Notices

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

DUPAGE COUNTY, ILLINOIS

 

INSPE ASSOCIATES, LTD.; GUY L. BIBBS; and ROBERT J. ADAMS, Plaintiffs

v.

MORTGAGE NOW, INC., Defendant, and

FIDELITY AND DEPOSIT COMPANY OF MARYLAND,  Intervenor.

 

Judge Sheen,  2003 L 394

NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT

TO: All persons in Illinois who, between November 7, 2000 and July 15, 2003

were sent unsolicited advertising faxes by Mortgage Now, Inc.

PLEASE READ THIS NOTICE CAREFULLY.

THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. IT IS A NOTICE OF A SETTLEMENT BEING SENT TO YOU BY COURT ORDER.

YOU MAY BENEFIT FROM READING THIS NOTICE.

IF YOU WISH TO RECEIVE A PORTION OF THE CLASS SETTLEMENT PROCEEDS, YOU MUST RETURN THE FORM AT THE END OF THIS NOTICE BY DECEMBER 15, 2005

WHAT THIS LAWSUIT IS ABOUT: Plaintiffs filed this action in the Circuit Court of DuPage County, Illinois. On behalf of a putative class, plaintiffs alleged that the defendants violated the Telephone Consumer Protection Act, 47 U.S.C. §227 ("TCPA"), and state law by sending unsolicited facsimile advertisements. Defendant denied plaintiffs’ allegations, and have raised defenses to plaintiffs’ claims.

Plaintiffs previously reached an agreement with Mortgage Now, Inc. whereby Mortgage Now, Inc. agreed to pay a total sum of $2,500.00 and to allow a judgment to be entered against it in the amount of $1,800,000.00 in favor of plaintiffs and the settlement class, enforceable only against the proceeds of Mortgage Now Inc.’s Insurance Policy or Policies. Mortgage Now, Inc. also assigned to plaintiffs and the class its rights under any and all applicable insurance policies from which plaintiffs will seek to recover.

Plaintiffs and their Counsel then brought an action (the coverage litigation) seeking to recover against the applicable insurance policies on behalf of the Settlement Class. Mortgage Now, Inc.’s Insurer ("Fidelity") has agreed to payup to a maximum of $110,000 to settle the coverage litigation brought against it related to the sending of faxes by Mortgage Now.

Judge Sheen granted preliminary approval of the settlement, subject to a fairness hearing which will take place on December 21, 2005 at 9:30 a.m., in Room 2001 of the Circuit Court of the 18^th Judicial Circuit DuPage County, Illinois, 501 North County Farm Road, Wheaton, Illinois 60189.

You asked to be sent this notice in response to a published notice. This notice explains the nature of the lawsuit and the terms of the settlement and informs you of the legal rights and obligations of class members.

IN ORDER TO OBTAIN MONETARY BENEFITS OF THIS SETTLEMENT, YOU MUST FILL OUT AND RETURN THE PROOF OF CLAIM FORM AT THE END OF THIS NOTICE BY DECEMBER 15, 2005.

NO ADMISSION OF LIABILITY: By settling this lawsuit, Mortgage Now, Inc and Fidelity are not admitting that they have done anything wrong. They expressly deny that they have done anything wrong.

THE PROPOSED SETTLEMENT: Plaintiffs, Mortgage Now, Inc, and Fidelity have agreed to the settlement described below. IF YOU WISH TO RECEIVE A PORTION OF THE SETTLEMENT PROCEEDS, YOU MUST RETURN THE PROOF OF CLAIM FORM AT THE END OF THIS NOTICE BY DECEMBER 15, 2005. If you do not wish to be bound by the settlement, you must opt-out. If you return your form and the settlement is finally approved, you will be sent a check for your portion of the settlement.

Recovery to Class Members. Fidelity agrees to pay into a Settlement Fund up to a total of $110,000 in settlement payments. Prior to distribution of the payments to the class, an incentive award of $2,000.00 to each of the named plaintiffs, the costs of notice and class administration and attorney’s fees to Class Counsel in the amount discussed below will also be paid from the Settlement Payments. After deduction of the items described above, Defendants shall pay from a class fund to each class member who: (i) does not opt-out; and (ii) RETURNS THE PROOF OF CLAIM FORM AT THE END OF THIS NOTICE INDICATING THAT THEY WANT TO PARTICIPATE IN THE MONETARY BENEFITS OF THE SETTLEMENT BEFORE DECEMBER 15, 2005; a pro-rata share of the Class Fund based upon the number of valid claims submitted by class members. No class member will receive more than one payment, which will not exceed $500.00, regardless of the number of faxes received. In the event funds remain in the Class Fund after payment of all valid claims, the remainder shall be returned to Fidelity.

Attorney’s Fees. Plaintiffs’ counsel will request approval of the Court for attorneys’ fees and costs of $50,000. Mortgage Now, Inc, and Fidelity will not oppose or cause to be opposed an application by plaintiffs’ counsel for attorneys’ fees and costs of $50,000. Plaintiffs’ counsel will not request additional fees and costs from any party or the class.

Release. Unless you exclude yourself from the settlement, you will be part of the class. By staying in the class, all of the Court’s orders will apply to you and you give Mortgage Now, Inc .and Fidelity a "release."   A release means you cannot sue or ever be part of any other lawsuit against Mortgage Now, Inc. or Fidelity related to the claims or issues in this lawsuit.

CLASS COUNSEL’S OPINION OF THE VALUE OF THE SETTLEMENT:   In an individual action, a prevailing plaintiff may be able to recover $500 in statutory damages under the TCPA ($1500 if a willful violation is shown).

The issues surrounding whether or not coverage exists for such claims under standard type comprehensive general liability policies are largely unresolved in both Illinois and the U.S as a whole. As a result, it is impossible to predict what any court might do when faced with the decision of whether or not the insurance company would be obligated to pay for the claims of plaintiffs and the settlement class. Of course, it is possible that plaintiffs and the class could have walked away with nothing. Based upon the foregoing, as well as the judgment of experienced trial counsel, this Court should grant preliminary approval for the proposed settlement. For these reasons, Class Counsel believes that the settlement is fair and reasonable and that the class members should accept this settlement.

FAIRNESS HEARING: A hearing will be held on the fairness of the proposed settlement. At the hearing, the Court will be available to hear any objections and arguments concerning the fairness of the proposed settlement. At the hearing, the Court will be available to hear any objections and arguments concerning the fairness of the proposed settlement, including the amount of the award to plaintiffs’ counsel of costs and attorney’s fees. The hearing will take place on December 21, 2005 at 9:30 a.m., in Room 2001 of the Circuit Court of the 18^th Judicial Circuit DuPage County, Illinois, 501 North County Farm Road, Wheaton, Illinois 60189. YOU ARE NOT OBLIGATED TO ATTEND THIS HEARING.

YOUR OPTIONS

1. If you wish to receive a portion of the settlement proceeds, you must complete and return the proof of claim form at the end of this notice indicating that you wish to participate in the settlement. The proof of claim form must be post-marked or received at Edelman, Combs, Latturner & Goodwin, LLC., 120 S. LaSalle St. 18^th Floor, Chicago, IL 60603 on or before December 15, 2005. You will be represented by the attorneys for plaintiffs without additional charge. Or, if you prefer, you may enter your own appearance or ask the Court to allow you to participate in the settlement through your own attorney. If you wish to participate on your own or through your own attorney, an appearance must be filed with the Court by December 15, 2005. If you participate through your own attorney, it will be at your expense. Any party who returns a claim form or otherwise does not exclude his or herself from the settlement, as described below, will be bound by the settlement agreement and release of claims against the defendants, as approved by the Court.

2. You have the right to exclude yourself from both the class action and the settlement by filing a written request for exclusion with the Clerk of the Circuit Court of the 18^th Judicial Circuit DuPage County, Illinois, 501 North County Farm Road, Wheaton, Illinois 60189. The request for exclusion must be received by the Clerk of the Court on or before December 15, 2005, and must list your name, address, and the name and number of the case. You must also serve copies of the request for exclusion on each of the attorneys for the plaintiffs and for the defendants, at the following addresses by the same date.

Daniel A. Edelman  Jr. Julie Clark

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 

120 S. LaSalle Street, 18th Floor

Chicago, Illinois 60603

(312) 739-4200 312-474-7900

(800) 644-4673

Email: edcombs@aol.com 

www.edcombs.com

(Attorneys for the plaintiffs and the class)

James H. Kallianis, Jeffery A. Berman

Meckler Bulger & Tilson LLP

123 N. Wacker Dr. Ste. 1800

Chicago, IL 60606

(Attorneys for Fidelity)

3. If you object to the settlement, and wish to submit an objection rather than simply exclude yourself from the class action, you must submit your objection in writing to the Clerk of the Circuit Court of the 18^th Judicial Circuit DuPage County, Illinois, 501 North County Farm Road, Wheaton, Illinois 60189. The objection must be received by the Clerk of the Court on or before December 15, 2005, and must refer to the name and number of the case. You must also serve copies of your objection on each of the attorneys for the plaintiffs and for the defendants listed above by the same date. Any objection must include your name and address, the name and number of the case, and a statement of the reasons why you believe that the Court should find that the proposed settlement is not in the best interests of the class. Please note that it is not sufficient to simply state that you object. You must state reasons why the settlement should not be approved.

IMPORTANT: THE COURT REQUIRES THAT ANY REQUESTS FOR EXCLUSION OR OBJECTIONS BE RECEIVED BY THE CLERK BY DECEMBER 15, 2005. IF YOU MAIL A REQUEST FOR EXCLUSION OR OBJECTION, YOU BEAR THE RISK OF THE REQUEST FOR EXCLUSION OR OBJECTION NOT BEING RECEIVED BY THE CLERK BY THE DEADLINE.

If you choose to exclude yourself from the class action and settlement you will not receive payment under this agreement. If you remain in the class action but do not return a proof of claim form by December 15, 2005, you will be bound by the settlement agreement and release but will not receive payment under this agreement. Only those class members who complete and return a valid proof of claim form post-marked on or before December 15, 2005 will receive payment under this agreement.

If the settlement is not approved, the case will proceed as if no settlement had been attempted. There can be no assurance that if the settlement is not approved, the class will recover more than is provided in the settlement, or indeed, anything.

This description of the case is general and does not cover all of the issues and proceedings thus far. In order to see the complete file, including a copy of the settlement agreement, you should visit the office of the Clerk of the Circuit Court of the 18^th Judicial Circuit DuPage County, Illinois, 501 North County Farm Road, Wheaton, Illinois 60189. The Clerk will make the files relating to this lawsuit available to you for inspection and copying at your own expense.

INQUIRIES: Any questions you or your attorney has concerning this notice should be directed to Edelman, Combs, Latturner & Goodwin, LLC at the address listed above. Please include the case name and number, your name and your current return address on any letters, not just the envelopes. Please do not contact the Court Clerk or the defendants’ attorneys; they are not in a position to give you any advice about this settlement.

 

 

 

 

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PROOF OF CLAIM

INSPE ASSOCIATES, Ltd. et al., v. MORTGAGE NOW, INC., et. al., CASE NO: 2003 L 394 (Circuit Court of the 18^th Judicial Circuit DuPage County, Illinois)IMPORTANT: THIS CLAIM FORM MUST BE POSTMARKED OR RECEIVED ON OR BEFORE DECEMBER 15, 2005, AND MAILED TO THE FOLLOWING ADDRESS:

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

120 S. LaSalle Street, 18th Floor

Chicago, Illinois 60603

Please print the following information:

NAME: ________________________________

ADDRESS: ________________________________

CITY/STATE: ________________________________

ZIP CODE: ________________________________

I certify that I received an unsolicited facsimile ad from Mortgage Now, Inc. between November 7, 2000 and July 15, 2003.

_______________________________

YOUR SIGNATURE