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Hendrickson v. Fifth Third Bank

United States District Court, D. Minnesota

November 5, 2019

Kelley L. Hendrickson, on behalf of herself and all other similarly situated, Plaintiffs,
v.
Fifth Third Bank, 11th Hour Recovery, Inc., and John Doe Repossession Agencies 1-10, Defendants.

          Thomas J. Lyons, Jr., Consumer Justice Center, P.A., Adam R. Strauss, Tarnish Cody, PLC, (for Plaintiffs);

          C.J. Schoenwetter, Bowman and Brooke LLP, and Patrick T. Lewis, Baker and Hostetler LLP, (for Defendant Fifth Third Bank); and

          Michael G. Phillips, Phillips Law, PLLC, (for Defendant 11th Hour Recovery, Inc.).

          ORDER

          Tony N. Leung United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion for Preliminary Approval of Class Action Settlement, Class Notice, Certification of Settlement Class, and Appointment of Class Counsel and Class Representative. (ECF No. 131). The parties have consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. The Court has reviewed and considered all papers filed in connection with the motion. Based on the filings, record, and pleadings in this matter, it is HEREBY ORDERED AS FOLLOWS:

         1. Settlement Terms. Unless otherwise defined herein, all terms in this Order shall have the meanings ascribed to them in the Settlement Agreement and Release (the “Agreement”).

         2. Jurisdiction. The Court has jurisdiction over the subject matter of the Action, the Parties, and all members of the Settlement Class.

         3. Scope of Settlement. The Agreement resolves all claims alleged in the Amended Class Action Complaint filed in the Action on December 6, 2018 and the Released Claims, as defined in the Agreement. See ECF No. 114.

         4. Preliminary Approval of Proposed Settlement. The Court has conducted a preliminary evaluation of the Settlement as set forth in the Agreement. Based on this preliminary evaluation, the Court finds that: (a) the Settlement is fair, reasonable and adequate, and within the range of possible approval; (b) the Settlement has been negotiated in good faith at arm's length between experienced attorneys familiar with the legal and factual issues of this case; (c) with respect to the forms of notice of the material terms of the Settlement to persons in the Settlement Class for their consideration (Exs. A-B to the Agreement), that notice provides due and sufficient notice to the Settlement Class and fully satisfies the requirements of due process and Federal Rule of Civil Procedure 23; and (d) with respect to the proposed notice plan, that the notice program constitutes the best notice practicable under the circumstances. Therefore, the Court grants preliminary approval of the Settlement.

         5. Class Certification for Settlement Purposes Only. The Court, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, certifies, solely for purposes of this Settlement, the following:

The Repossession Class is defined as all Minnesota consumers whose vehicles were repossessed by or on behalf of Fifth Third between December 12, 2013, and February 18, 2019, who, prior to the repossession, made two or more late payments on their vehicle(s) that were accepted by Fifth Third. Excluded from the Repossession Class are Minnesota consumers: (1) whose debts were discharged in bankruptcy prior to repossession, without formally reaffirming their loan agreement in the bankruptcy proceeding; (2) whose vehicles were repossessed after the borrower's death; and/or (3) whose vehicles were voluntary surrendered by the consumer.
The FDCPA Class is defined as all Minnesota consumers whose vehicles were repossessed by or on behalf of Fifth Third between December 12, 2016, and February 18, 2019, who, prior to the repossession, made at least two or more late payments on their vehicle(s) that were accepted by Fifth Third Bank. Excluded from the FDCPA Class are Minnesota consumers: (1) whose debts were discharged in bankruptcy prior to repossession, without formally reaffirming their loan agreement in the bankruptcy proceeding; (2) whose vehicles were repossessed after the borrower's death; and/or (3) whose vehicles were voluntary surrendered by the consumer.

         6. In support of both settlement classes, the Court finds that:

(a) The Repossession Class and the FDCPA Class (collectively the “Settlement Class”) appear to be so numerous that ...

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