IN THE UNITED STATES DISTRICT COURT FOR … · NATIONSTAR MORTGAGE, LLC, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division DAVID J

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

Huntington Division DAVID J. TRIPLETT,

Plaintiff, individually, and on behalf of a class of similarly-situated persons,

v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC,

Defendant.

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CLASS CERTIFICATION AND ENTRY OF SCHEDULING ORDER

Plaintiff David J. Triplett, by counsel and on behalf of the class proposed below, hereby

respectfully submits this Motion for Preliminary Approval of Settlement, Conditional Class

Certification and Entry of Scheduling Order. After conducting extensive discovery and

proceedings in this Court, the Plaintiff and Defendant Nationstar Mortgage LLC (“Nationstar”)

(collectively, the “Parties”) have reached a proposed settlement agreement.1 Accordingly, for

the reasons stated in the Plaintiff’s Memorandum in Support, which is incorporated by reference

herein, the Plaintiff respectfully request that the Court:

1. Enter an order preliminarily approving the proposed Class Settlement Agreement

and Release, attached hereto as Exhibit A, and directing the Parties to carry out their obligations

pursuant to the terms of the Settlement Agreement.

2. Appoint Plaintiff David J. Triplett as class representative.

1 In addition to the class claims, Plaintiff’s Complaint included individual claims for

illegal debt collection and negligent/fraudulent misrepresentations. The Parties negotiated a separate settlement of Plaintiff’s individual claims.

Case 3:11-cv-00238 Document 70 Filed 05/14/12 Page 1 of 4 PageID #: 1291

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3. Appoint John W. Barrett, Jonathan R. Marshall, and Bailey and Glasser LLP as

class counsel.

4. Certify the following class for settlement purposes only2:

All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the “Class Period”), and who fall into one or more of the following subclasses:

Subclass A – Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00).

Subclass B – Persons with accounts having instances of form debt-collection letters mailed that include the terms “expenses of collection.”

Subclass C – Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower’s loan.

Class Members who believe that they actually paid improper default expenses that

were not waived, reimbursed, or otherwise credited to the Class Members’ loan accounts

may contact the Settlement Administrator and request a Claim Form to describe the

number and nature of the default fees that they claim were improperly imposed on their

loan accounts and that they actually paid.

5. Adopt the following schedule for completion of remaining tasks, the Court’s

calendar permitting:

Class Notice Mailed by: Twenty-one (21) days after entry of the Court’s Order granting preliminary approval of the Settlement.

Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice.

2 Pursuant to the Parties’ Settlement Agreement, Nationstar does not consent to the

certification of any class asserted by Plaintiff, other than solely for settlement purposes. Nationstar denies that the facts of this case meet the requirements of certification of any class. Nothing contained in this Motion, Memorandum in Support, or the Parties’ Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits.


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Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date.

Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date.

The following exhibits are attached in support of this Motion:

Exhibit A: Class Settlement Agreement and Release;

Exhibit B: Proposed Form of Class Notice;

Exhibit C: Proposed Claim Form;

Exhibit D: Kurtzman Carson Consultants (“KCC”) Cost Estimate;

Exhibit E: Declaration of John W. Barrett; and

Exhibit F: Proposed Order

WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and enter

the submitted Proposed Order, and conditionally certify this class action for settlement purposes

only, preliminarily approve the proposed Settlement and Release Agreement, appoint Plaintiff’s

counsel as class counsel, establish a schedule to complete the tasks necessary to effectuate the

proposed settlement, and for such other and further relief as the Court may deem equitable and

just.

Respectfully Submitted, DAVID J. TRIPLETT By: s/ John W. Barrett______ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301 Counsel for Plaintiff


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433210v1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division

DAVID J. TRIPLETT,



Defendant.

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of May, 2012, I electronically filed the foregoing

document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participants:

Counsel for Defendant

John C. Lynch (W. Va. Bar No. 6627)

Jason E. Manning (W. Va. Bar No. 11277) TROUTMAN SANDERS LLP

222 Central Park Avenue, Suite 2000 Virginia Beach, VA 23462 Telephone: (757) 687-7500 Facsimile: (757) 687-7510

E-mail: [email protected] E-mail: [email protected]

s/ John W. Barrett________ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301


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Defendant.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL

CLASS CERTIFICATION AND ENTRY OF SCHEDULING ORDER

Plaintiff David J. Triplett, by counsel and on behalf of the class proposed below, hereby

respectfully submits this Memorandum in Support of his Motion for Preliminary Approval of

Settlement, Conditional Class Certification and Entry of Scheduling Order. After conducting

extensive discovery and proceedings in this Court, the Plaintiff and Defendant Nationstar

Mortgage LLC (“Nationstar”), by counsel, (collectively, the “Parties”) have reached a proposed

settlement agreement. Plaintiff respectfully requests that the Court enter an Order (1)

conditionally certifying a class action for settlement purposes only1; (2) preliminarily approving

the Parties’ proposed Settlement and Release Agreement (the “Settlement Agreement”); (3)

appointing Plaintiff as class representative and Plaintiff’s counsel as class counsel; and (4)

establishing a schedule to complete the tasks necessary to effectuate the proposed settlement.

For the reasons set forth more particularly below, the Plaintiff respectfully requests that the

1 Pursuant to the Parties’ Settlement Agreement, Nationstar does not consent to the certification of any class asserted by Plaintiff, other than solely for settlement purposes. Nationstar denies that the facts of this case meet the requirements of certification of any class. Nothing contained in this Memorandum in Support or the Parties’ Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits.


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Court grant his Motion.2 Nationstar has agreed to the proposed order of preliminary approval

attached to this motion, for settlement purposes only.

I. INTRODUCTION

Plaintiff purports to bring his Complaint on behalf of himself and a class of similarly

situated individuals (the “Lawsuit”). Plaintiff alleges, among other things, that Nationstar

violated various provisions of the West Virginia Consumer Credit and Protection Act, W. Va.

Code § 46A-1-101 et seq. (“WVCCPA”), with respect to its servicing of loans entered into by

West Virginia borrowers.

After conducting extensive discovery into Plaintiff’s claims and Nationstar’s loan

servicing practices, including the deposition of Plaintiff, Plaintiff’s spouse, and Nationstar’s

corporate representative, A.J. Loll, and in light of Plaintiff’s Motion to Certify Class (ECF Nos.

41-42) and Nationstar’s Brief in Opposition thereto (ECF No. 53), the Parties turned their

collective attention to negotiating a resolution of the Lawsuit. The resulting proposed settlement

provides that each Class Member who was allegedly charged a late fee exceeding $15, issued a

form demand letter that included the term “expenses of collection,” and/or whose partial loan

payments were returned by Nationstar prior to the date of acceleration, in violation of the

WVCCPA, will recover, before deductions for court-approved attorneys’ fees and other

reasonable expenses, an estimated $133.23 for each alleged instance. Class Members who

believe that they were charged improper default expenses that were not waived, reimbursed, or

otherwise credited to the Class Members’ loan accounts may also contact the Settlement

2 All exhibits referenced in this Memorandum are attached to the Motion per the Local

Civil Rules.


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Administrator to request a Claim Form for any instance of an improper default expense charged

to their account and that they actually paid.3

Pursuant to the terms of the Parties’ Settlement Agreement, Nationstar denies any and all

allegations and claims asserted against it in the Complaint, opposes class certification for

litigation purposes, and denies any and all wrongdoing. Nationstar denies that the facts of this

case meet the requirements of certification of any class other than for settlement purposes.

According to the Parties’ Settlement Agreement, nothing contained in this Memorandum or the

Parties’ Settlement shall be construed in any manner as precedent, persuasive authority, or an

admission by Nationstar of the propriety of certification of any class on the merits.

As stated in the Parties’ Settlement Agreement, the Parties, solely in order to avoid the

cost, burden, expense, and uncertainty of further litigation, desire to compromise and settle

Plaintiff’s claims asserted in the Lawsuit and have entered into the Settlement Agreement to

resolve the disputes between them, pending approval of the Court, and to achieve complete

peace. Plaintiff submits that this is an outstanding settlement worthy of preliminary approval,

especially considering the continued expense, risks, and burdens of protracted and contested

litigation.

II. PROCEDURAL BACKGROUND

On February 15, 2011, Triplett commenced this action against Nationstar in the Circuit

Court of Putnam County, West Virginia, Case No. 11-C-46, asserting various claims pertaining to

the servicing of the Loan, including claims for alleged violations of the WVCCPA. On April 8,

2011, Nationstar removed the Lawsuit to the United States District Court for the Southern

District of West Virginia, Huntington Division, Case No. 3:11-cv-238, pursuant to 28 U.S.C. §§

3 Note: the estimated gross distribution amount per instance is subject to change and may be reduced depending on the number of improper default fee claims submitted by Class Members.


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1441 and 1446, and the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d)(1)-(11)

(“CAFA”).

In his Complaint, Plaintiff alleges, among other things, that Nationstar assessed late fees in

excess of the $15 statutory maximum, in violation of W. Va. Code § 46A-3-112(1)(a). Plaintiff also

alleges that Nationstar issued form demand letters threatening to collect “expenses of collection,” in

violation of W. Va. Code §§ 46A-2-115(a), -127(g), and -128(c). Plaintiff further alleges that

Nationstar returned partial loan payments to borrowers prior to the date of acceleration of their

loans, in violation of W. Va. Code § 46A-3-111(1).

The Parties have engaged in extensive written discovery concerning Plaintiff’s claims.

(ECF Nos. 8, 13-16). In fact, Nationstar has supplemented its responses to Plaintiff’s discovery

requests on at least three occasions, providing Plaintiff with all relevant, non-privileged documents.

(ECF Nos. 23, 33, 36). Plaintiff conducted a Rule 30(b)(6) deposition of Nationstar’s corporate

representative, A.J. Loll. (ECF No. 29). Nationstar deposed both Plaintiff and his wife, Elke

Triplett. (ECF Nos. 37-38). Nationstar also served Plaintiff with its Rule 26(a)(2) expert

disclosures. (ECF No. 50). Plaintiff has filed his Motion to Certify Class, and Nationstar has filed

its Brief in Opposition. (ECF Nos. 42-43, 53).

As a proposed class representative, Plaintiff has been assessed late fees exceeding $15, was

issued form demand letters that included the term “expenses of collection,” and had a partial loan

payment returned prior to acceleration of his Loan. The discovery and other information informally

exchanged between the parties for settlement purposes has revealed that from February 15, 2007

through July 1, 2011, Nationstar: assessed late fees over $15 to West Virginia borrowers on

approximately 7,539 occasions, representing 836 loans; issued approximately 3,674 form debt

collection letters to West Virginia borrowers that included the term “expenses of collection,”


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representing 709 loans; and returned partial loan payments to West Virginia borrowers prior to the

date of acceleration of their loans on approximately 46 occasions, representing 27 loans. (Ex. A –

Settlement Agreement ¶ C-2).

For the reasons stated in Nationstar’s Brief in Opposition to Plaintiff’s Motion to Certify

Class, Nationstar maintains that Plaintiff’s class claims are not certifiable. (ECF No. 53).

Further, Nationstar has asserted various defenses against Plaintiff’s class claims, including the

statute of limitations, bankruptcy preclusion, contractual defenses, and preemption under the

National Bank Act (“NBA”), Home Owners Loan Act (“HOLA”), and the Depository

Institutions Deregulation and Monetary Control Act, 12 U.S.C. § 1831d (“DIDA”). Nationstar’s

defenses are set forth with particularity in its Brief in Opposition. (ECF No. 53).

Nationstar does not, by virtue of entering into the Settlement Agreement or by agreeing

to the attached proposed order, concede the truth or validity of any of Plaintiff’s allegations or

the propriety of certification of any class other than solely for settlement purposes. In the event

that, for any reason whatsoever, the Parties’ settlement does not become final, Nationstar will not

in any manner be barred from disputing any of Plaintiff’s allegations or Plaintiff’s attempt to

certify his class claims, as a result of the proposed settlement or by agreeing to the proposed

order . (Settlement Agreement ¶¶ B-4, C-22, C-28).

III. PROPOSED SETTLEMENT

A. Terms of Parties’ Settlement Agreement

The proposed class action settlement requires Nationstar to pay $1,500,000 into a

Common Fund. The settlement amount is a lump sum, “all-in” payment that will cover all of

Nationstar’s settlement obligations to Plaintiff and the Class Members, including a proposed

$5,000 service award to Plaintiff and attorneys’ fees and costs. In addition to the $1,500,000


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settlement payment, Nationstar will be responsible to pay for the costs of administration of the

settlement. (Settlement Agreement ¶¶ C-3 – C-6).

The proposed settlement contemplates the creation of three subclasses: Subclass A –

borrowers who were assessed late fees exceeding $15; Subclass B – borrowers who were mailed

form debt collection letters including the term, “expenses of collection”; and

Subclass C – borrowers whose partial loan payments were returned prior to the date of

acceleration of their loans in violation of the WVCCPA.4 Class Members who believe that they

were charged improper default expenses may also submit a Claim Form describing the number

and nature of the default fees that they claim were improperly imposed on their loan accounts.

Class Members are entitled to receive a pro rata distribution of the $1,500,000 settlement

amount, after deductions for the service award and attorneys’ fees and costs, for each qualifying

instance of a late fee over $15, demand letter including the term “expenses of collection,” and

returned partial loan payment prior to the date of acceleration. Class Members who submit

Claim Forms for reimbursement of improper default expenses charged to their loan accounts that

they actually paid may be reimbursed out of the settlement amount. (Settlement Agreement ¶¶

C-1, C-5(a)& (h)).

Accordingly, the gross distribution, before deduction for the court-approved attorneys’

fees and service award, is an estimated $133.23 per instance ($1,500,000 divided by 11,259),

excluding claims for improper default expenses. In other words, each Class Member would

receive an estimated $133.23, before deductions, for each late fee over $15, demand letter

4 See supra at Section V for the precise language of the proposed class definition.


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including the term “expenses of collection,” and returned partial payment prior to the date of

acceleration.5

Based on currently available information, the Parties estimate that the average loan was

charged a late fee over $15, issued a demand letter including the terms, “expenses of collection,”

or had a partial loan payment returned prior to the date of acceleration on 10.34 occasions. Thus,

the gross average payment per loan is an estimated $1,377.60, excluding claims for default

expenses.

Nationstar’s records identify Class Members who were charged late fees over $15,

issued the demand letters including the term “expenses of collection,” and whose partial loan

payments were returned prior to the date of acceleration, as well as the number of late fees,

demand letters, and returned partial payments prior to acceleration for each Class Member. For

this reason, the Class Members will not be required to submit claim forms to obtain their share of

the settlement proceeds. Instead, the Settlement Administrator will mail checks to all Class

Members who do not opt out of the settlement. Further, Class Members may elect to request a

Claim Form for any instance of an improper default expense, such as foreclosure attorneys’ fees,

charged to their account that they actually paid. Any such instance will be paid out of the

Common Fund. Only one distribution per qualifying instance shall be made. (Settlement

5 If the Court awards a fee of one-third the amount of the settlement ($500,000), and a

service award of $5,000, Class Members will receive a net cash payment of an estimated $88.37 for each qualifying late fee, demand letter, and returned partial loan payment prior to the date of acceleration. Note: the estimated gross and net distribution amounts per instance are subject to change and may be reduced depending on the number of default fee claims submitted by Class Members.


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Agreement, ¶ C-10). These procedures will guarantee that a vast majority, if not all, of the Class

Members enjoy the financial fruits of the settlement.6

B. Notice and Administration Provisions

“In the context of a class action, the due process requirements of the Fifth Amendment

require ‘[r]easonable notice combined with an opportunity to be heard and withdraw from the

class.’” Groves v. Roy G. Hildreth & Son, Inc., No. 2:08-cv-820, 2011 U.S. Dist. LEXIS

106875, at *9 (S.D.W. Va. Sept. 20, 2011) (quoting In re Serzone Prods. Liability Litig., 231

F.R.D. 221, 231 (S.D.W. Va. 2005)); see also Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d

466, 472 (W.D. Va. 2011). Rule 23(c)(2) requires “the best notice practicable under the

circumstances, including individual notice to all members who can be identified through

reasonable effort.” Fed. R. Civ. P. 23(c)(2); see also Helmick v. Columbia Gas Transmission,

No. 2:07-cv-743, 2010 U.S. Dist. LEXIS 65808, at *21 (S.D.W. Va. July 1, 2010); Muhammad

v. Nat’l City Mortgage, Inc., No. 2:07-cv-423, 2008 U.S. Dist. LEXIS 103534, at *6-7 (S.D.W.

Va. Dec. 19, 2008). The notice must “inform potential class members of the nature of the action,

that class members may make an appearance through counsel, that class members may exclude

themselves from the settlement, and that the class judgment will have a binding effect on class

members who are not excluded.” Groves, 2011 U.S. Dist. LEXIS 106875, at *9; Helmick, 2010

U.S. Dist. LEXIS 65808, at *21. Silence on the part of potential class members receiving the

notice equates to “tacit consent to the court’s jurisdiction.” In re Serzone Prods. Liability Litig.,

231 F.R.D. at 231; see also Krell v. Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am.

Sales Practice Litig. Agent Actions), 148 F.3d 283, 306 (3d Cir. 1998).

6 In addition to the class claims, Plaintiff’s Complaint included individual claims for

illegal debt collection and negligent/fraudulent misrepresentations. The Parties negotiated a separate settlement of Plaintiff’s individual claims.


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The type of notice to which a member of a class is entitled depends upon the information

available to the parties about that person, and the possible methods of identification. See In re

Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1098 (5th Cir. 1977) (citing Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). In determining the reasonableness of

the effort required, the court must look to the “anticipated results, costs, and amount involved.”

In re Nissan, 552 F.2d at 1099. “[D]ue process is satisfied ‘where a fully descriptive notice is

sent first-class mail to each class member, with an explanation of the right to opt out.’”

Domonoske, 790 F. Supp. 2d at 472 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812

(1985)).

Nationstar’s loan servicing records reveal the name, address and pertinent account

information for all Class Members. Nationstar will provide the Settlement Administrator with

the last known address of each Class Member. With such detailed information, the first-class

mailed notice proposed in the Settlement Agreement will provide the best notice to class

members. Notices returned with forwarding addresses shall be promptly re-mailed. Any notices

returned without a forwarding address shall be re-mailed after the Administrator searches the

National Change of Address database maintained by the United States Postal Service and

performs a LexisNexis records search. The Parties’ plan further provides for the establishment

of an informational website and toll-free telephone support number. These procedures are

clearly designed to reach the maximum number of Class Members at a reasonable expense.

The Parties’ proposed Notice of Class Settlement provides a full description of the nature

of the action, proposed settlement, and requested attorneys’ fees. See Domonoske, 790 F. Supp.

2d at 472. The Notice describes in plain English the terms and operation of the settlement, the

considerations that caused Class Counsel to conclude that the settlement is fair and adequate, the


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procedure for objecting to and opting out of the settlement, and the date of the fairness hearing.

(Ex. B – Notice). The Notice also explains the process through which any Class Members who

actually paid an improper default expense, such as foreclosure attorneys’ fees, may request

reimbursement. (Ex. C – Claim Form).

To administer the settlement, the Parties have selected and propose an experienced class

action administration firm, Kurtzman Carson Consultants (“KCC”). KCC has estimated that the

cost of administration will not exceed $18,785.00. (Ex. D – KCC Cost Estimate).

IV. THE SETTLEMENT MERITS PRELIMINARY APPROVAL

Settlement of class actions must be approved by the Court. Fed. R. Civ. P. 23(e);

Scardelletti v. Debarr, 43 Fed. Appx. 525, 528 (4th Cir. 2002); In re Jiffy Lube Sec. Litig., 927

F.2d 155, 158 (4th Cir. 1991); Domonoske, 790 F. Supp. 2d at 472; Muhammad, 2008 U.S. Dist.

LEXIS 103534, at *8. “The primary concern addressed by Rule 23(e) is the protection of class

members whose rights may not have been given adequate consideration during the settlement.”

In re Jiffy Lube Sec. Litig., 927 F.2d at 158; see also Groves, 2011 U.S. Dist. LEXIS 106875, at

*14.

Such approval typically involves a two-step process of “preliminary” and “final”

approval. See Manual for Complex Litigation § 21.632, at 414 (4th ed. 2004); Grice v. PNC

Mortgage Corp. of Am., No. 97-3804, 1998 WL 350581, at *2 (D. Md. May 21, 1998)

(endorsing Manual’s two-step process); Horton v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

855 F. Supp. 825, 827 (E.D.N.C. 1992). In the first stage, the Parties submit the proposed

settlement to the Court for preliminary approval. In the second stage, following preliminary

approval, the Class is notified and a fairness hearing scheduled at which the Court will determine

whether to approve the settlement. See Bicking v. Mitchell Rubenstein & Assocs., No. 3:11-cv-

78, 2011 U.S. Dist. LEXIS 127173, at *12 (E.D. Va. Nov. 3, 2011) (“Prior to granting final


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approval, the court must direct reasonable notice to all potentially affected class members, allow

time for objection, and provide a ‘fairness hearing.’”).

Upon submission to the court of the parties’ proposed settlement, a court will undertake a

preliminary evaluation to determine whether the proposed settlement “appears to fall within the

range of possible approval.” Manual for Complex Litigation § 30.41, at 265 (3d ed. 2000); see

also All Bromine Antitrust Plaintiffs v. All Bromine Antitrust Defendants, 203 F.R.D. 403, 416

(S.D. Ind. 2001). The power to preliminarily approve a settlement lies “within the sound

discretion of the Court.” In re Vitamins Antitrust Litig., MDL No. 1285, 2001 U.S. Dist. LEXIS

25071, at *30 (D.D.C. July 25, 2001). “[T]here is a strong initial presumption that the

compromise is fair and reasonable.” In re Microstrategy, Inc. Sec. Litig., 148 F. Supp. 2d 654,

663 (E.D. Va. 2001) (quoting S.C. Nat’l Bank v. Stone, 139 F.R.D. 335, 339 (D.S.C. 1991));

Horton, 855 F. Supp. at 827 (holding that question at preliminary approval stage is simply

whether there is “probable cause” to justify notifying class members of proposed settlement); In

re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1384 (D. Md. 1983). The bar for

obtaining preliminary approval is low. All Bromine Antitrust Plaintiffs, 203 F.R.D. at 416.

In determining whether a settlement meets the requirements of Rule 23, the Fourth

Circuit has adopted a bifurcated analysis involving inquiries into the fairness and adequacy of the

settlement. Scardelletti, 43 Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 158;

Groves, 2011 U.S. Dist. LEXIS 106875, at *15. A class settlement is fair when it is “reached as

a result of good faith bargaining at arm’s length, without collusion.” In re Jiffy Lube Sec. Litig.,

927 F.2d at 159; Bicking, 2011 U.S. Dist. LEXIS 127173, at *12. The Court should be satisfied

that “the proposed settlement appears to be the product of serious, informed, non-collusive

negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to


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class representatives or segments of the class, and falls within the range of possible approval.”

Samuel v. Equicredit Corp., No. 00-6196, 2002 U.S. Dist. LEXIS 8234, at *1 n.1 (E.D. Pa.

2002); In re Vitamins Antitrust Litig., MDL No. 1285, 2001 U.S. Dist. LEXIS 25071, at *29-30;

In re Shell Oil Refinery, 155 F.R.D. 552, 555 (E.D. La. 1993). “Absent evidence to the contrary,

the court may presume that settlement negotiations were conducted in good faith and that the

resulting agreement was reached without collusion.” Muhammad, 2008 U.S. Dist. LEXIS

103534, at *9-10.

In assessing the fairness of a proposed settlement, the Court must look to the following

factors: (1) posture of the case at the time the settlement is proposed; (2) extent of discovery that

has been conducted; (3) circumstances surrounding the negotiations; and (4) experience of

counsel in the relevant area of class action litigation. Scardelletti, 43 Fed. Appx. at 528; In re

Jiffy Lube Sec. Litig., 927 F.2d at 159; Groves, 2011 U.S. Dist. LEXIS 106875, at *16;

Loudermilk Servs., Inc., No. 3:04-cv-966, 2009 U.S. Dist. LEXIS 25520, at *8 (S.D.W. Va. Mar.

18, 2009). In determining the adequacy of the proposed settlement, the Court must consider: (1)

relative strength of Plaintiff’s case on the merits; (2) existence of any difficulties of proof or

strong defenses Plaintiff is likely to encounter if the case proceeds to trial; (3) anticipated

duration and expense of additional litigation; (4) solvency of defendant and likelihood of

recovery of a litigated judgment; and (5) degree of opposition to the settlement. Scardelletti, 43

Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 159; Groves, 2011 U.S. Dist. LEXIS

106875, at *16-17; Loudermilk Servs., Inc., 2009 U.S. Dist. LEXIS 25520, at *8-9.

Consideration of the applicable factors reveals that the Parties’ proposed Settlement

Agreement should be preliminarily approved. The Parties’ settlement was indeed the product of

serious, informed, arm’s-length, and non-collusive negotiations. In fact, the Parties did not


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engage in settlement negotiations until the daylong mediation conducted by the Honorable Chief

Judge Joseph R. Goodwin on February 15, 2012, exactly one year to the day that Plaintiff filed

the Lawsuit in Putnam County. The Parties submitted separate mediation statements to Judge

Goodwin in preparation for the mediation. Prior to the mediation, Plaintiff had obtained all

relevant documents from Nationstar and completed a critical Rule 30(b)(6) deposition regarding

Nationstar’s loan servicing practices. (Ex. E – Decl. of John W. Barrett).

The settlement has no obvious deficiencies, and does not grant preferential treatment to

the class representative or any segments of the class. All Class Members will be treated equally,

and will enjoy the same recovery for each late fee, demand letter, partial loan payment returned

prior to the date of acceleration, and improper default expense. The $1,500,000 recovery itself is

substantial. Further, if the Court grants requested fee and service awards, the Parties expect that

the Class Members will receive an estimated net cash payment of $88.37 for each late fee,

demand letter, and returned partial loan payment prior to the date of acceleration (excluding

claims for improper default fees). This sum is almost six times the amount of each alleged

unlawful late fee. The adequacy of the net settlement payment also compares favorably with the

statutory damages range of $450 to $4,500 per violation. See W. Va. Code §§ 46A-5-101(1) &

106. The intrinsic value of the net settlement payment to Class Members is readily apparent

when one considers the risks inherent in continued and protracted litigation, including that the

Court could deny Plaintiff’s Motion to Certify Class and foreclose any possibility of class

recovery, the costs and uncertainty of litigation, and the expense and delay that accompany the

appeal process.

The settlement is particularly valuable to absent Class Members who, but for the

settlement, likely would be unaware of the existence of their legal claims. Even if they were


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aware, given the relatively small amounts of money involved (i.e., the imposition of a $15 late

fee), absent class members, and attorneys who may represent them, would have little financial

incentive to prosecute individual actions. The alternative to bringing this case as a class action is

bringing hundreds of individual claims against Nationstar. Realistically, the alternative to a class

action under the present circumstances is no action at all. The relatively small amount of the

disputed fees and returned payments makes it unlikely that Class Members would pursue their

claims on an individual basis.

“[C]ompromise and settlement are favored by the law.” Groves, 2011 U.S. Dist. LEXIS

106875, at *16-17. The proposed settlement serves the overriding public interest in settling

litigation. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976). The complexity,

expense, and duration of class action litigation are factors that mitigate in favor of preliminary

approval of a settlement. In re Corp. Litig., 264 F.3d 201, 231, 233 (3d Cir. 2001); Girsh v.

Jepson, 521 F.3d 153, 157 (3d Cir. 1975); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463

(2d Cir. 1974). While the Parties could have litigated the case to judgment and taxed the

resources of the litigants and the Court, they chose instead to rationally and reasonably forgo the

expense and uncertainty of continued litigation and focus their efforts on achieving a fair and

adequate settlement that took the risks of further litigation into account.

Finally, the “opinion of class action counsel, with substantial experience in litigation of

similar size and scope, is an important consideration.” Muhammad, 2008 U.S. Dist. LEXIS

103534, at *10. “‘When the parties’ attorneys are experienced and knowledgeable about the

facts and claims, their representations to the court that the settlement provides class relief which

is fair, reasonable and adequate should be given significant weight.’” Id. at *10-11 (quoting

Rolland v. Cellucci, 191 F.R.D. 3, 10 (D. Mass. 2000)). In the present case, proposed class


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counsel, who recommends the settlement, is skilled and experienced in consumer lending class

actions. (Ex. E – Decl. of John W. Barrett ¶ 6). See Muhammad, 2008 U.S. Dist. LEXIS

103534, at *11 (recognizing that Plaintiff’s counsel, Bailey & Glasser, particularly John W.

Barrett and Jonathan R. Marshall, are “skilled and experienced in class action litigation, and have

served as class counsel in several cases, including consumer lending cases”).

V. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE

The Parties’ proposed settlement contemplates the certification of a settlement class

defined as follows:





(Settlement Agreement ¶ C-1).

As stated above, Class Members who believe that they were charged improper default

expenses may request a Claim Form describing the number and nature of the default fees that

they claim were improperly imposed on their loan accounts and that they actually paid.

The proposed settlement class must meet the requirements for certification under Rule

23. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 620 (1997); In re Serzone Prods. Liability

Litig., 231 F.R.D. at 236-37. The Parties have agreed to the certification of the class for

settlement purposes only. In the event that this settlement does not become finally effective,


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Nationstar has retained the right to oppose any future motion to certify any class, and nothing in

Nationstar’s agreement not to oppose certification at this time will be construed as a waiver of

that right. (Settlement Agreement ¶ C-22, C-28).

A. The Class Satisfies the Numerosity, Commonality, Typicality and Adequacy Elements of Rule 23(a)

1. Numerosity

Rule 23(a)(1) requires that the class be of sufficient size that joinder of all members is

“impracticable.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; Bicking, 2011 U.S.

Dist. LEXIS 127173, at *5. “In determining whether joinder is impracticable, a court should

analyze the factual circumstances of the case rather than relying on numbers alone.” In re

Serzone Prods. Liability Litig., 231 F.R.D. at 237; see also Brady v. Thurston Motor Lines, 726

F.2d 136, 145 (4th Cir.1984); Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375

F.2d 648 (4th Cir. 1967). Factors to consider are “the estimated size of the class, the geographic

diversity of class members, the difficulty of identifying class members, and the negative impact

of judicial economy if individual suits were required.” Christman v. Am. Cyanamid Co., 92

F.R.D. 441, 451 (N.D.W. Va. 1981); see also McGlothlin v. Connors, 142 F.R.D. 626, 632

(W.D. Va. 1992).

In the present case, Class Members hold a total of 1,089 loans. Individual joinder of all

of these persons is impracticable, especially considering the relatively small amount of the

disputed charges and the geographic dispersal of Class Members across the state of West

Virginia. Courts have certified class actions with fewer members. See, e.g., Cypress, 375 F.2d at

653 (eighteen class members). Clearly, the proposed class satisfies the numerosity requirement.


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2. Commonality

Rule 23(a)(2) requires a showing of the existence of “questions of law or fact common to

the class.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; see also Lienhart v. Dryvit

Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001). Either common questions of law or fact can

establish commonality. Black v. Rhone-Poulenc, Inc., 173 F.R.D. 156, 161 (S.D.W. Va. 1996).

Factual differences among the class members’ cases will not preclude certification if the class

members share the same legal theory. Peoples v. Wendover Funding, Inc., 179 F.R.D. 492, 498

(D. Md. 1998); see also Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984); Christman,

92 F.R.D. at 452 n.28. The commonality requirement is subsumed under the more stringent

predominance requirement of Rule 23(b). Lienhart, 255 F.3d at 147 n.4; In re Serzone Prods.

Liability Litig., 231 F.R.D. at 237.

This action implicates the central and overriding common question of whether

Nationstar’s alleged practices and procedures regarding late fees, demand letters, and return of

partial loan payments prior to the date of acceleration violate West Virginia law. This question

is common to all putative Class Members, as all have been assessed a late fee over $15, issued a

demand letter demanding payment of “expenses of collection,” or had a partial loan payment

returned prior to the date of acceleration, or a combination of these three categories. The

resolution of these common questions can be determined by evidence concerning Nationstar’s

alleged servicing practices and procedures. Accordingly, commonality is satisfied.

3. Typicality

To establish typicality under Rule 23(a)(3), the “claims or defenses of the representative

parties [must be] typical of the claims or defenses of the class.” In re Serzone Prods. Liability

Litig., 231 F.R.D. at 238. “When it is alleged that the same unlawful conduct was directed at or

affected both the named plaintiff and the class sought to be represented, the typicality


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requirement is usually met irrespective of varying fact patterns which underlie individual

claims.” Black, 173 F.R.D. at 162. For purposes of typicality, there is a “‘sufficient nexus . . . if

the claims or defenses of the class and class representatives arise from the same event or pattern

or practice and are based on the same legal theory.’” In re Serzone Prods. Liability Litig., 231

F.R.D. at 238 (quoting In re Trazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D.

Fla. 2004)). Thus, the typicality rule assures that the class representatives’ interests are

“aligned” with those of the class. Kennedy v. Sullivan, 138 F.R.D. 484, 488 (N.D.W. Va. 1991).

Plaintiff’s claims are clearly aligned with those of the putative Class Members. The facts

supporting Plaintiff’s claims are straightforward and typical of, if not identical to, the claims of

the Class Members. All claims are based upon the same legal theories, and arise out of an

alleged common and standard course of conduct by Nationstar over the duration of the class

period. As such, the proposed class satisfies the Rule 23(a)(3) typicality requirement.

4. Adequacy of Representation

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect

the interests of the class.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 238. The

representative must show that there are no conflicts of interest between his interests and those of

the class he seeks to represent and that he has the willingness and ability to play an active role in

the litigation and vigorously represent the class, while protecting the interests of the absentee

class members. Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 129-30 (5th Cir. 2005); see also

Rhone-Poulenc, 173 F.R.D at 162.

Plaintiff has no interests that are antagonistic to or conflict in any way with the interests

of the proposed class as a whole. Plaintiff shares an interest with the other Class Members in

opposing Nationstar’s alleged loan servicing practices, and has willingly stepped forward to


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pursue his claims on a class-wide basis. Plaintiff will thus fairly and adequately protect the

interests of the class.

B. The Proposed Class Satisfies Rule 23(b)(3) Requirements of Predominance and Superiority

In order for Plaintiff to satisfy Rule 23(b), the Court must find that (1) questions of law or

fact common to the members of the class predominate over any questions affecting only

individual members, and (2) a class action is superior to other available methods for the fair and

efficient adjudication of the controversy. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311,

319 (4th Cir. 2006); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004); In re

Serzone Prods. Liability Litig., 231 F.R.D. at 239-40.

1. Common Questions of Law or Fact Predominate

Rule 23(b)(3) requires that the questions of law or fact common to all Class Members

predominate over questions pertaining to individual members. In re Serzone Prods. Liability

Litig., 231 F.R.D. at 239. Common questions predominate if class-wide adjudication of the

common issues will significantly advance the adjudication of the merits of all class members’

claims. “The predominance inquiry ‘tests whether proposed classes are sufficiently cohesive to

warrant adjudication by representation.’” Lienhart, 255 F.3d at 142 (quoting Amchem Prod.,

Inc., 521 U.S. at 623); Gariety, 368 F.3d at 362. When certifying a class for settlement purposes

only, manageability problems that would arise if the class were litigated, and that would prevent

certification of a litigation class, need not be considered. See Newberg on Class Actions s. 13:36,

p. 438 (4th ed. 2002) (stating that “for a settlement class there are fewer procedural barriers for

certification . . . . Where class counsel must still prove there are common questions of law or

fact, manageability concerns should not prevent a settlement class from being certified.”);

Amchem Prods. v. Windsor, 521 U.S. 591, 620 (U.S. 1997) (“Confronted with a request for


20 530630

settlement-only class certification, a district court need not inquire whether the case, if tried,

would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the

proposal is that there be no trial.”).

The common questions outlined above are broad and apply to all Class Members, and are

readily capable of determination on a class-wide basis. Nationstar has identified relevant Class

Members and the number of instances of common alleged violations. While Nationstar

opposed class certification and asserted that its individualized affirmative defenses present

management problems for certification of a class for litigation purposes, that is not relevant to

certification of the class for settlement purposes. Therefore common questions predominate for

purposes of the class settlement satisfying the requirements of Rule 23(b)(3).

2. The Class Action is the Superior Method to Adjudicate Plaintiff’s Claims

Rule 23(b)(3) also requires the Court to find that a class action is superior to other

available methods for the fair and efficient adjudication of the controversy. Lienhart, 255 F.3d at

147; Bicking, 2011 U.S. Dist. LEXIS 127173, at *10. Factors to be considered by the Court

include: (1) class members’ interests in individually controlling the prosecution or defense of

separate actions; (2) extent and nature of any litigation concerning the controversy already begun

by or against class members; (3) desirability or undesirability of concentrating the litigation of

the claims in the particular forum; and (4) likely difficulties in managing a class action. Fed. R.

Civ. P. 23(b). Because this Lawsuit concerns a settlement class, there is no concern with

manageability of the case related to individualized affirmative defenses asserted by Nationstar in

opposition to certification. Amchem Prods., Inc., 521 U.S. at 620.

In the present case, as stated above, Class Members have little interest in prosecuting

individual actions. As such, there is no better method available for the adjudication of the claims

which might be brought by each individual Class Member. The alternative to bringing this case


21 530630

as a class action is bringing nearly 1,100 individual claims. The relatively small amount of the

disputed late fees and returned payments makes it highly unlikely that Class Members would

pursue their claims on an individual basis. Accordingly, it is desirable to concentrate the

litigation of these claims in this Court. See Amchem Prods., Inc., 521 U.S. at 617 (observing that

Rule 23(b) allows “vindication of the rights of groups of people who individually would be

without effective strength to bring their opponents into court at all.”); Bicking, 2011 U.S. Dist.

LEXIS 127173, at *11 (same). Further, “[s]ettling this case as a class action will achieve

economies for both the litigants and the court” through a significant reduction in the “overall cost

of complex litigation, allowing plaintiffs’ attorneys to pool their resources and requiring

defendants to litigate all potential claims at once, thereby leveling the playing field between the

two sides.” In re Serzone Prods. Liability Litig., 231 F.R.D. at 240; see also In re “Agent

Orange” Prod. Liab. Litig., 597 F. Supp. 740, 842 (E.D.N.Y. 1984). Therefore, there is no other

superior method of adjudicating the controversy because class settlement provides an efficient

and appropriate resolution of the controversy. Plaintiff has thus met the requirements of Rule

23(b)(3) for settlement purposes.7

C. Proposed Class Counsel Are Qualified to Represent the Class

Rule 23(g) requires that the Court appoint class counsel upon certification of the class.

Factors for the Court to consider include: the work counsel has done in identifying or

investigating potential claims in the action; counsel’s experience in handling class actions, other

complex litigation, and claims of the type asserted in the action; counsel’s knowledge of the

applicable law; and the resources counsel will commit to representation of the class. Fed. R. Civ.

P. 23(g)(1)(C)(i).

7 As stated above, Nationstar denies that the facts of this case meet the requirements of certification of any class on the merits. Nationstar consents to the attached proposed order solely for settlement purposes.


22 530630

Proposed class counsel, Bailey & Glasser LLP, is qualified and able to represent the

class. Proposed class counsel has submitted a declaration outlining his and the firm’s work on

the case and wide-ranging experience litigating consumer protection, class action, and other

complex cases. (Ex. E – Decl. of John W. Barrett Decl. ¶ 6). As stated above, Plaintiff’s counsel

performed substantial work in investigating, prosecuting and negotiating settlement of the case,

and is qualified to serve as class counsel. See Muhammad, 2008 U.S. Dist. LEXIS 103534, at

*11 (recognizing skill and experience of Plaintiff’s counsel).

VI. PROPOSED SCHEDULE TO COMPLETE SETTLEMENT

The Court’s calendar permitting, the Parties’ propose the following schedule to complete

the tasks necessary to effectuate the proposed settlement:

Class Notice Mailed by: Twenty-one (21) days after entry of the Court’s Order granting preliminary approval of the Settlement.

Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice.

Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date.

Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date.

VII. CONCLUSION

For the reasons stated above, Plaintiff respectfully requests that the Court grant this

Motion and enter the submitted Proposed Order (attached as Exhibit F to the Joint Motion), and

conditionally certify this class action for settlement purposes only, preliminarily approve the

Parties’ proposed Settlement and Release Agreement, appoint Plaintiff’s counsel as class

counsel, establish a schedule to complete the tasks necessary to effectuate the proposed

settlement, and for such other and further relief as the Court may deem equitable and just.


23 530630

Respectfully Submitted,

DAVID J. TRIPLETT By: s/ John W. Barrett_____ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301 Counsel for Plaintiff


24 530630

433203v1 04/11/12





Defendant.

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of May, 2012, I electronically filed the foregoing

document with the Clerk of the Court using the CM/ECF system, which will send notification of

such filing to the following CM/ECF participants:

Counsel for Defendant

John C. Lynch (W. Va. Bar No. 6627) Jason E. Manning (W. Va. Bar No. 11277)

TROUTMAN SANDERS LLP 222 Central Park Avenue, Suite 2000

Virginia Beach, VA 23462 Telephone: (757) 687-7765 Facsimile: (757) 687-1504

E-mail: [email protected]

s/ John W. Barrett______ John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia 25301

Counsel for Plaintiff


EXHIBIT A

Case 3:11-cv-00238 Document 70-1 Filed 05/14/12 Page 1 of 27 PageID #: 1295




v. Civil Action No. 3:11-cv-238 NATIONSTAR MORTGAGE, LLC,

Defendant.

CLASS SETTLEMENT AND RELEASE AGREEMENT

A. Parties

This Class Settlement and Release Agreement (the “Agreement”) is made and entered

into as of the Effective Date, as defined herein, by and between Plaintiff David J. Triplett

(“Triplett” or “Plaintiff”), the Settlement Class, as defined herein (the “Settlement Class” or

“Class Members”) and Defendant Nationstar Mortgage LLC (“Nationstar” or the “Defendant”)

(individually, a “Party,” and collectively, the “Parties”) for the purpose of resolving by

compromise and settlement all claims, controversies and alleged liabilities arising out of a

dispute as set forth below.

B. Recitals This Agreement is entered into with reference to the following facts.

1. On February 15, 2011, Triplett commenced this action (the “Lawsuit”) against

Nationstar in the Circuit Court of Putnam County, West Virginia, Case No. 11-C-46, asserting

various claims pertaining to the servicing of the Loan, including claims for alleged violations of the


2

West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq.

(“WVCCPA”).

2. On April 8, 2011, Nationstar removed the Lawsuit to the United States District

Court for the Southern District of West Virginia, Huntington Division, Case No. 3:11-cv-238,

pursuant to 28 U.S.C. §§ 1441 and 1446, and the Class Action Fairness Act of 2005, 28 U.S.C. §§

1332(d)(1)-(11) (“CAFA”).

3. The Lawsuit purports to be brought on behalf of Triplett and a class of similarly

situated individuals. Triplett alleges in the Lawsuit that Nationstar violated various provisions of

West Virginia statutory law and breached contractual obligations with respect to Triplett and the

class on whose behalf the Lawsuit purports to be brought.

4. Nationstar denies any and all allegations and claims asserted against it in the

Lawsuit and denies any and all wrongdoing. Neither the fact nor the terms of this Agreement

shall be used or offered or received in evidence in any action or proceeding for any purpose,

except in an action or proceeding to enforce this Agreement.

5. Notwithstanding the above, solely in order to avoid the cost, burden, expense, and

uncertainty of further litigation, the Parties desire to compromise and settle the Lawsuit and have

reached this Agreement to resolve the disputes between them, pending approval of the Court, and

to achieve complete peace.

C. Agreements, Releases and Promises

THEREFORE, in consideration of the facts and releases and promises contained herein,

and for other good and valuable consideration, the receipt of which is acknowledged by each

Party hereto, the Parties promise and agree as follows:


3

1. Class Members

Triplett and Nationstar will seek certification of a Settlement Class as set forth below:





Class Members who believe that they actually paid improper default expenses that were

not waived, reimbursed, or otherwise credited to the Class Members’ loan accounts may contact

the Settlement Administrator and request a Claim Form to describe the number and nature of the

default fees that they claim were improperly imposed on their loan accounts and that they

actually paid.

The terms, effectiveness and validity of this Agreement are subject to the certification of

the Settlement Class as defined in this Paragraph No. C-1, the entry of an order granting a

Motion For Preliminary Approval of Settlement, Conditional Class Certification, and Entry of

Scheduling Order (“Preliminary Approval Motion”), and the entry of an order granting a Motion

For Final Certification of Settlement Class and Approval of Class Settlement (“Final Approval

Motion”). The Agreement becomes effective as of the Effective Date, as defined in Paragraph

No. C-8 of this Agreement.


4

2. Class Composition

The Parties agree that, based on the information currently available to them, the

Settlement Class is composed of the Loan Accounts and instances enumerated in this paragraph.

Subclass A consists of approximately 836 Loan Accounts and 7,539 instances.

Subclass B consists of approximately 709 Loan Accounts and 3,674 instances.

Subclass C consists of approximately 27 Loan Accounts and 46 instances.

In Total, there are approximately 1,089 Loan Accounts with instances in one or more of

the subclasses and approximately 11,259 instances overall.

Plaintiff shall be allowed to conduct reasonable confirmatory discovery to confirm the

number of Loan Accounts and instances set forth above. A duly sworn affidavit or sworn

declaration, made by an appropriate representative of Nationstar, attesting to the number of Loan

Accounts and instances as set forth above, shall be sufficient to fulfill Nationstar’s obligations to

provide reasonable confirmatory discovery pursuant to this Agreement.

3. Settlement Amount

Nationstar, its successors, and assigns will pay ONE MILLION AND FIVE HUNDRED

THOUSAND AND 00/100 DOLLARS ($1,500,000.00) to a “Common Fund” in full settlement

of all class claims that were asserted or arose from the claims asserted in the Lawsuit (the

“Settlement Amount”). In no event shall the Settlement Amount exceed $1,500,000.00.

The Settlement Amount is an “all-in” payment. In no event shall Nationstar be liable for

any amount greater than the Settlement Amount, with the exception of the Administrative Costs

referenced in Paragraph No. C-6 below.


5

4. Common Fund

The Common Fund shall be maintained in a trust account established by Nationstar

within thirty (30) business days after full execution of this Agreement. The parties shall have

joint control of the Common Fund. The principal in the Common Fund shall be used to make

settlement payments and to pay fee and service awards. All interest accruing in the Common

Fund shall be paid to Nationstar.

Should the Class Settlement be denied for any reason, or otherwise not approved by the

Court, then all monies placed into the Common Fund shall be returned to Nationstar.

Should the Class Settlement be approved, and should any principal monies remain in the

Common Fund after disbursement of funds in accordance with the terms of this Agreement, the

remaining principal funds shall not revert to Nationstar. Any such remaining principal funds

shall be donated as a cy pres award to Legal Aid of West Virginia, Inc., and shall be earmarked

to provide legal assistance in the following case areas only: domestic violence, coal miner

claims, and/or claims for benefit programs such as Temporary Assistance to Needy Families

(“TANF”), Medicaid, and Social Security Disability, as provided for in Paragraph No. C-19.

5. Distribution of Settlement Amount

The Settlement Amount shall be distributed as follows:

(a) Each Class Member shall receive a pro rata distribution for each instance as set

forth in Paragraph No. C-1 above. Each Class Member shall receive an estimated pro

rata distribution per qualified instance in the approximate amount of $88.37,1 after

1 Note: the estimated net distribution amount per instance is subject to change and may be reduced depending on the number of default fee claims submitted by Class Members, and depending on the amount of attorneys’ fees, costs, and service award authorized by the Court.


6

payment of proposed attorneys’ fees, costs, and the service award, except as otherwise

provided in this Paragraph No. C-5. Only one distribution per qualified instance shall be

made.

(b) That distribution shall be made jointly payable to all co-borrowers on any Loan

Account in which the qualified instance was imposed, unless a surviving co-borrower

provides to the Administrator certified copies of records establishing that a co-borrower

has died.

(c) Co-borrowers on a single Loan Account shall be entitled to a single settlement

payment per qualified instance, and no Class Member is entitled to more than one

settlement payment per instance. Class Members who receive a settlement payment shall

be solely responsible for distributing or allocating such payment between or among all

co-borrowers.

(d) As payment for attorney fees, Plaintiff’s counsel shall apply to the Court for a

distribution of no more than one-third (33 ⅓ %), or Five Hundred Thousand and 00/100

Dollars ($500,000.00), of the Settlement Amount as a percentage of the Common Fund.

Plaintiff’s attorneys’ fees shall be paid out of the Common fund.

(e) Triplett will receive a service award of Five Thousand and 00/100 Dollars

($5,000.00), subject to approval by the Court, in addition to his pro-rata share of the

Settlement Amount. Triplett’s service award shall be paid out of the Common Fund.

(f) The size and composition of the Settlement Class and the number of qualifying

instances is based on the best information available to the Parties. If any class

notification or claims process should result in an addition to or subtraction from these


7

numbers, the total Settlement Amount shall remain the same, except to the extent to

which (i) Nationstar retains the right to void the Settlement Agreement due to the number

of class members objecting or opting out of the settlement pursuant to Paragraph No. C-

11 of this Agreement, or (ii) either Party reserves the right to void the Settlement

Agreement if the assumptions, representations, and warranties set forth below prove to be

incorrect:

(1) That there are no more than Seven Thousand and Five Hundred (7,500)

instances of late fees exceeding Fifteen and 00/100 Dollars ($15.00)

charged to West Virginia borrowers during the Class Period, plus or minus

ten percent (10%);

(2) That there are no more than Three Thousand and Six Hundred (3,600)

instances of form demand letters including the term “expenses of

collection” mailed to West Virginia borrowers during the Class Period,

plus or minus ten percent (10%); and

(3) That there are no more than Fifty-five (55) instances of partial loan

payments returned to West Virginia borrowers prior to the date of

acceleration of their loans during the Class Period, plus or minus ten

percent (10%).

(g) Except as set forth in Paragraph No. C-5(f) above, any increase or decrease in the

distribution made to Plaintiff’s counsel, whether as the result of objections to the

Settlement Agreement, the Court’s disposition on Plaintiff’s counsel’s fee request, or

otherwise, shall have no effect on the total Settlement Amount.


8

(h) Total aggregate reimbursements of Class Member claims of having actually paid

improper default charges under Paragraph No. C-1 shall be capped at One Hundred and

Fifty Thousand and 00/100 Dollars ($150,000.00). Any such reimbursements shall be

made out of the Common Fund. Should the total aggregate amount of reimbursements

claimed exceed $150,000.00, then reimbursements shall be distributed proportionally out

of the $150,000.00.

6. Administrative Costs

In addition to the Settlement Amount, Nationstar shall pay the costs associated with

providing notice to the Class Members and disbursement of the Settlement Amount

(“Administrative Costs”), including all costs and expenses related to class notice, distribution of

settlement proceeds, reasonable measures to locate Class Members, and retaining any class or

claims administrator.

7. Administrator

The parties agree, subject to the Court’s approval, that Kurtzman Carson Consultants

(“KCC”) shall serve as Settlement administrator (the “Administrator”). The Administrator shall

manage all facets of class notice and settlement administration. KCC has estimated the cost of

providing mailed notice, investigation of Class Members’ current addresses, skip-tracing,

reasonable measures to locate Class Members, processing claim forms, responding to Class

Member inquiries, distributing checks to Class Members, and reporting to Plaintiff’s counsel and

Nationstar’s counsel about administrative issues, to be approximately $18,785.00.


9

8. Effective Date

The “Effective Date” of this Agreement and any order granting a Motion For Final

Certification of Settlement Class and Approval of Class Settlement (the “Final Approval Order”)

is the date on which this Agreement and the Final Approval Order are effective pursuant to this

Paragraph No. C-8. This Agreement shall become effective as of the later of: (a) 31 days after

the docketing and entry of the Final Approval Order, or (b) 31 days after the exhaustion of all

appeal rights and the final termination of any appeal from the Final Approval Order.

9. Preliminary Approval Motion

Plaintiff will submit to the Court a Motion for Preliminary Approval of Settlement,

Conditional Class Certification, and Entry of Scheduling Order (“Preliminary Approval

Motion”) no later than thirty (30) days after full execution of this Agreement. The Motion will

request that the Court:

(a) Preliminarily approve the certification of the Settlement Class as described in this

Agreement for the purposes of settling the Lawsuit, on the terms described in this

Agreement;

(b) Find that the Settlement Class representative, and Settlement Class counsel, fairly

and adequately represent the interests of the Settlement Class;

(c) Find preliminarily that the Agreement is fair, reasonable and adequate to the

Settlement Class;

(d) Schedule a Final Approval Hearing approximately one hundred and twenty (120)

days after entry of an Order granting the Preliminary Approval Motion; and

(e) Approve the form of notice to be provided to members of the Settlement Class.


10

10. Notice to Class Members

If the Court grants the Preliminary Approval Motion, the Administrator will, within

twenty-one (21) days of the Order, mail to each Class Member at his or her last known address a

Notice of Proposed Class Settlement and Certification of Settlement Class (“Notice”).

Nationstar shall provide the Administrator with the last known address of each Class Member.

Any notices returned as undeliverable, but with a forwarding address, shall be promptly re-

mailed to the forwarding address. The Administrator shall perform a National Change of

Address Registry and LexisNexis/Death Records Search for all Notices returned as

undeliverable, without a forwarding address. Such Notices shall be re-mailed upon discovery of

a valid mailing address for the Class Member. The Administrator shall also maintain a

settlement website and toll-free number for Class Member inquiries.

The Notice shall apprise the Settlement Class Members of their right to opt out of the

Settlement Class, of their right to object to the Class Settlement, of the fact that any objections or

opt outs must be sent to the Administrator and postmarked no later than sixty (60) days after the

initial date of mailing of the Notice, and that any failure to object or to opt out in accordance

with applicable deadlines for opt outs and objections constitutes a knowing and voluntary waiver

of any right to opt out of the Settlement Class or to appeal from the Final Approval Order.

The Notice shall further apprise the Settlement Class Members of their right to make a

claim for reimbursement of any instance of a default expense as set forth in Paragraph No. C-1,

such as foreclosure attorneys’ fees, charged to their account, and to request a Claim Form from

the Administrator. Any instance of an improper default expense is waived if not actually paid by

the Class Member. Any reimbursement of improper default expenses actually paid by the Class


11

Member shall be distributed out of the Common Fund in the distribution amount set forth in

Paragraph No. C-5(h). Only one reimbursement distribution per qualified instance shall be

made. Any Claim Form must be submitted to the Administrator and postmarked no later than

sixty (60) days after the initial date of mailing of the Notice. Failure to submit a Claim Form by

that date shall constitute a knowing and voluntary waiver of any such claim.

11. Service of Notice of Opt Out and Notice of Claim Form

At least ten (10) days after the date the opt outs, objections, and Claim Forms are due, the

Administrator shall notify Plaintiff’s counsel and Nationstar’s counsel of any persons who have

objected to the Class Settlement, opted out of the Settlement Class, or submitted a Claim Form,

and shall serve Plaintiff’s counsel, Nationstar’s counsel, and the Court with copies of all

objections, notices of opt out, Claim Forms, and supporting documentation.

12. Final Approval Motion

No later than twenty-one (21) days after the date the opt outs, objections, and Claim

Forms are due, the Plaintiff will file a Motion for Final Approval of Settlement (“Final Approval

Motion”). The Motion will request that the Court approve the Settlement and enter a Final Order

and Judgment that will, among other things:

(a) Adjudge and approve in all respects the final settlement of this action on the terms described in this Agreement;

(b) Dismiss on the merits and with prejudice all Class Claims of the named Plaintiff and the Class Members in this action;

(c) Include all relief to be provided as part of this Settlement; and (d) Retain jurisdiction of all matters relating to the interpretation and enforcement of

the Settlement and this Agreement.


12

13. Effect of Disapproval/Denial of Settlement

If the Court disapproves this Agreement or any part thereof for any reason, or declines to

enter a Final Approval Order as described in this Agreement, then this Agreement, including all

releases contained within the Agreement, shall become null and void and the action shall proceed

as though no settlement had been negotiated or achieved, unless Plaintiff and Nationstar agree

otherwise or jointly appeal the order disapproving this Settlement.

14. Right to Declare Agreement Null and Void

In the event that more than ten (10) percent of the Settlement Class Members timely file

notices of opt out, or in the event that the West Virginia Division of Banking seeks to intervene

in this Lawsuit to object to the proposed settlement or otherwise notifies Nationstar of its intent

to object to the proposed settlement, Nationstar may, in Nationstar’s sole discretion, declare that

this Agreement, including all releases contained within the Agreement, is null and void. In that

event, the action shall proceed as though no settlement had been negotiated or achieved.

15. Reversal, Vacation, or Modification of Agreement by Appellate Court

In the event that a court of appeals or other reviewing court sets aside, reverses, vacates

or modifies the Final Approval Order as described in this Agreement, then this Agreement,

including all releases contained within the Agreement, shall become null and void and the action

shall proceed as though no settlement had been negotiated or achieved.

16. Payment of Settlement Amount, Attorneys’ Fees and Costs, and Service Award

No later than thirty (30) days after the Effective Date of the Settlement as defined in

Paragraph No. C-8, the Administrator shall distribute the Settlement Amount to Settlement Class

Members as provided in Paragraph No. C-5 of this Agreement, less that portion of the Settlement


13

Amount the Court awards as attorneys’ fees and expenses, and the service award to the class

representative. Distributions to Settlement Class Members will be made to their last known

address by first class mail, postage prepaid. The Administrator shall also distribute the amount

awarded as attorneys’ fees, expenses, and service award no later than thirty (30) days after the

Effective Date of the Settlement as defined in Paragraph No. C-8.

Checks made payable to each Class Member shall become stale and all right to payment

shall end upon expiration of four (4) months from the date of the check (which will be within one

calendar week of the date such check is mailed) and shall include a statement to inform the

bearer of this validity period.

17. Return of Settlement Payments

In the event any Class Member’s envelope containing the settlement payment is returned

to the sender, but with a forwarding address, the payment shall be promptly re-mailed to the

forwarding address. The Administrator shall perform a National Change of Address Registry

and LexisNexis/Death Records Search for all payments that are returned as undeliverable,

without a forwarding address. Such payments shall be re-mailed upon discovery of a valid

mailing address for the Class Member.

This Paragraph No. C-17 does not impose on any Party or the Administrator an

obligation to make extraordinary efforts to locate a Class Member.

18. Final Report of Distribution of Settlement Amount

Twelve (12) months after the Final Approval Order is entered, or thirty (30) days after

distribution of the Settlement Amount is completed, whichever is later, Plaintiff’s counsel shall


14

file a report with the Court, and serve a copy on Nationstar’s counsel, detailing the distribution of

the settlement funds.

19. Cy Pres Award

Any settlement payments that cannot with reasonable diligence, as described in

Paragraph No. C-17, be delivered to Class Members within a reasonable time (not less than

ninety (90) days after the Court’s final approval of the settlement), or any check distributed to a

Class Member that is not cashed within four (4) months of delivery, will be donated as a cy pres

award under the terms of Paragraph No. C-4. Any such donation will have no effect on the

validity of this Agreement against those Class Members who do not receive a settlement

payment following reasonable efforts to deliver a payment to them.

20. Final and Binding Agreement

The Parties acknowledge that this Agreement is a full and final accord and satisfaction

and shall be binding upon and inure to the benefit of Nationstar, the named Plaintiff, the

Members of the Settlement Class, their counsel, and each of their respective trustees, heirs,

executors, administrators, beneficiaries, representatives, agents, successors, and assigns.

21. Release

In consideration for the Settlement Amount and for Nationstar’s other promises contained

herein, each Member of the Settlement Class, for and on behalf of the Class Member and the

Class Member’s present and future spouses (and common law spouses), children, parents,

relations, successors, beneficiaries, heirs, next of kin, assigns, attorneys, executors,

administrators, and/or estate, or any and all other persons who could claim through them, hereby

unconditionally and irrevocably remises, releases, forever discharges and covenants not to sue


15

Nationstar, and all entities related to Nationstar, and each of their past, present and future

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

partners, joint venturers, principals, trustees, creditors, law firms, attorneys, representatives,

employees, managers, parents, subsidiaries, divisions, subdivisions, departments, affiliates,

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

their behalf, from any and all claims, counterclaims, actions, causes of action, suits, set-offs,

costs, losses, expenses, sums of money, accounts, reckonings, debts, charges, complaints,

controversies, disputes, damages, judgments, executions, promises, omissions, duties,

agreements, rights, and any and all demands, obligations and liabilities, of whatever kind or

character, direct or indirect, whether known or unknown or capable of being known up until the

Effective Date, arising at law or in equity, by right of action or otherwise, whether or not they

could have been asserted in the Lawsuit, which the Class Member may have against them up

until the Effective Date, arising out of, relating to, or in any manner concerning or involving

claims related to late fees, demand letters, returned payments, or default-related fees.

It is the intention and effect of this Release to discharge the above-described claims that

each Class Member has against Nationstar up until and including the Effective Date, including,

but not limited to, the causes of action alleged against Nationstar in the Complaint.

In connection with this Release, each Class Member is releasing past or currently existing

claims that existed up until the Effective Date and is aware that he or she may hereafter discover

claims that existed in the past or present during the Class Period that may be unknown or

unsuspected but discoverable based on reasonable investigation, or facts in addition to or

different from those which he or she now knows or believes to be true with respect to the


16

allegations and subject matter in the Complaint. Nevertheless, it is the intention of each Class

Member to fully, finally, and forever settle and release all such matters and all claims against

Nationstar which exist or might have existed (whether or not previously or currently asserted in

this Lawsuit).

Each Party to this Agreement understands, acknowledges, and agrees that if any fact now

believed to be true is found hereafter to be other than, or different from, that which is now

believed, each expressly assumes the risk of such difference in fact and agrees that this

Agreement shall be, and will remain, in effect notwithstanding any such difference in fact.

Each Class Member agrees not to start, continue, intervene in, participate in, or receive

any benefits from any lawsuit, litigation, arbitration, administrative, regulatory, or other

proceeding against Nationstar in any jurisdiction based on or relating to claims, facts, or

circumstances which are covered by this Release..

22. No Admission of Liability or Certification of Class

Neither this Agreement nor the fact of settlement nor the payment of the Settlement

Amount is, may be construed as, or may be used as, an admission on the part of Nationstar of

any fault, wrongdoing or liability whatsoever, or that any class asserted by Plaintiff merits

certification. Nationstar expressly denies any wrongdoing under any federal, state or local

statute, public policy, tort law, contract law, or common law and expressly denies the truth or

validity of any claim made against it or the propriety of certification of any class on the merits.

In the event that, for any reason whatsoever, this Agreement should not become effective, the

entry or negotiation of this Agreement will not be used as evidence of or argument for any

position in the Lawsuit, including the propriety of certifying any class except a Settlement Class.


17

Further, neither this Agreement nor any drafts hereof nor any documents leading to or

relating to the Settlement set forth herein, including, but not limited to, any proposed order,

Preliminary Approval Motion, Final Approval Motion, or memoranda in support thereof,

constitutes an admission of liability or of any fact by the Plaintiff or Nationstar. The Parties

agree that the foregoing documents:

(a) Will not be offered or received against Nationstar as evidence of or be construed

as or deemed to be evidence of, any admission or concession by Nationstar of (i) the truth

or relevance of any fact alleged by any Party, (ii) the existence of any class alleged by

Plaintiff, (iii) the propriety of class certification on the merits if the Lawsuit were to be

litigated rather than settled, and (iv) the validity of any claim or defense that has been or

could have been asserted by any Party in the Lawsuit or in any other litigation;

(b) Will not be offered as or received against Nationstar as evidence of, or construed

as or deemed to be evidence of any admission or concession of any liability, negligence,

fault or wrongdoing, or in any way referred to for any other reason as against any of the

Parties to this Agreement, in any other civil, criminal or administrative action or

proceeding, other than such proceedings as may be necessary to effectuate the provisions

of this Agreement; provided, however, that if this Agreement is approved by the Court,

Nationstar may rely upon or use this Agreement as necessary to effectuate the liability

protection granted Nationstar hereunder; and

(c) Will not be offered or received as an admission or concession that the

consideration to be given to Settlement Class Members hereunder represents the amount

which could be or would have been recovered by any such persons after trial.


18

23. Non-Admissibility of Settlement Negotiations

The settlement negotiations resulting in this Agreement have been undertaken by Plaintiff

and Nationstar and their respective counsel in good faith and for settlement purposes only

pursuant to Federal Rule of Evidence 408, and no evidence of negotiations or discussions

underlying this Agreement shall be offered or received in evidence in any action or proceeding

for any purpose. Nor shall the Agreement be offered or received in evidence in any action or

proceeding for any purpose, except only for purposes of enforcing the terms and conditions of

this Agreement.

24. No Oral Modification

This Agreement shall not be altered, amended, or modified by oral representation made

before or after the execution of this Agreement. No amendment, modification, waiver,

termination or discharge of any provision of this Agreement shall be effective unless it is in a

written agreement duly executed by all of the Parties hereto.

25. Complete Agreement

This Agreement constitutes a single, integrated, written contract expressing the entire

understanding and agreement between the Parties, and the terms of the Agreement are

contractual and not merely recitals. This Agreement supersedes all prior negotiations. No other

agreement, written or oral, expressed or implied, exists between the Parties with respect to the

subject matter of this Agreement, and the Parties declare and represent that no promise,

inducement, or other agreement not expressly contained in this Agreement has been made

conferring any benefit upon them.


19

26. Competency; Independent Counsel

Each Party to this Agreement represents and warrants that it is competent to enter into the

Agreement and in doing so is acting upon its independent judgment and upon the advice of its

own counsel and not in reliance upon any warranty or representation, express or implied, of any

nature or kind by any other Party, other than the terms set forth in or contemplated by this

Agreement.

27. Construction of Agreement

The language and terms of this Agreement shall be construed as a whole, according to

fair and ordinary meaning, as if both Parties jointly prepared it, and shall not be strictly construed

for or against any party to this Agreement.

28. Certification of Class for Settlement Purposes Only

For settlement purposes only, the Parties agree that, as part of the preliminary

approval process, the Court may make preliminary findings and enter an order granting

provisional certification of the Settlement Class subject to final findings and certification in the

Final Order, and appointing both Plaintiff and Class Counsel as representatives of the proposed

Settlement Class.

For settlement purposes only, Nationstar consents to certification of the Settlement Class

pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Nationstar does not consent

to certification of the Settlement Class for any purpose other than to effectuate the settlement of

the actions and claims identified in this Agreement. If this Agreement is not approved by the

Court or is terminated pursuant to its terms or for any other reason, or is disapproved in a final

order by any court of competent jurisdiction, (a) the order certifying the Settlement Class and all


20

preliminary findings or stipulations regarding certification of the Settlement Class shall be

automatically vacated upon notice to the Court of this Agreement’s termination or disapproval,

(b) the Lawsuit may proceed as though the Settlement Class had never been certified and any

related findings or stipulations pursuant to this Agreement had never been made; and (c) the

Parties reserve all procedural or substantive rights as presently exist, including all affirmative

defenses.

29. Affirmations by Nationstar

As part of the Class Settlement, Nationstar affirms that it will not engage in the following conduct, except when allowed to do so under state and federal law: (a.) Nationstar shall not charge West Virginia borrowers late fees in excess of Fifteen

and 00/100 Dollars ($15.00) per month.

(b.) Nationstar shall not issue or cause to be issued demand letters seeking payments of “expenses of collection” or default fees from West Virginia borrowers.

(c.) Nationstar shall not return partial loan payments to West Virginia borrowers prior

to the date of acceleration of their loans.

(d.) Nationstar shall not demand payment of attorney’s fees from West Virginia borrowers.

30. Continuing Jurisdiction

The United States District Court for the Southern District of West Virginia will have

continuing jurisdiction over the Lawsuit for the purpose of implementing the Settlement until the

Lawsuit and all related matters are fully resolved, and for enforcement of the Settlement, the

Agreement, and the Final Order thereafter. Any dispute regarding the Parties’ obligations

pursuant to this Agreement or interpretation of the terms of this Agreement or the Final Order

will be resolved by the Court.


21

31. Choice of Law

This Agreement will be governed by federal law and the internal laws of the State of

West Virginia without regard to its choice of law principles.

32. Choice of Forum

The Parties consent to jurisdiction and venue in the United States District Court for the

Southern District of West Virginia for any dispute arising in any way out of this Agreement.

33. Additional Acts to Effectuate the Agreement

The Parties shall execute all documents and perform all acts necessary and proper to

effectuate the terms of this Agreement and to obtain the benefits of the Agreement.

34. Waiver

The provisions of this Agreement may be waived only by an instrument in writing

executed by the waiving Party. The waiver by any Party of any breach of this Agreement shall

not be deemed to be or construed as a waiver of any other breach, whether prior, subsequent, or

contemporaneous, of this Agreement.

35. Confidentiality

This Agreement shall remain confidential until the Preliminary Approval Motion is filed.

Any press release or advertisement that Plaintiff or Class Counsel wish to make about the

Settlement or this Agreement, including the payments of settlement proceeds or the underlying

claims, shall require joint approval of the Parties. Any disputes shall be decided by the mediator,

the Honorable Chief Judge Joseph R. Goodwin.


22

The Parties agree that documents and information provided in connection with the

administration of the settlement of this matter are deemed Confidential pursuant to the agreed

Protective Order (ECF No. 20), and shall be subject to the terms thereof.

36. Preservation of Privilege

Nothing contained in this Agreement or any Order of this Court, and no act required to be

performed pursuant to this Agreement or any Order of this Court, is intended to constitute, cause

or effect any waiver, in whole or in part, of any attorney client privilege, work product

protection, or common interest or joint defense privilege, and each Class Member agrees not to

make or cause to be made in any form any assertion to the contrary.

37. Authority of Class Counsel

Class Counsel unconditionally warrant and represent that they are authorized by Plaintiff,

for whom they are attorneys of record, and the attorneys of record for Nationstar warrant and

represent that they are authorized by Nationstar, to take all appropriate action required or

permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms and to

execute any other documents required to effectuate the terms of this Agreement. The Parties and

their counsel shall cooperate with each other and use their best efforts to effect the

implementation of the Settlement.

38. Tax Consequences

This Agreement is enforceable regardless of its tax consequences. The Parties

understand and agree that the payments set forth in this Agreement reflect the settlement of

disputed legal claims and that Nationstar makes no representations regarding the Agreement’s

tax consequences.


23

No opinion concerning the tax consequences of the Settlement to individual Class

Members is being given or will be given by the Parties or their counsel, nor is any representation

or warranty in this regard made by virtue of this Agreement. Plaintiff must consult his own tax

advisors regarding the tax consequences of the Settlement, including any payments provided

hereunder and any tax reporting obligations he may have with respect thereto.

Each Class Member’s tax obligations, and the determination thereof, are the sole

responsibility of the Class Member, and it is understood that the tax consequences may vary

depending on the particular circumstances of each individual Class Member.

Each Class Member specifically agrees that he or she is solely responsible for any and all

taxes, interest and penalties due and owing, if any, should the payments or any portion thereof,

be taxable.

39. Release, Limitations

This Agreement does not release claims arising out of the failure of either Party to

perform in conformity with the terms of this Agreement.

40. Jury Waiver

The Parties voluntarily and intentionally waive any right that they may have to a trial by

jury in any action, proceeding or litigation directly or indirectly arising out of, or relating to, this

Agreement.

41. Knowing and Voluntary Assent

The Parties acknowledge that this Agreement is executed voluntarily by each of them,

without any duress or undue influence on the part of, or on behalf of any of them. The Parties

further acknowledge that they have had the opportunity for representation in the negotiations for,


24

and in the performance of, this Agreement by counsel of their choice and that they have read this

Agreement and/or have had it fully explained to them by their counsel and that they are fully

aware of the contents of this Agreement and its legal effect.

42. Counterparts and Facsimile Signatures

This Agreement may be executed in any number of counterparts and with facsimile

signatures, and all such counterparts shall be construed together and constitute a single form of

this Agreement.

43. Headings and Captions

The headings and captions inserted into this Agreement are for convenience only and in

no way define, limit or otherwise describe the scope or intent of this Agreement, or any provision

hereof, or in any way affect the interpretation of this Agreement.

(Remainder of Page Intentionally Left Blank)




EXHIBIT B


530633

If you have a loan secured by real property in West Virginia that was serviced by Nationstar Mortgage, LLC, any time from

February 15, 2007 through July 1, 2011, you could get benefits from a class action settlement.

Nationstar Mortgage, LLC Settlement Administrator c/o Kurtzman Carson Consultants, LLC P.O. Box ____ Novato, CA 94948-_____


530633

LEGAL NOTICE

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION

THIS IS NOT A SUIT AGAINST YOU. The purpose of this Notice is to advise you that a Settlement has been reached in a class action lawsuit (the “Lawsuit”) against Nationstar Mortgage LLC (“Nationstar”). The Notice is being sent to you because Nationstar’s records indicate that you are included in the Settlement, and that you are entitled to a cash payment.

This Notice describes the case in general and does not address all of the issues in detail. You may review a copy of the Settlement Agreement, Class Action Complaint, and the Court’s Order Preliminarily Approving Settlement at the following website: www._______.com.

What is the Lawsuit About?

The Lawsuit alleges that Nationstar improperly charged West Virginia borrowers late fees over the $15 limit allowed by statute. The Lawsuit also claims that Nationstar sent borrowers demand letters demanding payment of improper “expenses of collection” and refused to accept partial loan payments from borrowers prior to the date of acceleration of their loans.

Nationstar denies that it acted improperly or did anything wrong. However, Nationstar has agreed to the Settlement solely to avoid the burden, expense, risk, and uncertainty of continuing the Lawsuit.

Who is Included in the Settlement?

Nationstar’s records indicate that you are a Class Member. A Class Member is any borrower whose loan was secured by real property located in West Virginia and whose loan was serviced by Nationstar at any time from February 15, 2007 through July 1, 2011, and who either: (a) had late fees over $15 imposed on his or her loan account; (b) had instances of form debt collection letters mailed with the terms “expenses of collection”; or (c) had instances of a partial loan payment to Nationstar that was returned prior to the date of acceleration of the loan payments.

What Does the Settlement Provide?

(1) Automatic Cash Payment to Class Members. Class Members will receive a cash payment for each late fee over $15 charged, each demand letter sent, and each returned partial loan payment prior to the date of acceleration of the Class Member’s loan. Allocations will vary, but the amount of the cash payment per instance is estimated to be approximately $88.37, after deductions for attorneys’ fees, expenses, and the service award. (Note: this amount is subject to change and may be reduced depending on the number of claims for default expenses that are submitted). The total amount of the Settlement is $1,500,000.00.

(2) Additional Payments to Class Members Who Paid Improper Default Fees

If you believe you actually paid improper default expenses, such as foreclosure attorneys’ fees, that were not waived, reimbursed, or otherwise credited to your loan account, you may contact the Settlement Administrator to request a Claim Form. After you complete and return the Claim Form, you may receive a

reimbursement for each improper default expense that you actually paid. Reimbursements shall be paid out of the total settlement amount. (Note: Reimbursements may be reduced depending on the number and dollar amount of claims for improper default expenses that are submitted).

(3) Service Award. The plaintiff who brought this lawsuit, David J. Triplett, will request $5,000.00 for serving as class representative. In addition to the class claims, plaintiff also asserted individual claims against Nationstar. The parties negotiated a separate settlement of plaintiff’s individual claims.

(4) Attorneys Fees and Costs. Class counsel are John W. Barrett and Jonathan R. Marshall, Bailey & Glasser LLP, 227 Capitol Street, Charleston, WV 25301. They will request attorneys’ fees of one-third the total amount of the Settlement.

(5) Non-Monetary Benefits of Settlement. Nationstar has agreed that it will not engage in the following conduct, except when allowed to do so by state or federal law: (a) charge West Virginia borrowers late fees over $15; (b) send demand letters to West Virginia borrowers seeking payment of “expenses of collection” or default fees; (c) return partial loan payments to West Virginia borrowers prior to the date of acceleration of their loans; and (d) demand payment of attorneys’ fees from West Virginia borrowers.

(6) Opinion of Class Counsel. Class counsel considers it to be in the best interest of the class to enter into this Settlement on the terms described in light of the potential recovery, Nationstar’s defenses, and the uncertainties of continued litigation.

(7) Release. If the Court approves the Settlement, Class Members will be legally bound by all orders and judgments of the Court, and will not be able to sue or continue to sue Nationstar about any legal claims they have or may have up until the Effective Date of the Settlement, arising out of, related to, or in any manner concerning or involving claims for charging excessive late fees, issuing demand letters demanding payment of “expenses of collection,” returning partial loan payments prior to the date of acceleration, or default-related expenses.

The Court’s Fairness Hearing

The U.S. District Court for the Southern District of West Virginia will hold a hearing in this case (David J. Triplett v. Nationstar Mortgage LLC, Case No. 3:11-cv-238), on ______, 2012 at __ a.m./p.m., in the Courtroom of the Honorable Judge Robert C. Chambers, United States Courthouse, Sidney L. Christie Federal Building, 845 Fifth Avenue, Room 101, Huntington, West Virginia 25701. Class Members do not need to attend the hearing.

What Are Your Options?

(1) Do Nothing. To accept the Settlement, do nothing. If the Settlement is approved, a check will be mailed to you. If you change your address, please inform the Settlement Administrator at the address below; OR

(2) Request a Claim Form. To make a claim for improper default fees charged to your loan account that you


530633

433190v1

actually paid, you must contact the Settlement Administrator and request a Claim Form. The Claim Form must be fully completed and returned in the mail to the Settlement Administrator, postmarked no later than _____________, 2012, or such claims will be waived and released.

(3) Exclude Yourself. You may “opt out” and exclude yourself from the Settlement. If you opt out, you will not receive any cash payment, and you will not release any claims you may have against Nationstar. If you opt out, you will be free to pursue whatever legal rights you may have by pursuing your own lawsuit against Nationstar at your own risk and expense. To exclude yourself from the Settlement, you must mail a letter to the Settlement Administrator (address below) stating that you wish to do so. You must postmark your letter no later than ____ , 2012; OR

(4) Object to the Settlement. If you object to the Settlement, you must submit your objection in writing to the Settlement Administrator (address below) stating that you wish to object. You must postmark your objection no later than ____, 2012.

Any Class Member who has timely objected may appear at the fairness hearing and be heard (individually or through his or her own counsel). Objections must state the name, address, telephone number, and signature of the objector, and must state specifically and in detail all reasons for the objections.

PLEASE DIRECT QUESTIONS TO:

SETTLEMENT ADMINISTRATOR Address

Toll-Free Phone Number

For additional information, you may also visit the Settlement Administration website: www._______.com.


EXHIBIT C


530634

David J. Triplett v. Nationstar Mortgage LLC c/o Kurtzman Carson Consultants LLC P.O. Box ____ Name/Address Change (if any): Novato, CA 94948-____ ________________ ____________________ First Name Last Name Claim No. _________________ John Smith _______________________________________ C/O KCC Address 1234 Main Street Anytown, WV 11111 ______________________, ________, _______ City State Zip

PROOF OF CLAIM FORM David J. Triplett v. Nationstar Mortgage LLC Settlement Administrator

c/o Kurtzman Carson Consultants LLC P.O. Box ____, Novato, CA 94948-____

1. Claimant Information: Email address: _______________________ (________) _________________________ (________) __________________________ Area Code Daytime Telephone Number Area Code Evening Telephone Number If you claim that Nationstar charged you improper default expenses, such as foreclosure attorneys’ fees, that were not waived, reimbursed, or otherwise credited to your loan account, and that you actually paid, you must fill this Proof of Claim Form out completely and mail it to the address given below. This Proof of Claim Form must be notarized and postmarked no later than ___________, 2012. If you provide incomplete, incorrect, or inaccurate information, your claim may be denied. 2. If you claim that you actually paid improper default expenses, please check the box below to verify that you are the Settlement Class Member identified above and that you believe you may be entitled to payment for an improper default expense. [ ] I/we believe that my/our loan account was charged an improper default fee, that was not waived, reimbursed, or credited to my/our loan account, and that I/we actually paid. Please provide the number of such fees charged and a brief description of each fee, including the amount of the fee and the date it was charged (you may attach a separate page if additional space is needed): . MAIL YOUR COMPLETED PROOF OF CLAIM FORM TO THE FOLLOWING ADDRESS:

David J. Triplett v. Nationstar Mortgage LLC Settlement Administrator c/o Kurtzman Carson Consultants LLC P.O. Box ____ Novato, CA 94948-____

TO BE ENTITLED TO THE BENEFITS OF THIS SETTLEMENT, YOUR PROOF OF CLAIM FORM MUST BE POSTMARKED BY __________, 2012. PROOF OF CLAIM FORMS NOT POSTMARKED ON OR BEFORE SUCH DATE WILL NOT BE ACCEPTED ABSENT COURT ORDER. Counsel are not responsible for any lost or untimely claims, so you may want to ensure your Proof of Claim Form was received by


530634

433215v1

mailing it via Certified Mail, Return Receipt Requested. You may also want to keep a copy of the completed Proof of Claim Form for your files. By signing below, I/we represent that the information contained in this Proof of Claim Form is true and correct and state as such under penalty of perjury. I/we understand my/our claim may be subject to audit, verification, and court review, and that I/we may need to submit additional information to establish that my/our claim is valid. I/we also understand that by submitting this claim I/we am/are releasing all Settled Claims in the Lawsuit, as detailed in the Notice of Proposed Class Action Settlement and the Class Settlement and Release Agreement. Borrower Signature: Date (mm/dd/yyyy): Co-Borrower Signature: Date (mm/dd/yyyy):

STATE OF WEST VIRGINIA CITY/COUNTY OF ________________, to wit: The above Proof of Claim was subscribed and sworn to (or affirmed) before me on this ____ day of _______,

by _______________________________, proved to me on the basis of satisfactory evidence to be the person who

appeared before me.

Notary Public My Commission Expires:


EXHIBIT D






EXHIBIT E


518856


Huntington Division DAVID J. TRIPLETT, Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No.: 3:11-cv-238 NATIONSTAR MORTGAGE, LLC,

Defendant.

Declaration of John W. Barrett

1. I am submitting this declaration to state my and my firm’s qualifications to serve

as class counsel in this case, and to outline the basis for my opinion that the proposed class

action settlement with Defendant Nationstar Mortgage, LCC merits preliminary approval.

2. I am a partner in the Charleston law firm of Bailey & Glasser LLP. I received a

B.A. from the University of Pennsylvania in 1988. I received my law degree from Boston

University School of Law, cum laude, in 1996. From 1996 through 1998 I clerked for Charles

H. Haden II, Chief Judge of the United States District Court for the Southern District of West

Virginia.

3. I have practiced law in Charleston from 1998 through the present, first for three

years as an associate with a small law firm, then for three years as a sole practitioner, and since

2005 as a partner at Bailey & Glasser.

4. I am a member of Public Justice, the West Virginia and American Associations

for Justice, and the American Bar Association’s Section of Litigation, Class Actions and

Derivative Suits Committee. I am also a member of the National Association of Consumer


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Advocates, which among other things maintains comprehensive standards and guidelines for

litigating and settling consumer class actions in an effort to promote the ethical and proper use of

the class action device. See 176 F.R.D. 375 (published in 1998, fully updated in 2006).

5. I concentrate my practice in consumer class actions and consumer finance

matters. I have tried cases in state and federal courts in West Virginia. I have argued consumer

and other cases before the Supreme Court of Appeals of West Virginia and the United States

Court of Appeals for the Fourth Circuit. I am AV rated by Martindale-Hubbell.

6. I have served as class counsel in many cases, including:

Cummins v. H & R Block, Inc., Civil Action No. 03-C-134 (Circuit Court of Kanawha County, West Virginia) (consumer class action resulting in $62.5 million multistate settlement, including $32.5 million for West Virginia consumers);

Anderson v. Provident Bank, Civil Action No. 04-C-199 (Circuit Court of Mercer County, West Virginia) (predatory mortgage lending class action settled for $8.1 million on behalf of 140 class members);

Mey v. Herbalife International, Inc., Civil Action No. 01-C-263 (Circuit Court of Ohio County, West Virginia) ($7 million nationwide class action settlement alleging violations of the federal Telephone Consumer Protection Act);

Hardwick v. Rent-A-Center, Inc., Civil Action No. 3:06-0901 (S.D. W. Va.) (class action settlement, awaiting final approval, worth more than $5 million; alleging violations of state Consumer Goods Rental Protection Act);

Muhammad v. National City Mortgage Co., Civil Action No. 207-0423 (S.D. W. Va.) ($700,000 mortgage loan servicing settlement, awaiting final approval, alleging violations of the West Virginia Consumer Credit and Protection Act);

Brailsford v. Jackson Hewitt, Inc., Case No. 06-00700 (N.D. Cal.) ($672,000 settlement on behalf of class of California class);

Hackworth v. Telespectrum, Inc., Civil Action No. 3:04-1271 (S.D. W. Va.) (WARN Act class action settled for $185,000); and

Shonk v. SG Sales Co., Case No. 07-C-1800 (Circuit Court of Kanawha County, West Virginia) ($2.4 million nationwide settlement of class action brought under the Telephone Consumer Protection Act).


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I also served as co-counsel for the State of West Virginia in State ex rel. Darrell V.

McGraw v. Microsoft Corporation, Civil Action No. 01-C-197 (Circuit Court of Boone County,

West Virginia) (parens patriae antitrust and consumer protection action; settlement valued at

more than $20 million).

7. Based on the information and facts known to class counsel, and upon

consideration of the benefits that the settlement Plaintiff and the class, class counsel considers

the settlement to be in the best interests of all class members.

Executed this 4th day of May, 2012, in Charleston, West Virginia.

s/ John W. Barrett____ John W. Barrett


EXHIBIT F


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Defendant.

ORDER PRELIMINARILY APPROVING SETTLEMENT,

CONDITIONALLY CERTIFYING CLASS, AND ENTERING SCHEDULE

NOW COMES before the Court the Motion for Preliminary Approval of Settlement,

Conditional Class Certification and Entry of Scheduling Order (ECF No. __), filed herein by

Plaintiff David J. Triplett, individually and on behalf of a class of similarly situated persons.

For the reasons stated in the Plaintiff’s Memorandum in Support of Motion (ECF No. __), and

for good cause shown, the Motion is GRANTED. Accordingly, the Court hereby FINDS,

ORDERS, ADJUDGES, AND DECREES as follows:

1. Jurisdiction. This Court has jurisdiction over the subject matter of the Lawsuit

and over all parties to the Lawsuit, including all members of the Settlement Class.

2. Settlement Class. The Court has considered the submissions of the parties with

respect to the temporary and conditional certification of a settlement class, and has analyzed the

proposed settlement class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), and makes the

following findings:

a. The Court finds that the proposed settlement class satisfies the numerosity,

commonality, typicality, and adequacy requirements of Fed. R. Civ. P. 23(a).


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b. The Court finds that the proposed settlement class satisfies the

predominance and superiority requirements of Fed. R. Civ. P. 23(b)(3).

Accordingly, the Court PRELIMINARILY FINDS that all of the requirements of

Federal Rule of Civil Procedure 23(a) and 23(b)(3) have been satisfied, and that this action is

hereby conditionally and temporarily certified as a class action for settlement purposes only on

behalf of the following class of plaintiffs:





Class Members who believe that they actually paid improper default expenses that were

not waived, reimbursed, or otherwise credited to the Class Members’ loan accounts may contact

the Settlement Administrator to request a Claim Form to describe the number and nature of the

default fees that they claim were improperly imposed on their loan accounts and that they

actually paid.

This certification is temporary and conditioned upon the terms of the proposed Settlement

reached by the Parties. In the event the Settlement does not become final, or is terminated

pursuant to the terms of the Settlement Agreement, the Settlement Class will be deemed not to

have been certified, and the Lawsuit will, for all purposes with respect to the Parties, revert to its

status as of February 15, 2012, prior to the Settlement. In such event, the Parties will not be

deemed to have consented to the certification of the Class, the agreements and stipulations in this


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Settlement concerning class definition or class certification shall not be used as evidence or

argument to support a certification of any class, and the Parties will retain all rights with respect

to class certification.

3. Class Representative. The Court herby designates Plaintiff David J. Triplett as

Settlement Class Representative.

4. Class Counsel. Upon consideration of the factors set forth in Fed. R. Civ. P.

23(g), the Court hereby appoints John W. Barrett, Esquire, Jonathan R. Marshall, Esquire, and

the law firm of Bailey & Glasser, LLP, as Settlement Class Counsel.

5. Preliminary Approval of Settlement. The proposed Settlement Agreement entered

into by the Parties establishes the method of calculation of settlement payments to be made to

Class Members, allows members to opt out, allows members to request reimbursement for

alleged payment of improper default fees, and is subject to the Parties’ right to withdraw from

the Settlement unless certain agreed conditions are met, including conditions pertaining to the

size of the class, number of instances, and percentage of Class Members who elect to opt out of

the Settlement.

In accordance with the terms of the Settlement Agreement, Nationstar will contribute to

the Settlement Common Fund a sum equal to $1,500,000.00, as defined in the Settlement

Agreement. The principal placed in the Common Fund shall be used to make Settlement

Payments and to pay Class Counsel’s attorneys’ fees and a service award. In the event Class

Members cannot be located or found, any unpaid amounts attributable to their interests shall be

paid as a cy pres award to Legal Aid of West Virginia, Inc., and shall be earmarked to provide

legal assistance in the following case areas only: domestic violence, coal miner claims, and/or

claims for benefit programs such as Temporary Assistance to Needy Families (“TANF”),


4 530628

Medicaid, and Social Security Disability. All interest accruing in the Common Fund shall be

paid to Nationstar.

The costs of notice and claims administration are to be borne by Nationstar. The Parties

have agreed to use the services of the class action administration firm, Kurtzman Carson

Consultants LLC, as Settlement Administrator.

Class Counsel and counsel for Defendant Nationstar are experienced in complex

litigation, including class action litigation. The Settlement Agreement was reached after

vigorous arm’s length negotiations between counsel, including formal mediation conducted by

the Honorable Chief Judge Joseph R. Goodwin. Prior to the mediation, the Parties engaged in

extensive written discovery and conducted the depositions of Plaintiff David J. Triplett and his

spouse, and the Fed. R. Civ. P. 30(b)(6) deposition of Nationstar’s corporate representative.

Defendant Nationstar served its expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2). The

Parties also submitted separate mediation statements to Judge Goodwin in preparation for the

mediation. At all times, Plaintiff has acted independently of Defendant Nationstar.

The amount of the Settlement, $1,500,000.00, is fair, reasonable, and adequate. The

Settlement Amount is within the range of settlement values appropriate in this case. If the

Settlement had not been reached, both Parties faced the expense, risk, and uncertainty of

extended litigation.

Therefore, upon consideration of the terms of the proposed Settlement Agreement, the

Court PRELIMINARILY FINDS the Settlement Agreement to be sufficiently fair, reasonable,

and adequate to warrant providing Notice to the Class Members and proceeding with a Final

Approval Hearing. In making this determination, the Court has considered the current posture of


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this litigation and the risks and benefits to the Parties involved in both settlement of these claims

and continuation of the litigation.

Accordingly, the Court GRANTS PRELIMINARY APPROVAL of the Settlement

Agreement. The Settlement will be submitted to Class Members for their consideration and for a

hearing pursuant to Fed. R. Civ. P. 23(e).

6. Notice to Settlement Class Members. The Court has reviewed the proposed

Notice of Class Settlement and Claim Form. The Notice, among other things, describes in plain

English the terms and operation of the Settlement, the considerations that caused Class Counsel

to conclude that the Settlement is fair and adequate, the procedure for objecting to or opting out

of the Settlement, and the date of the Final Approval Hearing. The Notice explains how each

Class Member may request a Claim Form for reimbursement of any instance of an improper

default expense, such as foreclosure attorneys’ fees, charged to the Class Member’s loan

account that the Class Member actually paid.

Accordingly, upon review of the Notice and Claim Form, and in consideration of the

factors set forth in Fed. R. Civ. P. 23(c)(2)(B), the Court hereby FINDS that the Notice and

Claim Form fully comply with the requirements of Fed. R. Civ. P. 23(c)(2)(B), and the Notice

and Claim Form are thus APPROVED.

7. Exclusion Requests, Exercise of Option Not to Proceed, Objections and Claims.

a. Exclusion Requests. Any Class Member who desires to be excluded from

the Class Settlement must sign a written request to be excluded containing the

information required by the Notice of Class Settlement. This exclusion (“opt out”) must

be mailed to the Settlement Administrator at the address provided in the Notice and

postmarked no later than sixty (60) days after the initial date of mailing of the Notice.


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b. Objections. Any Class Member who desires to object to any aspect of the

Settlement Agreement may do so in writing, without the necessity of obtaining counsel or

making any formal appearance. All objections to any aspect of the Settlement must be

mailed to the Settlement Administrator at the address provided in the Notice and

postmarked no later than sixty (60) days after the initial date of mailing of the Notice.

c. Claim Forms. Any Class Member who desires to be reimbursed for

improper default expenses that he or she actually paid must contact the Settlement

Administrator to request a Claim Form. All Claim Forms must be mailed to the

Settlement Administrator at the address provided in the Notice and postmarked no later

than sixty (60) days after the initial date of mailing of the Notice.

d. Notification of Exclusion Requests, Objections, and Claim Form. No

later than ten (10) days after the date the opt outs, objections, and Claim Forms are due,

the Settlement Administrator shall notify the Court, Class Counsel, and counsel for

Defendant Nationstar of any persons who have objected to the Class Settlement, opted

out of the Class Settlement, or submitted a Claim Form, and shall serve the Court, Class

Counsel, and Nationstar’s counsel with copies of all objections, notices of opt out, Claim

Forms, and supporting documentation.

e. Responses to Objections. Responses to any objections must be filed no

later than five (5) days prior to the Final Approval Hearing.

f. Exercise of Option Not to Proceed. In the event that either Party exercises

its option to withdraw from the Settlement as provided for in the Settlement Agreement,

that Party must file a notice of withdrawal of settlement no later than three (3) days prior

to the Final Approval Hearing.


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g. Release. Class Members who do not request to be excluded from the

Class Settlement or who do not object to the Settlement prior to the date set forth above

will release Defendant Nationstar from all claims they have or may have up until the

Effective Date of the Settlement, arising out of, related to, or in any manner concerning

or involving claims for charging improper late fees, issuing demand letters containing the

term “expenses of collection,” returning partial loan payments prior to the date of

acceleration, or default-related expenses.

h. Claims. Settlement disbursements shall be mailed to Class Members

within a reasonable time period after final approval of the Class Settlement by the Court.

The Court FINDS that the claims process outlined in the Settlement Agreement is

appropriate under the circumstances.

8. Final Approval Hearing. A Final Approval Hearing shall be held on ______,

2012, at ____ a.m./p.m., before the Court in Huntington, West Virginia to consider whether the

Settlement should be given final approval. The date or time of this hearing may be changed

without further notice to the Settlement Class. The Settlement Administrator shall post any

changes to the hearing date or time on the website as part of the Notice Plan.

9. Class Counsel Fees and Expenses and Service Award. The Court will separately

consider a request for a reasonable fee award for Class Counsel and a service award to the Class

Representative. Class counsel will file a motion requesting the Court to award reasonable

attorneys’ fees in an amount not to exceed one-third of the amount of the Settlement, plus costs,

and a payment of a service award to Plaintiff not to exceed $5,000.00. Any fee award and

service award approved by the Court shall be paid by the Settlement Administrator from the

Settlement Common Fund.


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10. Relevant Dates. In addition to the dates set forth above, the Parties shall adhere to

the following schedule to complete the tasks necessary to effectuate the proposed settlement:

Class Notice Mailed by: Twenty-one (21) days after entry of this Order

Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice

Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date

Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date _______, 2012

These dates may be amended upon written motion by either Party and for good cause

shown.

11. Effect of Termination of Settlement. In the event that the Class Settlement is not

finalized or is terminated pursuant to the terms of the Settlement Agreement, this Order shall be

rendered null and void and shall be vacated nunc pro tunc, and the Lawsuit shall proceed as

provided in the Settlement Agreement.

12. No Party Admission of Liability. This Order and all rulings and findings herein

shall not be construed or used as an admission, concession, or declaration against the named

Plaintiff, any Class Member, or Defendant Nationstar of any fault, wrongdoing, breach, liability,

lack of merit of the settled claims, or certification of any class. Nationstar denies that the facts of

this case meet the requirements of class certification for any purpose other than settlement.

Nothing contained in this Order or the Parties’ Settlement shall be construed in any manner as

precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of

any class on the merits.


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433198v1

The Clerk is directed to provide certified copies of this Order to all counsel of

record.

IT IS SO ORDERED.

Entered: May _____, 2012

The Honorable Robert C. Chambers United States District Judge


Documents

IN THE UNITED STATES DISTRICT COURT FOR … · NATIONSTAR MORTGAGE, LLC, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division DAVID J