Transcription

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39 EXHIBIT 1

40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHNATHAN and TRUDE YARGER, et al., Plaintiffs, Civil Action No LPS v. ING BANK, FSB D/B/A ING DIRECT, Defendant. [PROPOSED] ORDER OF PRELIMINARY APPROVAL OF SETTLEMENT Plaintiffs Johnathan and Trude Yarger ( Class Representatives ), Donna Insalaco, Jeffrey Gerbitz, and Joshua Richman ( Other Plaintiffs ; together with Class Representatives, collectively, Settlement Class Representatives ), on behalf of themselves and the Settlement Class Members, and Defendant Capital One, N.A. ( Capital One ), successor by merger to ING Bank, FSB (collectively, the Parties ), have entered into a Settlement Agreement dated on or about April 7, 2014 (the Settlement Agreement ), providing for the settlement of this and related cases (the Settlement ). Plaintiffs have moved for, and Capital One has indicated that it does not oppose, entry of this Order which, inter alia: (a) conditionally certifies the Settlement Class (defined below) for settlement purposes only; (b) appoints the Settlement Administrator; (c) provides for notice of the Settlement to affected persons in accordance with the terms of the Settlement Agreement; (d) establishes procedures for objections to, and exclusions from, the proposed Settlement; and (e) sets a date for the Fairness Hearing. Having considered the terms of the Settlement Agreement in light of the issues presented by the pleadings, the record in this case, the complexity of the proceedings, the absence of any 1

41 evidence of collusion between the Parties, and the experience of Settlement Class Counsel in this matter; and being preliminarily satisfied that the Settlement Agreement is fair, reasonable, and adequate, and being satisfied that the proposed Notice to Settlement Class Members and the plan for the mailing of that Notice is adequate and sufficiently informative as to the terms and effect of the proposed settlement and the conditional certification of the Settlement Class, IT IS ORDERED THAT: 1. This Court has jurisdiction over the subject matter of this Action pursuant to the Class Action Fairness Act of 2005 ( CAFA ), 28 U.S.C. 1332(d)(2). This Court also has jurisdiction over all parties to this Action, including all members of the Settlement Class, as defined in Paragraph 3, below. 2. This Order incorporates by reference the definitions in the Settlement Agreement, and all capitalized terms used in this Order will have the same meanings as set forth in the Settlement Agreement, unless otherwise defined in this Order. 3. The Parties have agreed to and the Court provisionally certifies the following class for the purposes of settlement (the Settlement Class ): All natural persons who either (a) obtained an Orange Mortgage or Easy Orange Mortgage from ING on or after October 1, 2005 and on or before May 31, 2009, or (b) obtained an Orange Mortgage from ING before October 1, 2005, and performed a Rate Renewal of such mortgage on or after October 1, 2005 and on or before May 31, 2009; provided, however, that the class shall not include any current or former legal representative, officer, director or employee of ING, the judge to whom the Action is assigned, or any member of such judge s immediate family. 4. Based on the Court s review of the Settlement Agreement, the Motion for Preliminary Approval, the supporting brief, declarations of counsel, argument of counsel, and the entire record, the Court finds that certification of the Settlement Class under Fed. R. Civ. P. 23 is appropriate because the Settlement Class is so numerous that joinder would be impracticable, this action presents common issues of law and fact that predominate over any individual questions, the named Plaintiffs and their counsel are adequate representatives of the Settlement Class, and Plaintiffs claims are typical of the claims of the members of the Settlement Class. 2

42 The following counsel are hereby appointed to represent the Settlement Class: Lieff Cabraser Heimann & Bernstein, LLP; Meyer Wilson Co., L.P.A.; Rosenthal, Monhait & Goddess, P.A.; Olsen Law Offices, APC; and Webb & Bordson, APC. 5. Based on the Court s review of the Settlement Agreement, the Motion for Preliminary Approval, the supporting brief, declarations, argument of counsel, and the entire record, the Court finds that the settlement is fair, reasonable, and adequate. The Settlement Class Representatives motion to preliminarily approve the Settlement and certify the Settlement Class is granted. 6. Within seven (7) days of entry of this order, Plaintiffs shall file any necessary documents to ensure that the Gerbitz and Richman cases are stayed without prejudice. 7. Also within seven (7) days of entry of this order, Plaintiffs shall file an amended complaint (the Second Amended Complaint ), in the form attached as Exhibit 7 to the Settlement Agreement, which adds the Other Plaintiffs as party-plaintiffs. The filing of the Second Amended Complaint is solely for purposes of effectuating the Settlement, and Capital One s deadline to file an Answer or otherwise respond to the Second Amended Complaint is hereby stayed pending further order of the Court. 8. BrownGreer, PLC is appointed Settlement Administrator. By accepting this appointment, the Settlement Administrator has agreed to be subject to this Court s jurisdiction solely for purposes of enforcement of the Settlement Administrator s obligations under the Settlement Agreement. 9. The Settlement Administrator shall mail the Notice of the proposed settlement in the manner described in sections 3.4 through 3.5 of the Settlement Agreement. Such notice shall be substantially in the form of Exhibit 2 to the Settlement Agreement. Non-substantive changes may be made to the Notice by agreement of the Parties without further order of this Court. 10. The Settlement Administrator shall also send the Notice, in the manner described in section of the Settlement Agreement, to those Settlement Class Members who have supplied an address to Capital One. Such shall be substantially in the form of 3

43 Exhibit 6 to the Settlement Agreement. Non-substantive changes may be made to the Notice by agreement of the Parties without further order of this Court. 11. The Court finds and determines that the method of providing notice to Settlement Class Members specified in sections 3.4 through 3.6 of the Settlement Agreement and the manner of providing for opt-outs specified in section 3.8 of the Settlement Agreement are reasonable and appropriate, and satisfy the requirements of due process and the Federal Rules of Civil Procedure. 12. The Settlement Administrator is directed to file with the Court no later than, 2014 [14 days prior to the Fairness Hearing], a sworn declaration (a) confirming that the Settlement Class Members addresses were updated, and that the Notice was provided to all Settlement Class Members, as required by sections 3.4 and 3.5 of the Settlement Agreement; (b) providing an accurate list of persons who opted out of the Settlement Class pursuant to section of the Settlement Agreement; and (c) providing an accurate list of persons who are deemed to have opted out of the Settlement Class pursuant to section of the Settlement Agreement. 13. If the Court does not enter the Final Judgment of the Settlement attached as Exhibit 3 to the Settlement Agreement without material modification, or if the Final Judgment is reversed in whole or in part on appeal, certification of the Settlement Class will be vacated and the Parties will be returned to their positions status quo ante with respect to the Cases as if the Settlement had not been entered into. In the event that the Settlement does not become effective for any reason, (a) any Court order preliminarily or finally approving the certification of any class contemplated by the Settlement and any other orders entered pursuant to the Settlement Agreement shall be null, void, and vacated, and shall not be used or cited thereafter by any person or entity in support of claims or defenses or in support or in opposition to a class certification motion or for any other purpose; (b) the Settlement Agreement will become null and void and the fact of the Settlement, that Capital One did not oppose the certification of any class under the Settlement, or that the Court preliminarily approved the certification of a settlement class, shall not be used or cited thereafter by any person or entity for any purpose, including in 4

44 any contested proceeding relating to the certification of any class; (c) the Second Amended Complaint filed in the Action following entry of this order shall be automatically deemed withdrawn by the Plaintiffs; and (d) the fact that the Plaintiffs filed the Second Amended Complaint, and/or that Capital One stipulated to the filing thereof for purposes of effectuating this Settlement, shall not be used or cited thereafter by any person or entity for any purpose, including in the event that the Plaintiffs subsequently attempt to amend the Complaint in this Action. In addition, if the Final Judgment is reversed in whole or in part on appeal, the release of claims set forth in section 5 of the Settlement Agreement shall be rescinded. 14. All materials and information provided by Capital One to Settlement Class Counsel or the Settlement Administrator with respect to the members of the Settlement Class may be used only for purposes of providing the Notice to Settlement Class Members or administering the Settlement and for no other purpose whatsoever. Settlement Class Counsel and the Settlement Administrator are directed to limit access to such materials and information to those persons who have a need to know such information to provide the Notice to the Settlement Class. Any person involved in providing the Notice to Settlement Class Members (other than the Parties counsel and their staffs) shall, before receiving any materials or information provided by Capital One to Settlement Class Counsel or the Settlement Administrator with respect to the members of the Settlement Class, sign Exhibit A to the protective order previously entered in this case (D.I. 79), undertaking to be bound by the terms thereof. 15. A hearing ( Fairness Hearing ) shall be held before this Court on the date established in paragraph 25 hereof to hear objections and determine (i) whether the proposed Settlement and compromise of this Action as set forth in the Settlement Agreement is fair, reasonable, and adequate to the Settlement Class Members and should be approved by the Court; (ii) whether the Final Judgment should be entered approving the Settlement and dismissing the Action, on the merits and with prejudice; (iii) whether the release of claims, as set forth in the Settlement Agreement, should be approved; (iv) the amount of attorneys fees and expenses reasonably incurred in prosecution of the litigation to be paid to Class Counsel; (v) the amount of 5

45 the service payment to be paid to the Class Representatives and Other Plaintiffs; and (vi) such other matters as the Court may deem appropriate. 16. The Court has reviewed Capital One s Notice of Class Action Settlement Pursuant to 28 U.S.C that Capital One served upon the Office of the Comptroller of the Currency and the Board of Governors of the Federal Reserve System on, 2014 and finds that the notice has been timely served upon the appropriate Federal officials. 17. Any interested person who has neither opted out of the Settlement Class nor been deemed to have opted out of the Settlement Class may appear at the Fairness Hearing to show cause why the proposed Settlement should or should not be approved as fair, reasonable, and adequate; provided, however, that no person shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement unless that person has (i) filed with the Court a written objection and any supporting papers or briefs on or before the date established in paragraph 25 hereof, (ii) stated in the objection that he or she intends to appear at the Fairness Hearing, either in person or through counsel, and (iii) served, so that they are postmarked no later than the last date for filing established in paragraph 25 hereof, copies of such papers on counsel at the following addresses: To Counsel for Plaintiff: Matthew R. Wilson, Esq. Meyer Wilson Co., LPA 1320 Dublin Road Columbus, OH To Counsel for Capital One: Leah S. Getlan, Esq. Capital One, N.A Capital One Drive Mail Stop McLean, VA With a copy to: James F. McCabe. Esq. Morrison & Foerster LLP 425 Market St. San Francisco, CA All properly submitted Objections shall be considered by the Court. Any Settlement Class Member who does not submit an Objection in the manner provided above shall be deemed to 6

46 have waived any objection to the Settlement and shall forever be foreclosed from making any objection to class certification, to the fairness, adequacy or reasonableness of the Settlement, and to any attorneys fees and reimbursements approved by the Court. 18. Settlement Class Counsel s request for approval of attorneys fees, costs, and reimbursement of expenses shall be filed on or before the date established in paragraph 25 hereof. 19. All memoranda, declarations, and other evidence in support of the request for Final Approval shall be filed on or before the date established in paragraph 25 hereof. 20. All proceedings in this Action other than such as may be necessary to carry out the terms and conditions of this Order or the responsibilities incidental thereto are stayed and suspended as between the Class Representatives and Capital One until further order of the Court. 21. To preserve the status quo pending this Court s determination on whether to approve the proposed Settlement, IT IS HEREBY ORDERED under 28 U.S.C and Rule 23 of the Federal Rules of Civil Procedure that: Except as expressly provided in the Settlement Agreement, the Settlement Class Members are temporarily enjoined from commencing, continuing or taking any action in any judicial proceeding in any state or federal court or any other judicial or arbitral forum against ING with respect to any of the Released Claims. This injunction will terminate at the time the Court determines whether to approve the class certification and proposed Settlement (unless converted into a permanent injunction in the Order approving the Settlement) and, prior to that time, any request for relief from the injunction shall be made to this Court. 22. This Order is intended to immediately stop all litigation involving the claims released by the Settlement Agreement in all courts and other judicial and arbitral tribunals throughout the United States. Any individual who wishes to object to, or comment on, this Settlement or certification will have the opportunity to be heard at the Fairness Hearing scheduled by this Court. 7

47 23. The Court expressly reserves its right to adjourn the Fairness Hearing from time to time without further notice other than to counsel of record and to approve the proposed Settlement and request for approval of attorneys fees and expenses at or after the originally scheduled Fairness Hearing. 24. The Court retains exclusive jurisdiction over the Action and all matters arising out of or connected with the proposed Settlement. 25. Pursuant to this Order, the schedule for dissemination of Notice, requesting exclusion from or objecting to the proposed Settlement, briefing, and the Fairness Hearing, is as follows: Deadline for mailing Notice Deadline for filing Class Counsel s Fee Brief Deadline for Settlement Class Members to opt out Deadline for objections to proposed Settlement Deadline for filing Brief in Support of Final Approval Deadline for filing responses to objections to proposed Settlement Fairness Hearing (approx. 45 days after entry of Preliminary Approval Order) (14 days prior to objection deadline and at least 35 days prior to Fairness Hearing) (61 days after deadline for mailing Notices and 30 days prior to Fairness Hearing) (70 days after deadline for mailing Notices and at least 21 days prior to Fairness Hearing/approx. 115 days after entry of Preliminary Approval Order) (14 days prior to Fairness Hearing) (7 days prior to Fairness Hearing) at IT IS SO ORDERED. Date: HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE 8

48 EXHIBIT 2

49 LEGAL NOTICE BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE If you took out an Orange Mortgage or Easy Orange Mortgage from ING Bank from October 1, 2005 to May 31, 2009, or you did a Rate Renewal of an ING Orange Mortgage from October 1, 2005 to May 31, 2009, you can get a payment from the class action Settlement described in this Notice. [Date] [Borrower Name Street Address Street Address 2 City, State Zip Code] Re: ING Bank Loan Number: [ ] Origination Date: MM/DD/YYYY Notice # Dear [Borrower Name(s)]: A federal court authorized this Notice. This is not a solicitation from a lawyer. Capital One, successor by merger to ING Bank, preliminarily entered into a Settlement with a group of plaintiffs in a class action lawsuit. This Notice describes the lawsuit and the Settlement. Several persons who took out Orange Mortgages from ING sued ING in class action lawsuits. They claim that ING marketed Orange Mortgage and Easy Orange Mortgages as having Rate Renewal, a feature that would allow borrowers to re-set the fixed interest rate on their adjustable rate mortgages for a fixed fee, without requalifying, at any time during the life of the loan. They also contend that ING violated the law by raising Rate Renewal prices and by refusing to give some customers the option of Rate Renewal. ING contends that it did not do anything wrong and that it never advertised unchanging Rate Renewal fees or Rate Renewals without having to requalify for them. The Court has preliminarily approved a class action settlement of these lawsuits. If the Settlement becomes final, eligible ING borrowers will be mailed checks for at least $25, with an average payment of approximately $175. The payment amount will vary depending on whether the borrower used Rate Renewal when interest rates declined, and whether the borrower paid a charge for Rate Renewal that was higher than the Rate Renewal charge that was in effect when the borrower took out the loan. If it becomes final, the Settlement will release ING from any further liability for the legal claims raised in these lawsuits. QUESTIONS? CALL TOLL FREE OR VISIT

50 Your legal rights will be affected by this Settlement whether or not you take any action in response to it. Read this notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT OPTION RESULT DO NOTHING You will get a check. The average check amount will be about $175, with a minimum payment amount of $25. You give up all claims against ING relating to Rate Renewal. EXCLUDE YOURSELF You will get no payment. This is the only option that allows you to be part of any other lawsuit against ING that involves the legal claims in this case. OBJECT OR GO TO A HEARING Write to the Court about why you don t like the Settlement or ask to speak in Court about the fairness of the Settlement. This Notice explains these rights and options and the deadlines to exercise them. The Court still has to decide whether to grant final approval to this Settlement. If it does, payments will be made after any appeals are resolved. Please be patient. BASIC INFORMATION 1. WHY DID YOU GET THIS NOTICE? According to ING s records, either: (1) you got an Orange Mortgage or Easy Orange Mortgage from ING during the period from October 1, 2005 through May 31, 2009; or (2) you had an Orange Mortgage from ING before October 1, 2005 and did a Rate Renewal of your Orange Mortgage some time from October 1, 2005, through May 31, The Court sent you this Notice because you have a right to know about this proposed Settlement and how it affects you. 2. WHAT ARE THE LAWSUITS ABOUT? The borrowers who brought the lawsuits, who are called the Plaintiffs, claim that: (1) ING expressly stated that Orange Mortgage and Easy Orange Mortgage loans came with a guaranteed right to a flat-fee Rate Renewal for the life of the loan; (2) ING increased the Rate Renewal charge over time; (3) those increases in the charge violated the alleged guarantee ; (4) ING also denied some requests to Rate Renew; and (5) those denials also violate the alleged guarantee. ING denies that it marketed its loans in the way the Plaintiffs claim and maintains that it has done nothing wrong or illegal. QUESTIONS? CALL TOLL FREE OR VISIT

51 3. WHY IS THIS A CLASS ACTION? In a class action, the Plaintiffs bring the lawsuit for themselves and as Class Representatives on behalf of other people, called Class Members, who have similar claims. One court resolves all the issues for all the Class Members, except for those who timely exclude themselves. U.S. District Court Judge Leonard P. Stark is in charge of this class action. 4. WHY IS THERE A SETTLEMENT? The Court has not decided in favor of Plaintiffs or ING. Instead, both sides agreed to a Settlement. That way, they avoid the cost and uncertainty of a trial and related appeals, while providing compensation to Class Members. The Class Representatives and the attorneys think the Settlement is best for all Class Members. The Court in charge of this lawsuit has granted preliminary approval of the Settlement and ordered this Notice be distributed to explain it. 5. HOW DO YOU KNOW IF YOU ARE PART OF THE SETTLEMENT? Everyone who fits this description is a Class Member: All natural persons who either (a) obtained an Orange Mortgage or Easy Orange Mortgage from ING on or after October 1, 2005 and on or before May 31, 2009 or (b) obtained an Orange Mortgage before October 1, 2005, and performed a Rate Renewal of that mortgage on or after October 1, 2005 and on or before May 31, This class does not include any current or former legal representative, officer, director or employee of ING, or Judge Stark or any member of his immediate family. If your name was on a Notice sent to you by mail or , then you are a Class Member and are part of the Settlement, unless you timely exclude yourself from it. 6. WHAT BENEFITS DOES THE SETTLEMENT PROVIDE YOU? The Settlement provides for cash payments to all of the borrowers on loans that meet the class definition ( Loan Accounts ) on a per Loan Account basis. The average payment will be about $175 per Loan Account, with a minimum payment amount of $25 per Loan Account. The borrowers on each Loan Account will receive at least $25, paid jointly. Borrowers on Loan Accounts that did not do a Rate Renewal after the fixed interest rate available through Rate Renewal dropped 1.5% below the existing fixed interest rate on the loan will get an additional $15 for each $100,000 of original principal balance on the loan. In addition, for each Loan Account on which borrowers paid a price to Rate Renew that was higher than the Rate Renewal price in effect when the loan was taken out, the borrower will get a refund of about 16% of the difference. You can find out the specific amount of your expected settlement payment by logging onto using the 9-digit Notice # located at the beginning of this Notice and the last four digits of your social security number. You do not need to take any action to get your payment. Instead, the Settlement Administrator will mail your payment to you automatically if you do not exclude yourself from the Settlement and if the Settlement is finally approved by the courts. If you change your name or mailing address after you receive this notice and before you receive your payment, please go to and update your information to ensure that you receive your payment. QUESTIONS? CALL TOLL FREE OR VISIT

52 7. IF THE SETTLEMENT IS APPROVED, WHEN WOULD YOU GET YOUR PAYMENT? The Court will hold a hearing on, 2014 [no earlier than 120 days after entry of preliminary approval order] to decide whether to grant final approval to the Settlement. If the Court grants final approval, there may be appeals. It s always uncertain how long it will take to resolve any appeals. Please be patient. 8. WHAT ARE YOU GIVING UP BY STAYING IN THE CLASS? Unless you timely exclude yourself, you are staying in the Settlement Class, and that means that you can t sue, continue to sue, or be part of any other lawsuit against ING or certain related companies and individuals about the legal issues in the class action. It also means that the Court s Orders in this case will apply to you and legally bind you. If you do not exclude yourself, you will agree to the following Release of Legal Claims: Release of Legal Claims Upon entry of the Final Judgment, Plaintiffs and all Final Settlement Class Members, each on behalf of himself or herself and on behalf of his or her respective heirs, assigns, beneficiaries, and successors, shall automatically be deemed to have fully and irrevocably released and forever discharged the Released Parties of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys fees, losses, and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out of, are based upon, or relate in any way to ING s conduct, omissions, or duties relating to, based upon, resulting from, or arising directly or indirectly out of Rate Renewal, including, but not limited to, (a) any advertising, marketing or communications relating to or concerning Rate Renewal, (b) any collection of charges for Rate Renewal, (c) any changes in the price charged for Rate Renewal, (d) any decision on the part of a Final Settlement Class Member not to seek a Rate Renewal, (e) any non-performance of a Rate Renewal, or (f) any alleged right to Rate Renew; provided, however, that nothing in this paragraph shall modify any rights or obligations established by any Rate Renewal Addendum executed by a Final Settlement Class Member in connection with documenting their Loan Account. This Release does not include liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys fees, losses, and remedies that exclusively result from, arise out of, are based upon, and relate to ING s advertising or marketing relating to or concerning Rate Renewal after May 31, The Released Parties who you will be unable to sue about the legal issues in this case unless you exclude yourself are: ING and its successor, Capital One, N.A., and each of their present and former parents, subsidiaries, divisions, affiliates, predecessors, successors and assigns, and the present and former directors, officers, employees, agents, insurers, shareholders, attorneys, advisors, consultants, representatives, partners, joint venturers, independent contractors, wholesalers, resellers, distributors, retailers, predecessors, successors, and assigns of any of them. EXCLUDING YOURSELF FROM THE SETTLEMENT If you do not want the payment from this Settlement, and instead want to keep the right to sue or continue to sue ING, on your own, about the legal issues in this case, then you must take the required steps described below to get out. This is called excluding yourself from the Settlement. QUESTIONS? CALL TOLL FREE OR VISIT

53 Sometimes it is referred to as opting out of the Settlement Class. If you exclude yourself, you will not receive a payment from this Settlement. 9. HOW DO YOU EXCLUDE YOURSELF FROM THE SETTLEMENT? To exclude yourself from this Settlement, you must send a letter by mail saying that you want to be excluded. To be valid, your exclusion letter must include: (1) the name of this lawsuit, Yarger v. ING Bank, FSB; (2) your full name, address, and telephone number; (3) a statement that you wish to exclude yourself from the Settlement; and (4) your signature. You must mail your exclusion request postmarked no later than, 2014 [61 days after last date to provide notice] to: Rate Renewal Settlement Exclusions, P.O. Box 85006, Richmond, Virginia WARNING: EXCLUSION LETTERS THAT ARE NOT POSTMARKED ON OR BEFORE, 2014 WILL NOT BE HONORED. You can t exclude yourself by telephone or by . You can t exclude yourself by mailing a request to any other location or after the deadline. You must sign your exclusion letter. A lawyer cannot sign for you. No one else can sign for you. If you opt out, your name will appear in the court s records to identify you as someone not bound by the Settlement. 10. CAN YOU BE EXCLUDED FROM THE SETTLEMENT WITHOUT ANY ACTION ON YOUR PART? Yes. Because the Settlement makes payments on a per Loan Account basis to all borrowers on the Loan Account, all of the borrowers on the Loan Account must remain in the Settlement Class for benefits to be paid. If any borrower on a Loan Account excludes himself or herself from the Settlement, then all the other borrowers on the same Loan Account will be considered to have opted out as well. No payments will be made to borrowers on a Loan Account unless all borrowers on that Loan Account remain in the Settlement Class. 11. IF YOU DON T EXCLUDE YOURSELF, CAN YOU SUE ING FOR THE SAME THING LATER? No. If you don t exclude yourself and the Settlement is granted final approval, you give up any right to sue ING on any of the claims that this Settlement resolves. If you have a pending lawsuit against ING over these claims, speak to your lawyer in that case immediately. You must exclude yourself from this Class to continue your own lawsuit. 12. IF YOU EXCLUDE YOURSELF, CAN YOU STILL GET A PAYMENT FROM THIS SETTLEMENT? No. If you exclude yourself, or if any co-borrowers on your Loan Account exclude themselves, you will not receive a payment. But, you may sue, continue to sue, or be part of a different lawsuit against ING (if any). THE LAWYERS REPRESENTING YOU 13. DO YOU HAVE A LAWYER IN THIS CASE? The Class Representatives retained the following attorneys to represent them: Lieff, Cabraser, Heimann & Bernstein, L.L.P.; Meyer Wilson Co., L.P.A.; and Rosenthal, Monhait & Goddess, P.A. The Court has appointed these three firms, as well as Olsen Law Offices, APC, and Webb & Bordson, APC, to represent you and the other Class Members. Together, the lawyers are QUESTIONS? CALL TOLL FREE OR VISIT

54 called Settlement Class Counsel. If you want to be represented by your own lawyer, you may hire one at your own expense. 14. HOW WILL THE LAWYERS FEES, NOTICE COSTS, AND ADMINISTRATIVE FEES BE PAID? ING has agreed to pay $20,350,000 to settle the claims of the Settlement Class and Settlement Class Counsel s claim for attorneys fees and expenses. ING will also pay the costs of notifying the Settlement Class Members of the Settlement and of administering the Settlement process. Class Counsel will ask the Court to award them attorneys fees and expenses in the amount of 27.5% of the Settlement ($5,596,250), plus expenses ($1,026,661). The Court may award the Settlement Class Representatives in this case service awards of up to $3,500 per person for the time and effort they have put into this case on behalf of the Settlement Class. Amounts paid to Settlement Class Counsel as fees and expenses and service awards to the Plaintiffs will reduce the amount that can be paid out to the Settlement Class as benefits. OBJECTING TO THE SETTLEMENT You can tell the Court that you don t agree with the Settlement or some part of it. 15. HOW DO YOU TELL THE COURT THAT YOU DON T LIKE THE SETTLEMENT? If you re a Class Member, you can object to the Settlement if you don t think it is fair, reasonable or adequate. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter by mail saying that you object to the Settlement. Be sure to include (1) the name of this lawsuit, Yarger v. ING Bank, FSB, Case No LPS; (2) your name, address, telephone number; (3) the reasons you object to the Settlement; and (4) your signature. You must mail your objection to the following three different places postmarked no later than, 2014 [70 days after Notice is mailed/21 days prior to Fairness Hearing/appx. 115 days after entry of preliminary approval order]: The Court Class Counsel Defense Counsel Clerk of the Court United States District Court 844 North King St., Unit 18 Wilmington, DE Matthew R. Wilson, Esq. Meyer Wilson Co., LPA 1320 Dublin Road Columbus, OH James F. McCabe, Esq. Morrison & Foerster LLP 425 Market Street San Francisco, CA WHAT S THE DIFFERENCE BETWEEN OBJECTING AND EXCLUDING? Objecting is simply telling the Court that you don t like something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself is telling the Court that you don t want to be included in the Settlement. If you exclude yourself, you cannot object because the Settlement no longer affects you. THE COURT S FAIRNESS HEARING The Court will hold a public hearing to decide whether to grant final approval to the Settlement. You may attend the hearing, at your own expense, but you don t have to. QUESTIONS? CALL TOLL FREE OR VISIT

55 17. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? The Court will hold the Fairness Hearing at m, on, 2014, at the United States District Court for the District of Delaware, 844 N. King Street, Unit 26, Courtroom 6B, Wilmington, DE At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court will listen to people who have submitted timely requests to speak at the hearing as described in Question No. 19, below. The Court may also decide how much Settlement Class Counsel will be paid as attorneys fees and costs and how much the Settlement Class Representatives will be paid as service payments. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. 18. DO YOU HAVE TO COME TO THE HEARING? No. Settlement Class Counsel will answer questions the Court may have. But, you are welcome to come at your own expense. If you send an objection, you don t have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it s not necessary. 19. MAY YOU SPEAK AT THE HEARING? You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your Notice of Intention to Appear in Yarger v. ING Bank, FSB, Case No LPS. Your letter must include your name, address, telephone number, and signature. You must identify the points you wish to speak about at the hearing, enclose copies of any documents you intend to rely on at the hearing, and state whether you intend to have a lawyer speak on your behalf. Your Notice of Intention to Appear must be postmarked no later than, 2014 [21 days before final approval hearing], and be sent to the Clerk of the Court, Settlement Class Counsel, and Defense Counsel at the addresses listed above. You cannot speak at the hearing if you exclude yourself from the Settlement. IF YOU DO NOTHING 20. WHAT HAPPENS IF YOU DO NOTHING AT ALL? Unless you exclude yourself, or any of the co-borrowers on your Loan Account exclude themselves, you will be included in the class and will be bound by the terms and conditions of the Settlement. If the Settlement is approved, the borrowers on your Loan Account will receive a cash payment, and the claims against ING will be released. This means you won t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against ING about the issues in this case. GETTING MORE INFORMATION 21. ARE THERE MORE DETAILS ABOUT THE SETTLEMENT? This notice summarizes the Settlement. More details are in a Settlement Agreement. You can review the Settlement Agreement and other documents relating to the case at You may also obtain a copy of the Settlement QUESTIONS? CALL TOLL FREE OR VISIT

56 Agreement by writing to ING Rate Renewal Settlement Administrator, P.O. Box 85006, Richmond, Virginia Note: Do not call or write the Court or the Court Clerk s office for more information. QUESTIONS? CALL TOLL FREE OR VISIT

57 EXHIBIT 3

58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHNATHAN and TRUDE YARGER, et al., Plaintiffs, Civil Action No LPS v. ING BANK, FSB D/B/A ING DIRECT, Defendant. [PROPOSED] FINAL JUDGMENT A Fairness Hearing was held before this Court on, 2014, to consider, among other things, whether the Settlement Agreement executed on or about April 7, 2014 (the Settlement Agreement ) between Plaintiffs Johnathan and Trude Yarger ( Class Representatives ), Donna Insalaco, Jeffrey Gerbitz, and Joshua Richman ( Other Plaintiffs ; together with Class Representatives, collectively, Settlement Class Representatives ), on behalf of themselves and the Settlement Class Members, and Defendant Capital One, N.A. ( Capital One ), successor by merger to ING Bank, fsb (collectively, the Parties ) represents a fair, reasonable, and adequate compromise of the Action, and the amount to be paid to Settlement Class Counsel as fees and litigation costs for prosecuting the Cases. Having considered the evidence and argument submitted by the Parties, and any objections to the Settlement submitted, GOOD CAUSE APPEARING, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: This Final Judgment incorporates by reference the definitions in the Settlement Agreement, and all capitalized terms used in this Final Judgment will have the same meanings as set forth in the Settlement Agreement, unless otherwise defined in this Final Judgment. 1

59 This Court has jurisdiction over the subject matter of this Action, the Class Representatives, the Other Plaintiffs, the Settlement Class (defined below), and Capital One. Final approval of the settlement, and the request for entry of a final judgment and order of dismissal, is hereby GRANTED. The Court finds that the Settlement Agreement is the product of good faith arm s-length negotiations by the Parties, each of whom was represented by experienced counsel. The Court finds that the class proposed for purposes of the settlement meets the requirements of Fed. R. Civ. P. 23(a) and 23(b)(3), and hereby certifies a settlement class in the Action as follows: All natural persons who either (a) obtained an Orange Mortgage or Easy Orange Mortgage from ING on or after October 1, 2005 and on or before May 31, 2009 or (b) obtained a loan from ING before October 1, 2005, and performed a Rate Renewal of an ING Orange Mortgage on or after October 1, 2005 and on or before May 31, 2009; provided, however, that the class shall not include any current or former legal representative, officer, director or employee of ING, the judge to whom the Action is assigned, or any member of such judge s immediate family (the Settlement Class ). This Court approves all terms set forth in the Settlement Agreement and the Settlement reflected therein, and finds that such Settlement is, in all respects, fair, reasonable, adequate, and in the best interest of the Settlement Class Members, and the Parties to the Settlement Agreement are directed to consummate and perform its terms. The Parties dispute the validity of the claims in the Cases, and their dispute underscores not only the uncertainty of the outcome but also why the Court finds the Settlement Agreement to be fair, reasonable, adequate, and in the best interests of the Settlement Class Members. Beyond facing uncertainty regarding the resolution of those issues, by continuing to litigate, Settlement Class Members would also face the challenge of surviving an appeal of any class certification order entered in this action, and any other rulings rendered during trial. Settlement Class Counsel has reviewed the Settlement Agreement and finds it to be in the best interest of the Settlement Class Members. For all of these reasons, the Court finds that the uncertainties of continued litigation in both the trial and appellate courts, as well as the tremendous expense 2

60 associated with it, weigh in favor of approval of the Settlement reflected in the Settlement Agreement. Any and all objections to the Settlement Agreement, the Service Payments to the Class Representatives and Other Plaintiffs, and Settlement Class Counsel s request for attorneys fees, costs, and expenses have been considered and are hereby found to be without merit and are overruled. The Court finds that the Notice provided for in the Order of Preliminary Approval of Settlement has been provided to the Settlement Class, and the Notice provided to the Settlement Class constituted the best notice practicable under the circumstances, and was in full compliance with the notice requirements of Rule 23 of the Federal Rules of Civil Procedure, due process, the United States Constitution, and any other applicable law. The Notice apprised the members of the Settlement Class of the pendency of the litigation; of all material elements of the proposed settlement, including but not limited to the relief afforded the Settlement Class under the Settlement Agreement; of the res judicata effect on members of the Settlement Class and of their opportunity to object to, comment on, or opt-out of, the Settlement; of the identity of Settlement Class Counsel and of information necessary to contact Settlement Class Counsel; and of the right to appear at the Fairness Hearing. Full opportunity has been afforded to members of the Settlement Class to participate in the Fairness Hearing. Accordingly, the Court determines that all Final Settlement Class Members are bound by this Final Judgment in accordance with the terms provided herein. This Action is dismissed with prejudice, and without costs to any party, except as provided for in the Settlement Agreement and in this Final Judgment. Within three (3) days of the Effective Date, Settlement Class Counsel shall dismiss with prejudice Gerbitz v. ING Bank, FSB, Civil Action No. 12-cv LPS, United States District Court, District of Delaware, and Richman v. ING Bank, FSB et al., Case No. 13-cv JAH- BLM, United States District Court, Southern District of California, in accordance with section 2.2 of the Settlement Agreement. 3

61 Having reviewed the submissions of Settlement Class Counsel, the Court finds that the sum of $ is reasonable compensation for Settlement Class Counsel s attorneys fees and expenses. Capital One will pay this sum, as the Settlement Class Counsel Fees awarded by the Court, by wire transfer to Lieff Cabraser Heimann & Bernstein, LLP within fifteen (15) days of the latest of (a) the entry of this Final Judgment; (b) Settlement Class Counsel s delivery to Capital One of a stipulated undertaking and order, in the form attached as Exhibit 5 to the Settlement Agreement, requiring repayment to Capital One of all fees paid in the event this Final Judgment is reversed or the order approving the Settlement Class Counsel Fees, as contemplated by section 6.2 of the Settlement Agreement, is reversed or reduced on appeal; or (c) Lieff Cabraser Heimann & Bernstein, LLP s delivery to Capital One of a completed IRS form W-9. Capital One will, within fifteen (15) days of the Effective Date, remit to the Settlement Administrator an amount equal to the Settlement Amount minus the Settlement Class Counsel Fees (the Remaining Settlement Amount ). The Settlement Administrator will deposit such funds in a segregated account (the Settlement Account ). Having reviewed the submissions of Settlement Class Counsel, the Court finds that the sum of $ per person is reasonable compensation for the services of the Class Representatives (the Yargers) and Jeffrey Gerbitz in this matter. The Settlement Administrator shall pay these sums out of the Settlement Payment to the Class Representatives within fifteen (15) days of its receipt of the Remaining Settlement Amount in the manner prescribed by section 6.5 of the Settlement Agreement. The Court finds that the sum of $ per person is reasonable compensation for the services of Donna Insalaco and Joshua Richman in this matter. The Settlement Administrator shall pay these sums out of the Settlement Payment to the Other Plaintiffs within fifteen (15) days of its receipt of the Remaining Settlement Amount, in the manner prescribed by section 6.5 of the Settlement Agreement. 4

62 Within forty-five (45) days of the Effective Date, the Settlement Administrator shall mail out checks to Final Settlement Class Members in accordance with section of the Settlement Agreement. In accordance with section of the Settlement Agreement, all Initial Benefit Checks issued to Final Settlement Class Members shall bear a legend stating that the check is not valid ninety (90) days after the date of issuance. The Settlement Administrator will effect the distribution of the sum of any settlement checks that remain uncashed 150 days after the mailing of the last of the Initial Benefit Checks in accordance with section 7.4 of the Settlement Agreement. Any charitable distributions made pursuant to section 7.4 of the Settlement Agreement shall be distributed to. Within thirty (30) days of the date when all other obligations set forth in the Settlement Agreement have been completed, the Parties shall jointly file with the Court a notice stating that they have complied with all requirements set forth in the Settlement Agreement, the Order of Preliminary Approval of Settlement, and this Final Judgment. Upon entry of the Final Judgment, the Class Representatives, Other Plaintiffs, and all Final Settlement Class Members, each on behalf of himself or herself and on behalf of his or her respective heirs, assigns, beneficiaries, and successors, shall automatically be deemed to have fully and irrevocably released and forever discharged ING of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys fees, losses, and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out of, are based upon, or relate in any way to ING s conduct, omissions, or duties relating to, based upon, resulting from, or arising directly or indirectly out of Rate Renewal, including, but not limited to, (a) any advertising, marketing or communications relating to or concerning Rate Renewal, (b) any collection of charges for Rate Renewal, (c) any changes in the price charged for Rate Renewal, (d) any decision on the part of a Final Settlement Class Member not to seek a Rate Renewal, (e) any non-performance of a Rate Renewal, or (f) any alleged right to Rate Renew; provided, 5

63 however, that nothing in this paragraph shall modify any rights or obligations established by any Rate Renewal Addendum executed by a Final Settlement Class Member in connection with documenting their Loan Account; provided further, however, that this Release does not include liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys fees, losses, and remedies that exclusively result from, arise out of, are based upon, and relate to ING s advertising or marketing relating to or concerning Rate Renewal after May 31, Upon entry of this Final Judgment, the Class Representatives, the Other Plaintiffs, and Final Settlement Class Members shall be enjoined from prosecuting any claim they have released in the preceding paragraphs, in any proceeding against ING or based on any actions taken by ING that are authorized or required by this Agreement or by the Final Judgment. The Settlement may be pleaded as a complete defense to any proceeding subject to this section. Neither this Final Judgment nor the Settlement Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be: (1) construed as an admission or concession by Capital One of the truth of any of the allegations in the Cases, or of any liability, fault or wrongdoing of any kind; or (2) construed as an admission by Class Representatives or the Settlement Class as to any lack of merit of the claims or this action. If the Effective Date, as defined in the Settlement Agreement, does not occur for any reason whatsoever, (a) this Final Judgment and the Preliminary Approval Order shall be deemed vacated and shall have no force and effect whatsoever; (b) the Preliminary Approval Order and any other orders entered pursuant to the Settlement Agreement shall not be used or cited thereafter by any person or entity in support of claims or defenses or in support or in opposition to a class certification motion or for any other purpose; (c) the Settlement Agreement will become null and void and the fact of the Settlement, that Capital One did not oppose the certification of any class under the Settlement, or that the Court preliminarily approved the certification of a settlement class, shall not be used or cited thereafter by any person or entity for any purpose, including in any contested proceeding relating to the certification of any class; (d) the Second Amended Complaint filed in the Action following entry of this order shall be 6