September, 2015 | FORECLOSURE FRAUD | by DinSFLA

Archive | September, 2015

Bergman v. JP Morgan Chase Bank | HBOR Dual Tracking FAIL || Chase LOSES on appeal and it costs them 250K PLUS 188K in attorney’s fees

Bergman v. JP Morgan Chase Bank | HBOR Dual Tracking FAIL || Chase LOSES on appeal and it costs them 250K PLUS 188K in attorney’s fees

*** H/T Charles Cox ***

Filed 9/30/15

 

Bergman

v.

JP Morgan Chase Bank, N.A.

CA4/2

INTRODUCTION

Plaintiff and respondent Jeffrey A. Bergman (Bergman) sued defendant and appellant JPMorgan Chase Bank, N.A. (Chase) on claims involving a residential loan modification. A jury found in favor of Bergman on his causes of action for intentional misrepresentation and breach of the implied covenant of good faith and fair dealing.

Chase appeals from a $250,000 judgment in favor of Bergman, and the posttrial orders denying Chase’s motion for judgment notwithstanding the verdict (JNOV) and granting attorney’s fees to Bergman.

. . .

After the property was sold, Bergman was sued for unlawful detainer. Bergman posted a cash bond of $30,000 with money borrowed from his parents. Bergman incurred additional attorney’s fees defending the unlawful detainer action.

The jury completed the special verdict forms on all seven causes of action and punitive damages. The jury awarded Bergman damages of $125,000 on the cause of action for breach of the implied covenant of good faith and fair dealing and $125,000 onthe cause of action for intentional misrepresentation.

. . .

VIII

ATTORNEY’S FEES

The trial court awarded Bergman attorney’s fees—reduced from $454,772.23 to $188,100—finding that he could recover fees under both contract and tort based on the attorney’s fees provision in the original note and trust deed under which the foreclosure was conducted.

. . .

X

DISPOSITION

We reject both appeals and affirm the judgment. In the interests of justice, we order the parties to bear their own costs on appeal.

Down Load PDF of This Case

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FORECLOSURE MILL LAW FIRM THREATENS OSCEOLA CLERK WITH LIBEL SUIT!

FORECLOSURE MILL LAW FIRM THREATENS OSCEOLA CLERK WITH LIBEL SUIT!

cross-posted via Clouded Titles

NEWSFLASH!

(OSCEOLA COUNTY, FLORIDA) — In what appears to be a “cut and paste” and “fill in the blanks” form type of Correspondence from Gilbert Garcia Group, P.A., one of the alleged suspect “actors” that was named in the OSCEOLA COUNTY FORENSIC EXAMINATION has sent a letter, dated September (fill in the blank, handwritten), 2015, ordering the Clerk to remove the Forensic Examination conducted by DK Consultants LLC and all related links to the website, including the Clerk’s warnings about committing document fraud on the land records, under threat of libel per se.

The letter also acknowledges that the Report contains “unsupported defamatory rumors about the Gilbert Garcia Group, P.A. and other law firms actively engaged in default servicing and foreclosure litigation.”  The Circuit Clerk of Osceola County, Hon. Armando Ramirez, vows to take this fight all the way to the Department of Justice in Washington and has asked this poster to “get the word out” that this sort of threatening behavior will not go unchallenged.

First, IF the law firm did bring suit, it would have to prove before a jury that the “Defendant (the Clerk) published a false statement”.  This means that all means of discovery can now be employed by the Clerk to get at the heart of the alleged suspect behaviors named in the Report.   We intend to invite the DOJ into the proceedings, so they can examine the documents and start their criminal investigation into Gilbert Garcia Group’s alleged manufacture of documents that were used in reliance of foreclosure pleadings filed with the Courts in Osceola County, Florida which were named in the Report as being suspect.    If the “third party” that the alleged “false statements” is the Department of Justice, the Gilbert Garcia Group, P.A. and all other entities named in the Report as suspect “actors” have a lot more to worry about than a Cease and Desist Order.   There is no defamation if the statements are true.

All the author has to do is point to the behaviors of David J. Stern and Marshall C. Watson, which have wreaked havoc on their practices (including the disbarment of Stern by the Florida Supreme Court), to exemplify that the statements made in the Report would not have been made had there not been some reasonable belief that Gilbert Garcia Group’s employees and attorneys were not exempt from alleged RICO-style behaviors.  The theft of a property (using false or misrepresentative documents) under Florida law carries up to a 5-year prison term just on that count alone.  All other penal codes (for perjury, fraud on the court, notary fraud, forgery, etc.), not including the federal codes 18 USC 1341 and 1343 (mail fraud and wire fraud), in addition to 18 USC 371 (conspiracy to defraud the United States), at some point would apply to criminal proceedings brought against the actors listed as “suspect” in the report.

Gilbert Garcia further claims that the Clerk’s publishing the Report constitutes “illegal conduct”, when they have asserted libel per se, which is civil conduct, not criminal.

Further, in an apparent attempt to “arm twist” the Clerk, the letter was also sent to the Osceola County attorney and the Board of County Commissioners of Osceola County, who were NOT involved in the procurement or release of the Report.  This appears to make it “open season” on Gilbert Garcia Group, P.A., because now … the letter has also been forwarded to Congressman Alan Grayson.  Potentially, this letter will make its way to the halls of justice in DC and Gilbert Garcia Group, P.A., whose name appears at the top of the suspect assignments that are in fact, recorded in the real property records of Osceola County, Florida, will be under scrutiny by the feds.

In my book, this letter amounts to more than nothing but a terroristic threat against a Clerk that is trying to stand up for the people of Osceola County, Florida.  As the letter indicated (on Page 2), there was no apparent “due diligence in verifying the truthfulness of the reported claims”.   Apparently, the Gilbert Garcia Group, P.A. doesn’t understand that FOIA Requests to release the Report trump the firm’s allegations of libel per se.

The verifications of the information contained in the Report are not completed as of yet.  In fact, they were at one time, being investigated by the Osceola County Sheriff’s Department, however, nothing has come of it because this poster believes that unless you knew what to look for and could talk to witnesses that wouldn’t have to fear being tasered or falsely arrested, they would not know what to look for.   This Report is indeed a political hot potato and now here we have a law firm that doesn’t understand that a filing Plaintiff has the burden of proof to show that the statements were defamatory and that the Clerk intended to defame them and further, the Clerk is entitled to discovery, even though he is not involved in a private right of action, to show how much involvement Gilbert Garcia Group had in manufacturing the suspect documents timed to coincide with their filing of the suspect litigation to foreclose on Osceola County property owners without legitimate proof, but rather “with made up, uncorroborated falsehoods”, which are not so much the matter for the civil realm, but more towards the federal grand jury that we believe will eventually start to investigate the contents of this Report to determine whether the allegations are true or not.

Remember, Gilbert Garcia Group … the Clerk gets discovery against you, including depositions of all those who participated in your document manufacturing.  The Clerk (I will bet) will have the watchful eye of the feds on everything going down in this suit.

To illustrate my point, let’s look at charges just filed against a Deputy Clerk for document manufacturing …  taylor_indictment  … this is three counts, including mail fraud.  Let’s enlighten the Gilbert Garcia Group (“GGG”), shall we?

  1. The conviction rate on mail fraud charges (18 USC 1341) is 95% for the prosecution.  All one has to do is look at the Devitt & Blackmar’s Jury Instructions on mail fraud to find what statement the judge will use in court to the jury in a criminal trial (maybe yours GGG?): “One does not have to contemplate the use of the mails to be charged with mail fraud.”    What do you think your chances are of surviving charges like that?   Slim, at best.
  2. Now let’s talk about wire fraud (18 USC 1343) … Did you (as a law firm) wire documents into the Clerk’s Office by electronic filing?   If you did, you’re now at risk!
  3. Did you rely on these documents at trial?   If you maintained these documents were accurate when they were manufactured using false and misrepresentative statements … we now have the trifecta … perjury, wire fraud (or mail fraud), your choice, plus a myriad of other charges including RICO on both state and federal levels.

What most law firms do not understand is that attorneys are held to a higher standard.  If they are involved in wrongdoing, they get busted just like the robosigners do.   Disbarment and imprisonment are not pretty pictures, especially when you have to pay restitution on top of that!

The investigation is not over yet GGG, but if you want to “speed things up”, file the libel per se suit.   We have a bevy of criminal investigators watching on the federal level! Do you want to take that chance?   The American people and the Citizens of Osceola County, Florida want to know:  ARE YOU GUILTY?

Is that a “happy smiley face” under the “M” on the signature line on Page 3 of that letter?  I wonder.

 

cross-posted via Clouded Titles

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Senator Warren to Join Call to Alter Sales of Distressed Loans

Senator Warren to Join Call to Alter Sales of Distressed Loans

NYT-

Housing advocates have attracted a prominent ally in their push to change the federal government’s policy of selling distressed mortgages at a discount to private equity firms and hedge funds.

Senator Elizabeth Warren, Democrat of Massachusetts, joined other lawmakers, advocates and community activists on Wednesday in a Washington rally to oppose the loan sale program.

The senator called on the Department of Housing and Urban Development and the Federal Housing Fianance Agency, the overseer of Freddie Mac and Fannie Mae, to make it easier for nonprofit organizations to bid for the bundles of distressed mortgages put up for auction.

[NEW YORK TIMES]

Image: Susan Walsh/Associated Press

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Where is all the money going? 83% of Mortgages Sold by Government to Banks and Hedge Funds End in Foreclosure

Where is all the money going? 83% of Mortgages Sold by Government to Banks and Hedge Funds End in Foreclosure

All Gov-

A government program launched following last decade’s mortgage crisis to help struggling homeowners has mostly helped banks and hedge funds, and not Americans in danger of losing their houses.

Five years ago, the Department of Housing and Urban Development (HUD) launched a mortgage sales program called the Distressed Asset Stabilization Program (DASP) so it could unload teetering mortgages to the private sector.

DASP was supposed to not only help HUD improve its finances, but also assist homeowners facing the risk of foreclosure work out new terms with the banks or hedge funds buying the mortgages. But things haven’t worked out that way for the vast majority of homebuyers.

[ALL GOV]

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As Banks Retreat, Private Equity Rushes to Buy Troubled Home Mortgages

As Banks Retreat, Private Equity Rushes to Buy Troubled Home Mortgages

CNBC-

Private equity and hedge fund firms have bought more than 100,000 troubled mortgages at a discount from banks and federal housing agencies, emerging as aggressive liquidators for the remains of the mortgage crisis that erupted nearly a decade ago.

As the housing market nationwide recovers, this is a dark corner from which banks, stung by hefty penalties for bungling mortgage modifications and foreclosures, have retreated. Federal housing officials, for the most part, have welcomed the new financial players as being more nimble and creative than banks with terms for delinquent borrowers.

But the firms are now drawing fire. Housing advocates and lawyers for borrowers contend that the private equity firms and hedge funds are too quick to push homes into foreclosure and are even less helpful than the banks had been in negotiating loan modifications with borrowers. Federal and state lawmakers are taking up the issue, questioning why federal agencies are selling loans at a discount of as much as 30 percent to such firms.

[CNBC]

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Big banks abusing 2012 settlement deal… Weak oversight means banks can get away with foreclosing on homeowners in middle of negotiations

Big banks abusing 2012 settlement deal… Weak oversight means banks can get away with foreclosing on homeowners in middle of negotiations

Politico-

The nation’s largest mortgage lenders are violating the terms of a punitive 2012 settlement that was meant to prevent unfair and unnecessary foreclosures that destroyed communities and pushed working families from their homes.

Interviews by POLITICO with more than 20 housing counselors, Legal Aid lawyers and government prosecutors in states hard hit by the real estate crisis that followed the 2007 financial meltdown reveal that the nation’s top lenders are violating the settlement and rules put in place last year by the Consumer Financial Protection Bureau. In some cases, the problems — repeated requests for the same documents, for example — stem from ongoing disorganization deep inside the loan servicing departments of the banks, but some homeowners and their representatives claim the issues are a deliberate attempt to use foreclosure to resolve cases that have lingered for years.

In 2012, as 49 state attorneys general and the Holder Justice Department announced the landmark $25 billion accord with five of the nation’s biggest lenders, North Carolina Attorney General Roy Cooper spoke for many when he declared: “If homeowners get the runaround for a modification, if homes are foreclosed before other options expire, the monitor and the courts can step in and make it right.”

Read more: http://www.politico.com/story/2015/09/foreclosures-mortgage-lenders-2012-settlement-banks-213322#ixzz3n2jUSQsQ

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TFH | Sunday, September 27, 2015 —  Part Two, with Washington State attorney Scott Stafne

TFH | Sunday, September 27, 2015 — Part Two, with Washington State attorney Scott Stafne

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

.

The foreclosure Hour is going to have another blockbuster show this Sunday with special guest attorney

Scott Stafne

.
 Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

image of Scott Stafne: scottstafne.com

 

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EXCLUSIVE | McDonnell Property Analytics Releases *Certified* Seattle Report on MERS Assignments

EXCLUSIVE | McDonnell Property Analytics Releases *Certified* Seattle Report on MERS Assignments

CERTIFIED COPY

FORENSIC EXAMINATION OF REAL PROPERTY RECORDS COMMISSIONED BY THE SEATTLE CITY COUNCIL

Objective

The objective of this project is to determine whether residential real estate property assignments within the Seattle city limits involving Mortgage Electronic Registration Systems, Inc. (MERS) are valid and in accordance with Washington State Law in light of the 2012 State Supreme Court decision in Bain v. Metropolitan Mortgage Group, Inc.

September 8, 2015

THE EXAMINATION WAS CONDUCTED BY MCDONNELL PROPERTY ANALYTICS
15 Cape Lane | Brewster, MA 02631
Office Tel: 774-323-0892 | Fax: 774-323-0894
www.mcdonnellanalytics.com

IN COLLABORATION WITH REAL ESTATE SERVICES AND TECHNOLOGY
1 Park Plaza, Suite 600 | Irvine, CA 92614
Phone: +1 (949) 464-REST
www.reservicestech.com

TABLE OF CONTENTS…………………………….5

PREFACE …………………………….8
INTRODUCTION …………………………………………………… 8
OBJECTIVE ……………………………. 9
SCOPE ………………………………… 9
EXECUTIVE SUMMARY ………………………………………………10
SCOPE OF WORK ……………………………………………… 10
METHODOLOGY ………………………………………….. 10
KEY QUESTIONS AND FINDINGS …………………………. 13
Question 1: Transparency …………………………………………………… 13
Question 2: Chain of Title Integrity…………………………………… 13
EXAMINER’S EXCEPTION REPORT …………………………………….. 14

I. REPORT STRUCTURE ……………………………………….. 16

II. WHO IS MERS? …………………. 17
A Two-Tiered Corporate Structure ………………… 18
MERS as Original Mortgagee ………………………….. 19
MERS Has No Interest in Promissory Notes ……………………. 20
MERS Amended its Rules for Washington State ………………….. 21
The MERS Rider ………………………………………….. 22
What is MERS Assigning? …………………………… 23

III. THE UNANSWERED QUESTION ………………………………………… 25

IV. LEGAL EFFECT OF MERS ASSIGNMENTS ……………………………. 26
Legal Content ………………………………………. 27
Legal Purpose …………………………………………………. 27
Legal Effect ………………………………………… 27

V. RECENT DEVELOPMENTS ………………………………… 30
Case Study #1: Assign. Appoint. Reconvey. ……………………………. 31
Corporation Assignment of Deed of Trust …………………………………….. 31
Substitution of Trustee and Full Reconveyance ………………………………… 32
Diagram #1: MERS Assignment …………………………………………….33
Case Study #2: MERS Substitution of Trustee ……………………………………. 36
Substitution of Trustee …………………………………………………….. 36
Diagram #2: MERS Substitution of Trustee ……………………………37
Flooding the Recorder’s Office ………………………. 38
Screen Print #1: MERS Assignments ………………………………………38
Screen Print #2: MERS Appointments ……………………………………..39
MERS Remains Non-Compliant ………………………… 39

VI. CONCLUSIONS ……………………………………………………………. 41
Question 1: Transparency ………………………………………………………… 42
Question 2: Chain of Title Integrity…………………………………………. 43

VII. MCDONNELL PROPERTY ANALYSICS ……………………………………………….. 44

VIII. A CALL TO ACTION ………………………………………. 45
1. Suspend or Revoke Business Licenses …………………………………………….. 47
2. Enforce RCW 40.16.030 ………………………………………………………. 48
3. Place Restrictions on What MERS Can Record ……………………………………………… 49
4. Enact a Residential Mortgage Fraud Statute …………………………………………………… 50
5. Require All Assignments Be Recorded ………………………………………………… 51
6. Establish a Gatekeeper ………………………………………………………. 52
7. Require the Declaration of Beneficiary to be Recorded ………………………………. 53
8. Reintroduce House Bill 2659 ……………………………………… 54
9. Review King County Recorder’s Office Grantor/Grantee Index ………………….. 54
10. Commission a Foreclosure Forensics Audit ……………………………… 56

STATISTICAL ANALYSIS – OBJECTIVE #1 …………………………….57
Table 1: Quantitative Analysis of MERS Alpha Assignments …………………………… 57
STATISTICAL ANALYSIS – OBJECTIVE #1 (CONT.) ……………………..58
STATISTICAL ANALYSIS – OBJECTIVE #2 ……………………………….59

Table 2: Qualitative Analysis of MERS Assignments ……………………………. 59
STATISTICAL ANALYSIS – OBJECTIVE #2 (CONT.) …………………60
STATISTICAL ANALYSIS – OBJECTIVE #2 (CONT.) …………………….61
Table 3: Patterns and Practices ………………………….61

TABLE OF EXHIBITS & APPENDICES……………………………………..62

EXHIBITS …………………………………………………. 62
Exhibit A – Excerpt of Fannie Mae’s Selling Guide for 2007 …………………… 62
Exhibit B – Excerpt of Fannie Mae’s Selling Guide for 2015 ……………….. 62
Exhibit C – Corporation Assignment Deed of Trust, 04/29/2015 ………………… 62
Exhibit D – Substitution of Trustee and Full Reconveyance, 05/01/2015 ……………….. 62
Exhibit E – Excerpt Deed of Trust, 12/06/2004 ……………………….. 62
Exhibit F – Final Judgment, 10/16/2014 ……………………….. 62
Exhibit G – Substitution of Trustee, 04/28/2015 ………………….. 62
Exhibit H – Excerpt Deed of Trust, 06/01/2007 …………….. 62

APPENDICIES ………………………………………………….. 62
APPENDIX – I. Definitions of Terms ……………………… 62
APPENDIX – II. Examination of Assignments Deed of Trust/Mortgage ………… 62
APPENDIX – III. Real Estate Services and Technology’s Methodology …………. 62
APPENDIX – IV. Deed of Trust Act Compliance Checklist ………… 62
APPENDIX – V. Forensic Title Examination of Kristin Bain’s Property ………… 62

 

MPA REPORT (CERTIFIED) – CITY OF SEATTLE REVIEW OF MORTGAGE DOCUMENTS & EXHIBITS – UPDATED, 9.8.2015

APPENDIX I (CERTIFIED) – MPA DEFINITIONS OF TERMS (MTM), 

APPENDIX II (CERTIFIED) – EXAMINATION OF ASSIGNMENTS & EXHIBITS, 

APPENDIX IV (CERTIFIED) – DTA COMPLIANCE CHECKLIST & EXHIBITS, 

APPENDIX V (CERTIFIED) – FORENSIC TITLE EXAMINATION & EXHIBITS, 

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VIDEO OF SEATTLE COMMITTEE HEARING re: Mortgage Foreclosure Fraud Audit | MERS

VIDEO OF SEATTLE COMMITTEE HEARING re: Mortgage Foreclosure Fraud Audit | MERS

People testified on this issue beginning at the following minutes:
  • 20:01 – Karen Pooley
  • 22:00 Shelley Erickson
  • 24:40 Christopher King
  • 27:00 Richard Jones
  • 29:00 Craig Kendall (i think that’s his name)
  • 35:00 Susan Harmon
  • 36:00 Josh Ferris
  • 40:00
  • 51:00 MERS Attorney Fred Bernside
  • 55:22 DAniel ?
  • 58:00 Michelle Darnell
  • 1:48:00 HEARING
The actual roundtable discussion begins at 1 hour 47 minutes and goes to the end of the video.
Marie McDonnell’s Full Investigative Report (Certified Copy Directly from Her) soon to follow this post.
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Former Fannie Mae Executives Resolve Subprime and Reduced Documentation Disclosure Case with SEC

Former Fannie Mae Executives Resolve Subprime and Reduced Documentation Disclosure Case with SEC

U.S. SECURITIES AND EXCHANGE COMMISSION

Lit. Release No. 23358 / September 22, 2015

Securities and Exchange Commission v. Daniel H. Mudd, Enrico Dallavecchia, and Thomas A. Lund, 11-CIV-9202 (PAC) (S.D.N.Y.), complaint filed December 16, 2011.

Former Fannie Mae Executives Resolve Subprime and Reduced Documentation Disclosure Case with SEC

The Securities and Exchange Commission announced today that the Honorable Paul A. Crotty of the United States District Court for the Southern District of New York has entered an Order approving a stipulation and agreement between the Commission and defendants Enrico Dallavecchia, the former Chief Risk Officer of Fannie Mae, and Thomas A. Lund, Fannie Mae’s former Senior Vice President and head of its single-family guarantee business.

The Order resolves the Commission’s case against defendants Dallavecchia and Lund arising out of the respective roles each played in Fannie Mae’s disclosure of its exposure to subprime and reduced documentation mortgage loans between December 6, 2006 and August 8, 2008.

Pursuant to the Order, each defendant, for 12 months, is required to refrain from signing certain periodic reports required to be filed with the Commission, is prohibited from signing any certification required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, and is prohibited from violating the antifraud and reporting provisions of the federal securities laws, subject to reinstitution of the action for noncompliance. Additionally, each defendant is required to cause the following amounts to be paid to the United States Treasury: $25,000 for Dallavecchia, $10,000 for Lund.

The litigation against defendant Daniel H. Mudd, the former Chief Executive Officer of Fannie Mae, continues.

For further information, see Lit. Release No. 22201 (December 20, 2011) (announcing institution of action and Non-Prosecution Agreement with Fannie Mae).

 

http://www.sec.gov/litigation/litreleases/2015/lr23358.htm

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The Government Is Selling Thousands of Homes to Hedge Funds Without Their Owners’ Knowledge

The Government Is Selling Thousands of Homes to Hedge Funds Without Their Owners’ Knowledge

When the Federal Housing Administration takes over a mortgage, homeowners often have little say about what happens next.

 

The Atlantic-

Julius Uwansc was in trouble with his mortgage after refinancing in 2009, just after the real estate bubble popped. Like millions of others, he found himself owing more on his house than it was worth.

The Nigerian-born father of four moved into his house on Richardson Road in Gwynn Oak, Maryland, in 2005. “We loved it because it has this big yard where the kids can play,” Uwansc says.

But soon after closing on the loan, Uwansc began having trouble making payments. He believed he had worked out a loan modification with Bank of America in 2011 after signing paperwork, but the bank disputed the terms Uwansc thought he had secured. When he didn’t pay the amount the bank said he owed, it claimed he was in default.

[THE ATLANTIC]

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Tran v. Bank of New York || ** U P D A T E ** || Commentary and Case Filings

Tran v. Bank of New York || ** U P D A T E ** || Commentary and Case Filings

Note: Cases such as these should only be attempted by an experienced attorney.

Tran v. Bank of New York

COMMENTARY

COMMENTARY Mortgage Securitization and Lender’s Ability to Foreclose
However, a simple “yes” answer to the question would ignore
recent case law concerning whether a borrower in a foreclosure
action can assert defenses founded upon alleged non-compliance
with documents governing the securitization of the underlying loan
—e. g., pooling and servicing agreements.
COMMENTARY Row Over Mortgage Transfers To MBS Trusts Hits High Court – Law360
Law360, New York (September 8, 2015, 8:33 PM ET) — Property owners have
asked the U.S. Supreme Court to review their suit against several banks, saying
the Second Circuit did not appropriately determine whether they had standing to
claim that mortgage-backed securities trusts managed by the banks did not own
the petitioners’ mortgages. (SEE Concurrent email for article. Link may not open.)

APPELLATE FILINGS

Tran v. Bank of New York, Court of Appeals, 2nd Circuit SUMMARY ORDER 2015 – Google Scholar
Here, Plaintiffs do not identify any basis for distinguishing their claim from the claim
at issue in Rajamin, where this Court recently held that mortgagors, who were not
trust beneficiaries, lacked constitutional and prudential standing to bring an action
based on trustee conduct that allegedly contravened the trust instrument.
Tran v. Bank of New York, Court of Appeals, 2nd Circuit SUMMARY ORDER 2015 – CourtListener.com
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: Justia DOCKET
They sued a BUNCH them.
DEFENDANTS:

Lehman Mortgage Trust,
Countrywide Alternative Loan Trust,
First Franklin MTG Loan Asset Bank,
GSAA Home Equity Trust,
Fremont Home Loan Trust,
Impac Secured Assets Corp.,
HSBC Bank USA National Association,US Bank National Association,
Chase Bank USA National Association,
Bank Of New York,
Deutsche Bank National Trust Company,
Bear Stearns ALT-A Trust,
Merrill Lynch Mortgage Investors Trust,
Securitized Asset Backed Receivables,
Credit Suisse Mtg Capital Certificate,
IXIS Real Estate Capital Trust,
Countrywide Home Loans,
Citigroup Mortgage Loan Trust Inc.,
Countrywide Asset-Backed Certificates,
Wells Fargo Bank National Association,
American Home Mortgage Assets and Merrill Lynch Alternative Note Asset
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: Case Docket | United States Courts Archive™
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: NOTICE OF EXPEDITED APPEAL Docket Item 51 | United States Courts Archive™
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: BRIEF OF APPELLANTS Docket Item 52.1 | United States Courts Archive™
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: BRIEF OF APPELLANTS_2 Docket Item 54 | United States Courts Archive™
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: NOTICE OF DEFECTIVE FILING Docket Item 73 | United States Courts Archive™
Tran v. Bank of New York, Court of Appeals, 2nd Circuit :: BRIEF FOR DEFENDANTS-APPELLEES Docket Item 76 | United States Courts Archive™

DISTRICT COURT FILINGS

Tran et al v. Bank Of New York et al, No. 1:2013cv00580 SDNY :: Justia DOCKET
Tran et al v. Bank Of New York et al, No. 1:2013cv00580 SDNY :: Plainsite DOCKET
Tran et al v. Bank of New York et al, No. 1:2013cv00580 SDNY OPINION and ORDER – Google Scholar
For the foregoing reasons, the Plaintiffs have no standing to bring any claim based on
alleged breaches of the PSAs, and, because the theory underlying the Plaintiffs’ claims
 is untenable, any amendment of the Amended Complaint would be futile. See Foman v.
Davis, 371 U.S. 178, 182 (1962). Therefore, the Amended Complaint is dismissed with
prejudice in its entirety. Furthermore, because the standing issue is dispositive, this
Court need not reach the other issues raised in the motion to dismiss or the issue of
severance.
Tran et al v. Bank Of New York et al, No. 1:2013cv00580 SDNY OPINION and ORDER – JUSTIA
Tran et al v. Bank Of New York et al, No. 1:2013cv00580 SDNY Federal Docket Search: “Tran et al v. Bank Of New York et al” PAYWALL | Docket Alarm
Tran et al v. Bank Of New York et al 

1:13-cv-00580, New York Southern District Court
9/5/2013 MEMORANDUM OF LAW in Opposition re: 39 JOINT MOTION to Dismiss the Amended Complaint Or, In The Alternative, To Sever Plaintiffs.. Document filed by Kay Ap…
4/15/2013 AMENDED COMPLAINT amending 1 Complaint, against Alternative Loan Trust CWALT 2006-29T1, Alternative Loan Trust CWALT 2006-OA19, Alternative Loan Trust CWALT 200…
1/25/2013 COMPLAINT against American Home Mortgage Assets, Bank Of New York, Bear StearnsALT-A Trust, Chase Bank USA National Association, Citigroup Mortgage Loa…

RESEARCH

“Tran v. Bank of New York” – Google Search

 

Row Over Mortgage Transfers To MBS Trusts Hits High Court

By John Kennedy

Law360, New York (September 8, 2015, 8:33 PM ET) — Property owners have asked the U.S. Supreme Court to review their suit against several banks, saying the Second Circuit did not appropriately determine whether they had standing to claim that mortgage-backed securities trusts managed by the banks did not own the petitioners’ mortgages.

In an Aug. 31 petition, the property owners said that their mortgages were transferred to 37 MBS trusts that the banks — Bank of New York Mellon Corp., HSBC Bank NA, US Bank NA, Deutsche Bank National Trust Co. and Wells Fargo Bank NA — were trustees for, but that those transactions were invalid.

The appeals courts are split on how to determine the standing of property owners who challenge mortgage transfers, and the Second Circuit conflated standing with the merits of the instant case by way of an analysis that “swallows its own tail and makes no sense,” according to the petition.

[…]

http://www.law360.com/articles/699755/row-over-mortgage-transfers-to-mbs-trusts-hits-high-court

 

Down Load PDF of This Case.

Tran Cert Pet-Final-rev

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Tran v. Bank of New York, Dist

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CONSUMER FINANCIAL PROTECTION BUREAU MONTHLY COMPLAINT SNAPSHOT SPOTLIGHTS MORTGAGE COMPLAINTS

CONSUMER FINANCIAL PROTECTION BUREAU MONTHLY COMPLAINT SNAPSHOT SPOTLIGHTS MORTGAGE COMPLAINTS

Report Also Includes In-Depth Look at Consumer Complaints in Denver, Colo.

WASHINGTON, D.C. – Today, the Consumer Financial Protection Bureau (CFPB) released its latest monthly consumer complaints snapshot, which highlights mortgage complaints. According to the report, consumers continue to face problems with mortgage servicing, particularly during certain circumstances, such as when they apply for a loan modification to avoid foreclosure. This month’s snapshot also highlights trends seen in complaints coming from the Denver, Colo. metro area. As of Sept. 1, 2015 the Bureau has handled over 702,900 complaints across all products.

“Despite strong protections that have been put in place to protect homeowners, this month’s complaint report shows consumers are still having problems when dealing with their mortgages,” said CFPB Director Richard Cordray. “The Bureau will continue to work to make sure that consumers are being treated fairly on their mortgage issues.”

The Monthly Complaint Report can be found at: http://www.consumerfinance.gov/reports/monthly-complaint-report-vol-3/

Product Spotlight: Mortgages

With a total value topping $10 trillion, the mortgage market is the largest consumer financial marketplace in the country. In 2014, the CFPB put in place strong consumer protections with mortgage rules that ensured lenders only offered mortgages that consumers could afford. Since the CFPB began accepting consumer complaints in 2011, the Bureau has received more mortgage-related complaints than any other type of financial product. As of Sept. 1, 2015 the Bureau had handled approximately 192,500 mortgage-related complaints. Some of the findings in the snapshot include:

  • Continued problems preventing foreclosure: Over 50 percent of mortgage complaints have to do with problems consumers face when they are unable to make payments. Consumers complain of delays and a lack of information when applying for a loan modification. Additionally consumers complain that servicers often move forward with foreclosure proceedings while the consumer’s modification application is still under review.
  • Lack of information when loans are transferred: Consumers report experiencing confusion and frustration about where to make payments when loans are transferred. When the loan transfers occur, consumers complain that payments often increase unexpectedly. Consumers also say that they do not feel properly informed about their loans being transferred in the first place.
  • Trouble making payments: Nearly a third of mortgage complaints came from consumers saying that they have trouble making the proper payments on their mortgage loans. Consumers describe companies not accepting payments of anything less than the full balance owed, or finding that their payments were not properly applied despite instructions from the consumer.
  • Most-complained-about companies: Wells Fargo, Bank of America, and Ocwen were the three companies about which the CFPB has received the most mortgage-related complaints. Between April and June 2015, the three companies averaged around 430 complaints per month.

Company-level complaint data in the report uses a three-month rolling average of complaints sent by the Bureau to companies for response. This data lags other complaint data in this report by two months to reflect that companies are expected to close all but the most complicated complaints within 60 days. After the CFPB forwards a company the complaint, the company also has 15 days to respond, confirming a commercial relationship with the consumer. Company level information should be considered in the context of company size.

National Complaint Overview

As of September 1, 2015 the CFPB has handled 702,900 complaints nationally. Some of the highlights from the statistics being published in this month’s snapshot report include:

  • Complaint volume: For August 2015, the most-complained-about financial product or service was debt collection, representing about 29 percent of complaints submitted. Of the 25,732 complaints handled in August, approximately 7,582 of them were about debt collection. The second most-complained-about consumer product was credit reporting, accounting for approximately 5,733 complaints. Overall, the CFPB received 972 fewer complaints in August than in July.
  • Product trends: In a year-to-year comparison, consumer loan complaints, which include pawn loans, title loans, and installment loans, showed the greatest percentage increase – 47 percent – nearly doubling from the same time last year. Payday loan complaints showed the greatest percentage decrease – 12 percent – over the same three month (June-August) time period between 2014 and 2015, going from 526 complaints in 2014 to 463 complaints in 2015.
  • State information: Nebraska and Nevada experienced the greatest complaint volume increases from the same time last year by a considerable margin; the volume of complaints from Nebraska rose by 54 percent, while Nevada’s complaint volume increased by 45 percent. The next largest increase was North Carolina, where complaint volume rose by 36 percent compared to the same time period last year.
  • Most-complained-about companies: The top three companies about which the CFPB received the most complaints remain unchanged from last month’s report. From April through June 2015 Equifax, Experian, and Bank of America were the three most-complained-about companies.

Geographic Spotlight: Denver

This month, the CFPB highlighted the Denver, Colo. metro area, for the report’s geographic spotlight. As of Sept. 1, 2015, consumers in Colorado have submitted 11,500 of the 702,900 complaints the CFPB has handled. Of those complaints, 7,000 of them have come from consumers in the Denver metro area. Findings from the Denver complaints include:

  • Mortgages are the most-complained-about product: Mortgage-related complaints have been the most-complained-about product in Denver metro area since the CFPB started taking complaints in July 2011. Of the 7,000 complaints submitted consumers in the Denver metro area, 27 percent of them have been related to mortgages.
  • Denver complaint volume and type mirrors national trends: Debt collection and credit reporting are the second and third most complained about financial products in the Denver metro area, following mortgages. As the top three most-complained-about products, Denver mirrors national trends.
  • Most-complained-about companies: Credit reporting companies Equifax and Experian were the two most-complained-about companies nationally as well as from Denver-area consumers over a twelve-month period. Additionally, while not among the most-complained-about nationally, U.S. Bancorp is the tenth most-complained-about company by Denver residents from July 2014-June 2015.

The Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB, established consumer complaint handling as an integral part of the CFPB’s work. The CFPB began accepting complaints as soon as it opened its doors four years ago in July 2011. It currently accepts complaints on many consumer financial products, including credit cards, mortgages, bank accounts, private student loans, vehicle and other consumer loans, credit reporting, money transfers, debt collection, and payday loans.

The Bureau expects companies to respond to complaints and to describe the steps they have taken or plan to take to resolve the complaint within 15 days of receipt. The CFPB expects companies to close all but the most complicated complaints within 60 days.

In June 2012, the CFPB launched its Consumer Complaint Database, which is the nation’s largest public collection of consumer financial complaints. When consumers submit a complaint they have the option to share publicly their explanation of what happened. For more individual-level complaint data and to read consumers’ experiences, go to the Consumer Complaint Database at: www.consumerfinance.gov/complaintdatabase/.

To submit a complaint, consumers can:

  • Go online at www.consumerfinance.gov/complaint/
  • Call the toll-free phone number at 1-855-411-CFPB (2372) or TTY/TDD phone number at 1-855-729-CFPB (2372)
  • Fax the CFPB at 1-855-237-2392
  • Mail a letter to: Consumer Financial Protection Bureau, P.O. Box 4503, Iowa City, Iowa 52244
  • Additionally, through “Ask CFPB,” consumers can get clear, unbiased answers to their questions at consumerfinance.gov/askcfpb or by calling 1-855-411-CFPB (2372).

###
The Consumer Financial Protection Bureau is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visit consumerfinance.gov.

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Anh N. Tran, et al. v. Bank of New York | Securitization FAIL || SCOTUS | Petition for a Writ of Certiorari …. FILED. (Response due October 2, 2015) |

Anh N. Tran, et al. v. Bank of New York | Securitization FAIL || SCOTUS | Petition for a Writ of Certiorari …. FILED. (Response due October 2, 2015) |

No. 15-260

Anh N. Tran, et al. v. Bank of New York, nka Bank of New York Mellon, et al.

from the United States Court of Appeals for the Second Circuit

See other cases from the Second Circuit.

Docket Entries

Petition for a writ of certiorari filed. (Response due October 2, 2015)

Application (14A1287) granted by Justice Ginsburg extending the time to file until August 31, 2015.

Application (14A1287) to extend the time to file a petition for a writ of certiorari from July 2, 2015 to August 31, 2015, submitted to Justice Ginsburg.

Parties

Anh N. Tran, et al., Petitioner, represented by Erik S. Jaffe

Last updated: September 21, 2015

Anh N. Tran, et al. v. Bank of New York Certiorari QUESTION PRESENTED red line

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Anh N. Tran, et al. v. Bank of New York SCOTUS Certiorari

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Lee v. OCWEN LOAN SERVICING, LLC, Assurant, Dist. Court, SD Florida 2015 | Final Approval for $140MM Forced-Placed Insurance Class Action

Lee v. OCWEN LOAN SERVICING, LLC, Assurant, Dist. Court, SD Florida 2015 | Final Approval for $140MM Forced-Placed Insurance Class Action

 

JENNIFER LEE, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, et al., Defendants.

Case No. 14-CV-60649-GOODMAN.
United States District Court, S.D. Florida, Miami Division.
September 14, 2015.

ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT

JONATHAN GOODMAN, Magistrate Judge.

This Court held a June 11, 2015 hearing to consider the parties’ request that the Court approve the proposed class action settlement, consider the the objections to it and also approve and Class Counsel’s fee application (the “Final Fairness Hearing”). The Court granted preliminary approval of the settlement on January 23, 2015. [ECF No. 125.] The hearing was held pursuant to Federal Rule of Civil Procedure 23(e)(1)(A), which mandates judicial review of any “settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.” The Court has carefully considered the parties’ written submissions, including significant post-hearing memoranda and exhibits, the evidence and arguments presented, and the applicable law.

Class Counsel argue that a recent Eleventh Circuit Court of Appeals decision has, for all practical purposes, mooted the primary objections — that the settlement should not be approved because it is based on a claims-made methodology (referred to interchangeably as “claims process” and “claims-made process”) and that the attorney’s fees should not be approved for the same reason. The Undersigned does not interpret this recent case, Poertner v. Gillette Co., No. 14-13882, 2015 WL 4310896 (11th Cir. July 16, 2015),[1] as broadly as class counsel and therefore does not agree that it effectively forecloses the primary objections. Nevertheless, Gillette, which involves a significantly different type of lawsuit than the one here, is certainly helpful to Class Counsel. In addition, other district courts, including district courts in this Circuit, have approved claims-based class action settlements involving lender-place insurance — the type of case at issue here — and those cases are certainly persuasive.

The primary objector contends that a claims-made process is not necessary because Defendant Ocwen Loan Servicing, LLC (“Ocwen”) does have the ability, on a systemwide borrower-by-borrower basis, to identify borrowers who have paid the amounts or some portions of the amounts invoiced them for lender-placed insurance, or those who still owe those amounts. Therefore, the primary objector argues, Ocwen could therefore directly pay Ocwen borrowers. But Plaintiffs and Defendants view this objection as merely a baseless theory submitted by counsel who has a financial interest in causing the proposed settlement to be rejected. Moreover, Plaintiffs describe the objection as little more than an incorrect, self-interested hunch, belied by deposition testimony submitted after the Fairness Hearing (and also contradicted by similar testimony in other cases from other mortgage loan processors).

The Court has afforded the primary objector, Margo Perryman, more than ample opportunity to pursue her objections, permitting her to submit myriad memoranda [ECF Nos. 146, 173, 181], even though neither she nor her counsel appeared at the final fairness hearing.

For the reasons outlined below, the Court approves in full the proposed class action settlement and Class Counsel’s fee application and overrules all objections.

INTRODUCTION

Homeowners are often required by the terms of their mortgage contracts to maintain insurance coverage on the properties securing their loans. If the homeowner does not maintain the required insurance, then the lender is authorized by the mortgage contract to obtain new insurance to cover its interest in the property and the loan. Lenders do this by contracting with insurance carriers for the insurance’s automatic issuance. This is what is commonly referred to as “lender-placed insurance” (“LPI”), though Plaintiffs often brand the practice as force-placed insurance. The Court will use the term lender-placed insurance, or LPI.

This case is one of many lawsuits that have been filed around the country against various lenders, servicers, and insurers regarding LPI programs. These suits, like this one, principally allege that lenders and insurers colluded to create a scheme of “kickbacks” in the form of unearned commissions and other benefits that artificially inflate LPI premium rates. In recent years, some of these suits have been settled on a class-wide basis. Of these class action settlements, many have been structured to require class members’ submission of claim forms to obtain the settlements’ monetary relief, usually some percentage of the LPI premium charged.

Although these settlements have drawn objections — including that the claims process is supposedly unnecessary — the Parties have advised the Court that no court has yet to disapprove an LPI class settlement structured this way. In addition, Defendant American Security Insurance Company (“ASIC”) has further advised that no state or federal regulator voiced opposition to such a structure (even though the proposed settlement agreement was forwarded to them). ASIC explained that regulators sometimes do object, so ASIC contends that the lack of any objection here is particularly significant.

By the parties’ count, district courts have granted final approval to at least eight LPI class action settlements with the same structure as the Settlement here, as well as several others that are structured differently and provide much less monetary relief to class members. Indeed, one district court touted settlements like this — that provide near-complete relief to class members on a claims-made basis — as extraordinary, and particularly so when compared to direct-pay force-placed insurance settlements that compensate all members of a settlement class, but provide far less relief to each class member and with payments that bore little, if any, relation to the actual losses suffered by individual class members. See Arnett v. Bank of Am., N.A., No. 3:11-cv-1372, 2014 U.S. Dist. LEXIS 130903, at *35-37 (D. Or. Sept. 18, 2014).

On January 23, 2015, this Court granted preliminary approval to the proposed class action settlement set forth in the Stipulation and Settlement Agreement (the “Settlement Agreement”)[2] between Plaintiffs Jennifer Lee, Douglas A. Patrick, Gerald Coulthurst, Lisa Chamberlin Engelhardt, Enrique Dominguez, Frances Erving, Johnnie Erving, John Clarizia, and Shelia D. Heard (“Plaintiffs”), on behalf of themselves and all members of the Settlement Class, and Defendants Ocwen, Assurant, Inc. (“Assurant”), ASIC, Standard Guaranty Insurance Company (“SGIC”), Voyager Indemnity Insurance Company (“VIIC”), and American Bankers Insurance Company of Florida (“ABIC”) (Assurant, ASIC, SGIC, ABIC, and VIIC are collectively referred to herein as the “Assurant Defendants”). The Court also provisionally certified the Settlement Class for settlement purposes, approved the procedure for giving Class Notice to the members of the Settlement Class, and set a Final Approval Hearing to take place on June 11, 2015. The Court finds that the Class Notice substantially in the form approved by the Court in its preliminary approval order was given in the manner ordered by the Court, constitutes the best practicable notice, and was fair, reasonable, and adequate.

On June 11, 2015, the Court held a duly noticed Final Approval Hearing to consider: (a) whether the terms and conditions of the Settlement Agreement are fair, reasonable, and adequate; (b) whether a judgment should be entered dismissing the Named Plaintiffs’ amended complaint on the merits and with prejudice in favor of the Defendants and against all persons or entities who are Settlement Class Members herein who have not requested exclusion from the Settlement Class; and (c) whether and in what amount to award Attorneys’ Fees and Expenses to Class Counsel for the Settlement Class, and whether and in what amount to award a Case Contribution Award to the Named Plaintiffs.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Court has personal jurisdiction over the Parties and the Settlement Class Members, venue is proper, the Court has subject-matter jurisdiction to approve the Settlement Agreement, including all exhibits, and to enter this Final Order.

2. The Court finds that the prerequisites for a class action under Federal Rules of Civil Procedure 23(a) and 23(b) have been satisfied for settlement purposes for each Settlement Class Member in that: (a) the number of Settlement Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims of the Named Plaintiffs are typical of the claims of the Settlement Class they seek to represent; (d) Named Plaintiffs have and will continue to fairly and adequately represent the interests of the Settlement Class for purposes of entering into the Settlement Agreement; (e) the questions of law and fact common to the Settlement Class Members predominate over any questions affecting any individual Settlement Class Member; (f) the Settlement Class is ascertainable; and (g) a class action settlement is superior to the other available methods for the fair and efficient adjudication of the controversy.

3. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby finally certifies the Settlement Class, as identified in the Settlement Agreement, which shall consist of the following:

All borrowers in the United States who, within the Settlement Class Period (defined below), were charged by Ocwen under a hazard, flood, flood gap or wind-only LPI Policy for residential property, and who, within the Settlement Class Period, either (a) paid to Ocwen the Net Premium for that LPI Policy or (b) did not pay to and still owe Ocwen the Net Premium for that LPI Policy. Excluded from the Settlement Class are: (a) individuals who are or were during the Settlement Class Period officers or directors of the Defendants in the Action or any of their respective Affiliates; (b) any justice, judge, or magistrate judge of the United States or any State, their spouses, and persons within the third degree of relationship to either of them, or the spouses of such persons; (c) borrowers whose LPI Policy was cancelled in its entirety such that any premiums charged and/or collected were fully refunded to the borrower or to the borrower’s escrow account; and, (d) all borrowers who file a timely and proper request to be excluded from the Settlement Class.

The Settlement Class Period shall commence on January 1, 2008 and shall continue through and including January 23, 2015.

4. The Court finally appoints the law firms of Kozyak, Tropin, & Throckmorton, P.A., Podhurst Orseck, P.A., and Harke Clasby & Bushman LLP as Class Counsel for the Settlement Class.

5. The Court finally designates Named Plaintiffs Jennifer Lee, Douglas A. Patrick, Gerald Coulthurst, Lisa Chamberlin Engelhardt, Enrique Dominguez, Frances Erving, Johnnie Erving, John Clarizia, and Shelia D. Heard as the Class Representatives.

6. The Court makes the following findings on notice to the Settlement Class:

(a) Federal Rule of Civil Procedure 23(c)(2) requires that notice to Settlement Class Members be the “best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” However, “even in Rule 23(b)(3) class actions, due process does not require that class members actually receive notice.” Juris v. Inamed Corp., 685 F. 3d 1294, 1321 (11th Cir. 2012). Instead, notice need only be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985).

(b) The Court finds that the distribution of the Mail Notice, Summary Publication Notice (published in USA Today), Internet media campaign, the creation of the IVR toll-free telephone number system, and creation of the Settlement Website, all as provided for in the Settlement Agreement and Preliminary Approval Order, (i) constituted the best practicable notice under the circumstances to Settlement Class Members, (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Litigation, their right to object or to exclude themselves from the proposed Settlement, and their right to appear at the Final Approval Hearing, (iii) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to be provided with notice, and (iv) complied fully with the requirements of Federal Rule of Civil Procedure 23, the United States Constitution, the Rules of this Court, and any other applicable law.

7. The Parties have complied with their notice obligations under the Class Action Fairness Act, 28 U.S.C. § 1715, in connection with the Settlement. Defendants timely sent notices of the proposed Settlement, including the materials required by that Act, to the appropriate state and federal officials. [ECF Nos. 114-1; 115-1].

8. The Settlement Agreement is finally approved as fair, reasonable, and adequate pursuant to Federal Rule 23(e). The terms and provisions of the Settlement Agreement, including all exhibits, have been entered into in good faith and are hereby fully and finally approved as fair, reasonable, and adequate as to, and in the best interests of, each of the Parties and the Settlement Class Members.

9. There is a strong judicial policy favoring the pretrial settlement of class actions. See, e.g., In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (“Public policy strongly favors the pretrial settlement of class action lawsuits”); Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (“Particularly in class action suits, there is an overriding public interest in favor of settlement”).[3] A class settlement should be approved if it is “fair, reasonable, and adequate,” Federal Rule 23(e)(2), and “not the product of collusion.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). While Fed. R. Civ. P. 23(e) itself does not particularize standards for approval, those standards have been articulated in the case law. They include “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” Id.; see also Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1240 (11th Cir. 2011).

(a) This Court, like others, “considers the reaction of the class, as well as the reaction of the various state attorney generals and regulators, to the proposed settlement to be an important indicator as to its reasonableness and fairness.” Hall v. Bank of Am., N.A., No. 12-22700, 2014 WL 7184039, at *5 (S.D. Fla. Dec. 17, 2014). Obviously, “a low number of objections suggests that the settlement is reasonable, while a high number of objections would provide a basis for finding that the settlement was unreasonable.” Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014); see also Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005).

(i) This Settlement has met with near-universal approval. A total of 399,843 Notice Packages were initially mailed to Settlement Class Members on March 13, 2015 [ECF Nos. 158-1, ¶ 5; 144-4, ¶ 8], with thousands more Notice Packages re-mailed with updated mailing addresses. [ECF Nos. 158-1, ¶ 7; 144-4, ¶ 10]. In any class of this size, it would be no surprise if a settlement produced numerous objections and exclusions. Yet here, only four objections were filed by five Class Members — a trivial fraction of the Class — and only 160 timely Requests for Exclusion were received from Class Members. [ECF No. 158-1, ¶ 9]. Two of the objectors, Shane and Cecelia Valdez, have since withdrawn their joint objection [ECF No. 162], and the Court approved the withdrawal of that objection from consideration [ECF No. 163], leaving just three live objections filed by Class Members Margo Perryman [ECF No. 146], Michael Hobbs [ECF No. 148], and Jon Hansen [ECF No. 153]. Neither the United States Attorney General, the Director of the Consumer Financial Protection Bureau, the Comptroller of the Currency, nor a single state attorney general or insurance commissioner objected, although they were all notified of the opportunity to do so.

(ii) These responses of stakeholders to the Settlement are powerful indicia that the Settlement is fair, reasonable and adequate, and deserves final approval. See Hall, 2014 WL 7184039, at *5 (where objections from LPI settlement class members “equates to less than .0016% of the class” and “not a single state attorney general or regulator submitted an objection,” “such facts are overwhelming support for the settlement and evidence of its reasonableness and fairness”); Hamilton v. SunTrust Mortg, Inc., No. 13-60749, 2014 WL 5419507, at *4 (S.D. Fla. Oct. 24, 2014) (where “not a single state attorney general or regulator submitted an objection,” combined with few objections to LPI class settlement, “such facts are overwhelming support for the settlement”); Burrows v. Purchasing Power, LLC, No. 12-22800, 2013 WL 10167232, at *7 (S.D. Fla. Oct. 7, 2013) (“No members of the Settlement Class oppose the settlement, nor have any governmental agencies filed opposition”).

(b) “The next two Bennett factors are the range of possible recovery and the point on or below the range at which a settlement is fair, adequate and reasonable.” Lipuma, 406 F. Supp. 2d at 1322. “In considering the question of a possible recovery, the focus is on the possible recovery at trial.” Id. “The Court’s role is not to engage in a claim-by-claim, dollar-by-dollar evaluation, but to evaluate the proposed settlement in its totality.” Id. at 1323. “A settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery.” Id. (internal quotation marks omitted).

(i) The Settlement is generous to Class Members, providing relief approximating a trial win and, for many Class Members, exceeding a trial win. In LPI class actions like this, plaintiffs have not challenged the right to place LPI or sought the return of the entire LPI charge, but have sought only the portion of the charge allegedly “inflated” by defendants’ compensation arrangements. In this Settlement, for each LPI Policy, Class Members may obtain a refund or credit of 12.5% of the LPI’s Net Premium [ECF No. 144-1, ¶¶ 4.6.2, 4.6.3], a percentage that the Court finds not only approximates Class Members’ alleged damages, but is comparable to or exceeds refund and credit percentages allowed in multiple LPI class settlements approved in this District and elsewhere. See, e.g., Hamilton, 2014 WL 5419507, at *4 (10.5%); Fladell v. Wells Fargo Bank, N.A., No. 13-60721, 2014 WL 5488167, at *4 (S.D. Fla. Oct. 29, 2014) (7% or 11%); Saccoccio, 297 F.R.D. at 693 (12.5%).

Unlike some consumer class settlements, this is not a low-dollar value or “coupon” settlement. In many instances, perhaps most, the Claim Settlement Relief will be worth hundreds of dollars to the average Claimant.

(ii) Even if a Class Member did not pay any part of her LPI Premium, that Class Member is nevertheless entitled to recover full Claim Settlement Relief, the only difference being the manner in which relief is provided. And Class Members are eligible to receive Claim Settlement Relief merely by submitting a streamlined Claim Form and confirming their identity in one of several ways. Detailed information — like coverage periods, total charges, or amounts paid — need not be supplied. [ECF No. 144-2 Ex. C]. To the contrary, although Defendants reserve the right to audit claims for evidence of fraud, the Parties will accept as truth Class Members’ affirmations that they paid any portion of the Premium.[4]

(iii) The Settlement also offers substantial injunctive relief. [ECF No. 144-1, ¶¶ 4.2-4.4]. For a five-year period, Ocwen will not receive any commissions paid as a result of the placement of LPI, enter into any quota share reinsurance arrangements on new or renewal LPI policies, accept payments from any LPI insurer or LPI vendor for any administrative or other service associated with LPI, or place LPI through an insurer or vendor affiliated with Ocwen. [Id., ¶ 4.2.1(i)-(iv)]. LPI policies will be dual interest for any coverage for which Ocwen attempts to recoup from borrowers the LPI premiums paid by Ocwen to the LPI insurer; “dual interest” means that the borrower will have the right to file a claim under the policy. [Id., ¶ 4.2.1(v)]. And the Settlement requires other conduct from Ocwen. [Id., ¶ 4.2.1(vi)-(viii)].

Similarly, the Settlement will prohibit the Assurant Defendants for a five-year period from providing to Ocwen hazard LPI commissions, LPI quota share reinsurance arrangements, or payments for administrative or other services associated with hazard LPI or other LPI-related services. [Id., ¶ 4.3.1(i)-(iii)]. Nor may the Assurant Defendants accept payments from Ocwen for below-cost or free outsourced services provided to Ocwen in connection with hazard LPI. [Id., ¶ 4.3.1(iv)]. Similar injunctive relief has been found to constitute “important changes that will help homeowners” and to “have significant value to the class members nationwide.” Hamilton, 2014 WL 5419507, at *4; see also Hall, 2014 WL 7184039, at *5 (“The Court finds the injunctive changes provided in the Settlement Agreement are important and have significant value to the class members nationwide.”). See also Gillette, 2015 WL 4310896 (explaining benefits of injunctive relief).

(c) The Court also must consider the likelihood and extent of any recovery from Defendants absent the Settlement.

(i) The Settlement’s terms were achieved notwithstanding many courts disagreeing about whether the underlying theories of liability even state valid claims for relief. Indeed, there is “no doubt that recent federal appellate decisions have changed the climate for Plaintiffs’ class action attorneys pursuing force-placed insurance claims.” Montoya v. PNC Bank, N.A., No. 14-20474, 2014 WL 4248208, at *2 (S.D. Fla. Aug. 27, 2014). See also Rothstein v. Balboa Insur. Co., 794 F.3d 256 (2d Cir. July 22, 2015) (reversing denial of order denying motion to dismiss LPI case because the filed rate doctrine barred the claim).

The Eleventh Circuit itself has rejected LPI-related claims similar to the ones alleged here. See Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098, 1110-11 (11th Cir. 2014); Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1340-42 (11th Cir. 2000). And this Court emphasized in another LPI lawsuit that while plaintiffs’ mail and wire fraud allegations may be “barely” sufficient to withstand a motion to dismiss by “a razor-thin margin,” there are “strong headwinds” that will test plaintiffs’ “less-than-obvious causation theory” and purported “fraudulent scheme” at later stages in the litigation. Montoya v. PNC Bank, N.A., No. 14-20474, 2015 WL 1311482, at *13-16, *24-26 (S.D. Fla. Mar. 23, 2015); see also Wilson v. Everbank, N.A., No. 14-22264, 2015 WL 1600549, at *2-6 (S.D. Fla. Apr. 9, 2015) (dismissing comparable LPI mail and wire fraud-based claims); Hall, 2014 WL 7184039, at *4 (noting that “a number of courts have dismissed” comparable LPI claims, so “there exists a potential that the class could endure a long and expensive trial only to come away with nothing”); Saccoccio, 297 F.R.D. at 692 (observing that “there is strong authority to suggest that Plaintiff may not have prevailed” in similar LPI class litigation).[5]

(ii) Defendants also have strong affirmative defenses. For example, Defendants made arguments based upon the filed rate doctrine that could have been dispositive at later stages of the Litigation. Some courts, including appellate courts, have found this defense theory dispositive. “The filed rate doctrine (also known as the `filed tariff doctrine’) `forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority.'” Hill v. BellSouth Telecommc’ns, Inc., 364 F.3d 1308, 1315 (11th Cir. 2004) (quoting Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981)). “Therefore, causes of action in which the plaintiff attempts to challenge the terms of a filed tariff are barred by the filed rate doctrine.” Id. Moreover, “even if a claim does not directly attack the filed rate, an award of damages to the customer that would, in effect, result in a judicial determination of the reasonableness of that rate is prohibited under the filed rate doctrine.” Id. at 1317. Defendants here argue that the filed rate doctrine applies to filed insurance premium rates like the LPI premium rates at issue here, and there is surely authority to support that position. See, e.g., Rothstein, 794 F.3d 256; Kunzelmann v. Wells Fargo Bank, N.A., No. 11-81373, 2013 WL 139913, at *12 (S.D. Fla. Jan. 10, 2013); Morales v. Attorneys’ Title Ins. Fund Inc., 983 F. Supp. 1418, 1426 (S.D. Fla. 1997).

(iii) Many courts have applied the filed rate doctrine to dismiss comparable LPI claims, including fraud-based claims, at the pleadings stage. See, e.g., Johnson v. Green Tree Servicing LLC, No. 15-18, 2015 WL 2452680, at *2 (N.D. Miss. May 22, 2015); Miller v. Wells Fargo Bank, N.A., 994 F. Supp. 2d 542, 553-54 (S.D.N.Y. 2014); Curtis v. Cenlar FSB, No. 13-3007, 2013 WL 5995582, at *3 (S.D.N.Y. Nov. 12, 2013); Singleton v. Wells Fargo Bank, N.A., No. 12-216, 2013 WL 5423917, at *2 (N.D. Miss. Sept. 26, 2013); Roberts v. Wells Fargo Bank, N.A., No. 12-200, 2013 WL 1233268, at *13 (S.D. Ga. Mar. 27, 2013); Decambaliza v. QBE Holdings, Inc., No. 13-286, 2013 WL 5777294, at *6-7 (W.D. Wis. Oct. 25, 2013); Stevens v. Union Planters Corp., No. 00-1695, 2000 WL 33128256, at *3 (E.D. Pa. Aug. 22, 2000). And even if (as here) Plaintiffs survived an early motion to dismiss,[6] it is “apparent that the filed rate doctrine is an issue that must be addressed” eventually, whether at summary judgment, trial, or in another posture. Kunzelmann, 2013 WL 139913, at *12. In the context of a nationwide class, ruling on the filed rate doctrine under the differing laws of the 50 states would be exceedingly complicated, and could yield disparate results. “To determine whether, and to what extent the filed-rate doctrine is applicable would require an analysis of each state’s formulation of the doctrine and may require examination of the regulatory proceedings involved in approving the rate filed.” Id.

(iv) For the same and other reasons, Plaintiffs’ ability to obtain certification of a litigated class is less than certain. It does not appear that any court, state or federal, has granted a contested motion to certify a nationwide class of borrowers asserting comparable LPI claims. Many courts have declined to do so. See Hall, 2014 WL 7184039, at *4 (noting that “most courts have denied class certification in lender-placed insurance cases, and none have certified a nationwide class”); Kunzelmann, 2013 WL 139913, at *4-12 (denying class certification of comparable LPI claims); Gordon v. Chase Home Finance, LLC, No. 11-2001, 2013 WL 436445, at *6-12 (M.D. Fla. Feb. 5, 2013) (same); accord Rapp v. Green Tree Servicing LLC, 302 F.R.D. 505, 509-20 (D. Minn. 2014) (same); Gustafson v. BAC Home Loans Servicing, LP, 294 F.R.D. 529, 535-50 (C.D. Cal. 2013) (same); cf. Montoya, 2015 WL 1311482, at *27 (recognizing “need to again confront the filed-rate doctrine argument when analyzing [a] class certification motion”).

(v) The Settlement thus avoids fundamental uncertainties with Plaintiffs’ claims. Litigating these claims to resolution would have undoubtedly proven difficult and consumed significant time, money, and judicial resources. Even if Plaintiffs were ultimately to have prevailed in litigation, that success would likely have borne fruit for the Class only after years of trial and appellate proceedings and the expenditure of millions of dollars by both sides. This factor also weighs in favor of approving the settlement. See, e.g., In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex., on Apr. 20, 2010, 910 F. Supp. 2d 891, 932 (E.D. La. 2012) aff’d 2014 WL 103836 (5th Cir. Jan. 10, 2014) (“Even assuming litigation could obtain the results that this Settlement provides, years of litigation would stand between the class and any such recovery. Hence, this second . . . factor weighs strongly in favor of granting final approval to the Settlement Agreement”).

Put simply, the agreed Settlement relief here is nearly what (and in many cases, more than) Plaintiffs could have obtained in a contested resolution of the Litigation. That relief will be available immediately, without protracted proceedings. “Significantly, none of the objectors disputed that these obstacles exist and are formidable. In light of the recovery to the class, as well as the significant litigation risk Plaintiffs faced absent settlement, the settlement is fair, reasonable and adequate.” Hall, 2014 WL 7184039, at *4.

(d) The complexity, expense, and duration of continued litigation is another factor weighing heavily in favor of final approval. Many of Plaintiffs’ claims were highly complex. See Saccoccio, 297 F.R.D. at 692, 693 (characterizing comparable LPI claims as “highly complex” and “quite complex”). A massive effort would be necessary to conclude the Litigation under the auspices of a jury, and have that result reviewed on appeal. To reach the trial stage, the Parties would unquestionably engage in substantial motion practice, including discovery motions, briefs and expert opinions for and opposing certification of a class, motions for summary judgment, and a series of motions in limine. The Court would be presented with numerous pre-trial legal and evidentiary disputes. Moreover, a trial of this Litigation would take substantial time, likely straining the patience of even the most engaged jurors. “Complex litigation — like the instant case — can occupy a court’s docket for years on end, depleting the resources of the parties and the taxpayers while rendering meaningful relief increasingly elusive.” U.S. Oil, 967 F.2d at 493.

(e) The Court considers the stage at which the Settlement was reached. “The stage of the proceedings at which a settlement is achieved is evaluated to ensure that Plaintiffs had access to sufficient information to adequately evaluate the merits of the case and weigh the benefits of settlement against further litigation.” Lipuma, 406 F. Supp. 2d at 1324. “Early settlements are favored,” however, and “`vast formal discovery need not be taken.'” Saccoccio, 297 F.R.D. at 694 (quoting Lipuma, 406 F. Supp. 2d at 1324). “Information obtained from other cases may be used to assist in evaluating the merits of a proposed settlement of a different case.” Lipuma, 406 F. Supp. 2d at 1325.

(i) Class Counsel were well-positioned to evaluate the merits of Plaintiffs’ claims, as well as the appropriate basis on which to settle them, as a result of their participation in years of similar LPI litigation in this District and elsewhere, and review of over 30 million pages of documents and over 30 depositions in similar litigation [ECF Nos. 144-3, ¶ 46; 161, pp. 54:17-56:21], including repeated depositions of Ronald Wilson (vice president of account management for several of the Assurant Defendants) and other representatives of the Assurant Defendants. [ECF Nos. 144-3, ¶¶ 16, 39; 161, pp. 54:17-55:7, 108:17-25]. Some of the discovery obtained in those other LPI cases included discovery concerning Ocwen. [Id.].

(ii) In this Litigation, Class Counsel conducted extensive formal and informal discovery before and during the Lee Mediation. [ECF Nos. 144-3, ¶¶ 11, 15, 16, 44; 161, pp. 55:14-25]. Among other things, Defendants provided Class Counsel with details about the functions and capabilities of the systems on which they retain borrowers’ financial data, including Defendants’ inability to query those systems for information about which borrowers may have paid or still owe amounts for LPI charges. [Id., ¶¶ 15, 37]. Defendants also provided Class Counsel with information concerning Ocwen’s hazard, flood, and wind LPI programs, including detailing the compensation arrangements between Defendants, the number of LPI Policies in force, and aggregate Premiums. [Id., ¶ 15].

(iii) After negotiating the Settlement Agreement, Defendants publicly filed declarations by Mr. Wilson [ECF No. 154-1] and Jason Jastrzemski (Ocwen’s director of mortgage servicing oversight) [ECF No. 134-1] confirming that it is not feasible to determine systematically whether LPI premiums were paid or are still owed by any given Class Member.[7] On June 25, 2015, after the Fairness Hearing (and perhaps because of questions which arose during the hearing), Class Counsel took Mr. Jastrzemski’s deposition to test the statements made in his declaration, the transcript of which has now been publicly filed. [ECF No. 169-1]. Although these evidentiary materials were not available at the time the Settlement Agreement was negotiated, they confirm the factual premises upon which the Settlement was based. Plaintiffs also publicly filed declarations from the Settlement Administrator regarding the number of Class Members, Claimants, and Requests for Exclusion. [ECF Nos. 144-4; 158-1].

(f) The Court next considers whether the Parties colluded in negotiating the Settlement Agreement. “Collusion may not always be evident on the face of a settlement, and courts therefore must be particularly vigilant not only for explicit collusion, but also for more subtle signs that class counsel have allowed pursuit of their own self-interests and that of certain class members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). The Court is satisfied that this Settlement is not the product of collusion, explicit or subtle.

(i) “Where the parties have negotiated at arm’s length, the Court should find that the settlement is not the product of collusion.” Saccoccio, 297 F.R.D. at 692. “There is a presumption of good faith in the negotiation process.” Id. That presumption has not been rebutted here. The Settlement Agreement was the result of arm’s-length negotiations, assisted by a well-known mediator for class actions, Rodney A. Max [ECF No. 150-1]. As the Court stated at the Final Approval Hearing, Mr. Max is a “highly respected mediator” [ECF No. 161, p. 84:21-22], “one of the top mediators in Florida,” and, indeed, “probably one of the top mediators in the country.” [Id., at p. 60:2-3]. This Court is not alone in its estimation of Mr. Max. See, e.g., Curry v. AvMed, Inc., No. 10-24513, 2014 WL 7801286, at *2 (S.D. Fla. Feb. 28, 2014) (favorably observing that class settlement negotiations were “presided over by the highly experienced third-party neutral Rodney A. Max”); Burrows, 2013 WL 10167232, at *7 (finding no evidence of collusive class settlement based in part on testimony of mediator Rodney Max). Notably, Mr. Max has mediated to resolution other LPI class settlements that have received final approval in this District. “Parties colluding in a settlement would hardly need the services of a neutral third party to broker their deal.” Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001).[8]

(ii) Settlement discussions proceeded in three phases. First, before formal mediation the Parties engaged in multiple telephonic negotiating sessions and exchanged significant amounts of information under Mr. Max’s supervision. [ECF Nos. 144-3, ¶¶ 11, 13, 15; 150-1, ¶¶ 2-9, 11, 13]. Second, on November 6, 2014, the parties participated in an in-person mediation session. [ECF Nos. 144-3, ¶ 13; 150-1, ¶¶ 11-12]. The Parties reached an agreement in principle on November 13, 2014 [ECF Nos. 144-3, ¶¶ 17; 150-1, ¶ 15], culminating in the 114-page Settlement Agreement. [ECF Nos. 144-1; 144-2]. As Mr. Max has attested, there was no collusion among the Parties. [ECF No. 150-1 ¶¶ 11-12, 14, 17-19]. “To the contrary,” he attested, “at each point during these negotiations, the settlement process was conducted at arm’s-length and, while professionally conducted, was quite adversarial.” [Id., ¶ 17].

(iii) In addition, the Court personally observed the Parties’ counsel during the litigation and has no reason to doubt their professionalism or integrity. Moreover, the Court is familiar with Class Counsel and most of the defense lawyers and they all enjoy impeccable reputations. There is simply no evidence of self-dealing, collusion or other unethical behavior, want of skill, or lack of zealous advocacy.

(iv) The Settlement Agreement’s section on Attorneys’ Fees and Costs contains a so-called “clear-sailing” provision, whereby Defendants agree not to oppose or otherwise object to an application by Class Counsel for an award of Attorneys’ Fees and Expenses in an amount not to exceed $9.85 million. [ECF No. 144-1, ¶ 15.2]. Some courts have suggested that a clear-sailing provision may be a warning sign of a collusive bargain. “The inclusion of such a `clear sailing’ provision within the settlement agreement’s terms, however, merely justifies the Court’s application of heightened scrutiny when evaluating the class counsel’s ultimate fee request; it should not be read as an independent ground for withholding approval of the entire settlement.” Matter of Skinner Group, Inc., 206 B.R. 252, 263, n.14 (N.D. Ga. 1997). Indeed, while a clear-sailing provision could indicate that the settling parties compromised class members’ interests to give class counsel favorable treatment on attorneys’ fees, it could just as easily be included for purposes of finality and risk avoidance. See Malchman v. Davis, 761 F.2d 893, 905 n.5 (2d Cir. 1985) (a clear-sailing provision “is essential to completion of the settlement, because the defendants want to know their total maximum exposure and the plaintiffs do not want to be sandbagged”).

(v) The Court has already found that the Settlement was negotiated at arm’s-length. The Settlement’s relief — which replicates a model approved in multiple other LPI class settlements — independently confirms the absence of collusion. Class Members here will receive the same sort of deal multiple judges have already found to be fair. Furthermore, the Parties began negotiating attorney’s fees only after they had finished negotiating the Settlement itself [ECF Nos. 150-1, ¶ 18; 144-3, ¶ 71], another ground for rejecting the notion of collusion. See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 335 (3d Cir. 1998) (overruling objection to clear-sailing provision since there was “no indication the parties began to negotiate attorneys’ fees until after they had finished negotiating the settlement agreement”); Ingram, 200 F.R.D. at 693 (finding no collusion where attorneys’ fees were “negotiated separately from the rest of the settlement, and only after substantial components of the class settlement had been resolved”).

(vi) With or without giving the Settlement heightened scrutiny, the Court finds the clear-sailing provision to be immaterial. Based on the factual record, the Undersigned finds that there was no collusion among the Parties. And where there is no collusion, a clear-sailing provision should not bar a class settlement’s approval. See Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1293 n.4 (11th Cir. 1999); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 425-26 (6th Cir. 2012); Fladell, 2014 WL 5488167, at *4 (“[A]lthough the Settlement Agreement includes a `clear-sailing’ provision, that is immaterial. There was no collusion in the settlement negotiations and the Parties began negotiations regarding attorneys’ fees only after finishing negotiating the Settlement itself”).

10. The Court has carefully considered the objectors’ arguments, particularly regarding the Settlement’s claims-made structure and potential claims rate, and those objections are overruled. While the Court “must extend to the objectors leave to be heard,” it need not “open to question and debate every provision of the proposed compromise” and, accordingly, the Court “may limit its proceeding to whatever is necessary to aid it in reaching an informed, just and reasoned decision.” Cotton, 559 F.2d at 1331. The Court has “examine[d] the settlement in light of the objections raised” and will now “set forth on the record a reasoned response to the objections including findings of fact and conclusions of law necessary to support the response.” Id.

(a) Objector Jon Hansen, acting pro se, objects that the Release’s “wording `or could have been raised in the case’ leaves the reality of recorded court documents and settles into the potential fantasy land of conjecture and legal council [sic] imagination.” [ECF No. 153, p. 1]. Mr. Hansen did not appear at the Final Approval Hearing, personally or through counsel.

(i) His objection overlooks that “a court may release not only those claims alleged in the complaint and before the court, but also claims which could have been alleged by reason of or in connection with any matter or fact set forth or referred to in the complaint. And it has been held that even when the court does not have power to adjudicate a claim, it may still approve release of that claim as a condition of settlement of an action before it.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 221 (5th Cir. 1981) (internal quotation marks omitted); see also Thomas v. Blue Cross & Blue Shield Ass’n, 333 F. App’x 414, 420 (11th Cir. 2009) (“Given a broad enough settlement agreement . . . and provided that [a class member] had notice of it and an opportunity to opt out, it is perfectly acceptable for the [settling class] action to preclude his claims, even if they could not have been part of that action itself.”). This is consistent with ordinary principles of res judicata. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013) (“The doctrine of res judicata, or claim preclusion, bars the parties to an action from litigating claims that were or could have been litigated in a prior action between the same parties”).

(ii) Furthermore, Mr. Hansen’s (and the others’) “objections lack merit because the objectors can simply opt out if they have concerns about releasing their claims.” In re Managed Care Litig., No. 00-1334, 2003 WL 22850070, at *5 (S.D. Fla. Oct. 24, 2003); Diaz v. HSBC USA, N.A., No. 13-21104, 2014 WL 5488161, at *3 (S.D. Fla. Oct. 29, 2014); see also Faught, 668 F.3d at 1241-42 (objection that “the settlement is unreasonable because it strips class members of their class rights while failing to resolve their individual claims” and “that the settlement does not adequately compensate them” deemed “unconvincing” since class members were “free to opt out of the class and still have the option of . . . filing an individual suit”); In re CP Ships Ltd., Secs. Litig., 578 F.3d 1306, 1318 (11th Cir. 2009) (rejecting objection “that the district court erred in approving the settlement because foreign class members have potential for a greater recovery” in Canadian litigation since settlement class members “wishing to pursue the Canadian Actions could opt out of the instant settlement”).[9]

(b) Objector Margo Perryman has been the most active objector, although she did not appear at the final fairness hearing. She is the named plaintiff in a parallel, though later-filed, class action pending in the United States District Court for the Northern District of California. As such, she is among “the small and vocal minority of class members who have objected[,] fueled by would-be class counsel in competing lawsuits, so their objections are suspect.” Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1315 (S.D. Fla. 2007). Although she principally challenges the Settlement’s claims-made structure, members of Ms. Perryman’s counsel[10] served as co-counsel in four other LPI class actions that were settled and granted final approval in this District, all using the same claims process the Parties have agreed to use in this Litigation. In April 2015, the Court denied Ms. Perryman’s motion for discovery relating to the necessity of the Settlement’s claims-made structure [ECF No. 131], concluding that, among other things, Class Counsel had confirmed a claims-made settlement is the best possible structure for Settlement Class Members. [ECF No. 145]. Like the other remaining objectors, Ms. Perryman did not appear at the Final Approval Hearing, personally or through counsel.[11]

“[C]ourts consider the background and intent of objectors and their counsel, particularly when indicative of a motive other than putting the interest of the class members first.” Dennis v. Kellogg Co., 09-CV-1786-L, 2013 U.S. Dist. LEXIS 163118, at *11 (S.D. Cal. Nov. 14, 2013) (citation omitted).

Mr. Himmelstein and his local counsel, Ms. Kelly, represent Ms. Perryman in a competing class action in California, which has been stayed pending approval of the Settlement here. Plaintiffs say these two attorneys have a clear financial interest in convincing this Court to reject or delay the Lee Settlement with an appeal to our Eleventh Circuit in order to leverage fees from Class Counsel. Such tactics are common in class action practice and disapproved of by the courts. See, e.g., In re Hydroxycut Mktg. & Sales Practices Litig., MDL No. 09-md-2087, 2013 U.S. Dist. LEXIS 133413, at *71 n.3 (S.D. Cal. Sept. 17, 2013) (criticizing objecting counsel for attempting to leverage fees with objection and noting that “this type of abuse of the objection process is not uncommon”) (citing MANUAL FOR COMPLEX LITIG. § 21.643 (4th ed.) (“Some objections, however, are made for improper purposes, and benefit only the objectors and their attorneys (e.g., by seeking additional compensation to withdraw even ill-founded objections). An objection even of little merit can be costly and significantly delay implementation of a class settlement”)); In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1361 n.30 (S.D. Fla. 2011) (collecting authority disapproving of objections brought with ulterior motive by those “whose sole purpose is to obtain a fee by objecting to whatever aspects of the Settlement they can latch onto”).

(c) As noted above, Ms. Perryman focuses her objection on the Settlement’s claims process, characterizing claims-made structured class settlements like this one as “disfavored” and “generally disapproved.” [ECF No. 146, p. 6]. She advocates an alternative direct-payment structure. [Id.].

(i) This objection is unconvincing. Ms. Perryman has now submitted, at the Court’s direction, a declaration conceding that she “has no personal knowledge as to whether a claims process is truly necessary.” [ECF No. 173-2]. Moreover, two appellate decisions entered in recent months undermine her argument that a claims-made settlement methodology is improper: Gillette and Rothstein.

Ms. Perryman’s counsel, Mr. Himmelstein, challenges the Settlement on two fronts. (1) he objects to its claims-made structure, arguing that a direct-pay structure should instead be employed (but never addresses whether Defendants would have agreed to direct-pay), and (2) he argues that the Settlement is inadequate because Class Counsel’s proposed fee will be disproportionate to the total monetary relief that Defendants pay out to class members. [ECF Nos. 146; 173, p. 1.] The Eleventh Circuit addressed both objections in Gillette, which, though unpublished, is persuasive (even though arising in a different context).[12]

Gillette involved objections to a settlement that provided for monetary and injunctive relief to a nationwide class of purchasers of certain Duracell batteries. The district court had overruled objections to the claims-made structure of the settlement, as well as the allocation of settlement benefits among the class, Class Counsel, and cy pres designees. As here, among other things, the objectors had argued both that “the total monetary value that [would] personally accrue to class members [wa]s relatively small as compared to the attorney’s fees,” and that “there should be a way to provide monetary relief to a greater number of Class Members.” Poertner v. Gillette Co., No. 6:12-cv-803-Orl-31DAB, 2014 U.S. Dist. LEXIS 116616, at *8-9 (M.D. Fla. Aug. 21, 2014).[13]

The Eleventh Circuit unequivocally rejected both objections. First, the court concluded that the district court had not abused its discretion in holding that a claims-made structure was fair, reasonable, and adequate, because “the use of a claims process is not inherently suspect[,]” and the amount to be paid to class members who submitted claims “exceeded the damages that an average class member would have received if the class had prevailed at trial.” Gillette, 2015 WL 4310896, at *4 (citation omitted) (emphasis added). The Eleventh Circuit also rejected the objector’s contention that the defendants could pay some portion of the class directly, because, even if that had been true, “that does not mean that the district court lacked the discretion to approve the settlement as fair absent the identification of these class members.” Id. at *5.

Nevertheless, Gillette is not the slam-dunk case that Class Counsel portray, as the facts are significantly different. First, the lawsuit there was a consumer class action involving a national class of nearly 7.6 million persons who had not been identified. Indeed, the appellate court noted that Gillette “did not have any personal information about the unnamed class members,” which meant that class notice was provided by publication through national periodicals and popular internet sites. Id. at *2. As the district court noted, “Gillette does not sell at retail, so it has records from which to identify actual purchasers of Ultra batteries.” Id. at *5. In addition, that case involved a cy pres award, where Gillette agreed to donate $6 million of batteries to charities. There is no cy pres award in the instant case.

On the other hand, the primary objector there, like Ms. Perryman here, challenged the claims-made methodology. He argued that the identities of many class members could be ascertained by subpoenaing the customer records of a handful of major retailers. Therefore, he concluded that the settling parties could provide individualized notice or direct payment to at least some class members. The appellate court rejected that argument, holding that the district court nevertheless had discretion to approve the settlement as fair absent the identification of these class members. Id. at *5.

Ms. Perryman argues that the claims-made methodology in Gillette was necessary (because the potential claimants in the nationwide consumer class action lawsuit could not be adequately identified), suggesting that the methodology would not be necessary here. To be sure, Ocwen can easily identify the mortgagors whose loans were being serviced, so it did not confront the same “unidentified claimant” scenario present in Gillette. But Class Counsel argue that, for all practical purposes, the claims-made approach is necessary here because Ocwen lacks the ability to efficiently track down the necessary information about each mortgagor’s situation.

In the Court’s view, the claims-made methodology was absolutely necessary in Gillette because no other approach would have worked, while the methodology was, in effect, necessary here because the information, while perhaps theoretically available, would have required a massive amount of file-by-file review which would have derailed the settlement.

The Undersigned does not interpret Gillette to stand for a rule that all claims-made class action settlements are acceptable at all times, nor do I view it as an opinion which “forecloses” challenges to the methodology. Instead, the case stands for the rule that the use of a claims process is not inherently suspect even though monetary relief would be available only to those class members who actually submitted claims. A claims-made process might or might not be fair and reasonable, depending on the specific facts and circumstances and the Bennett factors analysis.

But other courts approved claims-made class action settlements before the recent Gillette opinion. For example, as noted in Hall, “there is nothing inherently suspect about requiring class members to submit claim forms in order to receive payment.'” 2014 WL 7184039, at *6 (quoting Saccoccio, 297 F.R.D. at 696). “Filing a claim form is a reasonable administrative requirement which generally does not impose an undue burden on members of a settlement class.” Hamilton, 2014 WL 5419507, at *6. The Court, along with other judges in this District and elsewhere, holds the view that “`criticism of the claims-made structure’ does `not impact the fairness, reasonableness, or adequacy of the proposed settlement.'” Id. (quoting Casey v. Citibank, N.A., No. 12-820, 2014 WL 4120599, at *2 (N.D.N.Y. Aug. 21, 2014)).

Gillette also rejects the notion that the Court must identify the payment structure that would provide optimal relief to the class, or that a claims-made process may be employed only if the parties show that it is necessary. The Court’s job instead is to determine whether the settlement as presented is fair, reasonable, and adequate. See id. at *5 (district court had discretion to approve claims-made settlement without identifying class members who could be paid directly); Casey v. Citibank, N.A., No. 13-cv-820, 2014 WL 4120599 (N.D.N.Y. Aug. 21, 2014) (“The Court does not have the authority to impose a preferred payment structure upon the settling parties”).

The Gillette court also rejected an objection that class counsel’s fee request was too large when compared to value of the actual payout to the settlement class as “based on [a] flawed valuation of the settlement pie: limiting the monetary value to the amount of [Defendant’s] actual payments,” while excluding the value of the injunctive and other negotiated relief. See Gillette, 2015 WL 4310896, at *6; see also id. at *4 (district court correctly concluded that injunctive relief and cy pres award “were part of the settlement pie”). This also undermines Ms. Perryman’s challenge (or her counsel’s challenge) to Class Counsel’s requested fee here, which Plaintiffs say is based on pure speculation as to the actual amount that will be paid to class members, [ECF No. 173, p. 1], and excludes any consideration of the valuable injunctive relief made available to the nationwide class.

Gillette’s approval of counsel’s fees also assists class counsel here because the payout structure was arguably more favorable to counsel than the proposed settlement here. In the Gillette nationwide consumer class action lawsuit settlement, class members who filed valid claims — on a one-page form submitted either online or by mail — would receive $3 per pack of batteries, up to four packs with proof of purchase and two packs without proof. The claims administrator reported that 55,346 class members made claims totaling $344,850 — and the attorney’s fees and costs were $5.68 million.

To be sure, the Gillette Court also factored in the injunctive relief and the $6 million cy pres award. But the objector challenged the value of the injunctive relief as illusory, noting that Gillette was no longer selling the batteries in question when it agreed to stop putting the allegedly misleading statements on the batteries’ packaging. The appellate court rejected that argument, noting that Gillette’s decision to stop selling the batteries was motivated by the lawsuit.

In addition, courts consider the value of injunctive relief and monetary relief together in assessing whether a class action settlement provides sufficient relief to the class. Gillette, 2015 WL 4310896 (affirming approval of class action settlement based on, in addition to monetary payments, the inclusion of injunctive and cy pres relief). Class Counsel has not placed a specific dollar value on the injunctive relief, though it notes, in its proposed order approving the settlement [ECF No. 172-1, p. 20], that it add “considerable value to the settlement.” In its motion for approval [ECF No. 144, p. 18], Class Counsel note that the injunctive relief prohibits the Ocwen Defendants “from continuing to implement the practices challenged in the First Amended Complaint, which reaped millions of dollars in revenues for Defendants during the class period.”[14]

If the $6 million cy pres award were added to the $344,850 in claims, that would yield $6.34 million. With a fees and costs award of $5.68 million, this ratio is substantially more skewed toward a greater fees and costs award than the ratio in the instant case — and this evaluation does not include the value of the injunctive relief. At bottom, the ratio of financial relief provided to the class members here is comparatively greater than the relief provided in Gillette, a significant factor which mitigates in favor an approval here.

(ii) An objector like Ms. Perryman “must do more than just argue that she would have preferred a different settlement structure, as this court’s review of the settlement structure is even more narrow.” Uhl v. Thoroughbred Technology & Telecommc’ns, Inc., 309 F.3d 978, 986 (7th Cir. 2002). “Perhaps there could have been an even more creative settlement or, alternatively, one that is more traditional. But that is not the question we must resolve.” Id. at 987. After all, “whether another team of negotiators might have accomplished a better settlement is a matter equally comprised of conjecture and irrelevance.” Corrugated Container, 643 F.2d at 212. “`While a direct payment structure would obviously result in more, and possibly all, class members receiving a share of the monetary relief in the settlement, there is no reason to believe the defendants would agree to such terms’ and, in any event, the Court `does not have the authority to impose a preferred payment structure upon the settling parties.'” Fladell, 2014 WL 5488167, at *4 (quoting Casey, 2014 WL 4120599, at *2-3).

(iii) The Settlement has been designed to incentivize Class Member participation. It is substantively fair, offering complete relief (or better) to every interested Claimant who submits a valid Claim Form. Ms. Perryman does not appear to contest that 12.5% of the Net Premium approximates the Settlement Class Members’ alleged damages. That Settlement Claim Relief will be worth hundreds of dollars to the average Claimant. The Settlement also is procedurally fair. The approved Claim Form should take no more than a few minutes for the average Class Member to review and complete and requires the submission of no supporting materials that would be required in an individual lawsuit. See Hall, 2014 WL 7184039, at *8 (similar claim form in LPI class settlement would take just “a few minutes” to complete); Hamilton, 2014 WL 5419507, at *5 (same). As District Judge James Cohn aptly stated in the context of a comparably structured LPI class settlement:

Where, as here, a claims-made process is a reasonable method for providing prompt and substantial relief to the class, requiring class members to file claim forms also maximizes the relief available to class members who opt to submit a claim. A settlement’s fairness is judged by the opportunity created for the class members, not by how many submit claims. What matters is the settlement’s value to each class member — it is ultimately up to class members to participate or not.

Id. at *7.[15] (emphasis supplied).

(iv) A hypothetical direct-payment structured settlement — the kind Ms. Perryman urges — is not necessarily any fairer. Defendants have represented [ECF No. 154, p. 6], and the Court has no reason to believe otherwise, that such a direct-payment settlement structure would have been negotiated to provide recovery at a much lower percentage of Settlement Class Members’ LPI Net Premiums. Negotiating for a smaller amount to go to Class Members would, in effect, unfairly reward some Class Members for their own indifference at the expense of those who would take the minimal step of returning the simple Claim Form to receive the larger amount. While a claims-made settlement structure does not guarantee an award to all class members, it does tend to maximize the opportunity available to each class member. See Faught, 668 F.3d at 1242 (affirming approval of claims-made settlement where class members could receive full compensation “rather than mere pennies on the dollar for a uniform cash payment”); In re Cendant Corp. Litig., 264 F.3d 201, 250-51 (3d Cir. 2001) (explaining why a defendant can offer a higher percentage recovery in a claims-made class settlement). Moreover, as discussed more fully below, “determining the amounts to be paid under a direct-pay structure would potentially make settlement more costly than litigation.” Hamilton, 2014 WL 5419507, at *6.

(v) It is significant that, in the context of LPI class settlements, no court has disapproved this Settlement’s relief model. Just the opposite is true. Many courts have approved claims-made processes in LPI cases like this one. See Hall, 2014 WL 7184039, at *6. “Indeed, district courts routinely approve reasonable claims-made settlements, including those involving lender-placed insurance.” Hamilton, 2014 WL 5419507, at *7. Ms. Perryman has not demonstrated how this case is materially different from those other LPI settlements or why the Court should deviate from them.

(d) A settlement structured to make direct payments to Class Members was never a realistic option. Using a claims-made process is the only practicable means of administering this Settlement. The Settlement offers cash relief to borrowers who paid any portion of Premium charges assessed to their mortgage escrow accounts and a credit to those who did not and who still owe those charges. But many Settlement Class Members have not, and will never, pay or continue to owe Premiums. Many are no longer Ocwen borrowers. Those Class Members should not receive a windfall from the Settlement, but Ocwen cannot query its systems to identify on a class-wide basis whether class members had paid or still owed some portion of the amounts they were charged for LPI — i.e., showing that a claims-based process is necessary. Substantial evidence supports this finding. [ECF Nos. 154-1, ¶¶ 7-9; 134-1, ¶¶ 5-8; 144-3, ¶¶ 37-39; 169-1, pp. 26:11-34:25].

(i) Unsatisfied, Ms. Perryman asserts additional challenges to the record evidence, including the declaration of Jason Jastrzemski [ECF No. 134-1], Ocwen’s director of mortgage servicing oversight. She would like “Mr. Jastrzemski to explain what calculations can be performed manually that cannot be performed equally well by a computer program.” [ECF No. 146 at 13]. But Mr. Jastrzemski has already explained which relevant “calculations” can be systematically performed by a computer — none. [ECF No. 134-1, ¶ 5]. He never suggested that a manual review could precisely determine this information, only that it would be impossible for a computer to do so systematically. In fact, Mr. Jastrzemski pointedly attested that a manual review might be useful only “[i]n cases where it would be possible, on an individual basis,” to make the relevant determinations. [Id., ¶ 8]. A computer cannot identify the source of funds paid to satisfy LPI charges; a manual review might do better, but there is no guarantee of accuracy. And because escrow accounts all differ, it is impossible to systematically reverse-engineer whether some or all of an LPI charge was paid.

(ii) Ms. Perryman also is mistaken in arguing that because Ocwen can determine the source of the borrowers’ escrow funds, it can determine whether funds from a third party were applied to an LPI charge. [ECF No. 146, p. 14]. Ocwen cannot systematically determine the source of funds, even if in some cases Ocwen can do so via a manual review. [ECF No. 134-1, ¶¶ 5, 7]. Moreover, for borrowers who paid something into the escrow account, Ocwen does not attribute those payments to specific escrow items like LPI premiums.[16]

(iii) Ms. Perryman further relies on declarations filed in the HSBC Bank LPI class settlement by a law professor and a “computer forensic expert” that supposedly “contradict the Jastrzemski declaration.” [ECF No. 146 at 11]. But Ocwen was not a party to that other servicer’s settlement and neither of those declarants claimed, nor demonstrated familiarity with Ocwen’s electronic records systems. [ECF Nos. 146-1 Ex. F, ¶¶ 4-20; 146-1 Ex. G, ¶¶ 1-3]. They opined only about what HSBC’s systems theoretically should do, not what the systems actually could do. The Court cannot credit the speculation of two untested “experts” submitted in a different case involving a different servicer using a different electronic records system. Moreover, both declarants in the HSBC settlement rested their opinions on the false assumption that if an escrow account ever ceased to have a deficiency following the payment of the last LPI charge, then the borrower would necessarily have paid the charge because the deficiency created by the advancing of premiums by the servicer would have been covered by the borrower’s subsequent payments. [ECF Nos. 146-1 Ex. F, ¶ 93; 146-1 Ex. G, ¶¶ 20-23]. As Mr. Jastrzemski attests, that assumption is unwarranted for RealServicing. There are several common situations in which a borrower was charged but never actually paid for LPI, which Defendants are incapable of identifying systematically. [ECF Nos. 134-1, ¶¶ 5-7; 169-1, pp. 26:11-34:25].

(e) Having failed to refute the record evidence directly, Ms. Perryman attempts to do so indirectly. She argues that, “[m]ore importantly,” the existence of LPI class settlements “which provide direct payments to class members” somehow proves that the Parties cannot “justify a claims-made settlement in this case.” [ECF No. 146, p. 10]. Ms. Perryman spotlights class settlements in Weller v. HSBC Mortgage Services, Inc., No. 13-185 (D. Colo.), and Ellsworth v. U.S. Bank, N.A., No. 12-2506 (N.D. Cal.), where several of the Assurant Defendants and their servicer co-defendants (not Ocwen) agreed to make direct payments to settlement class members. She reasons that “if a manual review of each loan file was truly necessary to ascertain the class members’ damages in all LPI litigation,” then the Assurant Defendants “in Weller would not elect to undertake such a herculean effort in their settlement calculus.” [Id., at p. 11].

(i) At least in one respect, Ms. Perryman is correct. The Assurant Defendants advised the Court that they would not elect to undertake an onerous manual review of each loan file in the Weller settlement or any others, like Ellsworth. As they have explained, that is why the Assurant Defendants did not elect to do so in those settlements, instead assuming the risk of providing windfall payments to class members who never paid any portion of the LPI charge. Unlike this Settlement’s $140 million of available Claim Settlement Relief, the total monetary payment in the Weller settlement is just $1.8 million, while the total monetary payment in Ellsworth is even less. [ECF Nos. 154, p. 11; 161, pp. 98:2-8, 100:3-17, 106:16-107:18]. Rather than tending to prove that this Settlement could do without a claims process, the Weller and Ellsworth settlements only tend to prove that, to avoid an onerous manual review, the Assurant Defendants have been willing to overcompensate a small group of borrowers a small amount of money in a small class settlement, but are unwilling to overcompensate a large group of borrowers a large amount of money in a large class settlement.

(ii) Ms. Perryman relies further on the LPI class settlement in Arnett v. Bank of America, N.A., without relating that part of the Arnett settlement did include a claims process. See No. 11-1373, 2014 WL 4672458, at *7 (D. Or. Sept. 18, 2014). She also fails to relate that direct payments in Arnett were possible not because the defendant bank could systematically identify class members who paid or still owed a portion of their LPI charge, but because the bank did not draw those distinctions at all. As a result of the direct-payment structure, Arnett class members who should have recovered nothing likely received windfalls. And as a result of that structure, Arnett class members received a much smaller percentage of the LPI charge than the percentage this Settlement allows. In this Settlement, Class Members who submit valid Claim Forms will receive 12.5% of Net Premiums — essentially a full recovery of their alleged damages. [ECF No. 144-1, ¶¶ 4.6.2, 4.6.3]. By contrast, Arnett class members received just “2.28 percent of premiums paid,” 2014 WL 4672458, at *12, less than a fifth of this Settlement’s percentage.

(f) “And the Settlement Agreement’s claims process is needed for other reasons, including to ensure that only aggrieved individuals receive monetary relief and to reduce the risk of fraud, waste, and abuse that might arise from sending unsolicited checks to unverified addresses and recipients.” Hall, 2014 WL 7184039, at *6. “Sending unsolicited checks to unverified addresses and recipients increases the risk of misappropriation. Non-class members could endorse over to themselves misdirected settlement checks. Attempting to recover money from individuals who fraudulently cash checks is impracticable. This is particularly important where a case presents a class of this size, and determining the amounts to be paid under a direct-pay structure would potentially make settlement more costly than litigation.” Hamilton, 2014 WL 5419507, at *6.

(g) In addition, under a hypothetical direct-payment structure without the Claim Form, the risk of waste increases. As the Court remarked at the Final Approval Hearing, this is a “practical point.” [ECF No. 161, p. 73:3-17].

(i) From an administrative standpoint, disbursement activity in a direct-payment structured class settlement, including printing and mailing of checks, can be quite expensive. Checks in larger amounts (e.g., over $100) are likely to be printed on higher-quality paper using security features. Returned checks can be expensive to process. And the accounting and bank fees associated with large volumes of returned and re-mailed checks also would be significant.

(ii) Unsolicited mail is more likely to be discarded or set aside. Printing and mailing checks to hundreds of thousands of Settlement Class Members who never asked for them could significantly increase the cost and effort of administering the Settlement. The Claim Form’s verifications are the best chance at ensuring that the right persons receive the right payments at the right addresses.

In this Court’s judgment, a claims-made settlement here offers Settlement Class members the best relief possible from this Settlement. Defendants state that they did not and would not have agreed to a direct-pay model for a class of this size because the costs of administration and the risk of fraud would have been prohibitive. Even had Defendants agreed, the additional costs and increased risk would have reduced the amounts paid to individual class members. Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 593-94 (N.D. Ill. 2011) (approving claims-made settlement with costs associated with investigating how much was owed each class member; “[h]ad the onus of that process been placed on Defendant, there may have been less money available for them to pay claims”); Trombley v. Nat’l City Bank, 826 F. Supp. 2d 179, 198 (D.D.C. 2011) (“the case might not have settled if a condition of the agreement required [a defendant] to mine [its] computer systems for such data”). The proposed claims-made structure will provide class members who opt to submit claims with extraordinary relief and, as such, is fair, reasonable, and adequate.

As such, this case is distinct from oft-cited recent opinions from the Seventh Circuit because, unlike the settlement here, those settlements were rife with indicia of collusion between the parties and other questionable conduct. In Eubank v. Pella, for example, Judge Posner rejected a claims-made settlement so problematic that he termed “inequitable—even scandalous.” 753 F.3d 718, 721 (7th Cir. 2014). The settlement reflected “almost every danger sign in a class action settlement,” including “fatal conflicts of interest”; opposition by named plaintiffs; a provision requiring class members to risk recovering nothing by submitting their claims to arbitration, where the defendants had reserved defenses, in order to be eligible for any meaningful settlement distribution; an award of only coupons to a portion of the class; twelve- to thirteen-page claim forms requiring class members to submit “a slew of arcane data, including the `Purchase Order Number,’ `Product Identity Stamp,’ and `Unit ID Label'”; and an unnecessarily complex settlement notice. Id. at 725-26. Because the settlement “flunked the `fairness’ standard by the one-sidedness of its terms and . . . fatal conflicts of interest[,]” see id. at 729, it could not survive the closer scrutiny that might be warranted where “kicker” and “clear-sailing” provisions are part of a class action settlement.

The Seventh Circuit similarly rejected the settlement in Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014), because the district court had valued the settlement to include the costs of notice to the class and attorney’s fees, 772 F.3d at 781, and of the $5.63 million to be made available to the class, approximately $4.77 million was reserved solely for counsel fees and expenses, notice costs, and cy pres and service awards, with only $865,284 left for the settlement class, which amounted to only seven cents per class member. See id. at 780, 783-84. The court also criticized the claim form and filing requirements as too onerous when weighed against the “low ceiling on the amount of money that a member of the class could claim[,]” id. at 783; the cy pres award as excessive when weighed against the minimal relief made available to class members, id. at 784; the potential ineffectiveness of the proposed injunctive relief, id. at 785; and the court’s sense that class counsel and the defendants had colluded to “sell out the class by agreeing . . . to recommend that the judges approve a settlement involving a meager recovery for the class but generous compensation for the lawyers[,]” see id. at 787 (citing Eubank, 753 F.3d at 720).

The relief provided by this Settlement stands in stark contrast to the relief provided in Eubank and Pearson in almost every respect. For example, the Settlement here: (1) offers every class member 12.5% of the amounts that they paid or still owe, which constitutes near-complete recovery; (2) employs a simple and straightforward claim form, which requires class members only to check a box and affirm by their signature that the information provided is accurate, and does not require any supporting materials, documents or data, (3) involved no collusion or conflicts of interest; and (4) provides monetary and injunctive relief that was negotiated and will be paid separate and apart from Class Counsel’s fees and costs and settlement administration expenses.

(h) The Claim Deadline will not run until 60 days after the Settlement has been finally approved or any resulting appeal has been resolved. [ECF No. 144-1, ¶¶ 2.9, 2.24]. Ms. Perryman urges the Court not to approve the Settlement without knowing the claims rate, stating that “these settlements have resulted in less than four percent of class members submitting claims by the time of the final approval hearing.” [ECF No. 146, p. 6]. Yet the very example she cites — the SunTrust LPI class settlement — received final approval. See Hamilton, 2014 WL 5419507, at *5 (“The Court finds that even a low claims rate at this stage does not compel the conclusion that the settlement is not `fair, reasonable, or adequate.'”). Moreover, Ms. Perryman relies on an interim claims rate even though, as Class Counsel explained at the Final Approval Hearing [ECF No. 161, pp. 26:1-27:1], that rate will increase — even accelerate — after final approval. See Hamilton, 2014 WL 5419507, at *5 (observing that “the claims period will not be complete until next year and that based upon the experience of Class Counsel with other lender-placed settlements, claims will be increased after final approval”).

(i) Class Counsel anticipates that the final claims rate will range between 10% and 15%. [ECF No. 161, p. 13:21-23]. Yet even if it does not reach that range, there is nothing inherently unfair about a single-digit claims rate in a class settlement. Indeed, “courts in this district have approved claims-made settlements where the participation rate was very low.” Saccoccio, 297 F.R.D. at 696; see also Perez v. Asurion Corp., 501 F. Supp. 2d 1360, 1377 (S.D. Fla. 2007) (approving 10.3 million-member settlement class when less than 119,000 — approximately 1.1% — filed claims). Single-digit claims rate settlements also are routinely approved outside this District. See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 944-45 (9th Cir. 2015) (approving 35 million-member settlement class when only 1.183 million — less than 4% — filed claims; “settlements have been approved where less than five percent of class members file claims”); Sullivan v. DB Invs., Inc., 667 F.3d 273, 329 n.60 (3d Cir. 2011) (en banc) (noting evidence that claims rates in consumer class settlements “rarely” exceed 7%, “even with the most extensive notice campaigns”).

(ii) Ms. Perryman’s objection to the potential claims rate has been overruled before. “District courts often grant final approval of class action settlements before the final claims deadline.” Hamilton, 2014 WL 5419507, at *4; see also Hall, 2014 WL 7184039, at *7; Fladell, 2014 WL 5488167, at *4; Casey, 2014 WL 4120599, at *2; Saccoccio, 297 F.R.D. at 696; Saccoccio v. JP Morgan Chase Bank, N.A., No. 13-21107, 2014 WL 3738013, at *1 (S.D. Fla. July 28, 2014). After all, “an LPI class settlement that offers significant monetary relief, as this one does, `requiring only that class members submit a claim form,’ can be `fair and reasonable independent of the number of claims filed.'” Hamilton, 2014 WL 5419507, at *4 (quoting Saccoccio, 2014 WL 3738013, at *1); Hall, 2014 WL 7184039, at *7 (“The Court also rejects the objectors’ argument that the Court cannot grant final approval without knowing the final number of claims that are submitted.”). “The question for the Court at the Final Fairness Hearing stage is whether the settlement provided to the class is `fair, reasonable, and adequate,’ not whether the class decides to actually take advantage of the opportunity provided.” Hamilton, 2014 WL 5419507, at *5. Further, setting the Claim Deadline after the Final Approval Hearing has the salutary effect of maximizing the claim period’s duration.

(iii) This Settlement is therefore fair, reasonable, and adequate independent of the number of Claim Forms submitted or Defendants’ ultimate payout. LPI settlements like this one provide class members who paid or still owe their premiums the opportunity to obtain relief rivaling or, in many cases, exceeding what they could have obtained at trial. Defendants will pay all valid Claimants without any liability cap, ensuring that any Class Member who submits a Claim Form will be made whole. See Faught, 668 F.3d at 1240-42 (affirming approval of claims-made settlement where final payout was unknown at time of approval); Prudential Ins., 148 F.3d at 323 (although “the structure of the settlement and the uncapped nature of the relief provided make it difficult to determine accurately the actual value of the settlement,” district court did not abuse its discretion “when it found that the remedies available under the proposed settlement provided extraordinary relief”); Cotton, 559 F.2d at 1334 (where a class settlement will make claimants whole, an objection “that the compromise must fall for lack of a specified sum for the settlement” of claims is “meritless”). See generally Bennett, 737 F.2d at 986 (5.6% recovery was fair and adequate in view of the risks of further litigation and litigation objectives).

(i) Nor, at least in this instance, does the claims rate measure anything especially meaningful, which means that a single digit rate is not automatically problematic.

(i) In LPI settlements like this one, class members may choose not to file claims for a variety of reasons irrelevant to the settlement’s fairness.

There may be many reasons or no reasons why class members decide to participate in a settlement, e.g., a desire not to be involved in litigation, ideological disagreement with the justice system, their individual experiences with lender-placed insurance, or sympathy for the defendant. Further, class members may not have paid lender-placed insurance charges and therefore elected to forego the opportunity to submit a Claim Form. Whatever the underlying reason, that is a decision to be made by each class member. Those decisions, however, do not affect whether the settlement provided to the Class is fair, adequate, and reasonable.

Hall, 2014 WL 7184039, at *8. Moreover, “based upon the claims filed in similar lender-placed insurance class settlements, a significant number of additional claims are expected, particularly from class members who are waiting to see if the settlement is finally approved.” Id. at *7; see also id. at *8 (“many factors affect response rates and this ratio should not be given great significance”) (internal quotation marks omitted).

(ii) This Settlement’s unique circumstances make the claims rate misleading. Here, the Parties cannot know which, or how many, Class Members are even eligible to seek Claim Settlement Relief. Some Class Members paid some or all of their Premiums; others have not paid, but still owe, their Premiums; still others paid no Premiums and never will. The Parties cannot systematically distinguish between or tabulate these categories. In other words, an unknown number of “class members may not have paid lender-placed insurance charges and therefore elected to forego the opportunity to submit a Claim Form.” Id. Mathematically speaking, dividing a numerator (Claim Forms submitted) by an over-inclusive denominator (all Settlement Class Members) will yield a deceptively low claims rate.

(j) Another of Ms. Perryman’s objections is that Class Counsel did not conduct formal, adversarial discovery to ensure “that the claims-made structure was necessary,” and instead “relied solely on the defendants’ untested representations at mediation and in a declaration executed months after preliminary approval had already been granted, as well as inapplicable discovery taken in other cases.” [ECF No. 146, p. 9]. “It is, in effect, argued that without discovery, the class representatives were not in a position of equality with negotiators for the defendants. From this we are asked to conclude that settlement[] resulting from this putative inequality of knowledge must be, as a matter of law, inadequate.” Corrugated Container, 643 F.2d at 211.

(i) The same basic objection — that formal, adversarial discovery is necessary to ensure a class settlement’s fairness — has been rejected in this Circuit.

“It is true that very little formal discovery was conducted and that there is no voluminous record in the case. However, the lack of such does not compel the conclusion that insufficient discovery was conducted. At the outset, we consider this an appropriate occasion to express our concern over the common belief held by many litigators that a great amount of formal discovery must be conducted in every case. Thus, we are not compelled to hold that formal discovery was a necessary ticket to the bargaining table. Because the plaintiffs did have access to information, this case cannot be characterized as an instance of the unscrupulous leading the blind.” Even assuming there was an imbalance of information between the defendants and the plaintiffs at the bargaining table, this would not in itself invalidate the settlements.

Id. (quoting Cotton, 559 F.2d at 1332). To avoid squandering the parties’ resources, informal discovery can be preferred in class settlements. This Circuit’s precedents have debunked the myth

that a great amount of formal discovery must be conducted in every case. Often has this Court reviewed records of cases which attest to this commonly held fallacy. We have often seen cases which were “over discovered.” In addition to wasting the time of this Court, the parties and their attorneys, it often adds unnecessarily to the financial burden of litigation and may often serve as a vehicle to harass a party…. Being an extra-judicial process, informality in the discovery of information is desired. It is too often forgotten that a conference with or telephone call to opposing counsel may often achieve the results sought by formal discovery.

Cotton, 559 F.2d at 1332.

(ii) Here, “notwithstanding the status of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the facts of their case.” Corrugated Container, 643 F.2d at 211. As described above, Class Counsel amassed a wealth of information in other LPI class settlements, including repeatedly deposing Ronald Wilson (vice president of account management for several of the Assurant Defendants) and other representatives of the Assurant Defendants. [ECF Nos. 144-3, ¶¶ 16, 39; 161, p. 108:17-25]. In this Litigation, Class Counsel conducted formal and informal discovery before and during the Lee Mediation concerning, inter alia, Defendants’ inability to query their electronic records systems for information about which borrowers paid or still owe LPI charges. [ECF No. 144-3, ¶¶ 11, 15, 16, 44]. Post-Settlement, Defendants supplied declarations by Mr. Wilson and Mr. Jastrzemski confirming that it is not feasible to determine specific information about LPI payments except on a member-by-member basis. [ECF Nos. 145, p. 7; 144-3, ¶ 38; 134-1; 154-1]. Also post-Settlement, Class Counsel took Mr. Jastrzemski’s deposition, which further confirmed that fact. [ECF No. 169-1, pp. 26:11-34:25].

(iii) These depositions and declarations are made under penalty of perjury and would be competent evidence, for example, at a summary judgment hearing. See Fed. R. Civ. P. 56(c). More is not required. See D’Amato v. Deutsche Bank, 236 F.3d 78, 87 (2d Cir. 2001) (“[T]he district court properly recognized that, although no formal discovery had taken place, the parties had engaged in an extensive exchange of documents and other information”); In re Jiffy Lube Secs. Litig., 927 F.2d 155, 159 (4th Cir. 1991) (although “no formal discovery had occurred,” the “evidence obtained through informal discovery yielded sufficient undisputed facts to support” settlement’s approval); Lipuma, 406 F. Supp. 2d at 1316 (although “minimal discovery” was taken about a released claim, in light of “Class Counsels’ other sources of information, and knowledge about the relative strengths and weaknesses of the [released] claim, this objection should not bar approval of the settlement”).

(iv) The Court finds that extensive formal discovery about the necessity of a claims process was unnecessary when the Settlement was negotiated and it remains unnecessary today. This is not a case in which a single unsophisticated lawyer with no prior experience walked into a negotiation uninformed. In this Litigation, no fewer than 17 lawyers have entered their appearances for Plaintiffs; many of these attorneys are highly sophisticated. Class Counsel were well-positioned to evaluate the merits of Plaintiffs’ claims, as well as the appropriate basis on which to settle them. Equally important, full-scale discovery of the kind needed to try a complex case would defeat the Settlement’s true purpose — to put aside the burdens, costs, and uncertainties of litigation to accomplish a global peace.

(k) Ms. Perryman also argues that she should be permitted to conduct discovery through her counsel regarding the Settlement and its claims-made structure. She hopes to set about proving that the Parties could have negotiated a hypothetical direct-payment structured settlement. The Court overruled this objection once before [ECF No. 145], but in light of the recently-expanded evidentiary record, and for the avoidance of doubt, overrules it again.

(i) Absent members of a class settlement have no automatic right to discovery or an evidentiary hearing to substantiate their objections. See, e.g., In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1337 n.6 (S.D. Fla. 2011). In this District, as elsewhere, “the sole purpose of any settlement-related discovery is to ensure the Court has sufficient information before it to enable the Court to determine whether to approve the Settlement.” Id. Beyond that, settlement-related discovery causes delay and distraction and should be denied. In short, “the temptation to convert a settlement hearing into a full trial on the merits must be resisted.” Id. at 1368 n.41 (internal quotation marks omitted); see also Newman v. Sun Capital, Inc., No. 09-445, 2012 WL 3715150, at *12 (M.D. Fla. Aug. 28, 2012) (although objectors sought discovery “to form a reliable opinion of the value of the settlement assets to make the ultimate determination as to whether to accept the Settlement,” the information already obtained and shared was “sufficient to allow [class members] to make intelligent decisions”).

(ii) The Court has sufficient information to enable it to approve the Settlement — Ms. Perryman’s assistance is unnecessary. The Court has before it the depositions and declarations of Defendants’ representatives, the representations of counsel (sworn, briefed, and in-court), the circumstances of and decisions in comparable LPI class settlements, and other record evidence. This material is publicly filed, unredacted, and available to all Settlement Class Members. This factual record demonstrates that: (1) a direct-payment structured settlement is not feasible or even desirable; (2) in any event, Defendants would not have agreed to a direct-payment structured settlement; and (3) a claims-made structured settlement is fair, reasonable, and adequate on its own terms. Courts approving LPI class settlements have denied objector discovery on these grounds. See, e.g., Casey, 2014 WL 4120599, at *2-3 (since “criticism of the claims-made structure” does “not impact the fairness, reasonableness, or adequacy of the proposed settlement,” “discovery related to a direct payment structure is unwarranted”); Saccoccio, 2014 WL 3738013, at *1 (denying as irrelevant objectors’ request for discovery of claims data because “this Settlement is fair and reasonable independent of the number of claims filed”). This Court has followed that approach.

The Court ovverules Ms. Perryman’s objections[17] but will deny Class Counsel’s motion for a show cause order [ECF No. 166] as unnecessary and moot.

11. Accordingly, the Parties are hereby directed to implement and consummate the Settlement Agreement according to its terms and provisions.

12. Pursuant to Rule 23(h), the Court hereby awards Class Counsel for the Settlement Class Attorneys’ Fees and Expenses in the amount of $9.85 million, payable pursuant to the terms of the Settlement Agreement. The Court also awards Case Contribution Awards in the amount of $5,000 each to Named Plaintiffs Jennifer Lee, Douglas A. Patrick, Gerald Coulthurst, Lisa Chamberlin Engelhardt, Enrique Dominguez, Frances Erving, Johnnie Erving, John Clarizia, and Shelia D. Heard, payable pursuant to the terms of the Settlement Agreement.

13. The terms of the Settlement Agreement and of this Final Order, including all exhibits thereto, shall be forever binding in all pending and future lawsuits maintained by the Named Plaintiffs and all other Settlement Class Members, as well as their family members, heirs, guardians, assigns, executors, administrators, predecessors, successors, and assigns.

14. The Releases, which are set forth in Section 10 of the Settlement Agreement and which are also set forth below, are expressly incorporated herein in all respects and are effective as of the date of this Final Order; and the Released Persons (as that term is defined below and in the Settlement Agreement) are forever released, relinquished, and discharged by the Releasing Persons (as that term is defined below and in the Settlement Agreement) from all Released Claims (as that term is defined below and in the Settlement Agreement).

(a) Release and Waiver Definitions

(i) “Ocwen” means Ocwen Loan Servicing, LLC and its Affiliates, Litton Loan Servicing, LP and its Affiliates after October 31, 2011, and Homeward Residential Holdings, Inc., and its Affiliates after April 30, 2013;

(ii) “Affiliate” of an entity means any person or entity which controls, is controlled by, or is under common control with such entity.

(iii) “Assurant Defendants” means Assurant, Inc., ASIC, SGIC, VIIC, and ABIC.

(iv) “Defendants” means all named defendants in the Lee Litigation, including Ocwen Loan Servicing, LLC and the Assurant Defendants.

(v) “Lender-Placed Insurance” means the placement of hazard, flood, flood gap, and/or wind insurance pursuant to a mortgage loan agreement, home equity loan agreement, or home equity line of credit serviced by Ocwen to cover a borrower’s failure to maintain the required insurance coverage on the residential property securing the loan.

(vi) “LPI Policy” means a lender-placed residential hazard, flood, flood gap, or wind-only insurance policy and such insurance coverage placed pursuant to a mortgage loan agreement, home equity loan agreement, or home equity line of credit serviced by Ocwen to cover a borrower’s failure to maintain the required insurance coverage on the residential property securing the loan.

(vii) “Ocwen Acquired Companies” means Litton Loan Servicing, LP, Homeward Residential Holdings, Inc., and their Affiliates.

(viii) “Release” or “Releases” means the releases of all Released Claims by the Releasing Persons against the Released Persons.

(ix) “Released Claims” means all claims, actions, causes of action, suits, debts, sums of money, payments, obligations, reckonings, promises, damages, penalties, attorney’s fees and costs, liens, judgments, demands, and any other forms of liability released pursuant to this Final Order and Judgment and Section 10 of the Settlement Agreement.

(x) “Released Persons” means, only with respect to Released Claims: (a) Defendants and each of their respective divisions, parents, subsidiaries, predecessors (except for any Ocwen Acquired Companies with respect to the period of time before they were acquired by Ocwen), investors, parent companies, and Affiliates, whether past or present, any direct or indirect subsidiary of any of Defendants and each of their respective divisions, parents, subsidiaries, predecessors, investors, parent companies, and Affiliates, whether past or present, and all of the officers, directors, employees, agents, brokers, distributors, representatives, and attorneys of all such entities, including but not limited to Ocwen, Assurant, ASIC, SGIC, ABIC, VIIC, Insureco Agency & Insurance Services, Inc., American Bankers Insurance Group, Inc., and Homeward Residential Holdings, Inc. and its Affiliates for LPI placements after April 30, 2013, Litton Loan Servicing LP and its Affiliates for LPI placements after October 31, 2011, and Altisource Portfolio Solutions S.A., Altisource Solutions, Inc., and their Affiliates; (b) any other insurance carriers that issued or may have issued LPI for Ocwen insuring real property owned by any Settlement Class Member; and (c) any trustee of a mortgage securitization trust which included loans made to any Settlement Class Member, including, but not limited to, any direct or indirect subsidiary of any of them, and all of the officers, directors, employees, agents, brokers, distributors, representatives, and attorneys of all such entities.

(xi) “Releasing Persons” means Named Plaintiffs and all Settlement Class Members who do not properly and timely opt out of the Settlement, and their respective family members, heirs, guardians, executors, administrators, predecessors, successors, and assigns.

(xii) “Settling Parties” means, collectively, Defendants, Named Plaintiffs, all Settlement Class Members, and all Releasing Persons.

(b) Released Claims of Settlement Class

Each member of the Settlement Class, and their family members, heirs, guardians, assigns, executors, administrators, predecessors, and successors, other than the Named Plaintiffs, shall, by operation of the Final Order, be deemed to have fully, conclusively, irrevocably, forever, and finally released, relinquished, and discharged the Released Persons from any and all claims, actions, causes of action, suits, debts, sums of money, payments, obligations, reckonings, promises, damages, penalties, attorney’s fees and costs, liens, judgments, and demands of any kind whatsoever that each member of the Settlement Class may have until the close of the Settlement Class Period or may have had in the past, whether in arbitration, administrative, or judicial proceedings, whether as individual claims or as claims asserted on a class basis, whether past or present, mature or not yet mature, known or unknown, suspected or unsuspected, whether based on federal, state, or local law, statute, ordinance, regulations, contract, common law, or any other source, that were or could have been sought or alleged in the Litigation or that relate, concern, arise from, or pertain in any way to the Released Persons’ conduct, policies, or practices concerning Ocwen’s placement, or the Assurant Defendants’ issuance, of LPI Policies during the Settlement Class Period, including but not limited to conduct, policies or practices concerning LPI Policies or to charges for Ocwen’s Placement of LPI Policies during the Settlement Class Period. In agreeing to this Release, Named Plaintiffs explicitly acknowledge that unknown losses or claims could possibly exist and that any present losses may have been underestimated in amount or severity.

(i) The Release stated in Paragraph 14(b) above shall include, but not be limited to, all claims related to Ocwen’s insurance requirements; the relationship, whether contractual or otherwise, between Ocwen and the Assurant Defendants regarding LPI, including, but not limited to, the procuring, underwriting, placement, insurance tracking, or costs of LPI Policies; the coverage amount, duration, issue date, alleged “backdating,” or alleged excessiveness of any LPI Policies placed or charged by Ocwen; the payment or receipt of commissions, expense reimbursements, alleged “kickbacks,” or any other compensation under any LPI Policies placed or charged by Ocwen; any alleged “tying” arrangement involving Ocwen and LPI; any alleged breach of fiduciary duty by Ocwen concerning LPI Policies; any alleged tortious interference by the Assurant Defendants with mortgage loans serviced by Ocwen; the disclosure or non-disclosure of any payment, expenses, fees, charges, or features pertaining to or under any LPI Policies or coverage under such LPI Policies and charges for such coverage placed or charged by Ocwen; the receipt or non-disclosure of any benefit under any LPI Policies or coverage under such LPI Policies and charges for such coverage placed or charged by Ocwen; the content, manner, or accuracy of any communications regarding the placement of any LPI Policies by Ocwen; and to the regulatory approval or non-approval of any LPI Policy, or the premium thereon, placed or charged by Ocwen.

(ii) The Release in Paragraph 14(b) above shall not cover claims arising after the close of the Settlement Class Period, nor insurance claims for losses relating to properties insured under any LPI Policy placed or charged for by Ocwen. Nothing in Section 10.1 shall be deemed a release of any Settlement Class Member’s respective rights and obligations under this Agreement. Further, nothing in Paragraph 14(b), or any other provision of the Stipulation and Settlement Agreement, shall be deemed a release of: (a) claims by borrowers charged for LPI that was purchased by the Ocwen Acquired Companies prior to the time Ocwen acquired the Ocwen Acquired Companies, (b) claims by borrowers who were charged for LPI that was purchased by mortgage servicers other than Ocwen, or (c) any claims arising under Section 10(b) and/or 20(a) of the Exchange Act, including but not limited to claims asserted in United Union of Roofers, Waterproofers & Allied Workers Local Union No. 8 v. Ocwen Financial Corp., No. 14-81057 (S.D. Fla.); Tuseo v. Ocwen Financial Corp., No. 14-81064 (S.D. Fla.), and/or Frechter v. Ocwen Financial Corp., No. 14-81076 (S.D. Fla.).

(iii) Except to the extent that any such obligation is being released pursuant to Paragraph 14(b) above, this Final Order shall not be deemed a release of Defendants from any existing obligation to any Settlement Class Member under any loan, note, mortgage, or deed of trust. This provision is not meant to and does not limit the Releases in this Final Order or in the Settlement Agreement.

(c) The Named Plaintiffs and Class Counsel further represent that there are no outstanding liens or claims against the Lee Litigation, it being recognized that the Named Plaintiffs will solely be charged with the responsibility to satisfy any other liens or claims asserted against the Lee Litigation.

(d) Without in any way limiting their scope, the Releases cover by example and without limitation, any and all claims for attorneys’ fees, costs, expert fees, or consultant fees, interest, or litigation fees, or any other fees, costs, and/or disbursements incurred by Class Counsel, the Named Plaintiffs, or any Settlement Class Members in connection with or related in any manner to the Lee Litigation or Patrick Litigation,[18] the settlement of the Lee Litigation, the administration of such Settlement, and/or the Released Claims, except to the extent otherwise specified in the Settlement Agreement.

(e) In connection with the foregoing Releases, the Named Plaintiffs and each Settlement Class Member expressly waive, and shall be deemed to have waived to the fullest extent permitted by law, any and all provisions, rights, benefits conferred by Section 1542 of the California Civil Code, and any statute, rule and legal doctrine similar, comparable, or equivalent to California Civil Code Section 1542, which provides that:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

To the extent that anyone might argue that these principles of law are applicable — notwithstanding that the Settling Parties have chosen Florida law to govern this Settlement Agreement — the Named Plaintiffs hereby agree, and each Settlement Class Member will be deemed to agree, that the provisions of all such principles of law or similar federal or state laws, rights, rules, or legal principles, to the extent they are found to be applicable herein, are hereby knowingly and voluntarily waived, relinquished, and released. The Named Plaintiffs recognize, and each Settlement Class Member will be deemed to recognize, that, even if they may later discover facts in addition to or different from those which they now know or believe to be true, they nevertheless agree that, upon entry of this Final Order, they fully, finally, and forever settle and release any and all claims covered by the Releases.

(f) The Releases were bargained for and are a material element of the Settlement Agreement.

(g) The Releases do not affect the rights of Settlement Class Members who timely and properly submitted a Request for Exclusion from the Settlement in accordance with the requirements of the Preliminary Approval Order and in Section 11 of the Settlement Agreement.

(h) The administration and consummation of the Settlement as embodied in the Settlement Agreement shall be under the authority of the Court.

(i) The Settlement Agreement shall be the exclusive remedy for any and all Settlement Class Members, except those who have properly requested exclusion (opted out), and the Released Persons shall not be subject to liability or expense for any of the Released Claims to any Settlement Class Member(s).

(j) The Releases shall not preclude any action to enforce the terms of the Settlement Agreement, including participation in any of the processes detailed therein. The Releases set forth herein and in the Settlement Agreement are not intended to include the release of any rights or duties of the Settling Parties arising out of the Settlement Agreement, including the express warranties and covenants contained herein.

15. Neither the Settlement Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, nor any of the documents or statements referred to therein, nor this Final Order, nor any of its terms and provisions, nor the final judgment to be entered pursuant to this Final Order, nor any of its terms and provisions, shall be:

(a) offered by any person or received against the Defendants as evidence or construed as or deemed to be evidence of any presumption, concession, or admission by the Defendants of the truth of the facts alleged by any person or the validity of any claim that has been or could have been asserted in the Lee Litigation or in any litigation, or other judicial or administrative proceeding, or the deficiency of any defense that has been or could have been asserted in the Litigation or in any litigation, or of any liability, negligence, fault or wrongdoing of the Defendants;

(b) offered by any person or received against the Defendants as evidence of a presumption, concession, or admission of any fault, misrepresentation, or omission with respect to any statement or written document approved or made by the Defendants or any other wrongdoing by the Defendants;

(c) offered by any person or received against the Defendants as evidence of a presumption, concession, or admission with respect to any liability, negligence, fault, or wrongdoing in any civil, criminal, or administrative action or proceeding;

(d) offered or received in evidence in any action or proceeding against any Party hereto in any court, administrative agency, or other tribunal for any purpose whatsoever, other than to enforce or otherwise effectuate the Settlement Agreement (or any agreement or order relating thereto), including the Releases, or the Final Order, or the final judgment to be entered pursuant to this Final Order.

16. This Final Order, the final judgment to be entered pursuant to this Final Order, and the Settlement Agreement (including the exhibits thereto) may be filed in any action against or by any Released Person (as that term is defined herein and the Settlement Agreement) to support a defense of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.

17. Without further order of the Court, the Parties may agree to reasonably necessary extensions of time to carry out any of the provisions of the Settlement Agreement.

18. This Final Order, and the final judgment to be entered pursuant to this Final Order, shall be effective upon entry. If the Final Order and the final judgment to be entered pursuant to this Final Order are reversed or vacated pursuant to a direct appeal in this Action or the Settlement Agreement is terminated pursuant to its terms, all orders entered and releases delivered in connection herewith shall be null and void.

19. A final judgment will be entered soon.

DONE and ORDERED.

[1] The parties call the case Batman v. The Gillette Company (or Co.) (e.g., ECF Nos. 175, 181), but the unofficial version of this unpublished case (available on Westlaw) uses Poertner. The Undersigned will use the Poertner v. Gillette Co. citation style and will refer to the case as Gillette.

[2] Unless otherwise indicated, all capitalized terms used herein have the same defined meaning assigned to them in the Settlement Agreement, ECF No. 144-1 ¶¶ 2.1-2.51, and all ECF citations refer to the Lee Litigation docket.

[3] All Fifth Circuit decisions issued prior to the close of business on September 30, 1981, are binding precedent upon the Eleventh Circuit. Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

[4] It is the Settlement Administrator, not Defendants, that exercises discretion to deny Claims. The Settlement Agreement confers on Defendants only a limited right to “notify the Settlement Administrator as to the inaccuracy of a Claim prior to the deadline for processing the Claim,” while “also providing written notification of the inaccurate Claim to Class Counsel.” [ECF No. 144-1, ¶ 7.3.1]. In turn, the Administrator “shall confirm that each Claim Form submitted is in the form required, that each Claim Form includes the required affirmations, information, and, where appropriate, identity confirmation,” as well as confirm “that each Claim Form was submitted in a timely fashion, and that the Claimant is a member of the Settlement Class.” [Id., ¶ 7.2].

The Administrator, not Defendants, “shall make a determination as to the amount of the Claim.” [Id., ¶ 7.3]. The Administrator is a neutral third party [id., ¶ 2.1]; it “shall not receive any incentive for denying claims.” [Id., ¶ 7.2]. Claims determined to have inaccurate information will thus be “processed in accordance with the information from Defendants’ records” [id., ¶ 7.3.1], but the processing and any resulting denial is the Administrator’s prerogative, not Defendants. See Saccoccio, 297 F.R.D. at 696-97 (overruling objection to audit right in comparable LPI settlement).

[5] After the Fairness Hearing, the Court directed the parties to file a list of all cases, from both the trial and appellate levels, from April 1, 2012 to the present, in which courts have approved settlements in LPI cases, rejected them and/or ruled on motions to dismiss or for summary judgment, in whole or in part. The parties complied. [ECF Nos. 164; 165; 167].

As the Court suspected, there are many rulings, most entered in the past three years, ranging all across the country, granting motions to dismiss, sometimes with prejudice, and defense-filed summary judgment motions. These rulings confirm United States District Judge Federico Moreno’s weather-oriented observation that LPI class action plaintiffs face “headwinds.” Saccoccio, 297 F.R.D. at 693. The Court appreciates counsel’s diligent work in tracking down the information and putting the results in a user-friendly chart form. The project was worthwhile, as it confirmed that LPI lawsuits face significant legal obstacles. To continue with Judge Moreno’s weather metaphor, the possible fate of LPI class action lawsuits can now certainly be described accurately with a reference to metereological-focused song lyrics sung by Billie Holiday (i.e., “Don’t know why there’s no sun up in the sky/ Stormy weather”) and the Allman Brothers Band (i.e., “They call it Stormy Monday, but Tuesday’s just as bad”).

[6] In Rothstein, the plaintiffs initially survived a motion to dismiss when the district court rejected Defendants’ filed rate doctrine theory. But the district court, noting a conflict of authority, certified its decision for interlocutory appeal, and the Second Circuit then (very recently) accepted the filed rate doctrine argument and remanded the case for dismissal. 794 F.3d 256.

[7] Mr. Jastrzemski describes Ocwen’s processes and accounting of transactions in borrowers’ escrow accounts as they relate to LPI. [ECF No. 134-1, ¶ 1]. He explains that Ocwen maintains escrow and other account information in RealServicing, Ocwen’s servicing system. [Id. ¶ 4]. As with other escrow items, debits for the cost of LPI premiums are recorded in a borrower’s escrow account history in RealServicing. [Id., ¶ 5]. The data record in RealServicing does not allow Ocwen to identify, by means of an electronic search through all borrower files, which of the borrowers whose escrow accounts were charged to reimburse Ocwen for the cost of LPI premiums subsequently paid those charges, or which of the borrowers still owe the charges. [Id.]

For example, a payment into a borrower’s escrow account (whether from the borrower or some third party) is not attributed in RealServicing to specific escrow charges, so payment to an escrow account will not be reflected in RealServicing as a payment for LPI. [Id.]. Escrow account credits also reflect more than payments from the borrower, and include credits reflecting accounting adjustments and payments received from third parties. [Id.]. As a result, the fact that there is a credit before or after an LPI debit does not mean necessarily that a borrower actually reimbursed Ocwen for LPI premiums. [Id.]. In addition to escrow credits resulting from payments by borrowers or on their behalf, borrowers’ escrow balances might be credited with certain amounts in a number of circumstances, including when there has been a loan modification, or when loans are liquidated as part of a short sale or deed-in-lieu of foreclosure transactions. [Id. ¶ 7]. Still other such circumstances exist, as detailed in the Jastrzemski declaration. [Id.].

Where it would be possible, on an individual basis, to determine whether LPI premiums were paid or are still owed by a borrower, the determination would require a manual review of transactions in the borrower’s escrow account. [Id. ¶ 8]. Given that there are hundreds of thousands of unique loans, many with multiple LPI placements, within the Settlement Class, an individualized review could take years to accomplish. [Id.].

[8] The objector in Gillette asserted a self-dealing contention because of the “clear-sailing” provision, which is also found in the instant settlement. The appellate court rejected the argument, noting that “the parties settled only after engaging in extensive arms-length negotiations moderated by an experienced, court-appointed mediator.” 2015 WL 4310896, at *6.

[9] Mr. Hansen and another objector, Michael Hobbs [ECF No. 148], also characterize (without analysis) the amount of the Attorneys’ Fees and Expenses as disproportionate to the relief afforded Class Members. The Court overrules that objection since the value of the relief afforded Class Members merits the Attorneys’ Fees and Expenses awarded.

[10] Three of Ms. Perryman’s attorneys have informed Class Counsel that they no longer represent Ms. Perryman in this matter. Her objection was filed by her two remaining counsel, Mr. Himmelstein and Ms. Kelly, with Mr. Himmelstein taking the lead. Attorney Alexander Owings, an Arkansas-based attorney who is a Florida Bar member and who served as “local counsel” for Ms. Kelly and Mr. Himmelstein, filed a motion for leave to withdraw [ECF No. 182]. The motion did not provide any grounds for the requested withdrawal, but no objections were filed, and the Court granted the motion, giving the two out-of-town attorneys 10 days to find substitute local counsel. [ECF No. 183].

[11] Like Ms. Perryman, former objectors Shane and Cecilia Valdez are plaintiffs in a similar LPI action pending in the Central District of California against some of the same Defendants in this Litigation. The Court overruled as premature the Valdezes’ earlier objection to the Settlement’s preliminary approval. [ECF No. 119 at 2-4]. Although they raised a scattershot of grievances, principally taking issue with the Settlement’s claims-made process, the Valdezes have since withdrawn their objection to the Settlement’s final approval. The objection having been “surrendered on terms that do not affect the class settlement,” Fed. R. Civ. P. 23(e), 2003 advisory comm. notes, the Court has approved its withdrawal from further consideration. [ECF No. 163]. See also Fladell, 2014 WL 5488167, at *3 (granting request to withdraw objections to comparable LPI class settlement). The Court will nonetheless indirectly address the Valdezs’ concerns to the extent the Court addresses Ms. Perryman’s substantively overlapping objection.

[12] Rothstein, which agreed with Defendants’ filed rate doctrine defense and directed the dismissal of an LPI case, is a powerful illustration of the hurdles that the plaintiffs here would have faced if they had continued with litigation. 794 F.3d 256. Thus, the case supports final approval. [As an interesting or coincidental aside, Attorney Frank Burt and other attorneys at his firm (Carlton Fields Jorden Burt, P.A.) represented ASIC in its capacity as amicus curiae in Rothstein. They represent ASIC in this case as a named party defendant].

[13] This is quoted from the lower court’s decision, prior to the Eleventh Circuit’s ruling in Gillette, 2015 WL 4310896.

[14] Class Counsel concede [ECF No. 144, p. 18] that some of these practices were already prohibited by a settlement reached with New York regulators before this settlement was reached, but they note the New York injunction applies only to New York borrowers and binds only the Assurant Defendants, “leaving Ocwen free to continue its practices with another insurer.”

[15] De Leon v. Bank of America, N.A., No. 09-1251, 2012 WL 2568142 (M.D. Fla. Apr. 20, 2012), report and recommendation adopted, 2012 WL 2543586 (M.D. Fla. July 2, 2012) — a decision on which Ms. Perryman relies — is not to the contrary. In the class settlement proposed there, class members would receive, at most, $28 in settlement of their claims; many would receive less. 2012 WL 2568142, at *1. “Several factors assure that few settlement class members will submit a claim form to obtain, at most, a $28.00 cash payment.” Id. at *19. According to the De Leon court, “a maximum $28.00 payment is not likely to induce class members to submit a claim.” Id. at *19. But “most importantly,” that court found, “the proposed revised claim form requires the class member to provide specific factual details, under the penalty of perjury, regarding the credit card account, the method of payment used and the late payment fee, finance charge, or other fee or penalty assessed on a credit card payment made between April 1, 2005 and October 19, 2006” — more than five years earlier. Id.

Furthermore, the settling parties in De Leon submitted no evidence demonstrating the need for a claims-made settlement structure. Id. at *20. This Settlement is not analogous to the flawed De Leon settlement. The amounts available to Class Members here are, on average, likely to be in the hundreds of dollars, not a maximum of $28. Indeed, for this Settlement, there is no maximum recovery. And unlike the De Leon settlement, which required claimants to know and submit arcane data, Class Members here are eligible to receive Claim Settlement Relief merely by submitting a streamlined Claim Form and confirming their identity in one of several ways. Detailed information — like coverage periods, total charges, or amounts paid — need not be supplied. [ECF No. 144-2 Ex. C]. In addition, unlike the settling parties in De Leon, the Parties here submitted ample evidence demonstrating the need for a claims process, as discussed more fully in this Final Order.

[16] An escrow account is a running balance, much like a credit card, as Mr. Jastrzemski explained in his deposition at pages 26-27 [ECF No. 169-1]:

And by way of example, this is — when I try to explain escrow to people, this is the easiest way I can get people to relate: If you started with a credit card balance of zero, and today I went out and bought a pair of shoes for a hundred dollars, I bought a belt for a hundred dollars, and a shirt for a hundred dollars, and next month I make a hundred dollar payment to my credit card. I can’t for certain say that I paid for the shoes, for the shirt or for the belt. I just paid a hundred dollars to pay down my balance. And that’s very similar to the way an escrow account works, because of the commingle nature of taxes and insurance.

[17] Pointing to a favorable decision in her own case in which the trial judge determined that the filed rate doctrine does not bar LPI claims against Ocwen and ASIC, Ms. Perryman also argues [ECF No. 181] that the “defendants here did not face weak or uncertain claims, justifying this settlement which provides negligible relief to the class.” But the opinion in Perryman v. Litton Loan Servicing, LP, No. 14-cv-02261-JST, 2014 WL 4954674 (N.D. Cal. Oct. 1, 2014) is a district court opinion, not a Circuit Court appellate decision like Rothstein.

Moreover, even if the filed rate doctrine were not a substantial hurdle (and it is), it is only one of many legal challenges, which Plaintiffs would have to confront. Perhaps most importantly, the Plaintiffs here would be forced to address the skepticism which many courts have raised about the fundamental, primary theory underlying the claims. Several courts adopt the perspective that the mortgagors received ample notice of the consequences which would flow from a failure to keep in place sufficient insurance and that banks and mortgage servicers did not breach a contract or commit a fraud when they took advantage of the very rights that were outlined in the applicable transactional documents. In fact, the Undersigned has previously flagged my concerns over Plaintiffs’ ability to avoid an adverse summary judgment on basic proof issues, such as damages causation. See Montoya, 2014 WL 4248208. See also Feaz v. Wells Fargo Bank, 745 F.3d 1098 (11th Cir. 2014) and Wilson v. Everbank, N.A., No. 14-22264, 2015 WL 1600549, at *2-6 (S.D. Fla. Apr. 9, 2015).

[18] The “Patrick Litigation” refers to Patrick v. Ocwen Loan Servicing, LLC, No. 1:14-cv-21089 (S.D. Fla.), a parallel action once pending in this district, which was later subsumed into the Lee Litigation.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

Banks Win Again | Foreclosure FRAUD Title Clearing Bill Clears Senate

Banks Win Again | Foreclosure FRAUD Title Clearing Bill Clears Senate

Mass Live –

STATE HOUSE, BOSTON, SEPT. 17, 2015…..The Senate took a big step on Thursday toward giving some legal assurances to those who purchase homes in foreclosure, a controversial step opposed by the branch’s liberal wing.

On a 31 to 7 vote in its first formal session since July, the Senate passed a measure that would limit property title challenges to a three-year window going forward. The bill now goes to the House.

Proponents of the bill (S 1981) argue that lengthy periods when the home’s former owner can dispute the title leave new owners unable to sell the home or refinance a mortgage. Opponents say the change will strip recourse from those who were forced out of their homes in an illegal foreclosure.

[MASS LIVE]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

TFH | Another blockbuster show this Sunday 9/20 with special guest attorney Bill Butler

TFH | Another blockbuster show this Sunday 9/20 with special guest attorney Bill Butler

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

 LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

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The foreclosure Hour is going to have another blockbuster show this Sunday with special guest attorney Bill Butler. 

http://www.foreclosurehour.com/files/108149091.mp3 [CLICK LINK FOR REPLAY]

The Butler case needs to be understood by every thoughtful attorney and judge in this country.

The attached video of the oral argument before the Minnesota Supreme Court is below.

http://tpt.vo.llnwd.net/o26/courts/case1_05_13_2015.mp4 [CLICK THIS LINK]

Host: Gary Dubin

Co-Host:  John Waihee

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Law firm removes references to SEC chief’s husband’s ties to audit regulator

Law firm removes references to SEC chief’s husband’s ties to audit regulator

MarketWatch-

A move by the law firm Cravath, Swaine & Moore to excise references to uncommonly close regulatory ties follows a Bloomberg story that pointed to an ongoing conflict between John White’s service to the group while his wife, Securities and Exchange Commission Chairwoman Mary Jo White, has oversight responsibility for the Public Company Accounting Oversight Board, the audit regulator.

A spokesperson for Cravath did not respond immediately to a request for comment.

The conflict has existed since April 2013, when Mary Jo White became head of the agency. John White has served on the PCAOB advisory committee continuously since he was at the SEC between 2006 and 2008.

He did resign as an equity partner at Cravath when his wife took the chairwoman’s job, since Cravath is a top white-collar and corporate defense firm that represents clients at the SEC frequently. Mary Jo White has recused herself from weighing in or voting on SEC cases when her husband’s firm is involved. The issue has been receiving new attention since Mary Jo White told reporters last Wednesday at a meeting of the Investor Advisory Group, according to a Wall Street Journal report, that the SEC is “identifying interested and qualified candidates” to chair the PCAOB. The current chairman, James Doty, whose term expires in October, has said he’d like to stay in the job.

[MARKETWATCH]

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Leaked Seattle Audit Concludes Many Mortgage Documents Are Void

Leaked Seattle Audit Concludes Many Mortgage Documents Are Void

The Intercept-

A Seattle housing activist on Wednesday uploaded an explosive land-record audit that the local City Council had been sitting on, revealing its far-reaching conclusion: that all assignments of mortgages the auditors studied are void.

That makes any foreclosures in the city based on these documents illegal and unenforceable, and makes the King County recording offices where the documents are located a massive crime scene.

The problems stem from the Mortgage Electronic Registration Systems(MERS), an entity banks created so they could transfer mortgages privately, saving them billions of dollars in transfer fees to public recording offices. In Washington state, MERS’ practices were found illegal by the State Supreme Court in 2012. But MERS continued those practices with only cosmetic changes, the audit found.

[THE INTERCEPT]

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The Bank of New York Mellon, v. Condo Assoc. La Mer Estates, Inc. | FL Supreme Court – default judgment is voidable when the complaint upon which a judgment is based on fails to state a cause of action

The Bank of New York Mellon, v. Condo Assoc. La Mer Estates, Inc. | FL Supreme Court – default judgment is voidable when the complaint upon which a judgment is based on fails to state a cause of action

Supreme Court of Florida
____________
No. SC14-1049
____________

THE BANK OF NEW YORK MELLON, etc.,
Petitioner,

vs.

CONDOMINIUM ASSOCIATION OF LA MER ESTATES, Inc.,
Respondent.

[September 17, 2015]

PERRY, J.
The Bank of New York Mellon Corporation (“BNY Mellon” or “the bank”)
seeks review of the decision of the Fourth District Court of Appeal in
Condominium Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp.,
137 So. 3d 396 (Fla. 4th DCA 2014), which certified conflict with Southeast Land
Developers, Inc. v. All Florida Site & Utilities, Inc., 28 So. 3d 166 (Fla. 1st DCA
2010), and Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009), on the issue of
whether a default judgment is void when the complaint upon which a judgment is
based on fails to state a cause of action. We have jurisdiction. See art. V,
§ 3(b)(3), Fla. Const. For reasons provided below, we hold that a default judgment
is voidable, rather than void, when the complaint upon which the judgment is
based on fails to state a cause of action. We therefore approve the decision of the
Fourth District in La Mer Estates and disapprove of the conflict cases to the extent
they are inconsistent with this decision.

The Fourth District Court of Appeal summarized the case and underlying
facts as follows:
Owners of a condominium in La Mer Estates executed a
mortgage to BSM Financial in 2006. That mortgage went into default
in 2008, and the mortgagors also defaulted on their condominium
maintenance payments. Appellant, the Condominium Association of
La Mer Estates, recorded a claim of lien for the unpaid assessments,
filed an action to foreclose its lien, and obtained a final judgment of
foreclosure in July 2009. After the foreclosure judgment but before
the foreclosure sale, appellee, Bank of New York Mellon, was
assigned the mortgage securing the condominium unit. The
association was the only bidder at the sale and received a certificate of
title to the condominium unit.

Concerned about the continuing unpaid monthly assessments,
the association wrote to the bank offering to convey to it the title to
the condominium, but the bank did not respond. Several months later,
the association filed a complaint to quiet title to the property, alleging
its own title to the property; how it acquired its title; and that the
mortgage assigned to the bank constituted a cloud on the association’s
title. The association alleged that the bank had no bona fide interest
or claim to the property.

The association served the bank and obtained a default.
Although it also obtained a default final judgment, it moved to vacate
the final judgment because of concerns that service was not properly
made. The court vacated the judgment, and the complaint was served
again on the bank. Again the bank did not respond and the clerk
entered a new default. The association filed a new motion for entry of
final judgment quieting title. The bank was given notice and an
opportunity to be heard but failed to appear at the hearing. The court
entered a second judgment quieting title against the bank on February
10, 2011.

The bank took no action for over one and a half years. Finally,
on August 31, 2012, it moved pursuant to [Florida Rule of Civil
Procedure] 1.540(b) to vacate the quiet title judgment on grounds that
it was void because the complaint failed to state a cause of action to
quiet title. The bank argued that because it was void, the one year
limitation which applied to the other grounds for relief under rule
1.540(b), did not apply. The bank argued that a complaint to quiet
title must allege not only the association’s title to the property and
how it obtained title, but must also show why the bank’s claim of an
interest in the property is invalid and not well founded, citing Stark v.
Frayer, 67 So. 2d 237, 239 (Fla. 1953). The bank contended that it
had a title interest superior to that of the association and that the
association had not alleged facts which showed the bank’s title was
invalid.

The trial court conducted a hearing and granted the motion to
vacate on grounds that the judgment was void because the complaint
failed to state a cause of action.

La Mer Estates, 137 So. 3d at 397-98 (internal citations omitted). The
Condominium Association of La Mer Estates appealed to the Fourth District Court
of Appeal the order that vacated the final judgment.

The Fourth District reversed the order and remanded for the final judgment’s
reinstatement. In doing so, the district court followed this Court’s precedent and
receded from its own caselaw that adopted from the Third District the principle
that a default judgment based on a complaint that fails to state a cause of action is
void. Id. at 397, 400. The Fourth District held that although the complaint failed
to state a cause of action, the resulting default judgment was voidable, rather than
void. The district court explained that BNY Mellon was properly notified
throughout the proceedings and had ample opportunity to raise any pleading
defects, as well as an opportunity to raise the issue on direct appeal. Id. at 400-01.
“Because of the importance of this issue to the finality of judgments and the
stability of property titles,” id. at 401, the Fourth District certified conflict with the
Third District’s decision in Moynet and the First District’s decision in Southeast
Land Developers, which held that a default judgment is void and should be set
aside when the underlying complaint fails to state a cause of action. Se. Land
Developers, 28 So. 3d at 168; Moynet, 8 So. 3d at 378.

Construing and interpreting the Florida Rules of Civil Procedure and a trial
court’s inherent authority to protect judicial integrity in the litigation process is a
pure question of law, subject to de novo review. Pino v. Bank of N.Y., 121 So. 3d
23, 30-31 (Fla. 2013). We agree with the Fourth District that a default judgment,
which is based on a complaint that fails to state a cause of action, is voidable,
rather than void. See La Mer Estates, 137 So. 3d at 400. As we have previously
stated:

It is well settled that where a court is legally organized and has
jurisdiction of the subject matter and the adverse parties are given the
opportunity to be heard, then errors, irregularities or wrongdoing in
proceedings, short of illegal deprivation of opportunity to be heard,
will not render the judgment void.
Curbelo v. Ullman, 571 So. 2d 443, 445 (Fla. 1990).

First, the Fourth District properly recognized that the modern rules of civil
procedure, and particularly Florida Rule of Civil Procedure 1.540(b), do not
displace this Court’s prior caselaw that defines a judgment that is void. See
Curbelo, 571 So. 2d 443; State ex rel. Coleman v. Williams, 3 So. 2d 152 (Fla.
1941); Malone v. Meres, 109 So. 677 (Fla. 1926). Indeed, the purpose of rule
1.540(b) as recognized by this Court is to provide an exception to the rule of
absolute finality by allowing relief under a limited set of circumstances. See Bane
v. Bane, 775 So. 2d 938, 941 (Fla. 2000) (quoting Miller v. Fortune Ins. Co., 484
So. 2d 1221, 1223 (Fla. 1986)).

Second, failure to state a cause of action is a specific defense recognized by
Florida Rules of Civil Procedure 1.140(b) and (h)(1) and (2). Rule 1.140(h)
specifically provides in relevant part:
(1) A party waives all defenses and objections that the party
does not present either by motion under subdivisions (b), (e), or (f) of
this rule or, if the party has made no motion, in a responsive pleading
except as provided in subdivision (h)(2).
(2) The defenses of failure to state a cause of action . . . may be
raised . . . at the trial on the merits in addition to being raised either in
a motion under subdivision (b) or in the answer or reply.
Fla. R. Civ. P. 1.140(h). If a party is properly notified of pending proceedings, that
party has the opportunity to raise a defense, such as failure to state a cause of
action, in an answer, at trial, or at any time prior to final judgment. Otherwise, that
defense is deemed waived. Fla. R. Civ. P. 1.140(h)(1).

In Southeast Land Developers and Moynet, the subject complaints failed to
state a cause of action. Se. Land Developers, 28 So. 3d at 168; Moynet, 8 So. 3d at
378. Relying on Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA
1989), the First District in Southeast Land Developers and the Third District in
Moynet declared the default judgments void and reversed the trial courts’ orders
that denied the motions to set aside or vacate those judgments. Se. Land
Developers, 28 So. 3d at 168; Moynet, 8 So. 3d at 378.

The Fourth District correctly noted that Becerra never explicitly states that a
default judgment based on a complaint that fails to state a cause of action is void,
La Mer Estates, 137 So. 3d at 399, even though Southeast Land Developers and
Moynet cited to Becerra for that precise principle. In addition, Southeast Land
Developers and Moynet failed to demonstrate how rule 1.540(b) replaces this
Court’s precedent that defines a judgment as void.

In the present case, BNY Mellon was properly notified of the proceedings,
the hearing on final judgment, and the entry of the final judgment. Id. at 400.
Indeed, BNY Mellon was twice notified of the default judgment and failed to
respond or appear at any hearings. As such, the bank had ample opportunity to
raise the failure to state a cause of action either in an answer or at any time prior to
final judgment pursuant to the Florida Rules of Civil Procedure and did not do so.

Thereafter, the bank “could have raised the issue on direct appeal,” but similarly
elected not to do so. Id. at 401.

Thus, the Fourth District properly reversed the trial court’s order that
rendered the default judgment in the present case void. Because we agree that the
default judgment was voidable, Florida Rule of Civil Procedure 1.540(b) was not
applicable, and therefore the default judgment could not be collaterally attacked
one and one-half years later when BNY Mellon finally decided to respond. See
Coleman, 3 So. 2d at 152-53 (“We do not think the judgment in this case was void.
The declaration had been upheld by the trial court and final judgment was entered
on the verdict of the jury after due notice and every opportunity the law affords
was given the defendants to amend, plead, or offer their defense. They did not
appear and let the time pass in which writ of error is available to them.”).
Accordingly, we approve the Fourth District’s decision in La Mer Estates
and disapprove Southeast Land Developers and Moynet to the extent that these
cases are inconsistent with this decision.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, and POLSTON, JJ.,
concur.

LEWIS, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Down Load PDF of This Case

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Equifax to Provide Anonymous Credit Scores to Fannie Mae Investors

Equifax to Provide Anonymous Credit Scores to Fannie Mae Investors

H/T National Mortgage News

So Much for Privacy!!

Equifax Teams with Fannie Mae to Deliver Enhanced Connecticut Avenue Securities Disclosure Data

ATLANTA, Sept. 16, 2015 /PRNewswire/ — Equifax Inc. (NYSE: EFX), a global information solutions provider, today announced that it has entered into a strategic agreement with Fannie Mae to enable the GSE to disclose updated, anonymous, loan-level FICO® Scores as part of its ongoing monthly disclosures for its Connecticut Avenue Securities™ (CAS) program.

“We are delighted to build on our long-standing relationship with Fannie Mae, and support their credit risk transfer initiatives,” said Geoffrey Hickman, Managing Director of Government Credit and Financial Markets at Equifax. “Our new agreement with Fannie Mae to provide anonymous, monthly updated FICO Scores supports their mandate to reduce taxpayer risk, and facilitates an increased role for private capital in the mortgage market,” added Hickman.

“We are pleased to be able to provide our CAS investors with these new supplemental monthly credit disclosures to aid in monitoring their investments,” said Laurel Davis, Vice President of Credit Risk Transfer for Fannie Mae. “We strive to provide the market with continued transparency around our CAS securities, and this addition is consistent with that objective.”

Separately, Equifax will also offer potential investors and other interested parties the opportunity to license an expanded dataset of anonymous, loan-level borrower credit variables that will enable analysis of borrowers’ credit behavior apart from their performance on the mortgage loans referenced in CAS transactions. An innovative aspect of the expanded dataset will be the inclusion of Equifax Dimensions™ trended credit attributes. Equifax Dimensions was launched in 2013 and enables users to leverage tradeline level information derived on a historical time series basis.

Equifax is uniquely positioned as an industry thought-leader and information solutions provider to drive change in the way investors perform their analytics. Equifax helps fuel advanced analysis across the capital markets value chain to help investors gain the comprehensive borrower and market insights they need to make informed investment decisions.

About Equifax
Equifax is a global leader in consumer, commercial and workforce information solutions that provides businesses of all sizes and consumers with insight and information they can trust. Equifax organizes and assimilates data on more than 600 million consumers and 81 million businesses worldwide. The company’s significant investments in differentiated data, its expertise in advanced analytics to explore and develop new multi-source data solutions, and its leading-edge proprietary technology enables it to create and deliver unparalleled customized insights that enrich both the performance of businesses and the lives of consumers.

Headquartered in Atlanta, Equifax operates or has investments in 19 countries and is a member of Standard & Poor’s (S&P) 500® Index. Its common stock is traded on the New York Stock Exchange (NYSE) under the symbol EFX. In 2014, Equifax was nominated as a Bloomberg BusinessWeek Top 50 company; its CIO was listed as one of the top 100 by CIO magazine; and the company was named to the Fintech 100 list, was recognized as a top 20 company to work for by the Atlanta Journal-Constitution, and was named a 2014 InformationWeek Elite 100 Winner. For more information, please visit www.equifax.com.

About Fannie Mae
Fannie Mae enables people to buy, refinance, or rent homes.

Visit us at: http://www.fanniemae.com/progress

Follow us on Twitter: http://twitter.com/FannieMae

About FICO
FICO (NYSE: FICO) is a leading analytics software company, helping businesses in 90+ countries make better decisions that drive higher levels of growth, profitability and customer satisfaction. The company’s ground breaking use of Big Data and mathematical algorithms to predict consumer behavior has transformed entire industries. FICO provides analytics software and tools used across multiple industries to manage risk, fight fraud, build more profitable customer relationships, optimize operations and meet strict government regulations. Many of our products reach industry-wide adoption. These include the FICO® Score, the standard measure of consumer credit risk in the United States. FICO solutions leverage open-source standards and cloud computing to maximize flexibility, speed deployment and reduce costs. The company also helps millions of people manage their personal credit health. FICO: Make every decision count™. Learn more at www.fico.com.

Logo – http://photos.prnewswire.com/prnh/20060224/CLF037LOGO

To view the original version on PR Newswire, visit:http://www.prnewswire.com/news-releases/equifax-teams-with-fannie-mae-to-deliver-enhanced-connecticut-avenue-securities-disclosure-data-300143937.html

SOURCE Equifax Inc.

News Provided by Acquire Media

 

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Senate votes to suspend Fannie Mae, Freddie Mac CEO pay

Senate votes to suspend Fannie Mae, Freddie Mac CEO pay

Reuters-

The U.S. Senate on Tuesday unanimously approved legislation that would suspend the current compensation for the heads of the government-controlled mortgage finance companies Fannie Mae and Freddie Mac following the disclosure of huge pay raises for the officials.

On July 1, the two entities said that Fannie Mae CEO Timothy Mayopoulos and Freddie Mac head Donald Layton will earn $4 million annually, up from their previous salaries of $600,000.

 [REUTERS]

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Posted in STOP FORECLOSURE FRAUD0 Comments

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