.
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13. Effect of Disapproval/Denial of Settlement
If the Court disapproves this Agreement or any part thereof for any reason, or declines to
enter a Final Approval Order as described in this Agreement, then this Agreement, including all
releases contained within the Agreement, shall become null and void and the action shall proceed
as though no settlement had been negotiated or achieved, unless Plaintiff and Nationstar agree
otherwise or jointly appeal the order disapproving this Settlement.
14. Right to Declare Agreement Null and Void
In the event that more than ten (10) percent of the Settlement Class Members timely file
notices of opt out, or in the event that the West Virginia Division of Banking seeks to intervene
in this Lawsuit to object to the proposed settlement or otherwise notifies Nationstar of its intent
to object to the proposed settlement, Nationstar may, in Nationstar’s sole discretion, declare that
this Agreement, including all releases contained within the Agreement, is null and void. In that
event, the action shall proceed as though no settlement had been negotiated or achieved.
15. Reversal, Vacation, or Modification of Agreement by Appellate Court
In the event that a court of appeals or other reviewing court sets aside, reverses, vacates
or modifies the Final Approval Order as described in this Agreement, then this Agreement,
including all releases contained within the Agreement, shall become null and void and the action
shall proceed as though no settlement had been negotiated or achieved.
16. Payment of Settlement Amount, Attorneys’ Fees and Costs, and Service Award
No later than thirty (30) days after the Effective Date of the Settlement as defined in
Paragraph No. C-8, the Administrator shall distribute the Settlement Amount to Settlement Class
Members as provided in Paragraph No. C-5 of this Agreement, less that portion of the Settlement
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Amount the Court awards as attorneys’ fees and expenses, and the service award to the class
representative. Distributions to Settlement Class Members will be made to their last known
address by first class mail, postage prepaid. The Administrator shall also distribute the amount
awarded as attorneys’ fees, expenses, and service award no later than thirty (30) days after the
Effective Date of the Settlement as defined in Paragraph No. C-8.
Checks made payable to each Class Member shall become stale and all right to payment
shall end upon expiration of four (4) months from the date of the check (which will be within one
calendar week of the date such check is mailed) and shall include a statement to inform the
bearer of this validity period.
17. Return of Settlement Payments
In the event any Class Member’s envelope containing the settlement payment is returned
to the sender, but with a forwarding address, the payment shall be promptly re-mailed to the
forwarding address. The Administrator shall perform a National Change of Address Registry
and LexisNexis/Death Records Search for all payments that are returned as undeliverable,
without a forwarding address. Such payments shall be re-mailed upon discovery of a valid
mailing address for the Class Member.
This Paragraph No. C-17 does not impose on any Party or the Administrator an
obligation to make extraordinary efforts to locate a Class Member.
18. Final Report of Distribution of Settlement Amount
Twelve (12) months after the Final Approval Order is entered, or thirty (30) days after
distribution of the Settlement Amount is completed, whichever is later, Plaintiff’s counsel shall
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file a report with the Court, and serve a copy on Nationstar’s counsel, detailing the distribution of
the settlement funds.
19. Cy Pres Award
Any settlement payments that cannot with reasonable diligence, as described in
Paragraph No. C-17, be delivered to Class Members within a reasonable time (not less than
ninety (90) days after the Court’s final approval of the settlement), or any check distributed to a
Class Member that is not cashed within four (4) months of delivery, will be donated as a cy pres
award under the terms of Paragraph No. C-4. Any such donation will have no effect on the
validity of this Agreement against those Class Members who do not receive a settlement
payment following reasonable efforts to deliver a payment to them.
20. Final and Binding Agreement
The Parties acknowledge that this Agreement is a full and final accord and satisfaction
and shall be binding upon and inure to the benefit of Nationstar, the named Plaintiff, the
Members of the Settlement Class, their counsel, and each of their respective trustees, heirs,
executors, administrators, beneficiaries, representatives, agents, successors, and assigns.
21. Release
In consideration for the Settlement Amount and for Nationstar’s other promises contained
herein, each Member of the Settlement Class, for and on behalf of the Class Member and the
Class Member’s present and future spouses (and common law spouses), children, parents,
relations, successors, beneficiaries, heirs, next of kin, assigns, attorneys, executors,
administrators, and/or estate, or any and all other persons who could claim through them, hereby
unconditionally and irrevocably remises, releases, forever discharges and covenants not to sue
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Nationstar, and all entities related to Nationstar, and each of their past, present and future
directors, officers (whether acting in such capacity or individually), shareholders, owners,
partners, joint venturers, principals, trustees, creditors, law firms, attorneys, representatives,
employees, managers, parents, subsidiaries, divisions, subdivisions, departments, affiliates,
predecessors, successors, and assigns, or any agent acting or purporting to act for them or on
their behalf, from any and all claims, counterclaims, actions, causes of action, suits, set-offs,
costs, losses, expenses, sums of money, accounts, reckonings, debts, charges, complaints,
controversies, disputes, damages, judgments, executions, promises, omissions, duties,
agreements, rights, and any and all demands, obligations and liabilities, of whatever kind or
character, direct or indirect, whether known or unknown or capable of being known up until the
Effective Date, arising at law or in equity, by right of action or otherwise, whether or not they
could have been asserted in the Lawsuit, which the Class Member may have against them up
until the Effective Date, arising out of, relating to, or in any manner concerning or involving
claims related to late fees, demand letters, returned payments, or default-related fees.
It is the intention and effect of this Release to discharge the above-described claims that
each Class Member has against Nationstar up until and including the Effective Date, including,
but not limited to, the causes of action alleged against Nationstar in the Complaint.
In connection with this Release, each Class Member is releasing past or currently existing
claims that existed up until the Effective Date and is aware that he or she may hereafter discover
claims that existed in the past or present during the Class Period that may be unknown or
unsuspected but discoverable based on reasonable investigation, or facts in addition to or
different from those which he or she now knows or believes to be true with respect to the
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allegations and subject matter in the Complaint. Nevertheless, it is the intention of each Class
Member to fully, finally, and forever settle and release all such matters and all claims against
Nationstar which exist or might have existed (whether or not previously or currently asserted in
this Lawsuit).
Each Party to this Agreement understands, acknowledges, and agrees that if any fact now
believed to be true is found hereafter to be other than, or different from, that which is now
believed, each expressly assumes the risk of such difference in fact and agrees that this
Agreement shall be, and will remain, in effect notwithstanding any such difference in fact.
Each Class Member agrees not to start, continue, intervene in, participate in, or receive
any benefits from any lawsuit, litigation, arbitration, administrative, regulatory, or other
proceeding against Nationstar in any jurisdiction based on or relating to claims, facts, or
circumstances which are covered by this Release..
22. No Admission of Liability or Certification of Class
Neither this Agreement nor the fact of settlement nor the payment of the Settlement
Amount is, may be construed as, or may be used as, an admission on the part of Nationstar of
any fault, wrongdoing or liability whatsoever, or that any class asserted by Plaintiff merits
certification. Nationstar expressly denies any wrongdoing under any federal, state or local
statute, public policy, tort law, contract law, or common law and expressly denies the truth or
validity of any claim made against it or the propriety of certification of any class on the merits.
In the event that, for any reason whatsoever, this Agreement should not become effective, the
entry or negotiation of this Agreement will not be used as evidence of or argument for any
position in the Lawsuit, including the propriety of certifying any class except a Settlement Class.
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Further, neither this Agreement nor any drafts hereof nor any documents leading to or
relating to the Settlement set forth herein, including, but not limited to, any proposed order,
Preliminary Approval Motion, Final Approval Motion, or memoranda in support thereof,
constitutes an admission of liability or of any fact by the Plaintiff or Nationstar. The Parties
agree that the foregoing documents:
(a) Will not be offered or received against Nationstar as evidence of or be construed
as or deemed to be evidence of, any admission or concession by Nationstar of (i) the truth
or relevance of any fact alleged by any Party, (ii) the existence of any class alleged by
Plaintiff, (iii) the propriety of class certification on the merits if the Lawsuit were to be
litigated rather than settled, and (iv) the validity of any claim or defense that has been or
could have been asserted by any Party in the Lawsuit or in any other litigation;
(b) Will not be offered as or received against Nationstar as evidence of, or construed
as or deemed to be evidence of any admission or concession of any liability, negligence,
fault or wrongdoing, or in any way referred to for any other reason as against any of the
Parties to this Agreement, in any other civil, criminal or administrative action or
proceeding, other than such proceedings as may be necessary to effectuate the provisions
of this Agreement; provided, however, that if this Agreement is approved by the Court,
Nationstar may rely upon or use this Agreement as necessary to effectuate the liability
protection granted Nationstar hereunder; and
(c) Will not be offered or received as an admission or concession that the
consideration to be given to Settlement Class Members hereunder represents the amount
which could be or would have been recovered by any such persons after trial.
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23. Non-Admissibility of Settlement Negotiations
The settlement negotiations resulting in this Agreement have been undertaken by Plaintiff
and Nationstar and their respective counsel in good faith and for settlement purposes only
pursuant to Federal Rule of Evidence 408, and no evidence of negotiations or discussions
underlying this Agreement shall be offered or received in evidence in any action or proceeding
for any purpose. Nor shall the Agreement be offered or received in evidence in any action or
proceeding for any purpose, except only for purposes of enforcing the terms and conditions of
this Agreement.
24. No Oral Modification
This Agreement shall not be altered, amended, or modified by oral representation made
before or after the execution of this Agreement. No amendment, modification, waiver,
termination or discharge of any provision of this Agreement shall be effective unless it is in a
written agreement duly executed by all of the Parties hereto.
25. Complete Agreement
This Agreement constitutes a single, integrated, written contract expressing the entire
understanding and agreement between the Parties, and the terms of the Agreement are
contractual and not merely recitals. This Agreement supersedes all prior negotiations. No other
agreement, written or oral, expressed or implied, exists between the Parties with respect to the
subject matter of this Agreement, and the Parties declare and represent that no promise,
inducement, or other agreement not expressly contained in this Agreement has been made
conferring any benefit upon them.
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26. Competency; Independent Counsel
Each Party to this Agreement represents and warrants that it is competent to enter into the
Agreement and in doing so is acting upon its independent judgment and upon the advice of its
own counsel and not in reliance upon any warranty or representation, express or implied, of any
nature or kind by any other Party, other than the terms set forth in or contemplated by this
Agreement.
27. Construction of Agreement
The language and terms of this Agreement shall be construed as a whole, according to
fair and ordinary meaning, as if both Parties jointly prepared it, and shall not be strictly construed
for or against any party to this Agreement.
28. Certification of Class for Settlement Purposes Only
For settlement purposes only, the Parties agree that, as part of the preliminary
approval process, the Court may make preliminary findings and enter an order granting
provisional certification of the Settlement Class subject to final findings and certification in the
Final Order, and appointing both Plaintiff and Class Counsel as representatives of the proposed
Settlement Class.
For settlement purposes only, Nationstar consents to certification of the Settlement Class
pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Nationstar does not consent
to certification of the Settlement Class for any purpose other than to effectuate the settlement of
the actions and claims identified in this Agreement. If this Agreement is not approved by the
Court or is terminated pursuant to its terms or for any other reason, or is disapproved in a final
order by any court of competent jurisdiction, (a) the order certifying the Settlement Class and all
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preliminary findings or stipulations regarding certification of the Settlement Class shall be
automatically vacated upon notice to the Court of this Agreement’s termination or disapproval,
(b) the Lawsuit may proceed as though the Settlement Class had never been certified and any
related findings or stipulations pursuant to this Agreement had never been made; and (c) the
Parties reserve all procedural or substantive rights as presently exist, including all affirmative
defenses.
29. Affirmations by Nationstar
As part of the Class Settlement, Nationstar affirms that it will not engage in the following conduct, except when allowed to do so under state and federal law: (a.) Nationstar shall not charge West Virginia borrowers late fees in excess of Fifteen
and 00/100 Dollars ($15.00) per month.
(b.) Nationstar shall not issue or cause to be issued demand letters seeking payments of “expenses of collection” or default fees from West Virginia borrowers.
(c.) Nationstar shall not return partial loan payments to West Virginia borrowers prior
to the date of acceleration of their loans.
(d.) Nationstar shall not demand payment of attorney’s fees from West Virginia borrowers.
30. Continuing Jurisdiction
The United States District Court for the Southern District of West Virginia will have
continuing jurisdiction over the Lawsuit for the purpose of implementing the Settlement until the
Lawsuit and all related matters are fully resolved, and for enforcement of the Settlement, the
Agreement, and the Final Order thereafter. Any dispute regarding the Parties’ obligations
pursuant to this Agreement or interpretation of the terms of this Agreement or the Final Order
will be resolved by the Court.
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31. Choice of Law
This Agreement will be governed by federal law and the internal laws of the State of
West Virginia without regard to its choice of law principles.
32. Choice of Forum
The Parties consent to jurisdiction and venue in the United States District Court for the
Southern District of West Virginia for any dispute arising in any way out of this Agreement.
33. Additional Acts to Effectuate the Agreement
The Parties shall execute all documents and perform all acts necessary and proper to
effectuate the terms of this Agreement and to obtain the benefits of the Agreement.
34. Waiver
The provisions of this Agreement may be waived only by an instrument in writing
executed by the waiving Party. The waiver by any Party of any breach of this Agreement shall
not be deemed to be or construed as a waiver of any other breach, whether prior, subsequent, or
contemporaneous, of this Agreement.
35. Confidentiality
This Agreement shall remain confidential until the Preliminary Approval Motion is filed.
Any press release or advertisement that Plaintiff or Class Counsel wish to make about the
Settlement or this Agreement, including the payments of settlement proceeds or the underlying
claims, shall require joint approval of the Parties. Any disputes shall be decided by the mediator,
the Honorable Chief Judge Joseph R. Goodwin.
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The Parties agree that documents and information provided in connection with the
administration of the settlement of this matter are deemed Confidential pursuant to the agreed
Protective Order (ECF No. 20), and shall be subject to the terms thereof.
36. Preservation of Privilege
Nothing contained in this Agreement or any Order of this Court, and no act required to be
performed pursuant to this Agreement or any Order of this Court, is intended to constitute, cause
or effect any waiver, in whole or in part, of any attorney client privilege, work product
protection, or common interest or joint defense privilege, and each Class Member agrees not to
make or cause to be made in any form any assertion to the contrary.
37. Authority of Class Counsel
Class Counsel unconditionally warrant and represent that they are authorized by Plaintiff,
for whom they are attorneys of record, and the attorneys of record for Nationstar warrant and
represent that they are authorized by Nationstar, to take all appropriate action required or
permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms and to
execute any other documents required to effectuate the terms of this Agreement. The Parties and
their counsel shall cooperate with each other and use their best efforts to effect the
implementation of the Settlement.
38. Tax Consequences
This Agreement is enforceable regardless of its tax consequences. The Parties
understand and agree that the payments set forth in this Agreement reflect the settlement of
disputed legal claims and that Nationstar makes no representations regarding the Agreement’s
tax consequences.
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No opinion concerning the tax consequences of the Settlement to individual Class
Members is being given or will be given by the Parties or their counsel, nor is any representation
or warranty in this regard made by virtue of this Agreement. Plaintiff must consult his own tax
advisors regarding the tax consequences of the Settlement, including any payments provided
hereunder and any tax reporting obligations he may have with respect thereto.
Each Class Member’s tax obligations, and the determination thereof, are the sole
responsibility of the Class Member, and it is understood that the tax consequences may vary
depending on the particular circumstances of each individual Class Member.
Each Class Member specifically agrees that he or she is solely responsible for any and all
taxes, interest and penalties due and owing, if any, should the payments or any portion thereof,
be taxable.
39. Release, Limitations
This Agreement does not release claims arising out of the failure of either Party to
perform in conformity with the terms of this Agreement.
40. Jury Waiver
The Parties voluntarily and intentionally waive any right that they may have to a trial by
jury in any action, proceeding or litigation directly or indirectly arising out of, or relating to, this
Agreement.
41. Knowing and Voluntary Assent
The Parties acknowledge that this Agreement is executed voluntarily by each of them,
without any duress or undue influence on the part of, or on behalf of any of them. The Parties
further acknowledge that they have had the opportunity for representation in the negotiations for,
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and in the performance of, this Agreement by counsel of their choice and that they have read this
Agreement and/or have had it fully explained to them by their counsel and that they are fully
aware of the contents of this Agreement and its legal effect.
42. Counterparts and Facsimile Signatures
This Agreement may be executed in any number of counterparts and with facsimile
signatures, and all such counterparts shall be construed together and constitute a single form of
this Agreement.
43. Headings and Captions
The headings and captions inserted into this Agreement are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this Agreement, or any provision
hereof, or in any way affect the interpretation of this Agreement.
(Remainder of Page Intentionally Left Blank)
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EXHIBIT B
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530633
If you have a loan secured by real property in West Virginia that was serviced by Nationstar Mortgage, LLC, any time from
February 15, 2007 through July 1, 2011, you could get benefits from a class action settlement.
Nationstar Mortgage, LLC Settlement Administrator c/o Kurtzman Carson Consultants, LLC P.O. Box ____ Novato, CA 94948-_____
Case 3:11-cv-00238 Document 70-2 Filed 05/14/12 Page 2 of 4 PageID #: 1323
530633
LEGAL NOTICE
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
THIS IS NOT A SUIT AGAINST YOU. The purpose of this Notice is to advise you that a Settlement has been reached in a class action lawsuit (the “Lawsuit”) against Nationstar Mortgage LLC (“Nationstar”). The Notice is being sent to you because Nationstar’s records indicate that you are included in the Settlement, and that you are entitled to a cash payment.
This Notice describes the case in general and does not address all of the issues in detail. You may review a copy of the Settlement Agreement, Class Action Complaint, and the Court’s Order Preliminarily Approving Settlement at the following website: www._______.com.
What is the Lawsuit About?
The Lawsuit alleges that Nationstar improperly charged West Virginia borrowers late fees over the $15 limit allowed by statute. The Lawsuit also claims that Nationstar sent borrowers demand letters demanding payment of improper “expenses of collection” and refused to accept partial loan payments from borrowers prior to the date of acceleration of their loans.
Nationstar denies that it acted improperly or did anything wrong. However, Nationstar has agreed to the Settlement solely to avoid the burden, expense, risk, and uncertainty of continuing the Lawsuit.
Who is Included in the Settlement?
Nationstar’s records indicate that you are a Class Member. A Class Member is any borrower whose loan was secured by real property located in West Virginia and whose loan was serviced by Nationstar at any time from February 15, 2007 through July 1, 2011, and who either: (a) had late fees over $15 imposed on his or her loan account; (b) had instances of form debt collection letters mailed with the terms “expenses of collection”; or (c) had instances of a partial loan payment to Nationstar that was returned prior to the date of acceleration of the loan payments.
What Does the Settlement Provide?
(1) Automatic Cash Payment to Class Members. Class Members will receive a cash payment for each late fee over $15 charged, each demand letter sent, and each returned partial loan payment prior to the date of acceleration of the Class Member’s loan. Allocations will vary, but the amount of the cash payment per instance is estimated to be approximately $88.37, after deductions for attorneys’ fees, expenses, and the service award. (Note: this amount is subject to change and may be reduced depending on the number of claims for default expenses that are submitted). The total amount of the Settlement is $1,500,000.00.
(2) Additional Payments to Class Members Who Paid Improper Default Fees
If you believe you actually paid improper default expenses, such as foreclosure attorneys’ fees, that were not waived, reimbursed, or otherwise credited to your loan account, you may contact the Settlement Administrator to request a Claim Form. After you complete and return the Claim Form, you may receive a
reimbursement for each improper default expense that you actually paid. Reimbursements shall be paid out of the total settlement amount. (Note: Reimbursements may be reduced depending on the number and dollar amount of claims for improper default expenses that are submitted).
(3) Service Award. The plaintiff who brought this lawsuit, David J. Triplett, will request $5,000.00 for serving as class representative. In addition to the class claims, plaintiff also asserted individual claims against Nationstar. The parties negotiated a separate settlement of plaintiff’s individual claims.
(4) Attorneys Fees and Costs. Class counsel are John W. Barrett and Jonathan R. Marshall, Bailey & Glasser LLP, 227 Capitol Street, Charleston, WV 25301. They will request attorneys’ fees of one-third the total amount of the Settlement.
(5) Non-Monetary Benefits of Settlement. Nationstar has agreed that it will not engage in the following conduct, except when allowed to do so by state or federal law: (a) charge West Virginia borrowers late fees over $15; (b) send demand letters to West Virginia borrowers seeking payment of “expenses of collection” or default fees; (c) return partial loan payments to West Virginia borrowers prior to the date of acceleration of their loans; and (d) demand payment of attorneys’ fees from West Virginia borrowers.
(6) Opinion of Class Counsel. Class counsel considers it to be in the best interest of the class to enter into this Settlement on the terms described in light of the potential recovery, Nationstar’s defenses, and the uncertainties of continued litigation.
(7) Release. If the Court approves the Settlement, Class Members will be legally bound by all orders and judgments of the Court, and will not be able to sue or continue to sue Nationstar about any legal claims they have or may have up until the Effective Date of the Settlement, arising out of, related to, or in any manner concerning or involving claims for charging excessive late fees, issuing demand letters demanding payment of “expenses of collection,” returning partial loan payments prior to the date of acceleration, or default-related expenses.
The Court’s Fairness Hearing
The U.S. District Court for the Southern District of West Virginia will hold a hearing in this case (David J. Triplett v. Nationstar Mortgage LLC, Case No. 3:11-cv-238), on ______, 2012 at __ a.m./p.m., in the Courtroom of the Honorable Judge Robert C. Chambers, United States Courthouse, Sidney L. Christie Federal Building, 845 Fifth Avenue, Room 101, Huntington, West Virginia 25701. Class Members do not need to attend the hearing.
What Are Your Options?
(1) Do Nothing. To accept the Settlement, do nothing. If the Settlement is approved, a check will be mailed to you. If you change your address, please inform the Settlement Administrator at the address below; OR
(2) Request a Claim Form. To make a claim for improper default fees charged to your loan account that you
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actually paid, you must contact the Settlement Administrator and request a Claim Form. The Claim Form must be fully completed and returned in the mail to the Settlement Administrator, postmarked no later than _____________, 2012, or such claims will be waived and released.
(3) Exclude Yourself. You may “opt out” and exclude yourself from the Settlement. If you opt out, you will not receive any cash payment, and you will not release any claims you may have against Nationstar. If you opt out, you will be free to pursue whatever legal rights you may have by pursuing your own lawsuit against Nationstar at your own risk and expense. To exclude yourself from the Settlement, you must mail a letter to the Settlement Administrator (address below) stating that you wish to do so. You must postmark your letter no later than ____ , 2012; OR
(4) Object to the Settlement. If you object to the Settlement, you must submit your objection in writing to the Settlement Administrator (address below) stating that you wish to object. You must postmark your objection no later than ____, 2012.
Any Class Member who has timely objected may appear at the fairness hearing and be heard (individually or through his or her own counsel). Objections must state the name, address, telephone number, and signature of the objector, and must state specifically and in detail all reasons for the objections.
PLEASE DIRECT QUESTIONS TO:
SETTLEMENT ADMINISTRATOR Address
Toll-Free Phone Number
For additional information, you may also visit the Settlement Administration website: www._______.com.
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EXHIBIT C
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David J. Triplett v. Nationstar Mortgage LLC c/o Kurtzman Carson Consultants LLC P.O. Box ____ Name/Address Change (if any): Novato, CA 94948-____ ________________ ____________________ First Name Last Name Claim No. _________________ John Smith _______________________________________ C/O KCC Address 1234 Main Street Anytown, WV 11111 ______________________, ________, _______ City State Zip
PROOF OF CLAIM FORM David J. Triplett v. Nationstar Mortgage LLC Settlement Administrator
c/o Kurtzman Carson Consultants LLC P.O. Box ____, Novato, CA 94948-____
1. Claimant Information: Email address: _______________________ (________) _________________________ (________) __________________________ Area Code Daytime Telephone Number Area Code Evening Telephone Number If you claim that Nationstar charged you improper default expenses, such as foreclosure attorneys’ fees, that were not waived, reimbursed, or otherwise credited to your loan account, and that you actually paid, you must fill this Proof of Claim Form out completely and mail it to the address given below. This Proof of Claim Form must be notarized and postmarked no later than ___________, 2012. If you provide incomplete, incorrect, or inaccurate information, your claim may be denied. 2. If you claim that you actually paid improper default expenses, please check the box below to verify that you are the Settlement Class Member identified above and that you believe you may be entitled to payment for an improper default expense. [ ] I/we believe that my/our loan account was charged an improper default fee, that was not waived, reimbursed, or credited to my/our loan account, and that I/we actually paid. Please provide the number of such fees charged and a brief description of each fee, including the amount of the fee and the date it was charged (you may attach a separate page if additional space is needed): . MAIL YOUR COMPLETED PROOF OF CLAIM FORM TO THE FOLLOWING ADDRESS:
David J. Triplett v. Nationstar Mortgage LLC Settlement Administrator c/o Kurtzman Carson Consultants LLC P.O. Box ____ Novato, CA 94948-____
TO BE ENTITLED TO THE BENEFITS OF THIS SETTLEMENT, YOUR PROOF OF CLAIM FORM MUST BE POSTMARKED BY __________, 2012. PROOF OF CLAIM FORMS NOT POSTMARKED ON OR BEFORE SUCH DATE WILL NOT BE ACCEPTED ABSENT COURT ORDER. Counsel are not responsible for any lost or untimely claims, so you may want to ensure your Proof of Claim Form was received by
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mailing it via Certified Mail, Return Receipt Requested. You may also want to keep a copy of the completed Proof of Claim Form for your files. By signing below, I/we represent that the information contained in this Proof of Claim Form is true and correct and state as such under penalty of perjury. I/we understand my/our claim may be subject to audit, verification, and court review, and that I/we may need to submit additional information to establish that my/our claim is valid. I/we also understand that by submitting this claim I/we am/are releasing all Settled Claims in the Lawsuit, as detailed in the Notice of Proposed Class Action Settlement and the Class Settlement and Release Agreement. Borrower Signature: Date (mm/dd/yyyy): Co-Borrower Signature: Date (mm/dd/yyyy):
STATE OF WEST VIRGINIA CITY/COUNTY OF ________________, to wit: The above Proof of Claim was subscribed and sworn to (or affirmed) before me on this ____ day of _______,
by _______________________________, proved to me on the basis of satisfactory evidence to be the person who
appeared before me.
Notary Public My Commission Expires:
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EXHIBIT D
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EXHIBIT E
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518856
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Huntington Division DAVID J. TRIPLETT, Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No.: 3:11-cv-238 NATIONSTAR MORTGAGE, LLC,
Defendant.
Declaration of John W. Barrett
1. I am submitting this declaration to state my and my firm’s qualifications to serve
as class counsel in this case, and to outline the basis for my opinion that the proposed class
action settlement with Defendant Nationstar Mortgage, LCC merits preliminary approval.
2. I am a partner in the Charleston law firm of Bailey & Glasser LLP. I received a
B.A. from the University of Pennsylvania in 1988. I received my law degree from Boston
University School of Law, cum laude, in 1996. From 1996 through 1998 I clerked for Charles
H. Haden II, Chief Judge of the United States District Court for the Southern District of West
Virginia.
3. I have practiced law in Charleston from 1998 through the present, first for three
years as an associate with a small law firm, then for three years as a sole practitioner, and since
2005 as a partner at Bailey & Glasser.
4. I am a member of Public Justice, the West Virginia and American Associations
for Justice, and the American Bar Association’s Section of Litigation, Class Actions and
Derivative Suits Committee. I am also a member of the National Association of Consumer
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Advocates, which among other things maintains comprehensive standards and guidelines for
litigating and settling consumer class actions in an effort to promote the ethical and proper use of
the class action device. See 176 F.R.D. 375 (published in 1998, fully updated in 2006).
5. I concentrate my practice in consumer class actions and consumer finance
matters. I have tried cases in state and federal courts in West Virginia. I have argued consumer
and other cases before the Supreme Court of Appeals of West Virginia and the United States
Court of Appeals for the Fourth Circuit. I am AV rated by Martindale-Hubbell.
6. I have served as class counsel in many cases, including:
Cummins v. H & R Block, Inc., Civil Action No. 03-C-134 (Circuit Court of Kanawha County, West Virginia) (consumer class action resulting in $62.5 million multistate settlement, including $32.5 million for West Virginia consumers);
Anderson v. Provident Bank, Civil Action No. 04-C-199 (Circuit Court of Mercer County, West Virginia) (predatory mortgage lending class action settled for $8.1 million on behalf of 140 class members);
Mey v. Herbalife International, Inc., Civil Action No. 01-C-263 (Circuit Court of Ohio County, West Virginia) ($7 million nationwide class action settlement alleging violations of the federal Telephone Consumer Protection Act);
Hardwick v. Rent-A-Center, Inc., Civil Action No. 3:06-0901 (S.D. W. Va.) (class action settlement, awaiting final approval, worth more than $5 million; alleging violations of state Consumer Goods Rental Protection Act);
Muhammad v. National City Mortgage Co., Civil Action No. 207-0423 (S.D. W. Va.) ($700,000 mortgage loan servicing settlement, awaiting final approval, alleging violations of the West Virginia Consumer Credit and Protection Act);
Brailsford v. Jackson Hewitt, Inc., Case No. 06-00700 (N.D. Cal.) ($672,000 settlement on behalf of class of California class);
Hackworth v. Telespectrum, Inc., Civil Action No. 3:04-1271 (S.D. W. Va.) (WARN Act class action settled for $185,000); and
Shonk v. SG Sales Co., Case No. 07-C-1800 (Circuit Court of Kanawha County, West Virginia) ($2.4 million nationwide settlement of class action brought under the Telephone Consumer Protection Act).
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I also served as co-counsel for the State of West Virginia in State ex rel. Darrell V.
McGraw v. Microsoft Corporation, Civil Action No. 01-C-197 (Circuit Court of Boone County,
West Virginia) (parens patriae antitrust and consumer protection action; settlement valued at
more than $20 million).
7. Based on the information and facts known to class counsel, and upon
consideration of the benefits that the settlement Plaintiff and the class, class counsel considers
the settlement to be in the best interests of all class members.
Executed this 4th day of May, 2012, in Charleston, West Virginia.
s/ John W. Barrett____ John W. Barrett
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EXHIBIT F
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530638
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Huntington Division DAVID J. TRIPLETT,
Plaintiff, individually, and on behalf of a class of similarly-situated persons,
v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC,
Defendant.
ORDER PRELIMINARILY APPROVING SETTLEMENT,
CONDITIONALLY CERTIFYING CLASS, AND ENTERING SCHEDULE
NOW COMES before the Court the Motion for Preliminary Approval of Settlement,
Conditional Class Certification and Entry of Scheduling Order (ECF No. __), filed herein by
Plaintiff David J. Triplett, individually and on behalf of a class of similarly situated persons.
For the reasons stated in the Plaintiff’s Memorandum in Support of Motion (ECF No. __), and
for good cause shown, the Motion is GRANTED. Accordingly, the Court hereby FINDS,
ORDERS, ADJUDGES, AND DECREES as follows:
1. Jurisdiction. This Court has jurisdiction over the subject matter of the Lawsuit
and over all parties to the Lawsuit, including all members of the Settlement Class.
2. Settlement Class. The Court has considered the submissions of the parties with
respect to the temporary and conditional certification of a settlement class, and has analyzed the
proposed settlement class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), and makes the
following findings:
a. The Court finds that the proposed settlement class satisfies the numerosity,
commonality, typicality, and adequacy requirements of Fed. R. Civ. P. 23(a).
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b. The Court finds that the proposed settlement class satisfies the
predominance and superiority requirements of Fed. R. Civ. P. 23(b)(3).
Accordingly, the Court PRELIMINARILY FINDS that all of the requirements of
Federal Rule of Civil Procedure 23(a) and 23(b)(3) have been satisfied, and that this action is
hereby conditionally and temporarily certified as a class action for settlement purposes only on
behalf of the following class of plaintiffs:
All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the “Class Period”), and who fall into one or more of the following subclasses:
Subclass A – Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00).
Subclass B – Persons with accounts having instances of form debt-collection letters mailed that include the terms “expenses of collection.”
Subclass C – Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower’s loan.
Class Members who believe that they actually paid improper default expenses that were
not waived, reimbursed, or otherwise credited to the Class Members’ loan accounts may contact
the Settlement Administrator to request a Claim Form to describe the number and nature of the
default fees that they claim were improperly imposed on their loan accounts and that they
actually paid.
This certification is temporary and conditioned upon the terms of the proposed Settlement
reached by the Parties. In the event the Settlement does not become final, or is terminated
pursuant to the terms of the Settlement Agreement, the Settlement Class will be deemed not to
have been certified, and the Lawsuit will, for all purposes with respect to the Parties, revert to its
status as of February 15, 2012, prior to the Settlement. In such event, the Parties will not be
deemed to have consented to the certification of the Class, the agreements and stipulations in this
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Settlement concerning class definition or class certification shall not be used as evidence or
argument to support a certification of any class, and the Parties will retain all rights with respect
to class certification.
3. Class Representative. The Court herby designates Plaintiff David J. Triplett as
Settlement Class Representative.
4. Class Counsel. Upon consideration of the factors set forth in Fed. R. Civ. P.
23(g), the Court hereby appoints John W. Barrett, Esquire, Jonathan R. Marshall, Esquire, and
the law firm of Bailey & Glasser, LLP, as Settlement Class Counsel.
5. Preliminary Approval of Settlement. The proposed Settlement Agreement entered
into by the Parties establishes the method of calculation of settlement payments to be made to
Class Members, allows members to opt out, allows members to request reimbursement for
alleged payment of improper default fees, and is subject to the Parties’ right to withdraw from
the Settlement unless certain agreed conditions are met, including conditions pertaining to the
size of the class, number of instances, and percentage of Class Members who elect to opt out of
the Settlement.
In accordance with the terms of the Settlement Agreement, Nationstar will contribute to
the Settlement Common Fund a sum equal to $1,500,000.00, as defined in the Settlement
Agreement. The principal placed in the Common Fund shall be used to make Settlement
Payments and to pay Class Counsel’s attorneys’ fees and a service award. In the event Class
Members cannot be located or found, any unpaid amounts attributable to their interests shall be
paid as a cy pres award to Legal Aid of West Virginia, Inc., and shall be earmarked to provide
legal assistance in the following case areas only: domestic violence, coal miner claims, and/or
claims for benefit programs such as Temporary Assistance to Needy Families (“TANF”),
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Medicaid, and Social Security Disability. All interest accruing in the Common Fund shall be
paid to Nationstar.
The costs of notice and claims administration are to be borne by Nationstar. The Parties
have agreed to use the services of the class action administration firm, Kurtzman Carson
Consultants LLC, as Settlement Administrator.
Class Counsel and counsel for Defendant Nationstar are experienced in complex
litigation, including class action litigation. The Settlement Agreement was reached after
vigorous arm’s length negotiations between counsel, including formal mediation conducted by
the Honorable Chief Judge Joseph R. Goodwin. Prior to the mediation, the Parties engaged in
extensive written discovery and conducted the depositions of Plaintiff David J. Triplett and his
spouse, and the Fed. R. Civ. P. 30(b)(6) deposition of Nationstar’s corporate representative.
Defendant Nationstar served its expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2). The
Parties also submitted separate mediation statements to Judge Goodwin in preparation for the
mediation. At all times, Plaintiff has acted independently of Defendant Nationstar.
The amount of the Settlement, $1,500,000.00, is fair, reasonable, and adequate. The
Settlement Amount is within the range of settlement values appropriate in this case. If the
Settlement had not been reached, both Parties faced the expense, risk, and uncertainty of
extended litigation.
Therefore, upon consideration of the terms of the proposed Settlement Agreement, the
Court PRELIMINARILY FINDS the Settlement Agreement to be sufficiently fair, reasonable,
and adequate to warrant providing Notice to the Class Members and proceeding with a Final
Approval Hearing. In making this determination, the Court has considered the current posture of
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this litigation and the risks and benefits to the Parties involved in both settlement of these claims
and continuation of the litigation.
Accordingly, the Court GRANTS PRELIMINARY APPROVAL of the Settlement
Agreement. The Settlement will be submitted to Class Members for their consideration and for a
hearing pursuant to Fed. R. Civ. P. 23(e).
6. Notice to Settlement Class Members. The Court has reviewed the proposed
Notice of Class Settlement and Claim Form. The Notice, among other things, describes in plain
English the terms and operation of the Settlement, the considerations that caused Class Counsel
to conclude that the Settlement is fair and adequate, the procedure for objecting to or opting out
of the Settlement, and the date of the Final Approval Hearing. The Notice explains how each
Class Member may request a Claim Form for reimbursement of any instance of an improper
default expense, such as foreclosure attorneys’ fees, charged to the Class Member’s loan
account that the Class Member actually paid.
Accordingly, upon review of the Notice and Claim Form, and in consideration of the
factors set forth in Fed. R. Civ. P. 23(c)(2)(B), the Court hereby FINDS that the Notice and
Claim Form fully comply with the requirements of Fed. R. Civ. P. 23(c)(2)(B), and the Notice
and Claim Form are thus APPROVED.
7. Exclusion Requests, Exercise of Option Not to Proceed, Objections and Claims.
a. Exclusion Requests. Any Class Member who desires to be excluded from
the Class Settlement must sign a written request to be excluded containing the
information required by the Notice of Class Settlement. This exclusion (“opt out”) must
be mailed to the Settlement Administrator at the address provided in the Notice and
postmarked no later than sixty (60) days after the initial date of mailing of the Notice.
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b. Objections. Any Class Member who desires to object to any aspect of the
Settlement Agreement may do so in writing, without the necessity of obtaining counsel or
making any formal appearance. All objections to any aspect of the Settlement must be
mailed to the Settlement Administrator at the address provided in the Notice and
postmarked no later than sixty (60) days after the initial date of mailing of the Notice.
c. Claim Forms. Any Class Member who desires to be reimbursed for
improper default expenses that he or she actually paid must contact the Settlement
Administrator to request a Claim Form. All Claim Forms must be mailed to the
Settlement Administrator at the address provided in the Notice and postmarked no later
than sixty (60) days after the initial date of mailing of the Notice.
d. Notification of Exclusion Requests, Objections, and Claim Form. No
later than ten (10) days after the date the opt outs, objections, and Claim Forms are due,
the Settlement Administrator shall notify the Court, Class Counsel, and counsel for
Defendant Nationstar of any persons who have objected to the Class Settlement, opted
out of the Class Settlement, or submitted a Claim Form, and shall serve the Court, Class
Counsel, and Nationstar’s counsel with copies of all objections, notices of opt out, Claim
Forms, and supporting documentation.
e. Responses to Objections. Responses to any objections must be filed no
later than five (5) days prior to the Final Approval Hearing.
f. Exercise of Option Not to Proceed. In the event that either Party exercises
its option to withdraw from the Settlement as provided for in the Settlement Agreement,
that Party must file a notice of withdrawal of settlement no later than three (3) days prior
to the Final Approval Hearing.
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g. Release. Class Members who do not request to be excluded from the
Class Settlement or who do not object to the Settlement prior to the date set forth above
will release Defendant Nationstar from all claims they have or may have up until the
Effective Date of the Settlement, arising out of, related to, or in any manner concerning
or involving claims for charging improper late fees, issuing demand letters containing the
term “expenses of collection,” returning partial loan payments prior to the date of
acceleration, or default-related expenses.
h. Claims. Settlement disbursements shall be mailed to Class Members
within a reasonable time period after final approval of the Class Settlement by the Court.
The Court FINDS that the claims process outlined in the Settlement Agreement is
appropriate under the circumstances.
8. Final Approval Hearing. A Final Approval Hearing shall be held on ______,
2012, at ____ a.m./p.m., before the Court in Huntington, West Virginia to consider whether the
Settlement should be given final approval. The date or time of this hearing may be changed
without further notice to the Settlement Class. The Settlement Administrator shall post any
changes to the hearing date or time on the website as part of the Notice Plan.
9. Class Counsel Fees and Expenses and Service Award. The Court will separately
consider a request for a reasonable fee award for Class Counsel and a service award to the Class
Representative. Class counsel will file a motion requesting the Court to award reasonable
attorneys’ fees in an amount not to exceed one-third of the amount of the Settlement, plus costs,
and a payment of a service award to Plaintiff not to exceed $5,000.00. Any fee award and
service award approved by the Court shall be paid by the Settlement Administrator from the
Settlement Common Fund.
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10. Relevant Dates. In addition to the dates set forth above, the Parties shall adhere to
the following schedule to complete the tasks necessary to effectuate the proposed settlement:
Class Notice Mailed by: Twenty-one (21) days after entry of this Order
Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice
Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date
Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date _______, 2012
These dates may be amended upon written motion by either Party and for good cause
shown.
11. Effect of Termination of Settlement. In the event that the Class Settlement is not
finalized or is terminated pursuant to the terms of the Settlement Agreement, this Order shall be
rendered null and void and shall be vacated nunc pro tunc, and the Lawsuit shall proceed as
provided in the Settlement Agreement.
12. No Party Admission of Liability. This Order and all rulings and findings herein
shall not be construed or used as an admission, concession, or declaration against the named
Plaintiff, any Class Member, or Defendant Nationstar of any fault, wrongdoing, breach, liability,
lack of merit of the settled claims, or certification of any class. Nationstar denies that the facts of
this case meet the requirements of class certification for any purpose other than settlement.
Nothing contained in this Order or the Parties’ Settlement shall be construed in any manner as
precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of
any class on the merits.
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The Clerk is directed to provide certified copies of this Order to all counsel of
record.
IT IS SO ORDERED.
Entered: May _____, 2012
The Honorable Robert C. Chambers United States District Judge
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