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Diaz v. New Penn Financial, LLC

United States District Court, E.D. New York

June 26, 2017

ALTAGRACIA DIAZ, on behalf of herself and all others similarly situated, Plaintiff,
v.
NEW PENN FINANCIAL, LLC, d/b/a SHELLPOINT MORTGAGE SERVICING, Defendant.

          FINAL ORDER AND JUDGMENT

          HON. JOANNA SEYBERT, U.S.D.J.

         This matter came for hearing on July 8, 2016, upon the joint request (the "Joint Motion") of Plaintiff Altagracia Diaz, individually and on behalf of a class of persons similarly situated (collectively "Plaintiff or "Class Representative"), and Defendant New Penn Financial, LLC d/b/a Shellpoint Mortgage Servicing ("Defendant, " together Plaintiff and Defendant are referred to as the "Parties"), for approval of the Class Action Settlement Agreement and Release, dated July 2016 (the "Settlement Agreement"). Due and adequate notice having been given to the Class Members, and the Court having considered the Settlement Agreement, all papers filed and proceedings had herein and all oral and written comments received regarding the Settlement Agreement, and having reviewed the record in this action, and good cause appearing therefrom:

         IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

         1. The Court, for purposes of this Final Order and Judgment (the "Final Order"), adopts all defined terms as set forth in the Settlement Agreement.

         2. This Court preliminarily approved the Settlement Agreement, by Preliminary Approval Order of Class Action Settlement dated November 30. 2016 (the "Preliminary Approval Order").

         3. In the Preliminary Approval Order, the Court approved a form Notice for mailing to the Class Members.

         4. The Court is informed that the Notice was sent by first-class mail to 1.279 individuals who are deemed Class Members. A total of 69 envelope(s) were returned by the United States Postal Service marked not deliverable with no forwarding addresses available, and 36 envelope(s) were returned and re-mailed to a forwarding address. Two Class Members submitted timely requests for exclusion and one (1) Class Member requested exclusion after the deadline of February 14. 2017, the Claim Form Deadline). Two-Hundred and Forty-One (241) Class Members submitted a valid Claim Form that was received by the Settlement Administrator by the Claim Form Deadline. Six (6) Class members submitted Claim Forms after the Claim Form submission deadline. The Court will allow the 6 late claimants to receive a share of the Class Settlement Fund. The Court has found that 247 Class Members will receive an equal share of the class settlement fund and 3 Class Members, Barton McClellan, Cheryl Smith and Stephen Guenther excluded themselves from the settlement.

         5. The Court received no objection(s) filed by Class Members by February 14. 2017. the deadline for the submission of objections set in the Preliminary Approval Order. No Class Member(s) appeared at the Fairness Hearing to object to the settlement.

         6. The Court has jurisdiction over the subject matter of this Action, the Plaintiff and the Class Members, and the Defendant.

         7. The Court finds that the distribution of the Notice as provided for in the Preliminary Approval Order constituted the best notice practicable under the circumstances to all Persons within the definition of the Class, and fully met the requirements of New York law and due process under the United States Constitution.

         8. The Court approves the settlement of the above-captioned action, as set forth in the Settlement Agreement, as fair, just, reasonable, and adequate as to the Parties. The Parties are directed to perform in accordance with the terms set forth in the Settlement Agreement.

         9. Except as to any individual claim of Class Members who are excluded from the Class, all of the Released Claims are dismissed with prejudice as to the Class Representative and the Class Members, and as against the Released Parties. The Parties are to bear their own costs, except as otherwise provided in the Settlement Agreement.

         10. For purposes of settlement, the Parties stipulate to the following Class:

         (a) all individuals in the State of New York, (b) who were sent a document in the form of Appendix B to the Complaint, (c) on or after August 14, 2014 and on or before October 23, 2015, (d) concerning a loan that Defendant began servicing after it was in default, and (e) whose letter was not returned as undeliverable or without a ...


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