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Plascencia v. Lending 1st Mortgage

United States District Court, Ninth Circuit

May 30, 2013

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.

Jeffrey K. Berns, (SBN 131351) BERNS WEISS LLP, Woodland Hills, CA, -and- Lee A. Weiss (admitted pro hac vice) Garden City, New York.

Mark R. Cuker, (admitted pro hac vice) WILLIAMS CUKER BEREZOFSKY, Philadelphia, PA, Gerson H. Smoger, (SBN 79196) Steven M. Bronson, (SBN 246751) SMOGER & ASSOCIATES, Oakland, CA, Attorneys for Plaintiffs and the Class.

J. Mark Moore (SBN 180473) SPIRO MOORE LLP, Los Angeles, CA, David M. Arbogast, (SBN 167571) ARBOGAST BOWEN LLP, Los Angeles, CA, Gerson H. Smoger, (SBN 79196) Steven M. Bronson, (SBN 246751) SMOGER & ASSOCIATES, Oakland, CA, Christopher A. Seeger, (admitted pro hac vice) SEEGER WEISS LLP, New York, NY, -and- Jonathan Shub, (SBN 237708) SEEGER WEISS LLP, Philadelphia, PA, Attorneys for Plaintiffs and the Class.

Stephen R. Meinertzhagen, (Admitted Pro Hac Vice) LeAnn Pedersen Pope (Admitted Pro Hac Vice) Susan Miller Overbey, (Admitted Pro Hac Vice) BURKE, WARREN, MacKAY & SERRITELLA, P.C., Chicago, Illinois, Gail E. Lees, (SBN 90363) Theodore J. Boutrous, Jr., (SBN 132099) Christopher Chorba, (SBN 216692) GIBSON, DUNN & CRUTCHER LLP, Los Angeles, California. Attorneys for Defendants: EMC MORTGAGE LLC, formerly known as EMC MORTGAGE CORPORATION.

JOINT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND STIPULATION TO VACATE DEADLINES AND STAY ALL PENDING MOTIONS

CLAUDIA WILKEN, District Judge.

Pursuant to Federal Rule of Civil Procedure 6(b) and Local Rule 6-1(b), plaintiffs Armando Plascencia and Melania Plascencia ("Plaintiffs"), and defendant EMC Mortgage Corporation ("EMC") (together, with Plaintiffs, the "Parties"), through their undersigned counsel, stipulate as follows:

WHEREAS, on August 21, 2009, the Court entered an Order granting in part and denying in part Plaintiffs' class certification motion (Dkt. No. 178), certifying a Class to pursue claims for violations of Cal. Bus. & Prof. Code §§ 17200, et seq . and common law fraud.

WHEREAS, on October 16, 2009, the Court appointed Plaintiffs Armando Plascencia and Melania Plascencia as the Class Representatives, the law firms of Smoger & Associates, Arbogast & Berns LLP[1], Seeger Weiss LLP, and Williams Cuker Berezofsky as Class Counsel, and certified the following Class:

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 MORTGAGE and 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 originated or otherwise approved by Defendant LENDING 1st MORTGAGE within the State of California.

On November 29, 2010, the Court appointed J. Mark Moore of Spiro Moss LLP(now known as Spiro Moore LLP) as an additional class counsel. (Dkt. No. 246.)

WHEREAS, on February 24, 2012, the Court entered an order (Dkt. No. 328) granting the parties' joint motion for administrative relief from the case management order (Dkt. No. 327) setting the final pretrial conference for October 24, 2012 at 2:00 p.m. and setting the trial date for November 5, 2012 at 8:30 a.m.

WHEREAS, on July 2, 2012, Plaintiffs filed their Motion for Partial Summary Judgment, or, in the Alternative, Summary Adjudication (Dkt. Nos. 349, 368);

WHEREAS, on July 13, 2012, EMC filed its Motion to Decertify the Class and Motion for Summary Judgment (Dkt. No. 356), Motion to Exclude the Testimony of Leonard Lyons (Dkt. No. 357), Motion to Exclude the Testimony of Jonathan Macey (Dkt. No. 358);

WHEREAS, on July 19, 2012, Plaintiffs filed their Motion to Exclude Testimony of Carol Young (Dkt. No. 364);

WHEREAS, on August 23, 2012, the Court took the Parties motions for partial summary judgment and motions to exclude the testimony of certain witnesses under submission (Dkt. No. 395);

WHEREAS, on September 19, 2012, upon the Parties' stipulation, the Court vacated the October 24, 2012 final pretrial conference, the November 5, 2012 trial, and the deadlines enumerated in the Court's Order for Pretrial Preparation, and ordered that within seven (7) days of the Court's ruling on the parties' cross motions for summary judgment and motions to exclude, the parties were to submit a joint proposed schedule for the final pretrial conference and trial date, or if an agreement cannot be reached, separate proposed schedules (Dkt. Nos. 405, 406)

WHEREAS, the Parties participated in mediation in Philadelphia, Pennsylvania before the Hon. Diane M. Welsh (Ret.) of JAMS on May 22, 2013, and continued having settlement discussions thereafter with Judge Welsh's assistance ( See Declaration of Lee A. Weiss, filed concurrently with this Stipulation, ¶6.);

WHEREAS, on May 28, 2013, the Parties agreed to a proposed class action settlement, but require additional time to prepare and execute a formal settlement agreement, and to prepare and file a motion for preliminary approval ( See Declaration of Lee A. Weiss, filed concurrently with this Stipulation, ¶7.);

WHEREAS, no Party will be prejudiced by the relief requested in this Notice of Settlement and Stipulation; and

WHEREAS, this Notice of Settlement and Stipulation is without prejudice to, or waiver of, any rights or defenses otherwise available to the Parties in this action;

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, between Plaintiffs, by their undersigned counsel, and Defendant, by their undersigned counsel, that, subject to the approval of this Court:

(1) All pending motions currently under submission shall be taken off calendar pending the Court's consideration of the Parties' proposed class action settlement;

(2) a motion for preliminary approval of the parties' settlement shall be filed on or before July 8, 2013; and

(3) the proceedings in this action, except as they relate to consideration of the Parties' proposed settlement, shall be stayed in their entirety.

ORDER

Pursuant to the Stipulation of counsel and for good cause shown, IT IS HEREBY ORDERED that:

(1) all pending motions currently under submission are denied without prejudice as moot pending the Court's consideration of the Parties' proposed class action settlement;
(2) a motion for preliminary approval of the parties' settlement is to be filed on or before July 8, 2013; and
(3) the proceedings in this action, except as they relate to consideration of the Parties' proposed settlement, are stayed in their entirety.

IT IS SO ORDERED.


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