Fabricant v. Old Kent Mortgage, Inc
NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT
TO: All persons upon whom Old Kent collected duplicative or excess recording fees for recording mortgage release forms in connection with real estate closings from June 20, 1999 through November 11, 1999
PLEASE READ THIS NOTICE CAREFULLY.
THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. YOU MAY BENEFIT FROM READING THIS NOTICE.
WHAT THIS LAWSUIT IS ABOUT
The Fabricants filed an action on October 19, 1999, in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that Old Kent imposed duplicative fees for recording mortgage releases in connection with real estate closing transactions in violation of the Real Estate Sales Settlement Procedures Act, 12 U.S.C. 2607, et seq.
On 5/30/00 , 2000, Magistrate Judge Edward A. Bobrick of the United States District Court for the Northern District of Illinois, Eastern Division, granted preliminary approval of the settlement, subject to a fairness hearing which will take place on 8/28/00 ,2000 at 9:00AM a.m. in Room 1822, of the United States District Court, 219 South Dearborn Street, Chicago, IL 60604.
You are being sent this notice because you appear to be a member of the class. This notice explains the nature of the lawsuit and the terms of the settlement, and informs you of your legal rights and obligations.
NO ADMISSION OF LIABILITY
Old Kent denies any liability to the plaintiffs or the class. However, Old Kent has admitted that the duplicative fees were imposed on members of the class due to errors in its recording fee system.
THE PROPOSED SETTLEMENT
The attorneys for the class believe that this settlement is fair, reasonable, and in the best interest of the class members. The defendant has represented that there are approximately 1380 class members. The principal terms of the settlement are summarized as follows: A. Class Recovery: Old Kent has sent, or will send, refunds to all class members who incurred duplicate or excess fees in connection with a real estate closing transaction. In addition, after the order approving settlement becomes final and non-appealable, Old Kent will forward (at its own expense) to each class member an additional payment equal to 50% of the original refund.
B. Class Representative: In lieu of the additional 50% payment to the Fabricants, Old Kent will pay to the Fabricants, jointly, the sum of $1,000.
C. Attorneys' Fees and Costs: Old Kent will pay the law firm of Edelman, Combs and Latturner 85% of their fees and 100% of the firm's out-of-pocket expenses, the total sum of which shall not exceed $8,500. Defendant will pay costs of giving notice and administrative expenses.
D. Release: Upon approval of the settlement by the Court, each class member who has not timely and properly excluded himself or herself from the Class pursuant to Fed. R. Civ. P. 23(c)(2) will be deemed to have released and forever discharged Defendant, and agrees to refrain from proceeding in any way against Defendant, and its past, present or future officers, directors, employees, agents, attorneys, subsidiaries, parent corporations, related entities and affiliates, and their respective successors and assigns (collectively, the "Released Parties"), from all claims of the class members, which have been or could have been asserted in litigation which arise out of or relate to the imposing of duplicative or excess fees associated with their real estate closing.
OPINION OF CLASS COUNSEL CONCERNING THE VALUE OF THE SETTLEMENT
In an individual action, the person bringing the suit may recover (i) any actual damages suffered and (ii) statutory damages of three times the damage amount. There is no minimum. In either an individual or class action, the person bringing the suit can also recover attorneys' fees and the expenses of prosecuting the suit, if it is successful.
While the theoretical maximum statutory damages recoverable in an individual action triple damages, there is no minimum, and no assurance that if any significant number of persons attempt to recover triple damages, that they will receive anything.
The court has the discretion to award anything between the maximum amount and zero, depending on the egregiousness of the violation.
Class counsel believes that this 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, including the amount of the award to plaintiffs' counsel of costs and attorneys' fees. The hearing will take place on 8/28/00 , 2000, at 9:00 a.m. before Magistrate Judge Bobrick in Room 1812 of the United States District Court, 219 South Dearborn Street, Chicago, Illinois 60604.
WHAT YOU CAN DO
1. You have the right to exclude yourself from both the class action and the settlement by filing a request for exclusion with the Clerk of the United States District Court for the Northern District of Illinois, Eastern Division, 219 South Dearborn Street, Chicago, Illinois 60604. The request for exclusion must be received by the Clerk of the Court on or before 7/28/00 , 2000, must refer to 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 defendant listed below in the section entitled "Correct Address" by the same date.
2. 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 United States District Court for the Northern District of Illinois, Eastern Division, 219 South Dearborn Street, Chicago, Illinois 60604. The objection must be received by the Clerk of the Court on or before 7/28/00 , 2000, and must refer to the name and number of the case. You must also send copies of your objections to counsel for both parties, listed below in the section entitled "Correct Address" by the same date. Any objection must include your name and address and 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. If you do file an objection and wish it to be considered, you must also appear at the hearing before Magistrate Judge Bobrick on 8/28/00 , 2000, at 9:00 a.m. Please note that it is not sufficient to simply state that you object. You must state reasons why the settlement should not be approved.
3. In order to obtain the benefits of the settlement, you do not need to take any action in order to remain in the class.
4. If you have any questions which this notice has not answered, you may call Old Kent toll-free at (877) 859-8984. They will be happy to answer your questions for you. You may also call the plaintiffs' counsel Edelman, Combs & Latturner if you would like to do so. DO NOT call the Court, as they will be unable to answer your questions.
IMPORTANT: THE COURT REQUIRES THAT ANY REQUESTS FOR EXCLUSION OR OBJECTIONS BE RECEIVED BY THE CLERK BY 7/28/99 , 2000. 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 the settlement is not approved, the case will proceed as if no settlement had been attempted. In that event, defendant retains the right to contest whether this case should continue to be maintained as a class action and to contest the merits of the claims being asserted against them in this action. 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 United States District Court for the Northern District of Illinois, Eastern Division, 219 South Dearborn Street, Chicago, Illinois 60604. The Clerk will make the files relating to this lawsuit available to you for inspection and copying at your own expense.
WHAT YOU SHOULD DO NOW
IN ORDER TO RECEIVE THE BENEFITS TO WHICH YOU ARE ENTITLED UNDER THE SETTLEMENT AGREEMENT OUTLINED ABOVE, YOU DO NOT NEED TO TAKE ANY ACTION. You may also consult with an attorney (at your expense), exclude yourself from the case, or file objections, as described above. You also have the right to file an appearance in the case if you wish.
CORRECT ADDRESS
If this notice was forwarded by the Postal Service, or if it was otherwise sent to you at an address which is not current, you should immediately send a letter to the attorneys for the plaintiffs and for the defendant listed below, stating your past and current addresses.
ATTORNEYS FOR DEFENDANT: Paul E. Freehling, Kathleen H. Klaus, D'ANCONA & PFLAUM, LLC,111 East Wacker Drive, Suite 2800, Chicago, IL 60601-4205, (312) 602-2000
