Why did I receive a Notice package?
You are were sent a Notice because you were identified as a potential Settlement Class Member. CMS’ records show that you own, or owned, real property in the state of Washington subject to a deed of trust or mortgage serviced or held by CMS and, between November 1, 2012 to the date of Preliminary Approval, had your property entered and rekeyed by CMS and/or its agents, prior to CMS completing Final Disposition of the property. Final Disposition is defined to include deed in lieu, foreclosure, short sale, or charge off. This notice explains that the parties have reached an agreement to settle a class action lawsuit that may affect you.
You have legal rights and options that you may exercise before the Court decides whether to approve the Settlement.
The Court has not entered judgment on the merits and has not determined whether there is any merit to the claims in the Action or that Defendants engaged in any wrongdoing. The Court still has to decide whether to grant its approval of the Settlement. If the Court grants final approval of the Settlement, and after any objections and appeals are resolved, the benefits provided under the Settlement will be distributed.
Plaintiffs and Defendants, and their respective counsel, have concluded that the Settlement is fair and in the best interests of the Settlement Class Members considering the risks and uncertainties to each side of continued litigation. Because this Settlement will affect your legal rights, the Court ordered that the Notice be sent to you. The Notice will provide you with a brief description of the Action, summarize the terms of the Settlement, and inform you of your legal rights.
What is this lawsuit about?
On November 1, 2016, Plaintiffs Nikolay Kautsman and Olga Kofanova filed a lawsuit individually and on behalf of others similarly situated. The Action is known as Nikolay Kautsman and Olga Kofanova., v. Carrington Mortgage Services, Carrington Home Solutions L.P., f/k/a White Van Real Estate Services, L.P., Case No. C16-1940-JCC. Nikolay Kautsman and Olga Kofanova are known as “Plaintiffs,” and CMS and Carrington Home Solutions, L.P., are known as “Defendants.” As amended over time, Plaintiffs’ Complaint alleges that Defendants violated state law when it entered and rekeyed their property prior to foreclosure. Plaintiffs also allege that Defendants wrongfully charged property owners fees for rekeying prior to foreclosure.
Q: What position do Defendants take?
Defendants deny Plaintiffs’ claims and believe that they do not have any liability to the Settlement Class for the claims asserted in the Action. Defendants agreed to this Settlement solely to compromise highly-disputed claims.
Nothing in this Settlement is intended to or will be construed as an admission of liability or wrongdoing by Defendants, or an admission by Plaintiffs that any of their claims were non-meritorious or any defense asserted by Defendants was meritorious.
Who are the attorneys representing the Plaintiffs and Settlement Class?
The Court decided that Roger Davidheiser of the law firm of Friedman | Rubin, 1109 First Ave., Ste. 501, Seattle, WA, 98101, Harish Bharti of the Law Offices of Harish Bharti & Associates, LLC, 6701 37th Ave. NW, Seattle, WA, 98117, and Jason Anderson of the Law Office of Jason E. Anderson, 5355 Tallman Ave. NW, Ste. 207, Seattle, WA, 98107, are qualified to represent you and all Class Members. Together the lawyers are called “Class Counsel.”
Friedman | Rubin
51 University St., Suite 201
Seattle, WA 98101
Bharti Law Group, PLLC
6701 37th Ave NW
Seattle, WA 98117
Jason E. Anderson
Law Office of Jason E. Anderson
5355 Tallman Ave. NW, Ste. 207
Seattle, WA 98107
DO NOT CALL THE COURT REGARDING THIS SETTLEMENT
IF YOU ELECT TO REMAIN A SETTLEMENT CLASS MEMBER,
YOU SHOULD NOT CONTACT COUNSEL FOR DEFENDANTS.
Do I need to hire an attorney?
You do not need to hire your own attorney for this Settlement. You are already represented by Class Counsel (see above). However, you may hire your own attorney at your own expense if you choose to do so. If you hire an attorney who wishes to appear on your behalf, your attorney must file a Notice of Intention to Appear with the Court no later than ten (10) business days prior to the date of the scheduled Final Approval Hearing in this matter. You will be responsible for any attorneys’ fees and costs charged by your own attorney.
Why is there a settlement?
Plaintiffs and Defendants have determined that it is in their mutual best interests to settle this Action due to the uncertainties of trial, benefits of settlement, associated costs of continued litigation, likely appeals, and inconvenience and interference with personal matters and business operations. The Settlement was reached through lengthy negotiations between the parties before a neutral, independent, third-party mediator.
The Court did not decide in favor of Plaintiffs or Defendants. After a thorough investigation into the facts of this lawsuit, Plaintiffs and Defendants agreed to the Settlement. The Class Claims against CMS were settled because Class Counsel and Plaintiff, acting as the Class Representative, believe that the amount of the Settlement is fair and reasonable in light of the strength and weaknesses of the Action and other factors.
How do I know if I am part of the Settlement?
You are in the Settlement Class if you own or owned real property in the state of Washington subject to a deed of trust or mortgage securing a loan serviced by CMS or its agents, and CMS, or its agents, without authorization, entered your property and rekeyed it between November 1, 2012 and date of Preliminary Approval before completing a Final Disposition of the property. If you received a Notice addressed to you, CMS has determined that you meet this definition and are a member of the Settlement Class.
The Participating Settlement Class does not include any persons who validly request exclusion from the Settlement Class. A person who does not timely exclude him or herself is a “Participating Settlement Class Member.”
What does the Settlement Fund provide and what can I get from it?
To settle this lawsuit, CMS has agreed to pay $1,950,000 into a Settlement Fund. The Settlement Fund will have two parts, a Common Fund and a Damages Fund. The Common Fund provides a Service Award payment to the Class Representatives, Attorneys’ Fees and reasonable Expenses, and costs related to settlement administration. Remaining funds shall comprise the Damages Fund, which will provide individual payments to all Settlement Class Members.
Each Participating Settlement Class Member will receive a payment, called a Settlement Award, based on a pro rata share of the Damages Fund. That is, each Participating Settlement Class Member’s Settlement Award will vary, and will be determined by both the property value and the number of days from re-key to foreclosure or another Final Disposition of the property. Remember, the Damages Fund is the Common Fund less payments for the Service Award, Attorneys’ Fees and reasonable Expenses, and Settlement Administrator costs, and is estimated to be approximately $1,187,500. Therefore, if the Damages Fund is $1,187,500, the pro rata share will be approximately 0.4% multiplied by the number of days after rekey event until Final Disposition with a cap of 3 months. While each class member’s award will be different, the average award using this formula will be approximately $1,912.72. Because the final Damages Fund amount may vary, these amounts may also vary and the average award may be less than this amount. In addition, some individual settlement payments will be much less than the average. Finally, the property value has been determined by the information available to CMS and as close to the date of the rekeying as possible. For class members for whom no property value is available, the average property value of all class members will be used.
You will be solely responsible for the reporting and payment of any federal, state, and/or local income or other tax withholdings, if any, on your individual settlement benefit. If you do not submit a valid request for exclusion on or before ninety (90) days from the Court’s entry of its preliminary approval of the settlement, which is April 2nd , 2020, you will receive your individual Settlement Award after the Settlement Effective Date.
In addition, Class Counsel plans to apply to the Court for a Service Award not to exceed $15,000 each to Named Plaintiffs Nikolay Kautsman and Olga Kofanova, in addition to the benefits provided to all Participating Settlement Class Members, in recognition of their efforts and risks taken in leading and pursuing this Action. The Court will determine the actual amount awarded to Plaintiffs as a Service Award. Defendants have agreed not to oppose Class Counsel’s application for a Service Award (up to $15,000) for each Named Plaintiff. The Service Award will be paid out of the Common Fund.
Class Counsel also plan to apply to the Court for their Attorneys’ Fees and reasonable Expenses. The Court will determine the actual amount. Defendants have agreed not to oppose Class Counsel’s application for an amount of Attorneys’ Fees not to exceed 35% of the Common Fund. The Attorneys’ Fees and reasonable Expenses will be paid out of the Common Fund. Class Counsel’s fee application will be available here on or around March 2, 2020.
What do I need to do to receive a payment?
Nothing. If you take no further action as a Settlement Class Member, you will be represented by Class Counsel, and will have the right to obtain your Settlement Award if the Settlement is approved by the Court and the Settlement Effective Date occurs.
You will receive your individual settlement benefit at the same address where you received the mailed Notice. If you did not receive a Notice in the mail, or if you move or change your address, you must send notice of your change of address to the Settlement Administrator [contact info here] so that your individual settlement benefit can be sent to your new address.
The Settlement Effective Date is the first date that is three business days after all the following have occurred: (i) the Court has entered the Final Approval Order; (ii) the time for any challenge to the Settlement, both in the Court and on appeal, has elapsed; and (iii) the Settlement has become final, either because no timely challenge was made to it or because any timely challenge has been finally adjudicated and rejected.
You will be bound by the terms of the Settlement, which will result in a release of your claims as described below under Released Claims.
When will I receive my payment?
The Court will hold the Final Approval Hearing (also known as a “Fairness Hearing”) on or about June 2nd, 2020 in the U.S. District Court for the Western District of Washington, 700 Stewart Street, Seattle WA 98101, to decide whether to approve the Settlement. The benefits to Class Members will begin being issued within 30 days of the Settlement Effective Date. The checks will be valid for 90 days from the date of issuance.
What am I giving up if I participate or do nothing?
Unless you exclude yourself from the Settlement, you are staying in the Settlement Class and you will be a Participating Settlement Class Member and you will be bound by the terms of the Settlement, including the Released Claims described below. That means you can’t sue, continue to sue, or be part of any other lawsuit against CMS and additional released parties regarding its practice of entering upon and rekeying your property before completing a Final Disposition of the property. It also means that all of the Court’s orders will apply to you and legally bind you. The Settlement Agreement (available here) describes the claims you are releasing (the “Released Claims”) and against whom you are releasing claims (“CMS”) in detail, so read it carefully.
Released Claims. As described in the Settlement, “Released Claims” means: the claims against the Defendants that the Settlement Class Members shall release consisting of all known and unknown charges, complaints, claims, grievances, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, penalties, fees, wages, medical costs, pain and suffering, mental anguish, emotional distress, expenses (including attorneys’ fees and costs actually incurred), and punitive damages, of any nature whatsoever, known or unknown, which either the Settlement Class Members have, or may have had, against the Defendants, whether or not apparent or yet to be discovered, or which may hereafter develop, for any acts or omissions related to or arising from the Lawsuit and any claims under federal, state or local law, rule, or regulation.
How do I ask the Court to exclude me from the settlement?
If you do not wish to participate in the Settlement, you may exclude yourself (generally called “opting out”) by submitting a written opt-out request to the Settlement Administrator. Your request for exclusion must either be made through this settlement website or it must (a) be in writing; (b) state your name, address and telephone number; (c) request exclusion from the Settlement Class saying words to the effect of “I wish to opt-out of the Settlement Class in Kautsman v. CMS, Case No. 2:18-cv-01940-JCC (W.D. Wash.)”; and (d) be signed and dated by you, with a return mailing address, and returned via United States first class mail to the Settlement Administrator identified below postmarked by the Opt-Out Deadline, 90 days from the Court’s entry of its preliminary approval of the settlement, which is April 2nd, 2020.
You must sign the request for exclusion personally and may not have someone sign for you, nor may you submit a request for exclusion on behalf of a group. Your Request must be addressed to:
Settlement Services, Inc.
RE: Kautsman v. CMS Class Action
P.O. Box 1657
Alternatively, you can complete and return to the Settlement Aministrator the Request for Exclusion Form found here.
To submit an opt out request via this website, you must include ALL of the following items or your opt out request will not be valid: your name, address and telephone number; and the following statement: I _____________, wish to opt-out of the Settlement Class in Kautsman v. CMS, Case No. 2:18-cv-01940-JCC (W.D. Wash.)”; and (d) be signed and dated by you. To submit an opt-out via this website, click here to open a pre-addressed email in your email application with the appropriate text. If you are on a public computer you may send an email manually to email@example.com using the above cited text.
If you ask to be excluded by the deadline, then upon its receipt you shall no longer be a member of the Settlement Class, you shall be barred from participating in any portion of the Settlement, you may not object to the Settlement, and you will receive no benefits from the Settlement. If you wish, you may pursue any claims you may have against Defendants.
Again, if you do not submit a complete and timely written request for exclusion, you will be included in the Settlement Class, and bound by the terms of the Settlement (including the Released Claims described above), whether or not you filed an objection to the Settlement.
Do not submit both an objection and a request for exclusion. If you submit both, the request for exclusion will be controlling, and you will be excluded from the Settlement Class.
How do I object to the Settlement?
If you are a Settlement Class Member and you do not exclude yourself from the Participating Settlement Class, you can object to the Settlement if you don’t like any part of it. Your written objection must provide your name, address, telephone number, and the reason(s) for your objection. You must file the objection with the Court no later than the Objection Deadline, April 2nd, 2020, by mailing it to:
U.S. District Court Clerk’s Office
RE: Kautsman v. CMS Class Action
700 Stewart Street, Suite 2310
Seattle WA 98101
The objection must set forth any and all objections/comments to this Settlement and include any supporting papers and arguments. Any person who fails to submit such a timely written notice shall be barred from making any statement objecting to this Settlement, including at this hearing, and shall forever waive his or her objection, except by special permission of the Court. Plaintiffs and Defendants may file a responsive document to any notice of intent to object or appear with the Court no later than five (5) business days before the Final Approval Hearing.
You do not have to attend the Fairness Hearing, but you may do so at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you filed and served your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary. If you object to the Settlement, you will still remain a Member of the Participating Settlement Class, and if the Court approves the Settlement, you will be bound by all the terms of the Settlement including the Released Claims as described above.
If you do not properly object to the Settlement, you waive your right to later object to the Settlement, whether by appeal or otherwise. Do not file an objection if you decided to exercise your right to opt-out of the Settlement as described above, because you are not permitted to do so.
If the court approves the Settlement despite any objections, you will receive your individual settlement benefit and will be bound by the terms of the Settlement (including the Released Claims described above).
What is the difference between objecting and excluding myself from the Settlement?
Objecting simply means telling the Court that you do not agree with something about the Settlement. You can object only if you stay in the Participating Settlement Class. Excluding yourself from the Participating Settlement Class is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
Again, do not submit both an objection and request for exclusion. If you submit both, the request for exclusion will be controlling, and you will be excluded from the Settlement Class.
When and where will the Court hold a hearing on the fairness of the Settlement?
The Court will hold the Final Fairness Hearing on June 2nd, 2020 at 9:00 a.m., before the Honorable John C. Coughenour at the United States District Court for the Western District of Washington, 700 Stewart Street, Seattle WA 98101. The purpose of the hearing is for the Court to determine whether the Settlement is fair, reasonable, adequate, and in the best interest of the Class. At the hearing, the Court will hear any objections and arguments concerning the fairness of the proposed Settlement, including those related to the amount requested by Class Counsel for Attorneys’ Fees and reasonable Expenses as well as the Service Award to the Class Representative. After the hearing, the Court will decide whether to approve the Settlement.
We do not know how long these decisions will take. The date and time of the Final Fairness Hearing are subject to change by Court Order. Any changes will be posted on this Settlement website.
Do I have to come to the hearing?
No. Class Counsel will answer any questions the Court may have. You are welcome to come to the hearing at your own expense. If you send an objection you don’t have to come to the Court to talk about it. As long as your written objection was filed or mailed on time, and meets the other criteria described in the Settlement Agreement, the Court will consider it. You may also pay a lawyer to attend but doing so is not required.
May I speak at the hearing?
If you do not exclude yourself from the Participating Settlement Class, you may ask the Court for permission to speak at the hearing concerning any part of the proposed Settlement Agreement. If you filed an objection and intend to appear at the hearing, you must state your intention to do so in your objection. To speak, you must send a letter saying that it is your “Notice of Intention to Appear” in “Kautsman v. CMS., No. 2:16-cv-1940.” Be sure to include your name, address, telephone number, that you are a Class Member, and your signature. Your Notice of Intention to Appear must be received at the Court’s address no later than 10 business days before the Fairness Hearing. You cannot speak at the hearing if you exclude yourself.
This website is designed and maintained by the Settlement Administrator for the lawsuit known asNikolay Kautsman and Olga Kofanova., v. Carrington Mortgage Services, Carrington Home Solutions L.P., f/k/a White Van Real Estate Services, L.P.,(Case No. C16-1940-JCC), filed in the U.S. District Court for the Western District of Washington.