Case3:11-cv-01663-JST Document129 Filed03/13/15 Page1 of...

- 1 - NOTICE OF SETTLEMENT

Gaudin vs. Saxon Mortgage 11-1663-JST

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Daniel J. Mulligan (Cal. State Bar No. 103129) JENKINS MULLIGAN & GABRIEL LLP 10085 Carroll Canyon Road, Suite 210 San Diego, CA 92131 Telephone: 415-982-8500 Peter B. Fredman (Cal. State Bar No. 189097) LAW OFFICE OF PETER FREDMAN 125 University Ave, Suite 102 Berkeley, CA 94710 Telephone: (510) 868-2626 [email protected] Attorneys for Plaintiff MARIE GAUDIN, for herself and persons similarly situated Laila Abou-Rahme (Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 399 Park Avenue, Floor 24 New York, NY 10022 Telephone: (212) 705-7000 [email protected]

John B. Sullivan (State Bar No. 96742) Erik Kemp (State Bar No. 246196) SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: (415) 398-3344 [email protected] Attorneys for Defendant SAXON MORTGAGE SERVICES, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARIE GAUDIN, individually, and on behalf of others similarly situated,

Plaintiff,

v. SAXON MORTGAGE SERVICES, INC. a Texas corporation, and Does 1-100,

Defendants. _____________________________________

)) ) ) ) ) ) ) ) ) ) ) )

Case No. C 11-1663-JST CLASS ACTION NOTICE OF SETTLEMENT

Case3:11-cv-01663-JST Document129 Filed03/13/15 Page1 of 2

- 2 - NOTICE OF SETTLEMENT

Gaudin vs. Saxon Mortgage 11-1663-JST

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

PLEASE TAKE NOTICE that Plaintiff Marie Gaudin (“Plaintiff”), on behalf of herself

and the certified class of persons similarly situated (the “Class”) and Defendant Saxon Mortgage

Services, Inc. (“Saxon”) have entered into the attached Settlement Agreement and Release of

Claims (“Settlement Agreement”) subject to Court approval pursuant to Rule 23 of the Federal

Rules of Civil Procedure, as follows:

Exhibit 1 hereto is the fully executed (proposed) Settlement Agreement.

Exhibit 2 hereto is the (proposed) Final Approval Order, attached and incorporated into

the Settlement Agreement as Exhibit A.

Exhibit 3 hereto is the (proposed) Notice of Settlement, attached and incorporated into

the Settlement Agreement as Exhibit B.

PLEASE TAKE FURTHER NOTICE that Plaintiff anticipates filing an unopposed

motion for preliminary approval of this class action settlement in the immediate future. DATE: March 13, 2015 JENKINS MULLIGAN & GABRIEL LLP LAW OFFICE OF PETER FREDMAN

By: /s/ Peter FredmanPETER FREDMANAttorneys for Plaintiff, MARIE GAUDIN

DATE: March 13, 2015 MORGAN, LEWIS & BOCKIUS LLP

By: /s/ Laila Abou-Rahme LAILA ABOU-RAHME Attorneys for Defendant, SAXON MORTGAGE SERVICES, INC.

Case3:11-cv-01663-JST Document129 Filed03/13/15 Page2 of 2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 SETTLEMENT AGREEMENT AND RELEASE No. C 11-01663-JST, Gaudin v. Saxon Mortgage

Daniel J. Mulligan (Cal. State Bar No. 103129)JENKINS MULLIGAN & GABRIEL LLP 10085 Carroll Canyon Road, Suite 210 San Diego, CA 92131 Telephone: (415) 982-8500 Facsimile: (415) 982-8515 [email protected]

Laila Abou-Rahme (pro hac vice)MORGAN, LEWIS & BOCKIUS LLP 399 Park Avenue, Floor 24 New York, NY 10022 Telephone: (212) 705-7000 [email protected]

John B. Sullivan (State Bar No. 96742) Erik Kemp (State Bar No. 246196) SEVERSON & WERSON P.C. One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: (415) 398-3344 [email protected]@severson.com

Peter B. Fredman (State Bar No. 189097)LAW OFFICE OF PETER FREDMAN 125 University Ave, Suite 102 Berkeley, CA 94710 Telephone: (510) 868-2626 Facsimile: (510) 868-2627 [email protected]

Attorneys for Plaintiff MARIE GAUDIN,for herself and persons similarly situated

Attorneys for Defendant SAXON MORTGAGE SERVICES, INC.



MARIE GAUDIN, individually, and onbehalf of others similarly situated,

Plaintiff,

v.

SAXON MORTGAGE SERVICES, INC. a Texas corporation, and Does 1-100,

Defendants.

Case No. C 11-01663-JST

CLASS ACTION

SETTLEMENT AGREEMENT AND RELEASE

Case3:11-cv-01663-JST Document129-1 Filed03/13/15 Page1 of 22

\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -SETTLEMENT AGREEMENT AND RELEASE No. C 11-01663-JST, Gaudin v. Saxon Mortgage

TABLE OF CONTENTS

Page

I.� INTRODUCTION .....................................................................................................................3�

II.� DEFINITIONS ...........................................................................................................................3�

III.� RECITALS ................................................................................................................................6�

IV.� PAYMENT ................................................................................................................................9�

V.� RELEASE ................................................................................................................................12�

VI.� CONDITIONS AND TERMINATION ...................................................................................13�

VII.� CLASS NOTICE AND JUDICIAL APPROVAL ...................................................................14�

VIII.� MISCELLANEOUS PROVISIONS ........................................................................................16�


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


I. INTRODUCTION

1. This Settlement Agreement and Release is made and entered into by and between

Plaintiff Marie Gaudin, on behalf of herself and the Certified Class (“Plaintiff”), and Defendant

Saxon Mortgage Services, Inc. (“Saxon”) (collectively, the “Parties”).

II. DEFINITIONS

2. As used herein:

a. “Action” means the above-captioned lawsuit.

b. “Administrator” means the settlement administrator for this Action. Subject

to the Court’s approval, Plaintiff proposes that Gilardi & Co., which

previously served as the notice administrator following the Certification

Order (defined below), be named the Administrator under this Agreement.

c. “Agreement” means this Settlement Agreement and Release including

Exhibits.

d. “Alternative Modification” means a non-HAMP loan modification.

e. “Class” means “California borrowers who entered into HAMP TPPs with

Saxon effective on or before October 1, 2009, and made at least three trial

period payments, but did not receive HAMP loan modifications” as per the

Order Granting Plaintiff’s Motion For Class Certification And Appointment

of Class Counsel entered by the above captioned Court on or about August 5,

2013 (Dkt. No. 102) (the “Certification Order”).

f. “Class Counsel” are Daniel Mulligan, Esq. of Jenkins Mulligan & Gabriel

LLP and Peter Fredman, Esq. of the Law Office of Peter Fredman as per the

Certification Order.

g. “Class Members” are members of the Class who did not request exclusion

from the Class pursuant to the Class Notice (defined below). Also excluded

from the definition, as appropriate, are persons who may request exclusion

from the Class in response to the Notice of Settlement (defined below).

h. “Class Notice” refers to the notice sent to the Class on or about February 28,


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


2014, advising them of the Certification Order and providing them with the

opportunity to exclude themselves from the Class at that time.

i. “Effective Date” means the first date by which all of the events and

conditions specified in Part VI of this Agreement have been met and have

occurred.

j. “Final” means, with respect to the Final Approval Order, that such order

represents a final and binding determination of all issues within its scope and

has not been reversed, vacated, or modified in any way and is no longer

subject to appellate review, either because of disposition on appeal and

conclusion of the appellate process or because of passage, without action, of

time for seeking appellate review. Without limitation, the Final Approval

Order becomes Final when: (a) either no appeal has been filed and the time

has passed for any notice of appeal to be timely filed; or (b) an appeal has

been filed and either (i) the court of appeals has affirmed the judgment or

dismissed that appeal and the time for any reconsideration or further

appellate review has passed; or (ii) a higher court has granted further

appellate review and that court has affirmed the underlying judgment or

affirmed the court of appeals’ decision affirming the judgment or dismissing

the appeal. For purposes of this paragraph, an “appeal” shall include appeals

as of right, discretionary appeals, interlocutory appeals, proceedings

involving any petition for a writ of certiorari or other writ that may be filed in

connection with approval or disapproval of this Settlement. Any appeal or

other proceeding pertaining solely to the Plan of Distribution and/or the

application for a service award, attorney fees or expenses, shall not in any

way delay or preclude the Final Approval Order from becoming Final.

k. “Final Approval Hearing” means the hearing to be requested by the Parties

and conducted by the Court following Notice of Settlement to the Class

Members.


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


l. “Final Approval Motion” means Plaintiff’s motion seeking final approval of

this Agreement.

m. “Final Approval Order” means a Court order granting final approval of the

Agreement and entering judgment thereon. The Final Approval Order shall

be substantially in the form attached hereto as Exhibit A.

n. “Gross Settlement Fund” means the sum of Four Million, Five Hundred

Thousand Dollars ($4,500,000.00) that Saxon shall pay pursuant to this

Agreement and any interest that may accrue thereon after deposit under this

Agreement.

o. “HAMP” means the Home Affordable Mortgage Program.

p. “Net Settlement Fund” means the settlement funds that are available for

distribution to the Class Members after payment from the Gross Settlement

Fund of attorney fees, services awards, and litigation and administration costs

and expenses.

q. “Notice of Settlement” means the content, form, and plan of notice of this

Agreement to the Class that the Court approves in the Preliminary Approval

Order, including any associated claims process documents required in

connection with the Plan of Distribution. In addition to the usual and

customary notices to a certified class, the Notice of Settlement under this

Agreement will include a renewed opportunity for Class Members to exclude

themselves from the Class. The Notice of Settlement shall be substantially in

the form attached hereto as Exhibit B.

r. “Plan of Distribution” means a plan to be developed by Plaintiff for

distribution of the Net Settlement Fund among the Class Members. Any Plan

of Distribution is not part of this Agreement and the Releasees shall have no

responsibility or liability with respect to the Plan of Distribution, nor any

right to object to the Plan as presented to the Court.

s. “Preliminary Approval Date” means the date of the Preliminary Approval


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Order.

t. “Preliminary Approval Motion” means Plaintiff’s motion seeking

preliminary approval of this Agreement.

u. “Preliminary Approval Order” means the Court’s Order approving the Notice

of Settlement, preliminarily approving this Agreement, and setting a date for

the Final Approval Hearing and associated deadlines for objections, requests

for exclusion, claims submissions, and so forth.

v. “Releasees” mean Saxon and/or each of Saxon’s past, present and future

directors, officers (whether acting in such capacity or individually),

shareholders, owners, partners, joint venturers, principals, trustees, creditors,

insurers, attorneys, representatives, employees, members, managers, parents,

subsidiaries, divisions, subdivisions, departments, affiliates, predecessors,

successors and assigns, or any agent acting or purporting to act for them or

on their behalf.

w. “Releasors” means Plaintiff and the Class Members on behalf of themselves

and their present and future legal and common law spouse(s), children,

parents, relations, successors, beneficiaries, heirs, next of kin, assigns,

executors, administrators, and/or estate, or any and all other persons who

could claim through them.

x. “TPP” means HAMP Trial Period Plan.

III. RECITALS

3. On April 6, 2011, Plaintiff Marie Gaudin filed this Action on behalf of herself and

the then-putative Class of California borrowers who (a) entered into HAMP TPPs with Saxon, (b)

made three trial payments thereunder, but (c) did not receive HAMP loan modifications (the

“Class”). Plaintiff asserted claims for breach of contract and implied covenant of good faith and fair

dealing, rescission and restitution, Cal. Civ. Code § 1688 et seq., and violations of California’s

Rosenthal Fair Debt Collections Practices Act, Cal. Civ. Code § 1688 et seq. (the “Rosenthal Act”),

and the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (the “UCL”).


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Plaintiff alleged, among other things, that Saxon wrongfully received TPP payments from the Class

and/or wrongfully denied permanent loan modifications to the Class.

4. On May 20, 2011, Saxon moved to dismiss the original complaint. On July 11, 2011,

the Court1 ordered supplemental briefing on issues of standing arising from Ms. Gaudin’s

bankruptcy. On August 22, 2011, the Court granted the motion with leave to amend. See Gaudin v.

Saxon Mortg. Servs., 820 F. Supp. 2d 1051 (N.D. Cal. 2011) (Dkt. No. 36).

5. On September 12, 2011, Plaintiff filed her First Amended Complaint (“FAC”) (Dkt.

No. 39). On October 3, 2011, Saxon moved to dismiss the FAC. On November 17, 2011, the Court

denied the motion to dismiss in its entirety (Dkt. No. 51).

6. Plaintiff engaged in extensive discovery prior to moving for class certification.

Among other things, Plaintiff took the depositions of five Saxon employees designated pursuant to

Rule 30(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) and reviewed and analyzed about

2400 pages of documents and large native-file spreadsheets of data pertaining to the Class

Members, their loans and TPPs. Additionally, Plaintiff reviewed and analyzed hundreds of pages of

publicly available documents pertaining generally to HAMP.

7. By about April 2012, a substantial portion of Saxon’s loan servicing portfolio had

been transferred to third party loan servicers, primarily to Ocwen Loan Services, LLC (“Ocwen”).

In July 2012, Saxon ceased operations as a loan servicer. To the extent loans to Class Members

continued to exist at that time, the vast majority of them were transferred to Ocwen.

8. On August 5, 2013, the Court granted Plaintiff’s motion for class certification. See

Gaudin v. Saxon Mortg. Servs., 297 F.R.D. 417 (N.D. Cal. 2013) (Dkt. No. 102) (the “Certification

Order”) (Dkt. No. 102). On or about November 20, 2013, the Ninth Circuit Court of Appeals denied

Saxon’s motion pursuant to FRCP 23(f) for permission to appeal the Certification Order.

9. On February 4, 2014, the Parties participated in a full day mediation session before

the Honorable Ronald Sabraw (Ret) of JAMS, which did not result in a settlement.

10. On February 28, 2014, Plaintiff implemented the class notice plan (“Class Notice”)

1 The Honorable Richard Seeborg initially presided over the Action, which was reassigned to the Honorable Jon S. Tigar on February 11, 2013.


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


in accordance with the Court’s order of November 18, 2013 (Dkt. Nos. 109, 110), as extended

pursuant to the Court’s order of January 10, 2014 (Dkt. No. 115). Notice and case documents were

also published at www.saxonmortgagehampclassaction.com, which was referenced on the Class

Notice. The Administrator reports that it mailed 2893 class notices, received 223 returned

undeliverable mail (“RUM”) notices, and re-mailed 183 notices pursuant to updated addresses.

Twenty-one (21) recipients of Class Notice requested exclusion from the Class at that time, and

they are identified in an “opt out” list maintained by the Administrator.

11. The Parties subsequently determined that Class Notice was sent to some persons

who do not appear to fit the Class definition. On this basis, pursuant to the Court’s order of

November 3, 2014 (Dkt. No. 125), the notice administrator has sent written notice of the error

(“Corrective Notices”) to 190 persons who had been sent Class Notice in error and had not opted

out of the Class. It was subsequently determined that 23 of said 190 persons were sent Corrective

Notices in error, and they have been added back to the class list. The updated class list now consists

of 2705 Class Members.

12. Plaintiff engaged in extensive post-certification discovery on behalf of the certified

Class. In total, Plaintiff reviewed approximately 28,985 pages of documents, including: (a) internal

Saxon emails, memoranda, and reports pertaining to, among other things, Saxon’s (i) HAMP

program and procedures, (ii) Alternative Modification programs and procedures, and (iii) servicing

transfers and releases during the relevant period; (b) loan modification agreements for

approximately 627 Class Members who received Alternative Modifications from Saxon, (c)

complete servicing files for four Class Members, including (in addition to Plaintiff) three Class

Members representing three different loss mitigation outcomes from Saxon (i.e. foreclosure, short

sale, and Alternative Modification); and (d) native-file spreadsheets of data pertaining to the Class

Members, their mortgages, the disposition of their mortgages, and the like. Plaintiff retained an

expert, Junwu Gan, Ph.D., to assist in analyzing the mortgage data and assessing damages. Plaintiff

also obtained substantial data pursuant to a third party subpoena to Ocwen pertaining to the

outcome of Class loans that were transferred to it for servicing prior to disposition by Saxon.

Plaintiff also obtained substantial information through interactions with Class Members who


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


contacted Class Counsel following the dissemination of Class Notice.

13. On October 9, 2014, the Court issued a scheduling order, which, among other things,

set trial for September 21, 2015. As outlined in the schedule, the Parties anticipated an extensive

amount of work completing fact discovery, expert preparations and discovery, dispositive motions,

including for decertification of the class, and otherwise preparing for trial. Saxon has asserted or

would assert numerous defenses to the claims alleged in this Action and expressly denies each of

the claims and allegations asserted against it and any and all liability arising out of the conduct

alleged in this Action. Saxon further contends that the Certification Order was issued in error in

this case and that the Class should and would be decertified if the Action were to proceed. By

entering into this Agreement, Saxon does not admit, and expressly denies, any wrongdoing and this

Agreement shall not constitute an admission of liability or that class certification was proper in this

case.

14. To reach this Agreement, the Parties engaged in extensive, arms-length settlement

negotiations that fully incorporated their extensive knowledge, analysis, and opinions about the law

and facts of this case and similar proceedings throughout the country. Following the mediation in

February of 2014, the Parties engaged in intermittent direct settlement discussions and negotiations,

including an exchange of formal settlement demand and offer letters in June-July of 2014, which

ultimately led to an agreement in principle in November of 2014 and execution of a memorandum

of understanding on December 8, 2014.

15. NOW THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN the

undersigned Parties, that this Action shall be settled, subject to the approval of the Court pursuant to

FRCP Rule 23, pursuant to the following terms and conditions:

IV. PAYMENT

16. Saxon agrees to pay a total of $4.5 million ($4,500,000.00) to establish the Gross

Settlement Fund, for and subject to the terms and conditions of this Agreement. Within three (3)

business days of the Effective Date, Saxon shall wire the funds to the Administrator, who shall

promptly deposit the funds into a Qualified Settlement Fund pursuant to Internal Revenue Code

Section 1.468B-I. In no circumstance will Saxon be obligated to pay any additional amount.


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


17. Interest, if any, shall thereafter accrue to the benefit of the Gross Settlement Fund,

which shall be distributed by the Administrator in accordance with this Agreement and the Final

Approval Order.

18. The Gross Settlement Fund shall be and shall be treated at all times as a “Qualified

Settlement Fund” within the meaning of Treasury Regulation §1.468B-1. Within thirty (30)

business days after the Effective Date, Saxon shall execute an election statement provided by the

Administrator which shall be affixed to the initial tax return of the Qualified Settlement Fund in

order to establish the start date of the Qualified Settlement Fund. The Gross Settlement Fund shall

thereafter be administered and distributed as set forth in this Agreement. Accordingly, the

Administrator shall be responsible for any and all federal, state, local and non-US tax filings related

to the establishment, ongoing maintenance and distributions made from the Qualified Settlement

Fund (including, without limitation, the solicitation of relevant tax documentation from any parties

receiving distributions from the Qualified Settlement Fund as well as the preparation of income tax

returns for the fund and tax withholding and tax reporting for distributions made by the fund).

Taxes or penalties, if any, arising from the Gross Settlement Fund shall be paid by the

Administrator from the Gross Settlement Fund.

19. Subject to further order(s) and/or directions as may be made by the Court, or as provided

in this Agreement, the Administrator is authorized to execute such transactions as are consistent

with the terms of this Agreement and to make such determinations regarding class membership and

claims payments as may be necessary to implement this Agreement and the Plan of Distribution.

The Releasees shall have no responsibility for, interest in, or liability whatsoever with respect to,

the actions of the Administrator, or any transaction executed by the Administrator. All funds held

by the Administrator shall be deemed and considered to be in custodia legis of the Court, and shall

remain subject to the jurisdiction of the Court, until such time as such funds shall be distributed

pursuant to this Agreement and/or further order(s) of the Court. The Administrator shall not

disburse the Gross Settlement Fund except (a) by an order of the Court, or (b) with the written

agreement of counsel for the Parties, and any such disbursement must be consistent with the terms

of this Agreement.


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


20. Within ten (10) business days of the Effective Date, and subject to the Court’s Final

Approval Order and the requirements of paragraph 19 above, the Administrator shall make

payments from the Gross Settlement Fund as follows:

a. An incentive award to Ms. Gaudin for her services as representative plaintiff in an

amount, if any, to be determined by application to the Court not to exceed $15,000;

b. Attorney fees and reimbursement of litigation costs and expenses to Class Counsel in

an amount to be determined by application to the Court not to exceed 30% of the

Gross Settlement Fund plus actual costs and expenses; and

c. Settlement administration costs as approved by the Court.

21. Within twenty (20) business days of the Effective Date, and subject to the Court’s

Final Approval Order and the requirements of paragraph 19 above, the Administrator shall make

payments from the Net Settlement Fund to the Class Members in accordance with a Plan of

Distribution to be developed by Class Counsel and the Administrator and approved by the Court. A

preliminary Plan of Distribution shall be submitted with the Preliminary Approval Motion and a

final Plan of Distribution shall be submitted for approval with the Final Approval Motion. Class

Members shall have 120 days from the date of their payments to cash their check. Class Members

may request new checks to be issued by the Administrator during this time period, if they lose or

misplace their original check, however, the time period for cashing the check will be not be

extended.

22. There shall be a second distribution to the Class Members if the amount of money

remaining in the Net Settlement Fund exceeds five percent (5%) of the original Net Settlement

Fund at the conclusion of the time period for them to cash their checks in accordance with a Plan of

Distribution to be developed by Class Counsel and the Administrator and approved by the Court.

Administration costs for any second distribution shall not be paid or deducted from the Gross

Settlement Fund initially, but, rather shall be paid from the money remaining in the Net Settlement

Fund subject to further application and approval by the Court. Class Members shall have 120 days

from the date of their payments to cash their check. Class Members may request new checks to be

issued by the Administrator during this time period, if they lose or misplace their original check,


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


however, the time period for cashing the check will not be extended.

23. Any residual remaining in the Net Settlement Fund after the aforementioned process

shall be paid to a cy pres recipient to be nominated by Class Counsel and approved by the Court in

the Final Approval Order.

24. After all the settlement payments are made to the Class Members, but before any

residual is paid to a cy pres recipient, the Settlement Administrator shall provide a final accounting

and Class Counsel shall obtain an order thereon approving the final disbursement of the residual to

the cy pres recipient.

V. RELEASE

25. Subject to the approval of the Court and in consideration of the benefits inuring to

the Plaintiff and Class Members, the Releasors agree to unconditionally and irrevocably remise,

release, forever discharge and covenant not to sue the Releasees, from any and all claims,

counterclaims, actions, causes of action, suits, set-offs, costs, losses, expenses, sums of money,

accounts, reckonings, debts, charges, complaints, controversies, disputes, damages, judgments,

executions, promises, omissions, duties, agreements, rights, and any and all demands, obligations

and liabilities, of whatever kind or character, direct or indirect, whether known or unknown or

capable of being known up until the Effective Date of this Settlement Agreement, arising at law or

in equity, by right of action or otherwise, (a) arising out of (i) the legal, factual, or other

allegations made in the Action or (ii) any legal theories that could have been raised based on

the allegations of the Action, or (b) relating in any way to the decision to grant or not grant a

loan modification during the time a Class Member’s loan was serviced by Releasees. For the

sake of clarity, this release includes any claim Plaintiff or a Class Member might bring

against a successor servicer based on Saxon’s conduct with respect to a loan modification

application received while Saxon was servicing the loan. Notwithstanding any other provision,

nothing in this Release or Agreement is intended to release, or in any way releases, any claims

against any nonparty for that nonparty's conduct in connection with its servicing of the Class

Members' loans or loan modifications.

26. Plaintiff on behalf of herself and the Class hereby acknowledges that facts about the


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Releasees may later be discovered that are different from or in addition to those now known or

believed to be true, and agrees that this Settlement Agreement and the Releases shall remain in full

force and effect notwithstanding the existence of any such different or additional facts. This

Agreement intends specifically to release Unknown Claims against the Releasees, whether or not

such Unknown Claims might have materially affected this Agreement. This paragraph constitutes a

waiver of, without limitation to any other applicable law, all rights with respect to the unknown

claims under California Civil Code Section 1542, which provides:

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.

Plaintiff on behalf of herself and the Class understands and agrees that Releasors are providing the

Releasees with a full and complete release with respect to the Unknown Claims.

VI. CONDITIONS AND TERMINATION

27. This Agreement is subject to and conditioned upon the issuance by the Court of a

Final Approval Order which:

a. Finds that the Notice of Settlement satisfies the requirements of due process and

FRCP Rule 23(e)(1);

b. Finds that the Agreement is fair, reasonable and adequate and that each Class

Member shall be bound by this Agreement;

c. Dismisses on the merits and with prejudice all claims asserted in the Action; and

d. Enters judgment incorporating the terms of this Agreement.

e. Is Final as defined in paragraph 2 above.

28. The Parties shall each have the right to terminate this Agreement by providing

written notice of their election to do so to all other Parties within ten (10) business days of (a) the

Court’s refusal to grant preliminary or final approval of this Agreement or (b) the date upon which

the Final Approval Order is modified or reversed in any material respect by the District Court, the

Ninth Circuit Court of Appeals or the U.S. Supreme Court.

29. Additionally, if more than 100 total members of the Class request to be excluded

from the settlement (including the 21 who have already opted out), then Saxon shall have


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


independently, in its sole and absolute discretion, the option to terminate this Agreement.

30. In the event of termination or the failure of this Agreement for any reason, then this

Agreement shall be null and void, the Gross Settlement Fund, including any interest accrued, shall

be promptly and fully returned to Saxon, and the litigation shall return to the status quo ante except

that the Parties shall cooperate to seek a new scheduling order that allows each of them adequate

time to resume discovery and prepare their cases for trial.

32. Judicial alteration, reduction, or denial of any request for attorneys’ fees, expenses,

or awards to Class Counsel, the Plaintiff, or any Class Members or their counsel shall not constitute

grounds to terminate the Agreement.

VII. CLASS NOTICE AND JUDICIAL APPROVAL

33. All Class Members shall be provided with the best practicable notice of this

settlement and the opportunity to object to it or exclude themselves from the Class in a manner that

satisfies the requirements of due process and FRCP Rule 23(e)(1).

34. Upon execution of the Agreement, the Parties shall promptly notify the court of this

proposed settlement, and cooperate in good faith to obtain preliminary and final approval of the

settlement and notice to the Class as set forth in this Agreement and the governing law.

35. As soon as reasonably practicable following execution of this Agreement, Saxon

shall respond to the extent practicable to any reasonable request for additional information

necessary to finalize and/or resolve any issues pertaining to Class membership.

36. As soon as reasonably practicable following execution of this Agreement, Plaintiff

shall file the Preliminary Approval Motion and seek a Preliminary Approval Order which shall

preliminarily approve this Agreement, the preliminary Plan of Distribution, and the Notice of

Settlement; set a date for the Final Approval Hearing; set associated deadlines for objections to the

settlement or attorney fees request, requests for exclusion from the Class, and submission of any

claims materials contemplated by the Plan of Distribution; and set deadlines for Class Counsel to

file an application for attorney fees, costs, and expenses and the Final Approval Motion. Plaintiff

shall file a proposed Preliminary Approval Order and Notice of Settlement consistent with this

Agreement, which shall be submitted to Saxon for comment prior to filing. The Parties shall work


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


in good faith to resolve any disagreements regarding these matters. If the Parties are unable to agree

on the proposed Preliminary Approval Order or Notice of Settlement, any dispute shall be presented

to the Court for resolution in accordance with this Agreement and the governing law.

37. The Notice of Settlement shall plainly recite the required information, options, and

deadlines for the Class Members. Within ten (10) business days after the Preliminary Approval

Date, the Settlement Administrator shall mail the Court-approved Notice of Settlement to all Class

Members at the best address it currently has for them (based on the Class Notice process) and

publish it on the case website (www.saxonmortgagehampclassaction.com) and engage in such other

measures to notify the Class as may be required in the Preliminary Approval Order. The Settlement

Administrator shall also establish an automated telephone call center facility with an 800 number to

respond to Class Member inquiries.

38. The Notice of Settlement shall provide that Class Members who wish to exclude

themselves from the Class must submit a written “opt-out” request postmarked no later than the

renewed “opt-out” deadline to be set in the Preliminary Approval Order. Such written request for

exclusion must contain the name, address, telephone number, and email address of the Class

Member requesting exclusion, and be signed by the Class Member who seeks to opt out. No opt-

out request may be made on behalf of a group of Members. The Settlement Administrator shall

provide the Parties with copies of all opt-out requests on a weekly basis by email.

39. The Notice of Settlement shall provide that any Class Members who wish to object

to the Agreement, the Plan of Distribution, and/or the application for attorney fees to Class Counsel

and/or service award to Ms. Gaudin must mail a written statement of objection to the Settlement

Administrator postmarked no later than the objection deadline to be set in the Preliminary Approval

Order. Any objection must state the basis for the objection, contain the name, address, telephone

number, and email address of the Class Member making the objection (or their attorney), and be

personally signed by that Class Member (or his/her attorney). The Settlement Administrator shall

provide the Parties with copies of all objections on a weekly basis, and file them with the Court in

connection with the Final Approval Hearing. All written objections shall be filed with the Court

regardless of whether they are timely.


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


40. Plaintiff and Class Counsel shall file their application for attorney fees and costs and

for a service award to Ms. Gaudin and publish it on the case website sufficiently in advance of the

Final Approval Hearing to allow Class Members a reasonable time to review it prior to the deadline

for objections. Saxon shall not oppose or otherwise comment on the application provided it is

consistent with this Agreement.

41. At least fourteen (14) calendar days before the Final Approval Hearing, Plaintiff

shall file a motion requesting that the Court grant final approval of the Agreement, with a

memorandum of points and authorities in support of the motion, and addressing any objections,

along with a proposed Final Approval Order, consistent with this Agreement, which shall be

submitted to Saxon for comment and approval prior to filing. The Parties shall work in good faith to

resolve any disagreements regarding the content of the Final Approval Order. If the Parties are

unable to agree on the proposed Final Approval Order, any dispute shall be presented to the Court

for resolution in accordance with this Agreement and the governing law.

VIII. MISCELLANEOUS PROVISIONS

42. The Parties, including Ms. Gaudin personally, acknowledge and represent that each:

(a) has fully and carefully read this Agreement prior to execution; (b) has been fully apprised by

counsel of the legal effect and meaning of the terms of this Agreement; (c) has had the opportunity

to undertake whatever investigation or inquiry is necessary or appropriate in connection with this

Agreement; (d) has been afforded the opportunity to negotiate any and all terms of this Agreement;

and (e) is executing this Agreement voluntarily and free from any undue influence, coercion, or

duress of any kind.

43. The Parties will cooperate with each other and use their best efforts to effect the

implementation of the Agreement. In the event that the Parties are unable to reach agreement on

the form or content of any document needed to implement the Agreement, or on any supplemental

provisions that may become necessary to effectuate the terms of this Agreement, the Parties may

seek the assistance of the Court to resolve such disagreement after meeting and conferring with

each other in good faith to attempt to resolve the dispute.


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


44. Neither the Parties nor their counsel shall make public announcements or disclosures

discussing the merits of the Action, the Settlement Term Sheet, or this Agreement. Any public

statements shall be limited to neutral factual recitations and neutral commentary supporting the

settlement as fair, adequate, and reasonable. Nothing in this paragraph shall restrict (a) statements

made in papers filed with the Court or any other court of competent jurisdiction in connection with

the Settlement, (b) Defendants’ right to make such disclosures as are required under applicable

laws, regulations and rules (such as securities laws and accounting rules), (c) Class Counsel and

Defendants’ counsel’s right to make available, upon request, copies of pleadings filed in the public

Court file (not under seal) in the Action, (d) either party or their counsel from publishing a neutral

description of the case and the settlement, subject to content approval by the opposing party, which

approval shall not be unreasonably withheld.

45. Plaintiff agrees to provide notice to appropriate federal and state officials pursuant to

the requirements of the Class Action Fairness Act of 2005, 28 U.S.C. § 1715(b) within ten (10)

calendar days after the Preliminary Approval Motion is filed with the Court.

46. The Parties agree that the Court shall retain jurisdiction to interpret, implement and

enforce this Agreement and the Final Approval Order, and consent to jurisdiction for this purpose.

47. This Agreement encompasses the entire settlement between the Parties. Saxon shall

bear all of Saxon’s own attorney fees and legal costs and expenses incurred in the Action. Any

attorney fees and legal costs and expenses incurred in the Action by Plaintiff and Class Counsel

shall be borne by the Gross Settlement Fund subject to Court approval as set forth herein.

48. This Agreement shall be governed by the laws of the State of California.

49. This Agreement supersedes any and all prior oral or written agreements, negotiations

and discussions between the Parties, including the Settlement Term Sheet, and this Agreement

constitutes the entire agreement with respect to the subject matter hereof. This Agreement may be

amended or modified only by a written instrument signed by or on behalf of all Parties or their

respective successors-in-interest.

50. No waiver of any term or provision of this Agreement, or of any breach or default

hereof or hereunder, shall be valid or effective unless in writing and signed by or on behalf of all


\\

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Parties or their respective successors-in-interest. No waiver of any term or provision of this

Agreement, or of any breach or default hereof or hereunder, shall be construed as a waiver of the

same or any other term or provision or of any previous or subsequent breach thereof.

51. This Agreement shall be construed and interpreted to effectuate the intent of the

Parties, which is to resolve completely those claims and disputes, including in the Action, and as

more fully described herein. If any provision of this Agreement shall be determined to be invalid,

void, or illegal, such provision shall be construed and amended in a manner that would permit its

enforcement, but in no event shall such provision affect, impair, or invalidate any other provision

hereof.

52. Each counsel or other person executing this Agreement on behalf of any Party

hereby warrants that such person has the full authority to do so.

53. All notices, requests, demands, claims, and other communications hereunder shall be

in writing and shall be deemed duly given when both: (i) delivered via electronic mail to the

addresses below, and (ii) delivered personally to the recipient (a) one (1) business day after being

sent to the recipient by reputable overnight courier service (charges prepaid), or (b) five (5)

business days after being mailed to the recipient by certified or registered mail, return receipt

requested and postage prepaid, and addressed to the intended recipient as set forth below:

If to Plaintiff, Class or Class Counsel:

Peter B. Fredman The Law Office of Peter Fredman

125 University Ave., Suite 102 Berkeley, CA 94719 [email protected]

and

Daniel J. Mulligan Jenkins Mulligan & Gabriel LLP 10085 Carroll Canyon Road, Suite 210 San Diego, CA 92131 [email protected]

If to Saxon, or Saxon’s Counsel:


Exhibit A


Owner

Typewritten Text

(to Settlement Agreement) ("Final Approval Order")

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Date: ______ Time: Courtroom 9 Hon. Jon S. Tigar

MARIE GAUDIN, individually, and onbehalf of others similarly situated, Plaintiff, v.

SAXON MORTGAGE SERVICES, INC. a Texas corporation, and Does 1-100,

Defendants.

Case No. C 11-1663-JST

CLASS ACTION

[PROPOSED] ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT, CLASS COUNSEL ATTORNEY FEES AND EXPENSES, AND REPRESENTATIVE PLAINTIFF INCENTIVE AWARD


- 1 - ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Gaudin vs. Saxon Mortgage Services, Inc. - C 11-1663-JST

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This matter came before the Court for hearing on ____________ pursuant to Rule 23 of

the Federal Rules of Civil Procedure (“Rule 23”) and the Order Granting Plaintiff’s Motion For

Class Certification And Appointment of Class Counsel entered by the above captioned Court on

or about August 5, 2013 (Dkt. No. 102) (the “Certification Order”) and the Order Granting

Preliminary Approval of Class Action Settlement (Dkt. No. __) (“Preliminary Approval Order”).

Plaintiff now seeks final approval of the Settlement Agreement and Release (“Settlement

Agreement”) (Dkt. No. __), including fee and expense awards to Class Counsel and the

Settlement Administrator and incentive award to the representative plaintiff. Adequate notice

having been given of the settlement as required in said Preliminary Approval Order, and the

Court having considered all papers filed and proceedings held, there being no objections to the

settlement, and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that:

1. This Judgment incorporates and approves the Settlement Agreement as fair,

reasonable and adequate in all respects, and the terms used herein shall have the same meaning

as set forth in the Settlement Agreement.

2. This Court has jurisdiction over the subject matter of the Action and over all

parties to this Action, including all Class Members, as such term is defined in the Settlement

Agreement.

3. The Notice of Settlement mailed to Settlement Class Members fully and

accurately informed Class Members of all material elements of the proposed settlement, and the

mailing constituted valid, due, and sufficient notice to all Settlement Class Members, and the

best notice practicable under the circumstances. Any person who failed to make a claim is

deemed to have waived the claim. Any person who failed to object is deemed to waive the

objection.

4. The Court finds that the persons identified in Exhibit A are excluded from the

Class and settlement because they made timely and valid requests for exclusion pursuant to the

Class Notice or Notice of Settlement.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5. [The Court overrules each of the objections to the settlement on the merits and

finds that none of the objections raise any prima facie grounds for questioning the fairness,

reasonableness, and adequacy of the settlement. As to the objectors who also requested exclusion

from the settlement, the Court also overrules their objections on the procedural grounds that they

have no standing to object because they are not Settlement Class Members.]

6. The Court approves a Service Award in the amount of $________ to Plaintiff

Marie Gaudin. The Court finds that such award is fair, reasonable, and appropriate in this case

and orders that it be paid from the Gross Settlement Fund in accordance with the Settlement

Agreement.

7. Class Counsel are awarded attorney fees of $_____________ plus expense

reimbursements of $___________ . The Court finds that such awards are fair and reasonable and

orders that they be paid from the Gross Settlement Fund in accordance with the Settlement

Agreement. The Court orders, however, that 10% of Class Counsel’s fee award be held back by

the Administrator pending the final accounting hearing described below.

8. The Court approves the Administrator’s unpaid fees and costs of $____________.

The Court finds that such fees and costs are reasonable and orders that they be paid from the

Gross Settlement Fund in accordance with the Settlement Agreement.

9. The Court approves ____________ as the cy pres recipient.

10. The Court orders the parties to the Settlement Agreement and the Administrator to

perform their obligations thereunder pursuant to the terms of the Settlement Agreement and the

final Plan of Distribution, which is attached hereto as Exhibit B and hereby approved.

11. The Court orders that Judgment be entered on the terms of the Settlement

Agreement as set forth in this Order and Judgment and dismisses the complaint in this case and

all claims and causes of action asserted therein, on the merits and with prejudice, as to the Class

Representative and all Settlement Class Members. This dismissal is without cost to any party

except as specifically provided in the Settlement Agreement.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12. In accordance with the terms of the release set forth in the Settlement Agrement

and incorporated herein, the Court hereby adjudges and decrees that the Class Representative and

all Class Members who did not request exclusion unconditionally and irrevocably remise,

release, forever discharge and covenant not to sue the Releasees, from any and all claims,

counterclaims, actions, causes of action, suits, set-offs, costs, losses, expenses, sums of money,

accounts, reckonings, debts, charges, complaints, controversies, disputes, damages, judgments,

executions, promises, omissions, duties, agreements, rights, and any and all demands, obligations

and liabilities, of whatever kind or character, direct or indirect, whether known or unknown or

capable of being known up until the Effective Date, arising at law or in equity, by right of action

or otherwise, (a) arising out of (i) the legal, factual, or other allegations made in the Action or (ii)

any legal theories that could have been raised based on the allegations of the Action, or (b)

relating in any way to the decision to grant or not grant a loan modification during the time a

Class Member’s loan was serviced by Releasees. For the sake of clarity, this release includes

any claim Plaintiff or a Class Member might bring against a successor servicer based on Saxon’s

conduct with respect to a loan modification application received while Saxon was servicing the

loan. Notwithstanding any other provision, nothing in this Release or the Settlement Agreement

is intended to release, or in any way releases, any claims against any nonparty for that nonparty's

conduct in connection with its servicing of the Class Members' loans or loan modifications.

13. The Court bars and permanently enjoins the Class Representative and all Class

Members from asserting, instituting, or prosecuting, either directly or indirectly, any Released

Claims as that term is defined in the Settlement Agreement, which the Class Representative or

any Class Member had, has, or may have in the future, to the extent provided in the Settlement

Agreement, including, but without limitation, during any appeals from the Final Approval Order

and this Judgment. The terms of the Agreement and the Judgment entered upon this order shall

be forever binding on, and shall have res judicata effect in any pending or future lawsuits or

proceedings that may be brought or maintained by or on behalf of any Class members.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14. This settlement, including this Order and Judgment and the Settlement

Agreement, are not admissions or concessions by Defendants of any fault, omission, liability, or

wrongdoing. This Order and Judgment is not a finding of the validity or invalidity of any claims

in this Action or a determination of any wrongdoing by the defendant. The final approval of the

Settlement Agreement does not constitute any opinion, position, or determination of this Court,

one way or the other, as to the merits of the claims and defenses of the Plaintiff, the Class

Members or Defendant.

15. The Court hereby sets a hearing for ____________ [~1/1/2016] (the “Final

Accounting Hearing”) to (a) receive a report on the Class Member distribution process and/or

confirm its completion, (b) approve a final accounting for the settlement funds, (c) approve

distributions of any residual amounts to the cy pres recipient, (d) approve release of the

aforementioned 10% attorney fee holdback to Class Counsel, and (e) consider and determine

any other final matters pertaining to this settlement and distribution process. Class Counsel

shall file and serve a status report and, as appropriate, proposed orders ___ calendar days in

advance of the hearing.

16. Without affecting the finality of this Order and Judgment, the Court retains

jurisdiction over: (1) implementation and enforcement of the Settlement Agreement pursuant to

further orders of the Court, until such time as the final judgment contemplated hereby has

become effective and each and every act agreed to be performed by the parties hereto shall have

been performed pursuant to the Settlement Agreement, including all payments set forth

thereunder; (2) any other action necessary to conclude this settlement and implement the

Settlement Agreement; and, (3) the enforcement, construction, and interpretation of the

Settlement Agreement including, but not limited to, any dispute concerning Settlement Class

Members’ release of Released Claims.

17. The Court finds that no just reason exists for delay in entering this Judgment and

the Clerk is hereby directed forthwith to enter it.

IT IS SO ORDERED, ADJUDGED AND DECREED



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DATED: _______________, 2015

Hon. Jon S. Tigar United States District Judge


Exhibit B


Owner

Typewritten Text

(to Settlement Agreement) ("Notice of Settlement")

QUESTIONS? NEED DOCUMENTS? VISIT WWW.SAXONMORTGAGEHAMPCLASSACTION.COM

NOTICE OF CLASS ACTION SETTLEMENT AND CLAIMS PROCESS A court authorized this notice. This is not a solicitation from a lawyer. You have not been sued.

THIS IS NOTICE OF A PROPOSED SETTLEMENT OF A CLASS ACTION LAWSUIT AGAINST SAXON MORTGAGE SERVICES (“SAXON”) ON BEHALF OF CALIFORNIA RESIDENTS WHO ENTERED INTO A HOME AFFORDABLE MODIFICATION PROGRAM (“HAMP”) TRIAL PERIOD PLAN (“TPP”) WITH SAXON ON OR BEFORE OCTOBER 1, 2009 AND MADE AT LEAST THREE TRIAL PAYMENTS BUT DID NOT RECEIVE A PERMANENT HAMP LOAN MODIFICATION (THE “CLASS”). THE DEADLINE TO OBJECT TO OR EXCLUDE YOURSELF (“OPT OUT”) FROM THIS SETTLEMENT IS ________________, 2015. READ THIS NOTICE FOR INFORMATION AND INSTRUCTIONS. MOST CLASS MEMBERS SHOULD RECEIVE THE MAXIMUM BENEFITS AVAILABLE TO THEM WITHOUT FURTHER ACTION. SOME CLASS MEMBERS MAY NEED TO SUBMIT A SUPPLEMENTARY CLAIM FORM AND DOCUMENTATION. THE DEADLINE TO DO SO IS ________________, 2015. READ THIS NOTICE FOR FURTHER INFORMATION AND INSTRUCTIONS. PLEASE TAKE NOTICE that a final fairness hearing on the settlement (the “Settlement Hearing”) will be held on _________________, 2015 in Courtroom 9 of the United States District Court of the Northern District of California on the 19th Floor of the Federal Building at 450 Golden Gate Avenue, San Francisco. There and then the Court will consider and determine whether (a) the proposed settlement and plan of distribution of the settlement funds are fair, reasonable and adequate and should be finally approved; (b) the application for an award of attorney fees and expenses to Class Counsel should be approved; (c) the application for a service award to the representative plaintiff should be approved; and (d) any other final matters pertaining to this settlement. The Court may adjourn or continue this hearing without further notice. PLEASE READ THIS NOTICE AND ATTACHMENTS FOR INFORMATION. INFORMATION AND DOCUMENTS ARE ALSO AVAILABLE AT:

WWW.SAXONMORTGAGEHAMPCLASSACTION.COM


– 2 – QUESTIONS? NEED DOCUMENTS? VISIT WWW.SAXONMORTGAGEHAMPCLASSACTION.COM

SUMMARY: • Plaintiff Marie Gaudin (“Plaintiff”) sued Saxon Mortgage Services, Inc. (“Saxon”) on behalf of a class of

California mortgage borrowers fitting the above description (the “Class”). She claimed that Saxon improperly collected TPP payments from the Class and/or improperly denied permanent HAMP loan modifications to the Class. Saxon denied any wrongdoing or liability for the claims alleged.

• A federal court certified the lawsuit as a class action and appointed Plaintiff’s attorneys as Class Counsel:

Daniel J. Mulligan (Cal. State Bar No. 103129) JENKINS MULLIGAN & GABRIEL LLP 10085 Carroll Canyon Road, Suite 210 San Diego, CA 92131 Telephone: 415-982-8500 [email protected]

Peter B. Fredman (Cal. State Bar No. 189097) LAW OFFICE OF PETER FREDMAN 125 University Ave, Suite 102 Berkeley, CA 94710 Telephone: 510-868-2626 [email protected]

• Class members were notified of the class certification and given the opportunity to exclude themselves from the lawsuit, and the lawsuit proceeded on behalf of those who did not exclude themselves.

• Plaintiff and Saxon have now negotiated a proposed settlement of the lawsuit on behalf of the Class that must be approved by the Court before it will become final. As part of that process, Class members have the opportunity to object to the settlement or exclude themselves from the settlement.

• Under the proposed settlement:

o Saxon will pay $4.5 million to create a settlement fund for the benefit of the Class.

o Class Counsel will apply for attorney fees not to exceed 30% plus reimbursement of costs and expenses and a service award for Ms. Gaudin not to exceed $15,000. If these amounts are approved, the net settlement fund available for Class members would be about $3.081 million.

o There are currently 2705 Class members, so the average award for each Class member will be approximately $1,139.00. But the actual award to each Class member will vary according to their circumstances as set forth in the proposed Plan of Distribution which is described below and available at the case website.

o Most Class members will automatically be sent a check for their maximum available settlement payment. But some Class members may need to submit a supplementary claim form and documentation to the settlement administrator by the deadline of _______________, 2015.

• The Court will hold a hearing on ______________, 2015 to determine if it should give final approval of the settlement.

o Plaintiff will file a motion for final approval of the settlement and an application for attorney fees and expenses and the service award to the representative plaintiff.

o The motion and applications will be filed on or about __________, 2015 and available at the case website for Class members to review in advance of the objection and opt-out deadlines

• Class members have the right to exclude themselves from (a/k/a “opt-out” of) the settlement entirely, in which case they will not be bound by it and will not receive any settlement benefits, by sending a written request to the settlement administrator by the by the postmark deadline of ____________, 2015. Class members can use the Request for Exclusion form in this package for their convenience.

• Class members who do not exclude themselves may object to the settlement (or any aspect of it) by sending a written objection to the settlement administrator by the by the postmark deadline of ____________, 2015. The settlement administrator will file all objections with the Court for consideration in connection with the final approval hearing. Class members can use the Objection form in this package for their convenience.

• The settlement administrator is: Saxon Settlement Administrator (Gilardi)

Address Address

Telephone:



INFORMATION

What Is This Case And Settlement About? The lawsuit claims that Saxon improperly collected HAMP TPP trial period payments from the Class Members and/or improperly denied permanent HAMP loan modifications to Class Members in violation of California law. Saxon denies any wrongdoing or liability for the claims alleged. Saxon asserts that its actions conformed to the rules set by the United States Department of Treasury which controls the HAMP program. Rather than go to trial, the parties negotiated a settlement to resolve the lawsuit. Am I A Class Member? The Class Members are: all California residential mortgage borrowers who (a) entered into Home Affordable Modification Program (HAMP) Trial Period Plans (TPPs) with Saxon Mortgage Services, Inc. effective on or before October 1, 2009, and (b) made at least three trial period payments, but (c) did not receive permanent HAMP loan modifications. If you received this notice in the mail, it is because Saxon’s records indicate you are a Class Member entitled to receive benefits. How Much Can Class Members Receive Under The Settlement? The average total award to each Class member will be about $1139.00. For each Class Member, however, the actual amount of your settlement payment will depend on the amount of your monthly TPP payment, whether you lost your home to foreclosure or short sale, and whether you were ever offered or accepted a loan modification (from Saxon or a subsequent servicer of your mortgage like Ocwen). The proposed method for calculating the payment to each Class member is detailed in the proposed Plan of Distribution, which can be found on the settlement website. The Plan of Distribution has the following general characteristics:

• Every Class member who does not exclude himself or herself from the settlement will receive a minimum payment of about $184.

• Other than the $184 minimum payment, the Class member awards will be weighted based on the amount of the Class member’s monthly TPP payments. So, all other things being equal, Class members who had higher monthly TPP payments will receive higher awards than Class members who had lower monthly TPP payments.

• Class members who lost their homes to foreclosure or short-sale without being offered any loan modification will receive the highest level payments.

o Class members who lost their homes to foreclosure or short sale because they were offered a loan modification that was inferior to HAMP may make a claim to qualify for this highest level payment category by sending the settlement administrator a copy of the inferior loan modification offer with the claim form in this package.

• Class members who entered into non-HAMP loan modification agreements will receive

intermediate level payments.

• If you received this notice in the mail, then the cover letter will tell you which award category you are in according to the available mortgage servicing records. If you think the cover letter is wrong about your status, you may make a claim to the settlement administrator by submitting documentation demonstrating the error.

Do I Need To Make A Claim To Receive A Settlement Payment? No. Class members do not need to submit claims to receive benefits. The vast majority of Class Members will receive their maximum payments without taking any action. But if you are a Class member who believes you lost your home to foreclosure or short sale because the modification you were offered was inferior to a HAMP loan modification, then you may need to submit a claim to obtain the maximum award. You may also submit a claim if you believe the cover letter you received is wrong about your award category.



How Can A Class Member Make A Claim? You can use the claim form in this package to submit a claim. If you claim you lost your home to foreclosure or short sale because the modification you were offered was inferior to a HAMP loan modification, then you must submit a copy of the loan modification agreement that you contend was inferior along with the claim form. You may also submit a claim if you believe the cover letter you received is otherwise wrong about which award category you are in. In that case, you need to send appropriate documents showing the error. Claim forms are attached below and are also available on the website. What Was The Total Settlement Amount? The total amount that Saxon agreed to pay to settle this lawsuit is $4.5 million. How Much Of The Total Settlement Fund Will The Class Receive? It is estimated that about $3,080,000.00 will be available for distribution to the Class after accounting for attorney fees and expenses. What Are Class Members Giving Up In Exchange For The Settlement Payments? Under the terms of the proposed settlement, Class members are settling and releasing any claims that were brought in this case or could have brought in the case. Simply put, Class Members are releasing any right to sue based on the Saxon TPP or Saxon’s decision to deny or limit a loan modification. A copy of the actual settlement agreement is available on the case website. What Will The Attorneys Receive From The Settlement? Counsel will make an application to the Court for an attorney fee award not to exceed 30% of the total settlement plus reimbursement of actual litigation costs and expenses. The Court will review Class Counsel’s application and it will decide the final amount of the fee award at the Settlement Hearing based on the amount of time that Class Counsel spent on the case, the amount of costs and expenses they incurred, the risks they took, the success of the litigation, and other considerations. What Will The Representative Plaintiff Receive From The Settlement? The representative plaintiff, Marie Gaudin, is the Class member who brought this case on behalf of all the other Class members. Under the terms of the proposed settlement, Class Counsel will make an application to the Court for a service award to Ms. Gaudin not to exceed $15,000 (in addition to the payment she will get as a Class member, which will be the same as all other class members). The Court will determine the final amount of the service award, if any, at the Settlement Hearing based on a review of the amount of time that Ms. Gaudin spent on the case, the value of her contribution, the personal claims that she abandoned in order to facilitate the Class action and the settlement, the risks she took, and other considerations. Can I Object To The Settlement, Fee Award, Or Service Award? Yes, you may object if you are a Class member. Please see above for instructions on how to notify the parties and the Court of your objection and to obtain the right to be heard by the judge at the Settlement Hearing. Note, however, that you have no right to make an objection to the settlement unless you are a Class member. Objection forms are attached and also are available at the case website. Can I Exclude Myself From The Settlement And Sue On My Own? Yes. Under the terms of the proposed settlement, you may exclude yourself from (a/k/a opt out of) the settlement if you so choose. In that case, you will not release your right to sue Saxon on your own with your own personal attorney, but you will not receive any benefits from the settlement. Exclusion forms are attached and also available at the case website. How Can I Get More Information? Please see the case website (saxonmortgagehampclassaction.com) for more information, or to download copies of case and settlement documents. Future filings such as the motion for final approval of the settlement and the attorney fee application will also be posted on the website as they become available. You can also call the Settlement Administrator toll free at XXX-XXX-XXXX. Additionally, all documents filed in the case are available online using the PACER system for the United States District Court, Northern District Of California (https://ecf.cand.uscourts.gov/cgi-bin/login.pl). HOWEVER, PLEASE DO NOT ATTEMPT TO CONTACT THE COURT DIRECTLY BECAUSE IT CANNOT PROVIDE YOU WITH INFORMATION ABOUT THE CASE.



CLAIM FORM

INSTRUCTIONS: If your cover letter states that you will receive a Tier 1 award, then you do not need to submit a claim because this is the highest award category available. You should file a claim only if (1) you were offered or entered into a loan modification agreement that was inferior to the HAMP TPP you received from Saxon, and lost your home to foreclosure or short sale as a result or (2) you believe the award category set forth in your cover letter is in error. PLEASE COMPLETE THIS FORM AND MAIL IT ALONG WITH THE REQUIRED DOCUMENTS TO THE SETTLEMENT ADMINISTRATOR POSTMARKED BY _________________, 2015 OR BY EMAIL TO:

Saxon Settlement Administrator (Gilardi) Address Address

Telephone: [email protected]

My name is ________________________________________________________ My telephone number is ______________________________________________ The property address of the home subject to the mortgage serviced by Saxon is/was: __________________________________________________________________ My current address is □ the same as above OR __________________________________________________________________ Check appropriate boxes: □ I WAS OFFERED OR ENTERED INTO A LOAN MODIFICATION AGREEMENT

THAT WAS INFERIOR TO THE HAMP TPP I RECEIVED FROM SAXON, AND LOST MY HOME TO FORECLOSURE OR SHORT SALE AS A RESULT.

□ Enclosed with this claim form I am sending a copy of the inferior loan

modification agreement.

□ I BELIEVE THAT THE COVER LETTER SETTING FORTH MY AWARD CATEGORY IS INCORRECT BECAUSE ______________________________

_______________________________________________________________ _______________________________________□ continued on separate sheets

□ Enclosed with this claim form are documents demonstrating the error.

I swear under the penalty of perjury of the laws of the State of California that the foregoing is true and correct. Date:_________ _________________________________ Class Member Signature



EXCLUSION REQUEST FORM

EXCLUSION REQUEST

I want to be excluded from the Gaudin v. Saxon class action settlement. I understand that I will not receive any settlement money from this case. However, I will also not be bound by the settlement, and will keep any rights I have to sue about the claims in this case as part of any other lawsuit (subject to any applicable statutes of limitations).

[ ] I wish to be excluded from this case ___________________________________________________________________________ Name

____________________________________________________________________________ Address City

_____________________________________________________________________________ State Zip Telephone

_____________________________________________________________________________ Signed Date

If you want to be excluded, sign and mail this form, postmarked by _________, 2015 to:

Saxon Hamp Litigation Notice Administrator, address, city, state, zip

Or you may email the signed form as a PDF to [email protected]

DO NOT SEND THIS FORM IF YOU WANT TO STAY IN THE SETTLEMENT AND RECEIVE SETTLEMENT BENEFITS.

OBJECTION FORM

OBJECTION TO SETTLEMENT

I object to the proposed Gaudin v. Saxon class action settlement because ________________________ __________________________________________________________________________________________________________________________________________________________________________________________________________________________________□ continued on separate sheets

___________________________________________________________________________ Name

____________________________________________________________________________ Address City

_____________________________________________________________________________ State Zip Telephone

_____________________________________________________________________________ Signed Date

If you want to object, sign and mail this form, postmarked by _________, 2015 to:

Saxon Hamp Litigation Notice Administrator, address, city, state, zip

Or you may email the signed form as a PDF to [email protected]



COVER LETTER EXEMPLAR

Settlement Administrator Saxon Mortgage HAMP Class Action

Address Address

Tel: xxx-xxx-xxxx www.saxonmortgagehampclassaction.com

Class Member Address Address

Re: Notice Of Class Action Settlement Gaudin v. Saxon Mortgage Services, Inc. United States District Court, Northern District Of Cal. Case No. C 11-1663-JST

Dear [Class Member]: You are receiving the enclosed notice of class action settlement and claims process because Saxon’s records indicate you are a member of the settlement class in the above entitled case. Please see the enclosed materials for a description of the case, settlement, and your options. This letter is to advise you that the available records indicate that… For Global Award only …you are a Class Member entitled to participate in only the minimum award because you do not fit the criteria for the higher award categories. Your award is estimated to be about $184. You do not need to do anything to receive this award. If the settlement is approved, it will be mailed to the address above (unless you provide us an updated address). However, if you believe you fit the criteria for a higher award, you may submit a claim along with documents demonstrating the error. Please read the enclosed materials for further information and instructions, and see the Plan of Distribution on the settlement website (www.saxonmortgagehampclassaction.com) for a detailed description of the award categories. For Tier 1 Class Members …you are a Class Member entitled to participate in the highest possible award category. You do not need to do anything to receive this award. If the settlement is approved, the award will be mailed to the address above (unless you provide us an updated address). Please read the enclosed materials for further information. For Tier 2 Class Members …you are a Class Member entitled to participate in the intermediate level award category because the available records indicate that, although you did not receive a HAMP modification from Saxon, you eventually entered into an alternative loan modification agreement with Saxon or a subsequent mortgage servicer such as Ocwen. You do not need to do anything to receive your award. If the settlement is approved, it will be mailed to the address above (unless you provide us an updated address). However, you may apply for the highest award category if you



can show that, even though you were offered or received a loan modification, you eventually lost your home to foreclosure or short sale because the loan modification you ultimately received was inferior to the HAMP loan modification implicated by the Saxon TPP. Please read the enclosed materials for further information and instructions on how to make a claim for a higher award, and see the Plan of Distribution on the settlement website (www.saxonmortgagehampclassaction.com) for a detailed description of the award categories. Sincerely, Settlement Administrator Enclosures (Class Notice, Summary, Information, Claim Form, Exclusion Request Form, Objection Form)


Case3:11-cv-01663-JST Document129 Filed03/13/15 Page1 of...

Documents

Transcript of Case3:11-cv-01663-JST Document129 Filed03/13/15 Page1 of...