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Armando Plascencia and Melania Plascencia, Individually and On Behalf of All Others Similarly Situated v. Lending 1st Mortgage

December 28, 2012

ARMANDO PLASCENCIA AND MELANIA PLASCENCIA, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
LENDING 1ST MORTGAGE, LENDING 1ST MORTGAGE LLC, EMC MORTGAGE CORPORATION, AND DOES 1
THROUGH 10 INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Claudia Wilken United States District Judge

Attorneys for Plaintiffs and the Class

CLASS ACTION AMENDED [PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF PARTIAL CLASS ACTION SETTLEMENT Courtroom: 2 -- 4th Floor Judge: Hon. Claudia Wilken Complaint Filed: August 29, 2007 Trial Date: November 5, 2012

ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF PARTIAL CLASS ACTION SETTLEMENT

The Court has considered the Parties' Joint Motion for Preliminary Approval of Partial Class Action Settlement (the "Motion") and the arguments presented at the hearing on the Motion. In 5 connection with the Motion, the Court finds that: 6 7

1. On or about August 29, 2007, Plaintiffs Armando Plascencia and Melania Plascencia (the "Class Representatives"), on behalf of themselves and all others similarly situated, filed a 9 complaint in the United States District Court for the Northern District of California (the "District 10 Court") against Lending 1st Mortgage and Lending 1st Mortgage LLC (hereinafter, collectively, 11 "Lending 1st") (the "Action"). On October 11, 2007, March 26, 2008, and July 1, 2008 the Class 12 Representatives filed a First Amended Class Action Complaint (Doc. 5), Second Amended Class 13 Action Complaint (Doc. 46), and Third Amended Class Action Complaint (Doc. 62), respectively, to 14 15 refine their allegations and to add EMC Mortgage Corporation as a named defendant. The Third Amended Complaint is the operative complaint and is hereinafter referred to as the "Complaint." 17

2. On August 21, 2009, the Court entered an order granting in part and denying in part the Class Representatives' class certification motion (the "Class Certification Order") (Doc. 178), and 19 certifying a Class to pursueclaims for violations of Cal. Bus. & Prof. Code § 17200, et seq., and 20 common law fraud. On October 16, 2009, the Court entered a further order ("Class Definition Order") 21 (Doc. 191) certifying the following Class: 22 23

All individuals who, between August 29, 2003 and May 12, 2011, have or have had a Monthly Option ARM loan that: (a) was originated by LENDING 1st MORTGAGEand then sold or owned by LENDING 1st MORTGAGE or EMC MORTGAGE CORPORATION; (b) was secured by real property in the United States; and (c) was Settlement originated or otherwise approved by Defendant LENDING 1st MORTGAGE within the State of California.

That Order appointed Plaintiffs Armando Plascencia and Melania Plascencia as the Class 4 Representatives and the law firms of Smoger & Associates, Arbogast & Berns LLP,*fn1 Seeger Weiss 5 LLP, and Williams Cuker Berezofsky as Class Counsel. On November 29, 2010, an order was entered 6 7 appointing J. Mark Moore of Spiro Moss LLP*fn2 as an additional class counsel. (Doc. 246.)

3. Thereafter, after extensive arms' length negotiations, the Class Representatives and Lending 1st (collectively referred to as the "Parties") entered into an Agreement and Stipulation of 10 Partial Settlement of Class Action (the " Settlement Agreement") memorializing the terms of the 11 agreement between the Parties and subsequently filed the Settlement Agreement with the Court.*fn3

4. On September 10, 2012, the Parties filed the Motion.

14 15 qualified to serve as the Settlement Administrator under the Settlement Agreement.

5. Epiq Class Action and Claims Solutions, Inc. (the "Settlement Administrator") is

6. The terms of the Settlement Agreement appear to be within the range of possible approval as fair, reasonable, adequate and proper, cost-effective, and have been negotiated at arms' 18 length. 19

7. The Court has considered the opposition filed by EMC and, regardless of whether it has standing to object, finds that its objections do not merit denial of this motion. The topics of the declaration to be provided by Lending 1st to Plaintiffs do not appear necessarily to contradict the 2 testimony given by Lending 1st's witness, Mr. Lombardi, previously. Further, if Plaintiffs were to 3 offer the declaration as evidence at a later date, EMC will have an opportunity to oppose the proffer, 4 and if Plaintiffs were to call Mr. Lombardi as a witness, EMC will have an opportunity to cross-5 examine him. In addition, to the extent that EMC argues that the Parties did not provide the Court 6 7 with a copy of Lending 1st's insurance policy in order to assess the fairness of the proposed settlement amount, the Parties have since offered this into evidence. In light of Lending 1st's limited financial 9 resources, the settlement amount is within the range of possible approval as fair and reasonable. 10

8. Therefore, the Settlement Agreement is preliminarily approved by the Court, pursuant 11 to Rule 23(e) of the ...


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