The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
ALEJANDRO CARRILLO, individually and
on behalf of all others similarly situated,
Case No. 2:18-cv-03095-PKC-JMW
Plaintiff,
ECF Case
v.
Judge Pamela K. Chen
WELLS FARGO BANK, N.A.,
Magistrate Judge James M. Wicks
Defendant.
JURY DEMANDED HEREON
[REVISED PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS
SETTLEMENT
WHEREAS, on March 8, 2021, this Court entered an Order Granting Preliminary
Approval of Proposed Settlement Agreement (the “Preliminary Approval Order”), preliminarily
approving the proposed settlement of this Action pursuant to the terms of the Parties’ Settlement
Agreement and directing that notice be given to the Class Members;
WHEREAS, pursuant to the Parties’ plan for providing notice to the Class (the “Notice
Plan”), the Settlement Class was notified of the terms of the proposed settlement and of a Final
Approval Hearing to determine, inter alia, whether the terms and conditions of the Settlement
Agreement are fair, reasonable, and adequate for the release and dismissal of the Released
Claims against the Released Parties as contemplated in the Settlement Agreement, and whether
judgment should be entered dismissing the Action with prejudice; and
WHEREAS, a Final Approval Hearing was held on August 19, 2021. Prior to the Final
Approval Hearing, proof of completion of the Notice Plan was filed with the Court, along with
declarations of compliance. Settlement Class Members were therefore notified of the terms of the
proposed settlement and their right to appear at the hearing in support of or in opposition to the
proposed settlement, the amount of attorney’s fees and costs requested by Class Counsel and the
Service Award requested for the Class Representative;
NOW, THEREFORE, the Court, having heard the oral presentations made at the Final
Approval Hearing, having reviewed all of the submissions presented with respect to the proposed
settlement, having determined that the settlement is fair, adequate, and reasonable, having
considered Class Counsel’s Motion for Attorney’s Fees and Costs and the Class Representative’s
Service Award, and having reviewed the materials in connection therewith, and good cause
appearing, it is hereby
ORDERED, ADJUDGED AND DECREED THAT:
1. The capitalized terms used in this Order shall have the same meaning as defined
in the Settlement Agreement except as may otherwise be ordered.
2. The Court has jurisdiction over the subject matter of this Action, all claims raised
therein, and all Parties thereto, including the members of the Settlement Class.
3. The Court finds, solely for purposes of considering this settlement and this Final
Approval Order, that the requirements of Federal Rule of Civil Procedure 23 are satisfied,
including requirements for the existence of numerosity, commonality, typicality, adequacy of
representation, manageability of the Settlement Class for settlement purposes, that common
issues of law and fact predominate over individual issues, and that settlement and certification of
the Settlement Class is superior to alternative means of resolving the claims and disputes at issue
in this Action.
4. The Settlement Class, which will be bound by this Final Approval Order, shall
include all Class Members who did not submit a timely and valid Opt-Out request. The
individuals who have timely requested exclusion from the Settlement Class are co-borrowers
Kenneth Bowyer and Carmen Underwood, co-borrowers John W. Mullan and Joann C. Mullan,
and Martha Rideout. These individuals are hereby excluded from the Settlement Class, are not
bound by the Settlement Agreement, and shall not be entitled to any of the benefits afforded to
Settlement Class Members under the Settlement Agreement.
5. For purposes of settlement only and this Final Approval Order, Plaintiff Alejandro
Carrillo (“Plaintiff”) is appointed and shall serve as Class Representative of the Settlement Class.
6. For purposes of settlement only and this Final Approval Order, the Court appoints
the following as Class Counsel on behalf of Plaintiff and the Settlement Class: Beth E. Terrell,
Ari Brown, and Adrienne D. McEntee of Terrell Marshall Law Group PLLC, and Daniel A.
Schlanger of Schlanger Law Group LLP.
7. For purposes of settlement only and this Final Approval Order, the Court hereby
certifies the following two classes, collectively, the Settlement Class:
a. The “TILA Class” is defined as all persons in the United States (a) who
entered into Buydown Agreements with Wells Fargo in residential real
estate mortgage transactions; (b) within one year prior to the filing of the
Initial Complaint; (c) in which Wells Fargo disclosed in the borrower’s
loan Closing Disclosure a lower effective interest rate for an initial period
followed by a higher interest rate for the remainder of the life of the loan;
and (d) as to whom, during the initial period, Wells Fargo amortized the
loan at a rate higher than the lowest disclosed effective rate.
b. The “Breach of Contract Class” is defined as all persons in the United
States who during the Class Period entered into Buydown Agreements
with Wells Fargo in residential real estate mortgage transactions in which
Wells Fargo disclosed a lower effective interest rate for an initial period
followed by a higher interest rate for the remainder of the life of the loan
but, during the initial period, amortized the loan at a rate higher than the
lowest disclosed effective rate.
8. The persons comprising the certified Settlement Class are identified in the Class
List, as defined in the Settlement Agreement, which list will be maintained as indicated in the
Settlement Agreement. The Settlement Class does not include Kenneth Bowyer, Carmen
Underwood, John W. Mullan, Joann C. Mullan, and Martha Rideout, who have submitted valid
requests to exclude themselves from the Settlement Class.
9. For purposes of settlement only, certification of the Settlement Class and this
Final Approval Order, the Court further finds that “Class Period” means:
a. for all Class Members who obtained a Buydown Agreement in connection
with residential real estate located within the state of New York, six years
from the filing date of the Initial Complaint (May 25, 2018); and (ii) for
all non-New York real estate mortgage transactions, the relevant statute of
limitations period applicable to the jurisdiction in which the mortgaged
property is located, and the applicable date range, as described on Exhibit
2 to the Settlement Agreement.
10. The Court finds for purposes of settlement only that the Settlement Class satisfies
the prerequisites for a class action under Fed. R. Civ. P. 23(a) and 23(b)(3). The Court finds, for
purposes of settlement only, that the following requirements are met: (a) the above-described
Settlement Class Members are so numerous that joinder is impracticable; (b) there are questions
of law and fact common to the Settlement Class Members; (c) Plaintiff’s claims are typical of
Settlement Class Members’ claims; (d) Plaintiff has fairly and adequately represented the
interests of the Settlement Class and will continue to do so, and Plaintiff has retained
experienced Class Counsel; (e) the questions of law and fact common to the Settlement Class
Members predominate over any affecting any individual Settlement Class Member; and (f) a
class action provides a fair and efficient method for settling the controversy under the criteria set
forth in Rule 23 and is superior to alternative means of resolving the claims and disputes at issue
in this Action.
11. Notwithstanding the certification of the foregoing Settlement Class and the
appointment of Class Counsel and of the Class Representative for purposes of effecting the
settlement, if this Order is reversed on appeal, or the Settlement is terminated or is not
consummated for any reason, the foregoing certification of the Settlement Class and appointment
of Class Counsel and of the Class Representative shall be void and of no further effect, and the
Parties to the proposed settlement shall be returned to the status each occupied before entry of
this Order as if no Class was certified and as if no Second Amended Complaint was filed without
prejudice to any legal argument that any of the Parties to the settlement might have asserted but
for the settlement.
12. The Court finds that the Notice Plan set forth in Section X of the Settlement
Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best
notice practicable under the circumstances and shall constitute, and was reasonably calculated to
provide and did provide, due and sufficient notice to the Settlement Class of the pendency of this
Action, certification of the Settlement Class for settlement purposes only, the existence and
terms of the Settlement Agreement, the date of the Final Approval Hearing, and the right to
object and to appear at the Final Approval hearing or to exclude themselves from the settlement,
and satisfies the requirements of the Federal Rules of Civil Procedure, the United States
Constitution, and any other applicable law.
13. The Court hereby approves the settlement, including the plan for the calculation
and distribution of the Cash Award settlement relief, and finds that the settlement, as set forth in
the Settlement Agreement and this Order, satisfies each of the requirements of Fed. R. Civ. P.
23(e)(2) and is in all respects fair, reasonable, adequate and in the best interests of the Settlement
Class, taking into account the risks that both sides faced with respect to the merits of the claims
alleged and remedies requested, the risks of maintaining a class action, and the expense and
duration of further litigation, including trial and appeal; the effectiveness of the proposed relief
to the Class, including the method of processing class-member claims; and the terms of the
proposed award of attorneys’ fees, including timing of payments, as described in more detail
below. The Court further finds that the Class Representatives and Class Counsel have at all times
adequately represented the Class and the settlement negotiations that resulted in the settlement
were at all times conducted at arm’s length. The Court also finds that Class Counsel have
identified all required agreements related to the settlement and that, because the settlement
provides for a minimum award payment in equal amount to all Class Members from the
Settlement Fund and also provides for a pro rata distribution of the Settlement Fund
commensurate with alleged harm to Class Members, the settlement treats all Class Members
equitably relative to one another. Fed. R. Civ. P. 23(e)(2); City of Detroit v. Grinnell Corp., 495
F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc.,
209 F.3d 43 (2d Cir. 2000). The Court finds that the recovery provided by the settlement is
reasonable in light of the best possible recovery and the attendant risks of litigation; and the
reaction of the Settlement Class to the settlement supports final approval. Grinnell, 495 F.2d at
463. For all of these reasons the Court grants final approval of the settlement.
14. The Parties shall effectuate the Settlement Agreement according to its terms. The
Settlement Agreement and every term and provision thereof shall be deemed incorporated herein
as if explicitly set forth and shall have the full force of an Order of this Court.
15. Provided the Effective Date has occurred, distribution of the Cash Awards to
Settlement Class Members provided for in the Settlement Agreement shall be paid to Settlement
Class Members, pursuant to the terms and conditions of the Settlement Agreement and Sections
V and VI thereof.
16. Administrative Expenses, except for Administrative Expenses that the Settlement
Administrator may incur to make any second distribution of Settlement funds pursuant to
paragraph 79 of the Settlement Agreement, are capped at $51,772. Administrative Expenses for
any second distribution of Settlement funds pursuant to paragraph 79 of the Settlement
Agreement, are capped at $23,728.
17. Settlement Class Members were duly afforded an opportunity to object to the
settlement and there were no objections to the settlement.
18. Upon the Effective Date, the Releasors shall have, by operation of this Final
Approval Order, fully, finally, and forever released, relinquished, and discharged the Released
Parties from all Released Claims pursuant to Section VII of the Settlement Agreement.
19. Releasors are hereby permanently barred and enjoined from instituting,
commencing, or prosecuting, either individually or as a class, or in any other capacity, any
Released Claim against any of the Released Parties. In addition, Plaintiff and each Settlement
Class Member are hereby enjoined from asserting as a defense, including as a set-off or for any
other purpose, any argument that if raised as an independent claim would be a Released Claim.
20. This Final Approval Order, the Final Judgment, the Settlement Agreement, the
settlement which it reflects, and any and all acts, statements, documents or proceedings relating
to the settlement are not, and shall not be construed as or used as an admission by or against
Wells Fargo or any other Released Party of any fault, wrongdoing, or liability on their part, or of
the validity of any Released Claim or of the existence or amount of damages. This Final
Approval Order and the Agreement do not constitute a concession and shall not be used as an
admission or indication of any wrongdoing, fault or omission by Defendant or any of the other
Released Parties or any other person in connection with any transaction, event or occurrence, and
neither this Final Approval Order nor the Agreement nor any related documents in this
proceeding, nor any reports or accounts thereof, shall be offered or received in evidence in any
civil, criminal, or administrative action or proceedings, other than such proceedings as may be
necessary to consummate or enforce this Final Approval Order, the Agreement, and all releases
given thereunder, or to establish the affirmative defenses of res judicata or collateral estoppel
barring the pursuit of claims released in the Agreement. This Final Approval Order also does not
constitute any opinion or position of the Court as to the merits of the claims and defenses related
to this Action.
21. The claims of the Class Representative and all Settlement Class Members in this
Action, and as defined as Released Claims in Section VII of the Settlement Agreement, are
hereby dismissed in their entirety with prejudice. Except as otherwise provided in this Order
and/or in this Court’s Order Awarding Attorneys’ Fees and Costs in this Action, entered in
response to Class Counsel’s motion therefor brought in connection with the settlement, the
Parties shall bear their own costs and attorneys’ fees. The Court reserves jurisdiction over the
implementation of the settlement, including enforcement and administration of the Settlement
Agreement, including any releases in connection therewith and any other matters related or
ancillary to the foregoing.
22. Having reviewed the Motion for Attorneys’ Fees and Costs and the Class
Representative’s Service Award, the Court approves payment of attorneys’ fees in the amount of
$2,314,800, plus reimbursement of costs and expenses in the amount of $17,087. Provided the
Effective Date occurs, these amounts shall be paid from the Settlement Fund in accordance with
the terms of the Settlement Agreement. The Court, having considered the materials submitted by
Class Counsel in support of their Motion for Final Approval and Motion for Attorneys’ Fees and
Costs and the Class Representative’s Service Award, finds the award of attorneys’ fees, costs and
expenses appropriate and reasonable for the following reasons: First, the Court finds that the
settlement provides substantial benefits to the Settlement Class. Second, the Court finds the
payment fair and reasonable in light of the substantial work performed by Class Counsel. Third,
the Court concludes that the settlement was negotiated at arms-length without collusion, and that
the negotiation of the attorneys’ fees only followed agreement on the settlement benefit for the
Settlement Class Members. Finally, the Court notes that the Class Notice specifically and clearly
advised the Settlement Class that Class Counsel would seek an award up to an amount no greater
than the amount sought and Settlement Class Members had an opportunity to review the Motion
for Attorneys’ Fees and Costs and Class Representative’s Service Award prior to the deadline to
object to the settlement. No Settlement Class Members objected to the request.
23. The Court approves a Service Award for the Class Representative in the amount
of $12,500 for Alejandro Carrillo in settlement of his claims and in recognition of his services as
Class Representative. The Court specifically finds this amount to be reasonable in light of the
services performed by the Class Representative for the Settlement Class, including taking on the
risks of litigation, providing discovery, and helping achieve the compensation being made
available to the Settlement Class. Provided the Effective Date occurs, this amount shall be paid
from the Settlement Fund in accordance with the terms of the Settlement Agreement. Plaintiff
shall not be entitled to any other payment under the Settlement Agreement. No Settlement Class
Members objected to the request.
24. The Court, being fully advised and having afforded Class Members with an
opportunity to object, finds that the Class Settlement is fair and reasonable under Rule 23 of the
Federal Rules of Civil Procedure, the Class Notice sent to Class Members satisfies the
requirements of Rule 23 and due process, and the Parties have fully complied with the
Preliminary Approval Order.
25. Class Counsel’s requested fee award is fair and warranted given the results
achieved for the Settlement Class, the risks undertaken by Class Counsel in litigating this Action,
and the efforts undertaken by Class Counsel in reaching this settlement; and the requested
Service Award is warranted and commensurate with the amount of service awards typically
awarded in class actions brought in this District.
26. The Court finds that Wells Fargo provided Class Action Fairness Act (“CAFA”)
notice to the appropriate state and federal officials pursuant to 28 U.S.C. § 1715.
27. The Court finds that no reason exists for delay in entering this Final Approval
Order. Accordingly, the Clerk is directed to enter this Final Approval Order and the
accompanying Judgment of Dismissal.
28. The Parties, without further approval from the Court, are hereby permitted to
agree to and adopt such amendments, modifications and expansions of the Settlement Agreement
and its implementing documents (including all exhibits to the Settlement Agreement) so long as
they are consistent in all material respects with the Final Approval Order and Judgment of
Dismissal and do not limit the rights of the Settlement Class Members.
29. All Settlement Class Members are bound by this Final Approval Order and the
Judgment of Dismissal. They are further bound by the terms of the Settlement Agreement
including, but not limited to, its Release provisions.
30. Notice of entry of this Order and the ensuing Judgment of Dismissal has been
given to Class Counsel on behalf of the Settlement Class. It shall not be necessary to send notice
of entry of this Final Approval Order or ensuing Judgment of Dismissal to individual members
of the Settlement Class.
31. In the event that the Settlement Agreement is terminated pursuant to its own
terms; or the Settlement Agreement, Preliminary Approval Order, Final Approval Order, or
Judgment of Dismissal are reversed, vacated, or modified in any material respect by this or any
other court, then (a) all orders entered pursuant to the Settlement Agreement shall be vacated,
including this Final Approval Order; (b) the instant action shall proceed as though a Settlement
Agreement had never been reached; and (c) no reference to the prior Settlement Agreement, or
any documents or actions related thereto, shall be made for any purpose; provided, however, that
the Parties to the Settlement Agreement agree to appeal an adverse ruling jointly and the
Settlement Agreement, Preliminary Approval Order, Final Approval Order, or Judgment of
Dismissal are upheld on appeal in all material respects, then the Settlement Agreement,
Preliminary Approval Order, Final Approval Order, or Judgment of Dismissal shall be given full
force and effect.
32. Without affecting the finality of this Final Approval Order or the Judgment of
Dismissal for purposes of appeal, the Court retains jurisdiction as to all matters related to the
administration, consummation, enforcement, and interpretation of the Settlement Agreement and
this Final Approval Order and accompanying Judgment of Dismissal, and for any other
necessary purpose.
It is SO ORDERED.
/s/ Pamela K. Chen
Dated: August 19, 2021 HON. PAMELA K. CHEN
Brooklyn, NY UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF NEW YORK
cc: All Counsel of Record