NOTICE OF CLASS ACTION SETTLEMENT AND CLAIM PROCESS

Transcription

1 United States District Court, Western District of Pennsylvania Thomas Jackson and Patricia Jackson vs. Wells Fargo Bank, N.A. and Wells Fargo Insurance, Inc., Case No. 2:12-cv DSC NOTICE OF CLASS ACTION SETTLEMENT AND CLAIM PROCESS A class action settlement ( Settlement ) has been reached in the above-referenced lawsuit against Wells Fargo Bank and Wells Fargo Insurance (collectively Defendants ). The Settlement involves a class of borrowers who were charged for a flood hazard determination between August 30, 2011 and December 31, 2013 in connection with a home loan obtained from Wells Fargo Bank. If you were charged such a fee by Wells Fargo Bank during the specified time period, then this settlement affects your rights. To make a claim for monetary relief, you must submit a claim form postmarked no later than January 30, 2015 to the Settlement Administrator at the address listed below. If you are a member of the Settlement Class, you submit a valid and timely claim form, and the Settlement is approved by the Court, a check in the amount of $9.50 will be mailed to you. You may, in the alternative, opt-out of the Settlement. If you opt out, you will not receive a settlement payment and you will not be bound by the Settlement. You may opt-out of the Settlement by sending a letter to the Settlement Administrator no later than January 30, 2015 at the address listed below, indicating that you wish to exclude yourself from the Settlement Class. Your written request to opt-out must state your name and address, and be signed by you. A hearing on the fairness of the Settlement ( Settlement Hearing ) will be held on March 5, 2015 at 11:00 a.m. in Courtroom 7A, United States Post Office and Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. At the Settlement Hearing, the court will consider and determine (a) whether the Settlement should be approved as fair, reasonable, and adequate; (b) whether any objections to the Settlement should be overruled; (c) whether counsels application for attorneys fees and expenses should be approved; and (d) any other final matters pertaining to the Settlement. The court may adjourn or continue the Settlement Hearing without further notice. If the Settlement Hearing date is continued or adjourned, a notification will be posted on the settlement website at If you do not opt-out of the Settlement, you or your lawyer may appear before the Court at the Settlement Hearing and/ or object to the Settlement. If you wish to object to the Settlement, you must mail a written statement of objection to the Settlement Administrator at the address listed below. Your written objection must be submitted to the Settlement Administrator by January 30, The objection must state your name and address, be signed by you, and must state the basis for your objection. As set forth above, claim forms, opt-outs, and objections must be submitted by mail to the Settlement Administrator. The Settlement Administrator s address is: JACKSON SETTLEMENT ADMINISTRATOR C/O RUST CONSULTING PO BOX 1955 FARIBAULT, MN

2 Contents of This Notice 1. What Is This Case and the Settlement About? 3 2. Am I A Settlement Class Member? 3 3. How Much Can Settlement Class Members Receive under the Settlement? 3 4. How Can I Get a Payment? 3 5. Can I Exclude Myself from the Settlement? 3 6. Can I Object To The Settlement? 4 7. Can I Sue On My Own? 4 8. What Happens If I Do Nothing? 4 9. What Are Settlement Class Members Giving Up in Exchange for the Settlement? Who Represents the Settlement Class? How Will the Attorneys Be Compensated? When Will the Settlement Hearing Be Held? How Can I Get More Information? 5-2 -

3 1. What Is This Case and the Settlement About? This lawsuit challenges the amounts that Wells Fargo Bank charged to borrowers for flood hazard determinations in connection with loans secured by residential real estate. Under federal law, before making a residential mortgage loan, Wells Fargo Bank must determine whether the structures on the property are located in a federally-designated Special Flood Hazard Area ( SFHA ). This determination is called a Flood Hazard Determination ( FHD ). Under federal law, Wells Fargo Bank is entitled to charge the borrower the cost of the FHD. During the settlement class period, Wells Fargo Bank obtained FHDs from its affiliate, Wells Fargo Insurance ( WFI ). Wells Fargo Bank paid WFI $19 for each FHD, and assessed the $19 charge to borrowers. Plaintiffs allege that WFI paid improper kickbacks to Wells Fargo Bank for obtaining these FHDs from WFI. Plaintiffs allege that when Wells Fargo Bank paid WFI for a FHD, WFI would pass a portion of the charge back to the Bank in the form of an accounting credit. Plaintiffs allege that because the $19 fee charged to borrowers for a FHD included the alleged kickback, the actual cost of each FHD was less than $19, and therefore, Wells Fargo Bank unlawfully marked up the charge for each FHD. Plaintiffs contend that because Wells Fargo Bank s and WFI s costs for FHDs were allegedly less than $19, they overcharged for and marked up fees for FHDs. Based on these allegations, Plaintiffs asserted claims against Defendants for violation of the Real Estate Settlement Procedures Act ( RESPA ), breach of contract, and unjust enrichment. Wells Fargo Bank and WFI deny these allegations and deny that their policies or procedures with respect to FHDs were wrongful or illegal in any way. Wells Fargo Bank asserts that it never marked up charges for FHDs, and that it paid WFI $19 for each FHD and charged the borrower this same amount, or not at all. Wells Fargo Bank and WFI also deny that WFI paid any kickbacks to Wells Fargo Bank for referring FHDs to WFI. On November 6, 2013, the Court issued an order granting in part and denying in part Defendants motions to dismiss Plaintiffs claims. Following the Court s ruling, the Parties negotiated the class action Settlement that is the subject of this Notice. The Settlement was preliminarily approved by the Court on October 27, 2014, and resolves the claims in the lawsuit. In the absence of this Settlement, Plaintiffs would have had to prove their claims at trial. The Court has not yet made any determination of liability with respect to any of Plaintiffs claims. 2. Am I A Settlement Class Member? The Settlement Class includes all persons who obtained a loan from Wells Fargo Bank that was secured by a first or subordinated lien on residential real property who were charged by Wells Fargo Bank for a Flood Hazard Determination between August 30, 2011 and December 31, 2013, inclusive. If you received a postcard class action notice relating to this lawsuit, you have been identified as a potential class member based on Defendants records. 3. How Much Can Settlement Class Members Receive under the Settlement? Settlement Class members who submit a valid and timely claim form will receive a check in the amount of $9.50 (half of the $19 fee that Wells Fargo Bank charged for FHDs), if the Settlement is approved by the Court and becomes effective. 4. How Can I Get a Payment? To receive a payment, you must submit a signed, completed claim form to the Settlement Administrator postmarked no later than January 30, The Settlement Administrator s address is: JACKSON SETTLEMENT ADMINISTRATOR C/O RUST CONSULTING PO BOX 1955 FARIBAULT, MN To submit a claim for payment, complete, sign and mail the claim form previously sent you in the mail. If you did not receive a claim form, you may obtain a claim form on the settlement website at 5. Can I Exclude Myself from the Settlement? If you do not wish to participate in this Settlement, you must submit a written statement requesting exclusion from the settlement ( Opt-Out Request ), postmarked no later than January 30, Your written Opt-Out Request must contain your name and address, and be personally signed by you. If more than one borrower is listed as an obligor on the loan, all borrowers must sign the Opt-Out Request. No Opt-Out Request may be made on behalf of a group of Settlement Class Members. The Opt-Out Request - 3 -

4 must be sent by mail to the Jackson Settlement Administrator, c/o Rust Consulting at P.O. Box 1955, Faribault, MN The postmark date of the mailing envelope shall be the exclusive means used to determine whether an Opt-Out Request has been timely submitted. Any Settlement Class Member who submits a timely Opt-Out Request will not be entitled to any payment from Defendants and will not be bound by the Settlement Agreement or have any right to object, appeal or comment thereon. 6. Can I Object to the Settlement? If you are a member of the Settlement Class, and do not opt-out of the Settlement, you have the right to object to the Settlement or to the amount of attorneys fees and expenses requested by counsel for the Settlement Class in connection with the Settlement. If you wish to object to the Settlement, you must submit a written statement of objection postmarked no later than January 30, Your written objection must state your name and address, be signed by you, and must state the basis for your objection. The objection must be sent by mail to the Jackson Settlement Administrator, c/o Rust Consulting at P.O. Box 1955, Faribault, MN The postmark date of the mailing envelope shall be the exclusive means used to determine whether an objection has been timely submitted. Settlement Class Members who fail to make objections in the manner and within the time limits set forth above shall be deemed to have waived any objections, and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement Agreement. Please note that Settlement Class Members may not both object and opt-out of the Settlement. In order to object, Settlement Class Members must not request exclusion from the Settlement Class. 7. Can I Sue On My Own? If you opt out of the Settlement, then your rights will not be affected by the Settlement, and you will retain the right to sue Defendants on your own if you so choose. If you opt out, you will not receive any payment in connection with the Settlement. 8. What Happens If I Do Nothing? If you are a Settlement Class member and you do not opt out of the Settlement, you will be bound by the Settlement, including the release set forth below, if the Court approves the Settlement and the Settlement becomes effective (even if you do not submit a claim form). 9. What Are Settlement Class Members Giving Up in Exchange for the Settlement? Under the terms of the Settlement, members of the Settlement Class who do not opt out release the Released Parties from each of the Released Claims of the Settlement Class. The Released Parties are defined as: Defendants and each and all of the past, present, and future parents, subsidiaries, affiliated companies and corporations of Defendants or either of them, and each and all of the past, present, and future directors, officers, managers, employees, general partners, limited partners, principals, agents, insurers, reinsurers, shareholders, attorneys, advisors, representatives, predecessors, successors, divisions, joint ventures, assigns, or related entities of Defendants or either of them. The Released Claims of the Settlement Class are defined as: All claims, actions, demands, causes of action, suits, liens, debts, obligations, damages, rights, liabilities, or offsets of any nature and description whatsoever, contingent or mature, known or unknown, that were or could have been asserted by or on behalf of Settlement Class Members and that arose at any time up to and including the date this Settlement Agreement is executed based on any of the facts or any of the theories asserted in either of the Complaints or in both of them and any and all claims, however denominated, based upon the same factual predicates as those alleged in either of the Complaints or in both of them, including, but not limited to, any and all claims arising from or related to Flood Hazard Determinations performed or procured by the Defendants or either of them; any and all communications between Defendants or either of them and any Settlement Class Member or Settlement Class Members relating or connected to any Flood Hazard Determinations; any charges by Defendants or either of them for Flood Hazard Determinations including, but not limited, to any overcharges or markups by Defendants of or related to any Flood Hazard Determinations; any alleged kickbacks or alleged improper payments of anything made by or received by Defendants or either of them in connection with Flood Hazard Determinations; and/or any payment by or to Defendants or either of them to or from any third party in connection with the performance or provision of Flood Hazard Determinations. Excepted from the Released Claims of the Settlement Class are (1) any claims, actions, demands, causes of action, suits, liens, debts, obligations, damages, rights, liabilities, or offsets based on any allegation by a Settlement Class Member that Wells Fargo Bank required the Settlement Class Member to maintain flood insurance in an amount that the Settlement Class Member believes is greater than what is required or permitted by applicable law or is greater than what is necessary to protect the lender s interest in the Settlement - 4 -

5 Class Member s property securing his or her loan, and (2) any claims, actions, demands, causes of action, suits, liens, debts, obligations, damages, rights, liabilities, or offsets based on Wells Fargo requiring a borrower who obtained a loan from Wells Fargo secured by residential real property to, after loan closing, obtain flood insurance for the property securing the loan where Wells Fargo informed the borrower at the time the borrower s loan closed that the borrower did not need to obtain flood insurance and there was no intervening change in FEMA s flood zone map affecting the property. The Class Release in the Settlement Agreement provides in full as follows: Class Release. Subject to the approval by the Court of this Settlement Agreement and the entry of a Final Approval Order and Judgment, upon the Effective Date, each Settlement Class Member who does not submit a timely Opt-Out and his or her assigns, heirs, successors and personal representatives releases, resolves, relinquishes, and discharges each and all of the Released Parties from each of the Released Claims of the Settlement Class that exist or may exist in their favor through the date of the execution of this Settlement Agreement. The Settlement Class Members further agree that they will not institute any action or cause of action (in law, in equity, or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent, which they may have or claim to have in state or federal court, or with any state, federal or local government agency, or with any administrative or advisory body, asserting any of the Released Claims of the Settlement Class against the Released Parties or any of them. 10. Who Represents the Settlement Class? The Court has appointed the law firm of Nichols Kaster, PLLP, 4600 IDS Center, 80 South Eighth Street Minneapolis, Minnesota to represent the Settlement Class. You will not have to pay out of pocket for these lawyers services. 11. How Will The Attorneys Be Compensated? Under the terms of the Settlement, counsel for the settlement class will make an application to the court for an award of attorneys fees and expenses in the amount of $1,500,000. If the requested attorneys fees and expenses are approved by the Court, they will be paid by Defendants, and will not reduce the amount of the recovery to Settlement Class members. The named Plaintiffs will not receive any service or incentive award in connection with this Settlement. However, they will also receive $25,000 from Defendants for the release of a separate individual claim that they have asserted against Wells Fargo Bank under the Truth-In-Lending Act. 12. When Will the Settlement Hearing Be Held? On March 5, 2015 at 11:00 a.m. in Courtroom 7A of the United States Post Office and Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania, the Court will hold a Settlement Hearing to determine whether to grant final approval of the Settlement and determine the appropriate amount of compensation to be awarded to counsel for the Settlement Class. You may, but are not required, to attend this hearing. You may also enter an appearance in the case through your own attorney, at your own expense, if you so desire. If the Settlement Hearing date is continued or adjourned, a notification will be posted on the settlement website at How Can I Get More Information? On the settlement website ( you can download relevant documents such as the Settlement Agreement; the Class Notice and Claim Form; Plaintiffs Complaints; the Court s Order on Defendants Motions to Dismiss; Plaintiffs Motion for Preliminary Approval of the Settlement; and the Court s Preliminary Approval Order. When they are filed, you may also review Plaintiffs Motion for Final Approval of the Settlement and Motion for Attorneys Fees and Expenses. You may also review the complete public court file relating to the case via the Court s electronic case filing (ECF) system, or by visiting the Clerk s Office for the United States District Court for the Western District of Pennsylvania, Pittsburgh Division, at 700 Grant Street, Pittsburgh, Pennsylvania If after reviewing the relevant documents and the information, you have further questions, you may call for further information. PLEASE DO NOT CONTACT THE COURT OR WELLS FARGO REGARDING THIS NOTICE