Case 3:11-cv Document 70 Filed 05/14/12 Page 1 of 4 PageID #: 1291

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1 Case 3:11-cv Document 70 Filed 05/14/12 Page 1 of 4 PageID #: 1291 DAVID J. TRIPLETT, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC, Defendant. MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CLASS CERTIFICATION AND ENTRY OF SCHEDULING ORDER Plaintiff David J. Triplett, by counsel and on behalf of the class proposed below, hereby respectfully submits this Motion for Preliminary Approval of Settlement, Conditional Class Certification and Entry of Scheduling Order. After conducting extensive discovery and proceedings in this Court, the Plaintiff and Defendant Nationstar Mortgage LLC ( Nationstar ) (collectively, the Parties ) have reached a proposed settlement agreement. 1 Accordingly, for the reasons stated in the Plaintiff s Memorandum in Support, which is incorporated by reference herein, the Plaintiff respectfully request that the Court: 1. Enter an order preliminarily approving the proposed Class Settlement Agreement and Release, attached hereto as Exhibit A, and directing the Parties to carry out their obligations pursuant to the terms of the Settlement Agreement. 2. Appoint Plaintiff David J. Triplett as class representative. 1 In addition to the class claims, Plaintiff s Complaint included individual claims for illegal debt collection and negligent/fraudulent misrepresentations. The Parties negotiated a separate settlement of Plaintiff s individual claims

2 Case 3:11-cv Document 70 Filed 05/14/12 Page 2 of 4 PageID #: 1292 class counsel. 3. Appoint John W. Barrett, Jonathan R. Marshall, and Bailey and Glasser LLP as 4. Certify the following class for settlement purposes only 2 : All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the Class Period ), and who fall into one or more of the following subclasses: Subclass A Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00). Subclass B Persons with accounts having instances of form debtcollection letters mailed that include the terms expenses of collection. Subclass C Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower s loan. Class Members who believe that they actually paid improper default expenses that were not waived, reimbursed, or otherwise credited to the Class Members loan accounts may contact the Settlement Administrator and request a Claim Form to describe the number and nature of the default fees that they claim were improperly imposed on their loan accounts and that they actually paid. 5. Adopt the following schedule for completion of remaining tasks, the Court s calendar permitting: Class Notice Mailed by: Twenty-one (21) days after entry of the Court s Order granting preliminary approval of the Settlement. Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice. 2 Pursuant to the Parties Settlement Agreement, Nationstar does not consent to the certification of any class asserted by Plaintiff, other than solely for settlement purposes. Nationstar denies that the facts of this case meet the requirements of certification of any class. Nothing contained in this Motion, Memorandum in Support, or the Parties Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits

3 Case 3:11-cv Document 70 Filed 05/14/12 Page 3 of 4 PageID #: 1293 Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date. Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date. The following exhibits are attached in support of this Motion: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Class Settlement Agreement and Release; Proposed Form of Class Notice; Proposed Claim Form; Kurtzman Carson Consultants ( KCC ) Cost Estimate; Declaration of John W. Barrett; and Proposed Order WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and enter the submitted Proposed Order, and conditionally certify this class action for settlement purposes only, preliminarily approve the proposed Settlement and Release Agreement, appoint Plaintiff s counsel as class counsel, establish a schedule to complete the tasks necessary to effectuate the proposed settlement, and for such other and further relief as the Court may deem equitable and just. Respectfully Submitted, DAVID J. TRIPLETT By: s/ John W. Barrett John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia Counsel for Plaintiff

4 Case 3:11-cv Document 70 Filed 05/14/12 Page 4 of 4 PageID #: 1294 DAVID J. TRIPLETT, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC, Defendant. CERTIFICATE OF SERVICE I hereby certify that on this 14 th day of May, 2012, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participants: Counsel for Defendant John C. Lynch (W. Va. Bar No. 6627) Jason E. Manning (W. Va. Bar No ) TROUTMAN SANDERS LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, VA Telephone: (757) Facsimile: (757) john.lynch@troutmansanders.com jason.manning@troutmansanders.com v1 s/ John W. Barrett John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia

5 Case 3:11-cv Document 71 Filed 05/14/12 Page 1 of 24 PageID #: 1348 DAVID J. TRIPLETT, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC, Defendant. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CLASS CERTIFICATION AND ENTRY OF SCHEDULING ORDER Plaintiff David J. Triplett, by counsel and on behalf of the class proposed below, hereby respectfully submits this Memorandum in Support of his Motion for Preliminary Approval of Settlement, Conditional Class Certification and Entry of Scheduling Order. After conducting extensive discovery and proceedings in this Court, the Plaintiff and Defendant Nationstar Mortgage LLC ( Nationstar ), by counsel, (collectively, the Parties ) have reached a proposed settlement agreement. Plaintiff respectfully requests that the Court enter an Order (1) conditionally certifying a class action for settlement purposes only 1 ; (2) preliminarily approving the Parties proposed Settlement and Release Agreement (the Settlement Agreement ); (3) appointing Plaintiff as class representative and Plaintiff s counsel as class counsel; and (4) establishing a schedule to complete the tasks necessary to effectuate the proposed settlement. For the reasons set forth more particularly below, the Plaintiff respectfully requests that the 1 Pursuant to the Parties Settlement Agreement, Nationstar does not consent to the certification of any class asserted by Plaintiff, other than solely for settlement purposes. Nationstar denies that the facts of this case meet the requirements of certification of any class. Nothing contained in this Memorandum in Support or the Parties Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits

6 Case 3:11-cv Document 71 Filed 05/14/12 Page 2 of 24 PageID #: 1349 Court grant his Motion. 2 Nationstar has agreed to the proposed order of preliminary approval attached to this motion, for settlement purposes only. I. INTRODUCTION Plaintiff purports to bring his Complaint on behalf of himself and a class of similarly situated individuals (the Lawsuit ). Plaintiff alleges, among other things, that Nationstar violated various provisions of the West Virginia Consumer Credit and Protection Act, W. Va. Code 46A et seq. ( WVCCPA ), with respect to its servicing of loans entered into by West Virginia borrowers. After conducting extensive discovery into Plaintiff s claims and Nationstar s loan servicing practices, including the deposition of Plaintiff, Plaintiff s spouse, and Nationstar s corporate representative, A.J. Loll, and in light of Plaintiff s Motion to Certify Class (ECF Nos ) and Nationstar s Brief in Opposition thereto (ECF No. 53), the Parties turned their collective attention to negotiating a resolution of the Lawsuit. The resulting proposed settlement provides that each Class Member who was allegedly charged a late fee exceeding $15, issued a form demand letter that included the term expenses of collection, and/or whose partial loan payments were returned by Nationstar prior to the date of acceleration, in violation of the WVCCPA, will recover, before deductions for court-approved attorneys fees and other reasonable expenses, an estimated $ for each alleged instance. Class Members who believe that they were charged improper default expenses that were not waived, reimbursed, or otherwise credited to the Class Members loan accounts may also contact the Settlement 2 All exhibits referenced in this Memorandum are attached to the Motion per the Local Civil Rules

7 Case 3:11-cv Document 71 Filed 05/14/12 Page 3 of 24 PageID #: 1350 Administrator to request a Claim Form for any instance of an improper default expense charged to their account and that they actually paid. 3 Pursuant to the terms of the Parties Settlement Agreement, Nationstar denies any and all allegations and claims asserted against it in the Complaint, opposes class certification for litigation purposes, and denies any and all wrongdoing. Nationstar denies that the facts of this case meet the requirements of certification of any class other than for settlement purposes. According to the Parties Settlement Agreement, nothing contained in this Memorandum or the Parties Settlement shall be construed in any manner as precedent, persuasive authority, or an admission by Nationstar of the propriety of certification of any class on the merits. As stated in the Parties Settlement Agreement, the Parties, solely in order to avoid the cost, burden, expense, and uncertainty of further litigation, desire to compromise and settle Plaintiff s claims asserted in the Lawsuit and have entered into the Settlement Agreement to resolve the disputes between them, pending approval of the Court, and to achieve complete peace. Plaintiff submits that this is an outstanding settlement worthy of preliminary approval, especially considering the continued expense, risks, and burdens of protracted and contested litigation. II. PROCEDURAL BACKGROUND On February 15, 2011, Triplett commenced this action against Nationstar in the Circuit Court of Putnam County, West Virginia, Case No. 11-C-46, asserting various claims pertaining to the servicing of the Loan, including claims for alleged violations of the WVCCPA. On April 8, 2011, Nationstar removed the Lawsuit to the United States District Court for the Southern District of West Virginia, Huntington Division, Case No. 3:11-cv-238, pursuant to 28 U.S.C. 3 Note: the estimated gross distribution amount per instance is subject to change and may be reduced depending on the number of improper default fee claims submitted by Class Members

8 Case 3:11-cv Document 71 Filed 05/14/12 Page 4 of 24 PageID #: and 1446, and the Class Action Fairness Act of 2005, 28 U.S.C. 1332(d)(1)-(11) ( CAFA ). In his Complaint, Plaintiff alleges, among other things, that Nationstar assessed late fees in excess of the $15 statutory maximum, in violation of W. Va. Code 46A-3-112(1)(a). Plaintiff also alleges that Nationstar issued form demand letters threatening to collect expenses of collection, in violation of W. Va. Code 46A-2-115(a), -127(g), and -128(c). Plaintiff further alleges that Nationstar returned partial loan payments to borrowers prior to the date of acceleration of their loans, in violation of W. Va. Code 46A-3-111(1). The Parties have engaged in extensive written discovery concerning Plaintiff s claims. (ECF Nos. 8, 13-16). In fact, Nationstar has supplemented its responses to Plaintiff s discovery requests on at least three occasions, providing Plaintiff with all relevant, non-privileged documents. (ECF Nos. 23, 33, 36). Plaintiff conducted a Rule 30(b)(6) deposition of Nationstar s corporate representative, A.J. Loll. (ECF No. 29). Nationstar deposed both Plaintiff and his wife, Elke Triplett. (ECF Nos ). Nationstar also served Plaintiff with its Rule 26(a)(2) expert disclosures. (ECF No. 50). Plaintiff has filed his Motion to Certify Class, and Nationstar has filed its Brief in Opposition. (ECF Nos , 53). As a proposed class representative, Plaintiff has been assessed late fees exceeding $15, was issued form demand letters that included the term expenses of collection, and had a partial loan payment returned prior to acceleration of his Loan. The discovery and other information informally exchanged between the parties for settlement purposes has revealed that from February 15, 2007 through July 1, 2011, Nationstar: assessed late fees over $15 to West Virginia borrowers on approximately 7,539 occasions, representing 836 loans; issued approximately 3,674 form debt collection letters to West Virginia borrowers that included the term expenses of collection,

9 Case 3:11-cv Document 71 Filed 05/14/12 Page 5 of 24 PageID #: 1352 representing 709 loans; and returned partial loan payments to West Virginia borrowers prior to the date of acceleration of their loans on approximately 46 occasions, representing 27 loans. (Ex. A Settlement Agreement C-2). For the reasons stated in Nationstar s Brief in Opposition to Plaintiff s Motion to Certify Class, Nationstar maintains that Plaintiff s class claims are not certifiable. (ECF No. 53). Further, Nationstar has asserted various defenses against Plaintiff s class claims, including the statute of limitations, bankruptcy preclusion, contractual defenses, and preemption under the National Bank Act ( NBA ), Home Owners Loan Act ( HOLA ), and the Depository Institutions Deregulation and Monetary Control Act, 12 U.S.C. 1831d ( DIDA ). Nationstar s defenses are set forth with particularity in its Brief in Opposition. (ECF No. 53). Nationstar does not, by virtue of entering into the Settlement Agreement or by agreeing to the attached proposed order, concede the truth or validity of any of Plaintiff s allegations or the propriety of certification of any class other than solely for settlement purposes. In the event that, for any reason whatsoever, the Parties settlement does not become final, Nationstar will not in any manner be barred from disputing any of Plaintiff s allegations or Plaintiff s attempt to certify his class claims, as a result of the proposed settlement or by agreeing to the proposed order. (Settlement Agreement B-4, C-22, C-28). III. PROPOSED SETTLEMENT A. Terms of Parties Settlement Agreement The proposed class action settlement requires Nationstar to pay $1,500,000 into a Common Fund. The settlement amount is a lump sum, all-in payment that will cover all of Nationstar s settlement obligations to Plaintiff and the Class Members, including a proposed $5,000 service award to Plaintiff and attorneys fees and costs. In addition to the $1,500,

10 Case 3:11-cv Document 71 Filed 05/14/12 Page 6 of 24 PageID #: 1353 settlement payment, Nationstar will be responsible to pay for the costs of administration of the settlement. (Settlement Agreement C-3 C-6). The proposed settlement contemplates the creation of three subclasses: Subclass A borrowers who were assessed late fees exceeding $15; Subclass B borrowers who were mailed form debt collection letters including the term, expenses of collection ; and Subclass C borrowers whose partial loan payments were returned prior to the date of acceleration of their loans in violation of the WVCCPA. 4 Class Members who believe that they were charged improper default expenses may also submit a Claim Form describing the number and nature of the default fees that they claim were improperly imposed on their loan accounts. Class Members are entitled to receive a pro rata distribution of the $1,500,000 settlement amount, after deductions for the service award and attorneys fees and costs, for each qualifying instance of a late fee over $15, demand letter including the term expenses of collection, and returned partial loan payment prior to the date of acceleration. Class Members who submit Claim Forms for reimbursement of improper default expenses charged to their loan accounts that they actually paid may be reimbursed out of the settlement amount. (Settlement Agreement C-1, C-5(a)& (h)). Accordingly, the gross distribution, before deduction for the court-approved attorneys fees and service award, is an estimated $ per instance ($1,500,000 divided by 11,259), excluding claims for improper default expenses. In other words, each Class Member would receive an estimated $133.23, before deductions, for each late fee over $15, demand letter 4 See supra at Section V for the precise language of the proposed class definition

11 Case 3:11-cv Document 71 Filed 05/14/12 Page 7 of 24 PageID #: 1354 including the term expenses of collection, and returned partial payment prior to the date of acceleration. 5 Based on currently available information, the Parties estimate that the average loan was charged a late fee over $15, issued a demand letter including the terms, expenses of collection, or had a partial loan payment returned prior to the date of acceleration on occasions. Thus, the gross average payment per loan is an estimated $1,377.60, excluding claims for default expenses. Nationstar s records identify Class Members who were charged late fees over $15, issued the demand letters including the term expenses of collection, and whose partial loan payments were returned prior to the date of acceleration, as well as the number of late fees, demand letters, and returned partial payments prior to acceleration for each Class Member. For this reason, the Class Members will not be required to submit claim forms to obtain their share of the settlement proceeds. Instead, the Settlement Administrator will mail checks to all Class Members who do not opt out of the settlement. Further, Class Members may elect to request a Claim Form for any instance of an improper default expense, such as foreclosure attorneys fees, charged to their account that they actually paid. Any such instance will be paid out of the Common Fund. Only one distribution per qualifying instance shall be made. (Settlement 5 If the Court awards a fee of one-third the amount of the settlement ($500,000), and a service award of $5,000, Class Members will receive a net cash payment of an estimated $88.37 for each qualifying late fee, demand letter, and returned partial loan payment prior to the date of acceleration. Note: the estimated gross and net distribution amounts per instance are subject to change and may be reduced depending on the number of default fee claims submitted by Class Members

12 Case 3:11-cv Document 71 Filed 05/14/12 Page 8 of 24 PageID #: 1355 Agreement, C-10). These procedures will guarantee that a vast majority, if not all, of the Class Members enjoy the financial fruits of the settlement. 6 B. Notice and Administration Provisions In the context of a class action, the due process requirements of the Fifth Amendment require [r]easonable notice combined with an opportunity to be heard and withdraw from the class. Groves v. Roy G. Hildreth & Son, Inc., No. 2:08-cv-820, 2011 U.S. Dist. LEXIS , at *9 (S.D.W. Va. Sept. 20, 2011) (quoting In re Serzone Prods. Liability Litig., 231 F.R.D. 221, 231 (S.D.W. Va. 2005)); see also Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d 466, 472 (W.D. Va. 2011). Rule 23(c)(2) requires the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Fed. R. Civ. P. 23(c)(2); see also Helmick v. Columbia Gas Transmission, No. 2:07-cv-743, 2010 U.S. Dist. LEXIS 65808, at *21 (S.D.W. Va. July 1, 2010); Muhammad v. Nat l City Mortgage, Inc., No. 2:07-cv-423, 2008 U.S. Dist. LEXIS , at *6-7 (S.D.W. Va. Dec. 19, 2008). The notice must inform potential class members of the nature of the action, that class members may make an appearance through counsel, that class members may exclude themselves from the settlement, and that the class judgment will have a binding effect on class members who are not excluded. Groves, 2011 U.S. Dist. LEXIS , at *9; Helmick, 2010 U.S. Dist. LEXIS 65808, at *21. Silence on the part of potential class members receiving the notice equates to tacit consent to the court s jurisdiction. In re Serzone Prods. Liability Litig., 231 F.R.D. at 231; see also Krell v. Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions), 148 F.3d 283, 306 (3d Cir. 1998). 6 In addition to the class claims, Plaintiff s Complaint included individual claims for illegal debt collection and negligent/fraudulent misrepresentations. The Parties negotiated a separate settlement of Plaintiff s individual claims

13 Case 3:11-cv Document 71 Filed 05/14/12 Page 9 of 24 PageID #: 1356 The type of notice to which a member of a class is entitled depends upon the information available to the parties about that person, and the possible methods of identification. See In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1098 (5th Cir. 1977) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). In determining the reasonableness of the effort required, the court must look to the anticipated results, costs, and amount involved. In re Nissan, 552 F.2d at [D]ue process is satisfied where a fully descriptive notice is sent first-class mail to each class member, with an explanation of the right to opt out. Domonoske, 790 F. Supp. 2d at 472 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Nationstar s loan servicing records reveal the name, address and pertinent account information for all Class Members. Nationstar will provide the Settlement Administrator with the last known address of each Class Member. With such detailed information, the first-class mailed notice proposed in the Settlement Agreement will provide the best notice to class members. Notices returned with forwarding addresses shall be promptly r ed. Any notices returned without a forwarding address shall be r ed after the Administrator searches the National Change of Address database maintained by the United States Postal Service and performs a LexisNexis records search. The Parties plan further provides for the establishment of an informational website and toll-free telephone support number. These procedures are clearly designed to reach the maximum number of Class Members at a reasonable expense. The Parties proposed Notice of Class Settlement provides a full description of the nature of the action, proposed settlement, and requested attorneys fees. See Domonoske, 790 F. Supp. 2d at 472. The Notice describes in plain English the terms and operation of the settlement, the considerations that caused Class Counsel to conclude that the settlement is fair and adequate, the

14 Case 3:11-cv Document 71 Filed 05/14/12 Page 10 of 24 PageID #: 1357 procedure for objecting to and opting out of the settlement, and the date of the fairness hearing. (Ex. B Notice). The Notice also explains the process through which any Class Members who actually paid an improper default expense, such as foreclosure attorneys fees, may request reimbursement. (Ex. C Claim Form). To administer the settlement, the Parties have selected and propose an experienced class action administration firm, Kurtzman Carson Consultants ( KCC ). KCC has estimated that the cost of administration will not exceed $18, (Ex. D KCC Cost Estimate). IV. THE SETTLEMENT MERITS PRELIMINARY APPROVAL Settlement of class actions must be approved by the Court. Fed. R. Civ. P. 23(e); Scardelletti v. Debarr, 43 Fed. Appx. 525, 528 (4th Cir. 2002); In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158 (4th Cir. 1991); Domonoske, 790 F. Supp. 2d at 472; Muhammad, 2008 U.S. Dist. LEXIS , at *8. The primary concern addressed by Rule 23(e) is the protection of class members whose rights may not have been given adequate consideration during the settlement. In re Jiffy Lube Sec. Litig., 927 F.2d at 158; see also Groves, 2011 U.S. Dist. LEXIS , at *14. Such approval typically involves a two-step process of preliminary and final approval. See Manual for Complex Litigation , at 414 (4th ed. 2004); Grice v. PNC Mortgage Corp. of Am., No , 1998 WL , at *2 (D. Md. May 21, 1998) (endorsing Manual s two-step process); Horton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 855 F. Supp. 825, 827 (E.D.N.C. 1992). In the first stage, the Parties submit the proposed settlement to the Court for preliminary approval. In the second stage, following preliminary approval, the Class is notified and a fairness hearing scheduled at which the Court will determine whether to approve the settlement. See Bicking v. Mitchell Rubenstein & Assocs., No. 3:11-cv- 78, 2011 U.S. Dist. LEXIS , at *12 (E.D. Va. Nov. 3, 2011) ( Prior to granting final

15 Case 3:11-cv Document 71 Filed 05/14/12 Page 11 of 24 PageID #: 1358 approval, the court must direct reasonable notice to all potentially affected class members, allow time for objection, and provide a fairness hearing. ). Upon submission to the court of the parties proposed settlement, a court will undertake a preliminary evaluation to determine whether the proposed settlement appears to fall within the range of possible approval. Manual for Complex Litigation 30.41, at 265 (3d ed. 2000); see also All Bromine Antitrust Plaintiffs v. All Bromine Antitrust Defendants, 203 F.R.D. 403, 416 (S.D. Ind. 2001). The power to preliminarily approve a settlement lies within the sound discretion of the Court. In re Vitamins Antitrust Litig., MDL No. 1285, 2001 U.S. Dist. LEXIS 25071, at *30 (D.D.C. July 25, 2001). [T]here is a strong initial presumption that the compromise is fair and reasonable. In re Microstrategy, Inc. Sec. Litig., 148 F. Supp. 2d 654, 663 (E.D. Va. 2001) (quoting S.C. Nat l Bank v. Stone, 139 F.R.D. 335, 339 (D.S.C. 1991)); Horton, 855 F. Supp. at 827 (holding that question at preliminary approval stage is simply whether there is probable cause to justify notifying class members of proposed settlement); In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1384 (D. Md. 1983). The bar for obtaining preliminary approval is low. All Bromine Antitrust Plaintiffs, 203 F.R.D. at 416. In determining whether a settlement meets the requirements of Rule 23, the Fourth Circuit has adopted a bifurcated analysis involving inquiries into the fairness and adequacy of the settlement. Scardelletti, 43 Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 158; Groves, 2011 U.S. Dist. LEXIS , at *15. A class settlement is fair when it is reached as a result of good faith bargaining at arm s length, without collusion. In re Jiffy Lube Sec. Litig., 927 F.2d at 159; Bicking, 2011 U.S. Dist. LEXIS , at *12. The Court should be satisfied that the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to

16 Case 3:11-cv Document 71 Filed 05/14/12 Page 12 of 24 PageID #: 1359 class representatives or segments of the class, and falls within the range of possible approval. Samuel v. Equicredit Corp., No , 2002 U.S. Dist. LEXIS 8234, at *1 n.1 (E.D. Pa. 2002); In re Vitamins Antitrust Litig., MDL No. 1285, 2001 U.S. Dist. LEXIS 25071, at *29-30; In re Shell Oil Refinery, 155 F.R.D. 552, 555 (E.D. La. 1993). Absent evidence to the contrary, the court may presume that settlement negotiations were conducted in good faith and that the resulting agreement was reached without collusion. Muhammad, 2008 U.S. Dist. LEXIS , at *9-10. In assessing the fairness of a proposed settlement, the Court must look to the following factors: (1) posture of the case at the time the settlement is proposed; (2) extent of discovery that has been conducted; (3) circumstances surrounding the negotiations; and (4) experience of counsel in the relevant area of class action litigation. Scardelletti, 43 Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 159; Groves, 2011 U.S. Dist. LEXIS , at *16; Loudermilk Servs., Inc., No. 3:04-cv-966, 2009 U.S. Dist. LEXIS 25520, at *8 (S.D.W. Va. Mar. 18, 2009). In determining the adequacy of the proposed settlement, the Court must consider: (1) relative strength of Plaintiff s case on the merits; (2) existence of any difficulties of proof or strong defenses Plaintiff is likely to encounter if the case proceeds to trial; (3) anticipated duration and expense of additional litigation; (4) solvency of defendant and likelihood of recovery of a litigated judgment; and (5) degree of opposition to the settlement. Scardelletti, 43 Fed. Appx. at 528; In re Jiffy Lube Sec. Litig., 927 F.2d at 159; Groves, 2011 U.S. Dist. LEXIS , at *16-17; Loudermilk Servs., Inc., 2009 U.S. Dist. LEXIS 25520, at *8-9. Consideration of the applicable factors reveals that the Parties proposed Settlement Agreement should be preliminarily approved. The Parties settlement was indeed the product of serious, informed, arm s-length, and non-collusive negotiations. In fact, the Parties did not

17 Case 3:11-cv Document 71 Filed 05/14/12 Page 13 of 24 PageID #: 1360 engage in settlement negotiations until the daylong mediation conducted by the Honorable Chief Judge Joseph R. Goodwin on February 15, 2012, exactly one year to the day that Plaintiff filed the Lawsuit in Putnam County. The Parties submitted separate mediation statements to Judge Goodwin in preparation for the mediation. Prior to the mediation, Plaintiff had obtained all relevant documents from Nationstar and completed a critical Rule 30(b)(6) deposition regarding Nationstar s loan servicing practices. (Ex. E Decl. of John W. Barrett). The settlement has no obvious deficiencies, and does not grant preferential treatment to the class representative or any segments of the class. All Class Members will be treated equally, and will enjoy the same recovery for each late fee, demand letter, partial loan payment returned prior to the date of acceleration, and improper default expense. The $1,500,000 recovery itself is substantial. Further, if the Court grants requested fee and service awards, the Parties expect that the Class Members will receive an estimated net cash payment of $88.37 for each late fee, demand letter, and returned partial loan payment prior to the date of acceleration (excluding claims for improper default fees). This sum is almost six times the amount of each alleged unlawful late fee. The adequacy of the net settlement payment also compares favorably with the statutory damages range of $450 to $4,500 per violation. See W. Va. Code 46A-5-101(1) & 106. The intrinsic value of the net settlement payment to Class Members is readily apparent when one considers the risks inherent in continued and protracted litigation, including that the Court could deny Plaintiff s Motion to Certify Class and foreclose any possibility of class recovery, the costs and uncertainty of litigation, and the expense and delay that accompany the appeal process. The settlement is particularly valuable to absent Class Members who, but for the settlement, likely would be unaware of the existence of their legal claims. Even if they were

18 Case 3:11-cv Document 71 Filed 05/14/12 Page 14 of 24 PageID #: 1361 aware, given the relatively small amounts of money involved (i.e., the imposition of a $15 late fee), absent class members, and attorneys who may represent them, would have little financial incentive to prosecute individual actions. The alternative to bringing this case as a class action is bringing hundreds of individual claims against Nationstar. Realistically, the alternative to a class action under the present circumstances is no action at all. The relatively small amount of the disputed fees and returned payments makes it unlikely that Class Members would pursue their claims on an individual basis. [C]ompromise and settlement are favored by the law. Groves, 2011 U.S. Dist. LEXIS , at * The proposed settlement serves the overriding public interest in settling litigation. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976). The complexity, expense, and duration of class action litigation are factors that mitigate in favor of preliminary approval of a settlement. In re Corp. Litig., 264 F.3d 201, 231, 233 (3d Cir. 2001); Girsh v. Jepson, 521 F.3d 153, 157 (3d Cir. 1975); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974). While the Parties could have litigated the case to judgment and taxed the resources of the litigants and the Court, they chose instead to rationally and reasonably forgo the expense and uncertainty of continued litigation and focus their efforts on achieving a fair and adequate settlement that took the risks of further litigation into account. Finally, the opinion of class action counsel, with substantial experience in litigation of similar size and scope, is an important consideration. Muhammad, 2008 U.S. Dist. LEXIS , at *10. When the parties attorneys are experienced and knowledgeable about the facts and claims, their representations to the court that the settlement provides class relief which is fair, reasonable and adequate should be given significant weight. Id. at *10-11 (quoting Rolland v. Cellucci, 191 F.R.D. 3, 10 (D. Mass. 2000)). In the present case, proposed class

19 Case 3:11-cv Document 71 Filed 05/14/12 Page 15 of 24 PageID #: 1362 counsel, who recommends the settlement, is skilled and experienced in consumer lending class actions. (Ex. E Decl. of John W. Barrett 6). See Muhammad, 2008 U.S. Dist. LEXIS , at *11 (recognizing that Plaintiff s counsel, Bailey & Glasser, particularly John W. Barrett and Jonathan R. Marshall, are skilled and experienced in class action litigation, and have served as class counsel in several cases, including consumer lending cases ). V. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE The Parties proposed settlement contemplates the certification of a settlement class defined as follows: All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the Class Period ), and who fall into one or more of the following subclasses: Subclass A Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00). Subclass B Persons with accounts having instances of form debtcollection letters mailed that include the terms expenses of collection. Subclass C Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower s loan. (Settlement Agreement C-1). As stated above, Class Members who believe that they were charged improper default expenses may request a Claim Form describing the number and nature of the default fees that they claim were improperly imposed on their loan accounts and that they actually paid. The proposed settlement class must meet the requirements for certification under Rule 23. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 620 (1997); In re Serzone Prods. Liability Litig., 231 F.R.D. at The Parties have agreed to the certification of the class for settlement purposes only. In the event that this settlement does not become finally effective,

20 Case 3:11-cv Document 71 Filed 05/14/12 Page 16 of 24 PageID #: 1363 Nationstar has retained the right to oppose any future motion to certify any class, and nothing in Nationstar s agreement not to oppose certification at this time will be construed as a waiver of that right. (Settlement Agreement C-22, C-28). A. The Class Satisfies the Numerosity, Commonality, Typicality and Adequacy Elements of Rule 23(a) 1. Numerosity Rule 23(a)(1) requires that the class be of sufficient size that joinder of all members is impracticable. In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; Bicking, 2011 U.S. Dist. LEXIS , at *5. In determining whether joinder is impracticable, a court should analyze the factual circumstances of the case rather than relying on numbers alone. In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; see also Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir.1984); Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass n, 375 F.2d 648 (4th Cir. 1967). Factors to consider are the estimated size of the class, the geographic diversity of class members, the difficulty of identifying class members, and the negative impact of judicial economy if individual suits were required. Christman v. Am. Cyanamid Co., 92 F.R.D. 441, 451 (N.D.W. Va. 1981); see also McGlothlin v. Connors, 142 F.R.D. 626, 632 (W.D. Va. 1992). In the present case, Class Members hold a total of 1,089 loans. Individual joinder of all of these persons is impracticable, especially considering the relatively small amount of the disputed charges and the geographic dispersal of Class Members across the state of West Virginia. Courts have certified class actions with fewer members. See, e.g., Cypress, 375 F.2d at 653 (eighteen class members). Clearly, the proposed class satisfies the numerosity requirement

21 Case 3:11-cv Document 71 Filed 05/14/12 Page 17 of 24 PageID #: Commonality Rule 23(a)(2) requires a showing of the existence of questions of law or fact common to the class. In re Serzone Prods. Liability Litig., 231 F.R.D. at 237; see also Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001). Either common questions of law or fact can establish commonality. Black v. Rhone-Poulenc, Inc., 173 F.R.D. 156, 161 (S.D.W. Va. 1996). Factual differences among the class members cases will not preclude certification if the class members share the same legal theory. Peoples v. Wendover Funding, Inc., 179 F.R.D. 492, 498 (D. Md. 1998); see also Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984); Christman, 92 F.R.D. at 452 n.28. The commonality requirement is subsumed under the more stringent predominance requirement of Rule 23(b). Lienhart, 255 F.3d at 147 n.4; In re Serzone Prods. Liability Litig., 231 F.R.D. at 237. This action implicates the central and overriding common question of whether Nationstar s alleged practices and procedures regarding late fees, demand letters, and return of partial loan payments prior to the date of acceleration violate West Virginia law. This question is common to all putative Class Members, as all have been assessed a late fee over $15, issued a demand letter demanding payment of expenses of collection, or had a partial loan payment returned prior to the date of acceleration, or a combination of these three categories. The resolution of these common questions can be determined by evidence concerning Nationstar s alleged servicing practices and procedures. Accordingly, commonality is satisfied. 3. Typicality To establish typicality under Rule 23(a)(3), the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class. In re Serzone Prods. Liability Litig., 231 F.R.D. at 238. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality

22 Case 3:11-cv Document 71 Filed 05/14/12 Page 18 of 24 PageID #: 1365 requirement is usually met irrespective of varying fact patterns which underlie individual claims. Black, 173 F.R.D. at 162. For purposes of typicality, there is a sufficient nexus... if the claims or defenses of the class and class representatives arise from the same event or pattern or practice and are based on the same legal theory. In re Serzone Prods. Liability Litig., 231 F.R.D. at 238 (quoting In re Trazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D. Fla. 2004)). Thus, the typicality rule assures that the class representatives interests are aligned with those of the class. Kennedy v. Sullivan, 138 F.R.D. 484, 488 (N.D.W. Va. 1991). Plaintiff s claims are clearly aligned with those of the putative Class Members. The facts supporting Plaintiff s claims are straightforward and typical of, if not identical to, the claims of the Class Members. All claims are based upon the same legal theories, and arise out of an alleged common and standard course of conduct by Nationstar over the duration of the class period. As such, the proposed class satisfies the Rule 23(a)(3) typicality requirement. 4. Adequacy of Representation Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. In re Serzone Prods. Liability Litig., 231 F.R.D. at 238. The representative must show that there are no conflicts of interest between his interests and those of the class he seeks to represent and that he has the willingness and ability to play an active role in the litigation and vigorously represent the class, while protecting the interests of the absentee class members. Feder v. Elec. Data Sys. Corp., 429 F.3d 125, (5th Cir. 2005); see also Rhone-Poulenc, 173 F.R.D at 162. Plaintiff has no interests that are antagonistic to or conflict in any way with the interests of the proposed class as a whole. Plaintiff shares an interest with the other Class Members in opposing Nationstar s alleged loan servicing practices, and has willingly stepped forward to

23 Case 3:11-cv Document 71 Filed 05/14/12 Page 19 of 24 PageID #: 1366 pursue his claims on a class-wide basis. Plaintiff will thus fairly and adequately protect the interests of the class. B. The Proposed Class Satisfies Rule 23(b)(3) Requirements of Predominance and Superiority In order for Plaintiff to satisfy Rule 23(b), the Court must find that (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004); In re Serzone Prods. Liability Litig., 231 F.R.D. at Common Questions of Law or Fact Predominate Rule 23(b)(3) requires that the questions of law or fact common to all Class Members predominate over questions pertaining to individual members. In re Serzone Prods. Liability Litig., 231 F.R.D. at 239. Common questions predominate if class-wide adjudication of the common issues will significantly advance the adjudication of the merits of all class members claims. The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Lienhart, 255 F.3d at 142 (quoting Amchem Prod., Inc., 521 U.S. at 623); Gariety, 368 F.3d at 362. When certifying a class for settlement purposes only, manageability problems that would arise if the class were litigated, and that would prevent certification of a litigation class, need not be considered. See Newberg on Class Actions s. 13:36, p. 438 (4 th ed. 2002) (stating that for a settlement class there are fewer procedural barriers for certification.... Where class counsel must still prove there are common questions of law or fact, manageability concerns should not prevent a settlement class from being certified. ); Amchem Prods. v. Windsor, 521 U.S. 591, 620 (U.S. 1997) ( Confronted with a request for

24 Case 3:11-cv Document 71 Filed 05/14/12 Page 20 of 24 PageID #: 1367 settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. ). The common questions outlined above are broad and apply to all Class Members, and are readily capable of determination on a class-wide basis. Nationstar has identified relevant Class Members and the number of instances of common alleged violations. While Nationstar opposed class certification and asserted that its individualized affirmative defenses present management problems for certification of a class for litigation purposes, that is not relevant to certification of the class for settlement purposes. Therefore common questions predominate for purposes of the class settlement satisfying the requirements of Rule 23(b)(3). 2. The Class Action is the Superior Method to Adjudicate Plaintiff s Claims Rule 23(b)(3) also requires the Court to find that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Lienhart, 255 F.3d at 147; Bicking, 2011 U.S. Dist. LEXIS , at *10. Factors to be considered by the Court include: (1) class members interests in individually controlling the prosecution or defense of separate actions; (2) extent and nature of any litigation concerning the controversy already begun by or against class members; (3) desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) likely difficulties in managing a class action. Fed. R. Civ. P. 23(b). Because this Lawsuit concerns a settlement class, there is no concern with manageability of the case related to individualized affirmative defenses asserted by Nationstar in opposition to certification. Amchem Prods., Inc., 521 U.S. at 620. In the present case, as stated above, Class Members have little interest in prosecuting individual actions. As such, there is no better method available for the adjudication of the claims which might be brought by each individual Class Member. The alternative to bringing this case

25 Case 3:11-cv Document 71 Filed 05/14/12 Page 21 of 24 PageID #: 1368 as a class action is bringing nearly 1,100 individual claims. The relatively small amount of the disputed late fees and returned payments makes it highly unlikely that Class Members would pursue their claims on an individual basis. Accordingly, it is desirable to concentrate the litigation of these claims in this Court. See Amchem Prods., Inc., 521 U.S. at 617 (observing that Rule 23(b) allows vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all. ); Bicking, 2011 U.S. Dist. LEXIS , at *11 (same). Further, [s]ettling this case as a class action will achieve economies for both the litigants and the court through a significant reduction in the overall cost of complex litigation, allowing plaintiffs attorneys to pool their resources and requiring defendants to litigate all potential claims at once, thereby leveling the playing field between the two sides. In re Serzone Prods. Liability Litig., 231 F.R.D. at 240; see also In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740, 842 (E.D.N.Y. 1984). Therefore, there is no other superior method of adjudicating the controversy because class settlement provides an efficient and appropriate resolution of the controversy. Plaintiff has thus met the requirements of Rule 23(b)(3) for settlement purposes. 7 C. Proposed Class Counsel Are Qualified to Represent the Class Rule 23(g) requires that the Court appoint class counsel upon certification of the class. Factors for the Court to consider include: the work counsel has done in identifying or investigating potential claims in the action; counsel s experience in handling class actions, other complex litigation, and claims of the type asserted in the action; counsel s knowledge of the applicable law; and the resources counsel will commit to representation of the class. Fed. R. Civ. P. 23(g)(1)(C)(i). 7 As stated above, Nationstar denies that the facts of this case meet the requirements of certification of any class on the merits. Nationstar consents to the attached proposed order solely for settlement purposes

26 Case 3:11-cv Document 71 Filed 05/14/12 Page 22 of 24 PageID #: 1369 Proposed class counsel, Bailey & Glasser LLP, is qualified and able to represent the class. Proposed class counsel has submitted a declaration outlining his and the firm s work on the case and wide-ranging experience litigating consumer protection, class action, and other complex cases. (Ex. E Decl. of John W. Barrett Decl. 6). As stated above, Plaintiff s counsel performed substantial work in investigating, prosecuting and negotiating settlement of the case, and is qualified to serve as class counsel. See Muhammad, 2008 U.S. Dist. LEXIS , at *11 (recognizing skill and experience of Plaintiff s counsel). VI. PROPOSED SCHEDULE TO COMPLETE SETTLEMENT The Court s calendar permitting, the Parties propose the following schedule to complete the tasks necessary to effectuate the proposed settlement: Class Notice Mailed by: Twenty-one (21) days after entry of the Court s Order granting preliminary approval of the Settlement. Objection/Exclusion/Claim Form Date: Sixty (60) days after initial mailing of Class Notice. Final Approval Submissions: Twenty-one (21) days after Objection/Exclusion/Claim Form Due Date. Final Approval Hearing: Thirty (30) days after Final Approval Submissions Due Date. VII. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that the Court grant this Motion and enter the submitted Proposed Order (attached as Exhibit F to the Joint Motion), and conditionally certify this class action for settlement purposes only, preliminarily approve the Parties proposed Settlement and Release Agreement, appoint Plaintiff s counsel as class counsel, establish a schedule to complete the tasks necessary to effectuate the proposed settlement, and for such other and further relief as the Court may deem equitable and just

27 Case 3:11-cv Document 71 Filed 05/14/12 Page 23 of 24 PageID #: 1370 Respectfully Submitted, DAVID J. TRIPLETT By: s/ John W. Barrett John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia Counsel for Plaintiff

28 Case 3:11-cv Document 71 Filed 05/14/12 Page 24 of 24 PageID #: 1371 DAVID J. TRIPLETT, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No. 3:11cv238 NATIONSTAR MORTGAGE, LLC, Defendant. CERTIFICATE OF SERVICE I hereby certify that on this 14 th day of May, 2012, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participants: Counsel for Defendant John C. Lynch (W. Va. Bar No. 6627) Jason E. Manning (W. Va. Bar No ) TROUTMAN SANDERS LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, VA Telephone: (757) Facsimile: (757) john.lynch@troutmansanders.com v1 04/11/12 s/ John W. Barrett John W. Barrett Jonathan R. Marshall Bailey & Glasser, LLP 209 Capitol Street Charleston, West Virginia Counsel for Plaintiff

29 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 1 of 27 PageID #: 1295 EXHIBIT A

30 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 2 of 27 PageID #: 1296 DAVID J. TRIPLETT, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division Plaintiff, individually, and on behalf of a class of similarly-situated persons, v. Civil Action No. 3:11-cv-238 NATIONSTAR MORTGAGE, LLC, Defendant. CLASS SETTLEMENT AND RELEASE AGREEMENT A. Parties This Class Settlement and Release Agreement (the Agreement ) is made and entered into as of the Effective Date, as defined herein, by and between Plaintiff David J. Triplett ( Triplett or Plaintiff ), the Settlement Class, as defined herein (the Settlement Class or Class Members ) and Defendant Nationstar Mortgage LLC ( Nationstar or the Defendant ) (individually, a Party, and collectively, the Parties ) for the purpose of resolving by compromise and settlement all claims, controversies and alleged liabilities arising out of a dispute as set forth below. B. Recitals This Agreement is entered into with reference to the following facts. 1. On February 15, 2011, Triplett commenced this action (the Lawsuit ) against Nationstar in the Circuit Court of Putnam County, West Virginia, Case No. 11-C-46, asserting various claims pertaining to the servicing of the Loan, including claims for alleged violations of the

31 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 3 of 27 PageID #: 1297 West Virginia Consumer Credit and Protection Act, W. Va. Code 46A et seq. ( WVCCPA ). 2. On April 8, 2011, Nationstar removed the Lawsuit to the United States District Court for the Southern District of West Virginia, Huntington Division, Case No. 3:11-cv-238, pursuant to 28 U.S.C and 1446, and the Class Action Fairness Act of 2005, 28 U.S.C. 1332(d)(1)-(11) ( CAFA ). 3. The Lawsuit purports to be brought on behalf of Triplett and a class of similarly situated individuals. Triplett alleges in the Lawsuit that Nationstar violated various provisions of West Virginia statutory law and breached contractual obligations with respect to Triplett and the class on whose behalf the Lawsuit purports to be brought. 4. Nationstar denies any and all allegations and claims asserted against it in the Lawsuit and denies any and all wrongdoing. Neither the fact nor the terms of this Agreement shall be used or offered or received in evidence in any action or proceeding for any purpose, except in an action or proceeding to enforce this Agreement. 5. Notwithstanding the above, solely in order to avoid the cost, burden, expense, and uncertainty of further litigation, the Parties desire to compromise and settle the Lawsuit and have reached this Agreement to resolve the disputes between them, pending approval of the Court, and to achieve complete peace. C. Agreements, Releases and Promises THEREFORE, in consideration of the facts and releases and promises contained herein, and for other good and valuable consideration, the receipt of which is acknowledged by each Party hereto, the Parties promise and agree as follows: 2

32 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 4 of 27 PageID #: Class Members Triplett and Nationstar will seek certification of a Settlement Class as set forth below: All borrowers whose loans were secured by real property located in West Virginia and whose loans were serviced by Nationstar anytime from February 15, 2007 through July 1, 2011 (the Class Period ), and who fall into one or more of the following subclasses: Subclass A Persons with accounts having instances of late fees on the account in excess of Fifteen and 00/100 Dollars ($15.00). Subclass B Persons with accounts having instances of form debtcollection letters mailed that include the terms expenses of collection. Subclass C Persons with accounts having instances of a partial loan payment tendered to Nationstar that was returned to the borrower prior to the date of acceleration of the borrower s loan. Class Members who believe that they actually paid improper default expenses that were not waived, reimbursed, or otherwise credited to the Class Members loan accounts may contact the Settlement Administrator and request a Claim Form to describe the number and nature of the default fees that they claim were improperly imposed on their loan accounts and that they actually paid. The terms, effectiveness and validity of this Agreement are subject to the certification of the Settlement Class as defined in this Paragraph No. C-1, the entry of an order granting a Motion For Preliminary Approval of Settlement, Conditional Class Certification, and Entry of Scheduling Order ( Preliminary Approval Motion ), and the entry of an order granting a Motion For Final Certification of Settlement Class and Approval of Class Settlement ( Final Approval Motion ). The Agreement becomes effective as of the Effective Date, as defined in Paragraph No. C-8 of this Agreement. 3

33 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 5 of 27 PageID #: Class Composition The Parties agree that, based on the information currently available to them, the Settlement Class is composed of the Loan Accounts and instances enumerated in this paragraph. Subclass A consists of approximately 836 Loan Accounts and 7,539 instances. Subclass B consists of approximately 709 Loan Accounts and 3,674 instances. Subclass C consists of approximately 27 Loan Accounts and 46 instances. In Total, there are approximately 1,089 Loan Accounts with instances in one or more of the subclasses and approximately 11,259 instances overall. Plaintiff shall be allowed to conduct reasonable confirmatory discovery to confirm the number of Loan Accounts and instances set forth above. A duly sworn affidavit or sworn declaration, made by an appropriate representative of Nationstar, attesting to the number of Loan Accounts and instances as set forth above, shall be sufficient to fulfill Nationstar s obligations to provide reasonable confirmatory discovery pursuant to this Agreement. 3. Settlement Amount Nationstar, its successors, and assigns will pay ONE MILLION AND FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($1,500,000.00) to a Common Fund in full settlement of all class claims that were asserted or arose from the claims asserted in the Lawsuit (the Settlement Amount ). In no event shall the Settlement Amount exceed $1,500, The Settlement Amount is an all-in payment. In no event shall Nationstar be liable for any amount greater than the Settlement Amount, with the exception of the Administrative Costs referenced in Paragraph No. C-6 below. 4

34 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 6 of 27 PageID #: Common Fund The Common Fund shall be maintained in a trust account established by Nationstar within thirty (30) business days after full execution of this Agreement. The parties shall have joint control of the Common Fund. The principal in the Common Fund shall be used to make settlement payments and to pay fee and service awards. All interest accruing in the Common Fund shall be paid to Nationstar. Should the Class Settlement be denied for any reason, or otherwise not approved by the Court, then all monies placed into the Common Fund shall be returned to Nationstar. Should the Class Settlement be approved, and should any principal monies remain in the Common Fund after disbursement of funds in accordance with the terms of this Agreement, the remaining principal funds shall not revert to Nationstar. Any such remaining principal funds shall be donated as a cy pres award to Legal Aid of West Virginia, Inc., and shall be earmarked to provide legal assistance in the following case areas only: domestic violence, coal miner claims, and/or claims for benefit programs such as Temporary Assistance to Needy Families ( TANF ), Medicaid, and Social Security Disability, as provided for in Paragraph No. C Distribution of Settlement Amount The Settlement Amount shall be distributed as follows: (a) Each Class Member shall receive a pro rata distribution for each instance as set forth in Paragraph No. C-1 above. Each Class Member shall receive an estimated pro rata distribution per qualified instance in the approximate amount of $88.37, 1 after 1 Note: the estimated net distribution amount per instance is subject to change and may be reduced depending on the number of default fee claims submitted by Class Members, and depending on the amount of attorneys fees, costs, and service award authorized by the Court. 5

35 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 7 of 27 PageID #: 1301 payment of proposed attorneys fees, costs, and the service award, except as otherwise provided in this Paragraph No. C-5. Only one distribution per qualified instance shall be made. (b) That distribution shall be made jointly payable to all co-borrowers on any Loan Account in which the qualified instance was imposed, unless a surviving co-borrower provides to the Administrator certified copies of records establishing that a co-borrower has died. (c) Co-borrowers on a single Loan Account shall be entitled to a single settlement payment per qualified instance, and no Class Member is entitled to more than one settlement payment per instance. Class Members who receive a settlement payment shall be solely responsible for distributing or allocating such payment between or among all co-borrowers. (d) As payment for attorney fees, Plaintiff s counsel shall apply to the Court for a distribution of no more than one-third (33 ⅓ %), or Five Hundred Thousand and 00/100 Dollars ($500,000.00), of the Settlement Amount as a percentage of the Common Fund. Plaintiff s attorneys fees shall be paid out of the Common fund. (e) Triplett will receive a service award of Five Thousand and 00/100 Dollars ($5,000.00), subject to approval by the Court, in addition to his pro-rata share of the Settlement Amount. Triplett s service award shall be paid out of the Common Fund. (f) The size and composition of the Settlement Class and the number of qualifying instances is based on the best information available to the Parties. If any class notification or claims process should result in an addition to or subtraction from these 6

36 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 8 of 27 PageID #: 1302 numbers, the total Settlement Amount shall remain the same, except to the extent to which (i) Nationstar retains the right to void the Settlement Agreement due to the number of class members objecting or opting out of the settlement pursuant to Paragraph No. C- 11 of this Agreement, or (ii) either Party reserves the right to void the Settlement Agreement if the assumptions, representations, and warranties set forth below prove to be incorrect: (1) That there are no more than Seven Thousand and Five Hundred (7,500) instances of late fees exceeding Fifteen and 00/100 Dollars ($15.00) charged to West Virginia borrowers during the Class Period, plus or minus ten percent (10%); (2) That there are no more than Three Thousand and Six Hundred (3,600) instances of form demand letters including the term expenses of collection mailed to West Virginia borrowers during the Class Period, plus or minus ten percent (10%); and (3) That there are no more than Fifty-five (55) instances of partial loan payments returned to West Virginia borrowers prior to the date of acceleration of their loans during the Class Period, plus or minus ten percent (10%). (g) Except as set forth in Paragraph No. C-5(f) above, any increase or decrease in the distribution made to Plaintiff s counsel, whether as the result of objections to the Settlement Agreement, the Court s disposition on Plaintiff s counsel s fee request, or otherwise, shall have no effect on the total Settlement Amount. 7

37 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 9 of 27 PageID #: 1303 (h) Total aggregate reimbursements of Class Member claims of having actually paid improper default charges under Paragraph No. C-1 shall be capped at One Hundred and Fifty Thousand and 00/100 Dollars ($150,000.00). Any such reimbursements shall be made out of the Common Fund. Should the total aggregate amount of reimbursements claimed exceed $150,000.00, then reimbursements shall be distributed proportionally out of the $150, Administrative Costs In addition to the Settlement Amount, Nationstar shall pay the costs associated with providing notice to the Class Members and disbursement of the Settlement Amount ( Administrative Costs ), including all costs and expenses related to class notice, distribution of settlement proceeds, reasonable measures to locate Class Members, and retaining any class or claims administrator. 7. Administrator The parties agree, subject to the Court s approval, that Kurtzman Carson Consultants ( KCC ) shall serve as Settlement administrator (the Administrator ). The Administrator shall manage all facets of class notice and settlement administration. KCC has estimated the cost of providing mailed notice, investigation of Class Members current addresses, skip-tracing, reasonable measures to locate Class Members, processing claim forms, responding to Class Member inquiries, distributing checks to Class Members, and reporting to Plaintiff s counsel and Nationstar s counsel about administrative issues, to be approximately $18,

38 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 10 of 27 PageID #: Effective Date The Effective Date of this Agreement and any order granting a Motion For Final Certification of Settlement Class and Approval of Class Settlement (the Final Approval Order ) is the date on which this Agreement and the Final Approval Order are effective pursuant to this Paragraph No. C-8. This Agreement shall become effective as of the later of: (a) 31 days after the docketing and entry of the Final Approval Order, or (b) 31 days after the exhaustion of all appeal rights and the final termination of any appeal from the Final Approval Order. 9. Preliminary Approval Motion Plaintiff will submit to the Court a Motion for Preliminary Approval of Settlement, Conditional Class Certification, and Entry of Scheduling Order ( Preliminary Approval Motion ) no later than thirty (30) days after full execution of this Agreement. The Motion will request that the Court: (a) Preliminarily approve the certification of the Settlement Class as described in this Agreement for the purposes of settling the Lawsuit, on the terms described in this Agreement; (b) Find that the Settlement Class representative, and Settlement Class counsel, fairly and adequately represent the interests of the Settlement Class; (c) Find preliminarily that the Agreement is fair, reasonable and adequate to the Settlement Class; (d) Schedule a Final Approval Hearing approximately one hundred and twenty (120) days after entry of an Order granting the Preliminary Approval Motion; and (e) Approve the form of notice to be provided to members of the Settlement Class. 9

39 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 11 of 27 PageID #: Notice to Class Members If the Court grants the Preliminary Approval Motion, the Administrator will, within twenty-one (21) days of the Order, mail to each Class Member at his or her last known address a Notice of Proposed Class Settlement and Certification of Settlement Class ( Notice ). Nationstar shall provide the Administrator with the last known address of each Class Member. Any notices returned as undeliverable, but with a forwarding address, shall be promptly r ed to the forwarding address. The Administrator shall perform a National Change of Address Registry and LexisNexis/Death Records Search for all Notices returned as undeliverable, without a forwarding address. Such Notices shall be r ed upon discovery of a valid mailing address for the Class Member. The Administrator shall also maintain a settlement website and toll-free number for Class Member inquiries. The Notice shall apprise the Settlement Class Members of their right to opt out of the Settlement Class, of their right to object to the Class Settlement, of the fact that any objections or opt outs must be sent to the Administrator and postmarked no later than sixty (60) days after the initial date of mailing of the Notice, and that any failure to object or to opt out in accordance with applicable deadlines for opt outs and objections constitutes a knowing and voluntary waiver of any right to opt out of the Settlement Class or to appeal from the Final Approval Order. The Notice shall further apprise the Settlement Class Members of their right to make a claim for reimbursement of any instance of a default expense as set forth in Paragraph No. C-1, such as foreclosure attorneys fees, charged to their account, and to request a Claim Form from the Administrator. Any instance of an improper default expense is waived if not actually paid by the Class Member. Any reimbursement of improper default expenses actually paid by the Class 10

40 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 12 of 27 PageID #: 1306 Member shall be distributed out of the Common Fund in the distribution amount set forth in Paragraph No. C-5(h). Only one reimbursement distribution per qualified instance shall be made. Any Claim Form must be submitted to the Administrator and postmarked no later than sixty (60) days after the initial date of mailing of the Notice. Failure to submit a Claim Form by that date shall constitute a knowing and voluntary waiver of any such claim. 11. Service of Notice of Opt Out and Notice of Claim Form At least ten (10) days after the date the opt outs, objections, and Claim Forms are due, the Administrator shall notify Plaintiff s counsel and Nationstar s counsel of any persons who have objected to the Class Settlement, opted out of the Settlement Class, or submitted a Claim Form, and shall serve Plaintiff s counsel, Nationstar s counsel, and the Court with copies of all objections, notices of opt out, Claim Forms, and supporting documentation. 12. Final Approval Motion No later than twenty-one (21) days after the date the opt outs, objections, and Claim Forms are due, the Plaintiff will file a Motion for Final Approval of Settlement ( Final Approval Motion ). The Motion will request that the Court approve the Settlement and enter a Final Order and Judgment that will, among other things: (a) (b) (c) (d) Adjudge and approve in all respects the final settlement of this action on the terms described in this Agreement; Dismiss on the merits and with prejudice all Class Claims of the named Plaintiff and the Class Members in this action; Include all relief to be provided as part of this Settlement; and Retain jurisdiction of all matters relating to the interpretation and enforcement of the Settlement and this Agreement. 11

41 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 13 of 27 PageID #: Effect of Disapproval/Denial of Settlement If the Court disapproves this Agreement or any part thereof for any reason, or declines to enter a Final Approval Order as described in this Agreement, then this Agreement, including all releases contained within the Agreement, shall become null and void and the action shall proceed as though no settlement had been negotiated or achieved, unless Plaintiff and Nationstar agree otherwise or jointly appeal the order disapproving this Settlement. 14. Right to Declare Agreement Null and Void In the event that more than ten (10) percent of the Settlement Class Members timely file notices of opt out, or in the event that the West Virginia Division of Banking seeks to intervene in this Lawsuit to object to the proposed settlement or otherwise notifies Nationstar of its intent to object to the proposed settlement, Nationstar may, in Nationstar s sole discretion, declare that this Agreement, including all releases contained within the Agreement, is null and void. In that event, the action shall proceed as though no settlement had been negotiated or achieved. 15. Reversal, Vacation, or Modification of Agreement by Appellate Court In the event that a court of appeals or other reviewing court sets aside, reverses, vacates or modifies the Final Approval Order as described in this Agreement, then this Agreement, including all releases contained within the Agreement, shall become null and void and the action shall proceed as though no settlement had been negotiated or achieved. 16. Payment of Settlement Amount, Attorneys Fees and Costs, and Service Award No later than thirty (30) days after the Effective Date of the Settlement as defined in Paragraph No. C-8, the Administrator shall distribute the Settlement Amount to Settlement Class Members as provided in Paragraph No. C-5 of this Agreement, less that portion of the Settlement 12

42 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 14 of 27 PageID #: 1308 Amount the Court awards as attorneys fees and expenses, and the service award to the class representative. Distributions to Settlement Class Members will be made to their last known address by first class mail, postage prepaid. The Administrator shall also distribute the amount awarded as attorneys fees, expenses, and service award no later than thirty (30) days after the Effective Date of the Settlement as defined in Paragraph No. C-8. Checks made payable to each Class Member shall become stale and all right to payment shall end upon expiration of four (4) months from the date of the check (which will be within one calendar week of the date such check is mailed) and shall include a statement to inform the bearer of this validity period. 17. Return of Settlement Payments In the event any Class Member s envelope containing the settlement payment is returned to the sender, but with a forwarding address, the payment shall be promptly r ed to the forwarding address. The Administrator shall perform a National Change of Address Registry and LexisNexis/Death Records Search for all payments that are returned as undeliverable, without a forwarding address. Such payments shall be r ed upon discovery of a valid mailing address for the Class Member. This Paragraph No. C-17 does not impose on any Party or the Administrator an obligation to make extraordinary efforts to locate a Class Member. 18. Final Report of Distribution of Settlement Amount Twelve (12) months after the Final Approval Order is entered, or thirty (30) days after distribution of the Settlement Amount is completed, whichever is later, Plaintiff s counsel shall 13

43 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 15 of 27 PageID #: 1309 file a report with the Court, and serve a copy on Nationstar s counsel, detailing the distribution of the settlement funds. 19. Cy Pres Award Any settlement payments that cannot with reasonable diligence, as described in Paragraph No. C-17, be delivered to Class Members within a reasonable time (not less than ninety (90) days after the Court s final approval of the settlement), or any check distributed to a Class Member that is not cashed within four (4) months of delivery, will be donated as a cy pres award under the terms of Paragraph No. C-4. Any such donation will have no effect on the validity of this Agreement against those Class Members who do not receive a settlement payment following reasonable efforts to deliver a payment to them. 20. Final and Binding Agreement The Parties acknowledge that this Agreement is a full and final accord and satisfaction and shall be binding upon and inure to the benefit of Nationstar, the named Plaintiff, the Members of the Settlement Class, their counsel, and each of their respective trustees, heirs, executors, administrators, beneficiaries, representatives, agents, successors, and assigns. 21. Release In consideration for the Settlement Amount and for Nationstar s other promises contained herein, each Member of the Settlement Class, for and on behalf of the Class Member and the Class Member s present and future spouses (and common law spouses), children, parents, relations, successors, beneficiaries, heirs, next of kin, assigns, attorneys, executors, administrators, and/or estate, or any and all other persons who could claim through them, hereby unconditionally and irrevocably remises, releases, forever discharges and covenants not to sue 14

44 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 16 of 27 PageID #: 1310 Nationstar, and all entities related to Nationstar, and each of their past, present and future directors, officers (whether acting in such capacity or individually), shareholders, owners, partners, joint venturers, principals, trustees, creditors, law firms, attorneys, representatives, employees, managers, parents, subsidiaries, divisions, subdivisions, departments, affiliates, predecessors, successors, and assigns, or any agent acting or purporting to act for them or on their behalf, from any and all claims, counterclaims, actions, causes of action, suits, set-offs, costs, losses, expenses, sums of money, accounts, reckonings, debts, charges, complaints, controversies, disputes, damages, judgments, executions, promises, omissions, duties, agreements, rights, and any and all demands, obligations and liabilities, of whatever kind or character, direct or indirect, whether known or unknown or capable of being known up until the Effective Date, arising at law or in equity, by right of action or otherwise, whether or not they could have been asserted in the Lawsuit, which the Class Member may have against them up until the Effective Date, arising out of, relating to, or in any manner concerning or involving claims related to late fees, demand letters, returned payments, or default-related fees. It is the intention and effect of this Release to discharge the above-described claims that each Class Member has against Nationstar up until and including the Effective Date, including, but not limited to, the causes of action alleged against Nationstar in the Complaint. In connection with this Release, each Class Member is releasing past or currently existing claims that existed up until the Effective Date and is aware that he or she may hereafter discover claims that existed in the past or present during the Class Period that may be unknown or unsuspected but discoverable based on reasonable investigation, or facts in addition to or different from those which he or she now knows or believes to be true with respect to the 15

45 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 17 of 27 PageID #: 1311 allegations and subject matter in the Complaint. Nevertheless, it is the intention of each Class Member to fully, finally, and forever settle and release all such matters and all claims against Nationstar which exist or might have existed (whether or not previously or currently asserted in this Lawsuit). Each Party to this Agreement understands, acknowledges, and agrees that if any fact now believed to be true is found hereafter to be other than, or different from, that which is now believed, each expressly assumes the risk of such difference in fact and agrees that this Agreement shall be, and will remain, in effect notwithstanding any such difference in fact. Each Class Member agrees not to start, continue, intervene in, participate in, or receive any benefits from any lawsuit, litigation, arbitration, administrative, regulatory, or other proceeding against Nationstar in any jurisdiction based on or relating to claims, facts, or circumstances which are covered by this Release No Admission of Liability or Certification of Class Neither this Agreement nor the fact of settlement nor the payment of the Settlement Amount is, may be construed as, or may be used as, an admission on the part of Nationstar of any fault, wrongdoing or liability whatsoever, or that any class asserted by Plaintiff merits certification. Nationstar expressly denies any wrongdoing under any federal, state or local statute, public policy, tort law, contract law, or common law and expressly denies the truth or validity of any claim made against it or the propriety of certification of any class on the merits. In the event that, for any reason whatsoever, this Agreement should not become effective, the entry or negotiation of this Agreement will not be used as evidence of or argument for any position in the Lawsuit, including the propriety of certifying any class except a Settlement Class. 16

46 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 18 of 27 PageID #: 1312 Further, neither this Agreement nor any drafts hereof nor any documents leading to or relating to the Settlement set forth herein, including, but not limited to, any proposed order, Preliminary Approval Motion, Final Approval Motion, or memoranda in support thereof, constitutes an admission of liability or of any fact by the Plaintiff or Nationstar. The Parties agree that the foregoing documents: (a) Will not be offered or received against Nationstar as evidence of or be construed as or deemed to be evidence of, any admission or concession by Nationstar of (i) the truth or relevance of any fact alleged by any Party, (ii) the existence of any class alleged by Plaintiff, (iii) the propriety of class certification on the merits if the Lawsuit were to be litigated rather than settled, and (iv) the validity of any claim or defense that has been or could have been asserted by any Party in the Lawsuit or in any other litigation; (b) Will not be offered as or received against Nationstar as evidence of, or construed as or deemed to be evidence of any admission or concession of any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the Parties to this Agreement, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Agreement; provided, however, that if this Agreement is approved by the Court, Nationstar may rely upon or use this Agreement as necessary to effectuate the liability protection granted Nationstar hereunder; and (c) Will not be offered or received as an admission or concession that the consideration to be given to Settlement Class Members hereunder represents the amount which could be or would have been recovered by any such persons after trial. 17

47 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 19 of 27 PageID #: Non-Admissibility of Settlement Negotiations The settlement negotiations resulting in this Agreement have been undertaken by Plaintiff and Nationstar and their respective counsel in good faith and for settlement purposes only pursuant to Federal Rule of Evidence 408, and no evidence of negotiations or discussions underlying this Agreement shall be offered or received in evidence in any action or proceeding for any purpose. Nor shall the Agreement be offered or received in evidence in any action or proceeding for any purpose, except only for purposes of enforcing the terms and conditions of this Agreement. 24. No Oral Modification This Agreement shall not be altered, amended, or modified by oral representation made before or after the execution of this Agreement. No amendment, modification, waiver, termination or discharge of any provision of this Agreement shall be effective unless it is in a written agreement duly executed by all of the Parties hereto. 25. Complete Agreement This Agreement constitutes a single, integrated, written contract expressing the entire understanding and agreement between the Parties, and the terms of the Agreement are contractual and not merely recitals. This Agreement supersedes all prior negotiations. No other agreement, written or oral, expressed or implied, exists between the Parties with respect to the subject matter of this Agreement, and the Parties declare and represent that no promise, inducement, or other agreement not expressly contained in this Agreement has been made conferring any benefit upon them. 18

48 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 20 of 27 PageID #: Competency; Independent Counsel Each Party to this Agreement represents and warrants that it is competent to enter into the Agreement and in doing so is acting upon its independent judgment and upon the advice of its own counsel and not in reliance upon any warranty or representation, express or implied, of any nature or kind by any other Party, other than the terms set forth in or contemplated by this Agreement. 27. Construction of Agreement The language and terms of this Agreement shall be construed as a whole, according to fair and ordinary meaning, as if both Parties jointly prepared it, and shall not be strictly construed for or against any party to this Agreement. 28. Certification of Class for Settlement Purposes Only For settlement purposes only, the Parties agree that, as part of the preliminary approval process, the Court may make preliminary findings and enter an order granting provisional certification of the Settlement Class subject to final findings and certification in the Final Order, and appointing both Plaintiff and Class Counsel as representatives of the proposed Settlement Class. For settlement purposes only, Nationstar consents to certification of the Settlement Class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Nationstar does not consent to certification of the Settlement Class for any purpose other than to effectuate the settlement of the actions and claims identified in this Agreement. If this Agreement is not approved by the Court or is terminated pursuant to its terms or for any other reason, or is disapproved in a final order by any court of competent jurisdiction, (a) the order certifying the Settlement Class and all 19

49 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 21 of 27 PageID #: 1315 preliminary findings or stipulations regarding certification of the Settlement Class shall be automatically vacated upon notice to the Court of this Agreement s termination or disapproval, (b) the Lawsuit may proceed as though the Settlement Class had never been certified and any related findings or stipulations pursuant to this Agreement had never been made; and (c) the Parties reserve all procedural or substantive rights as presently exist, including all affirmative defenses. 29. Affirmations by Nationstar As part of the Class Settlement, Nationstar affirms that it will not engage in the following conduct, except when allowed to do so under state and federal law: (a.) Nationstar shall not charge West Virginia borrowers late fees in excess of Fifteen and 00/100 Dollars ($15.00) per month. (b.) Nationstar shall not issue or cause to be issued demand letters seeking payments of expenses of collection or default fees from West Virginia borrowers. (c.) Nationstar shall not return partial loan payments to West Virginia borrowers prior to the date of acceleration of their loans. (d.) Nationstar shall not demand payment of attorney s fees from West Virginia borrowers. 30. Continuing Jurisdiction The United States District Court for the Southern District of West Virginia will have continuing jurisdiction over the Lawsuit for the purpose of implementing the Settlement until the Lawsuit and all related matters are fully resolved, and for enforcement of the Settlement, the Agreement, and the Final Order thereafter. Any dispute regarding the Parties obligations pursuant to this Agreement or interpretation of the terms of this Agreement or the Final Order will be resolved by the Court. 20

50 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 22 of 27 PageID #: Choice of Law This Agreement will be governed by federal law and the internal laws of the State of West Virginia without regard to its choice of law principles. 32. Choice of Forum The Parties consent to jurisdiction and venue in the United States District Court for the Southern District of West Virginia for any dispute arising in any way out of this Agreement. 33. Additional Acts to Effectuate the Agreement The Parties shall execute all documents and perform all acts necessary and proper to effectuate the terms of this Agreement and to obtain the benefits of the Agreement. 34. Waiver The provisions of this Agreement may be waived only by an instrument in writing executed by the waiving Party. The waiver by any Party of any breach of this Agreement shall not be deemed to be or construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of this Agreement. 35. Confidentiality This Agreement shall remain confidential until the Preliminary Approval Motion is filed. Any press release or advertisement that Plaintiff or Class Counsel wish to make about the Settlement or this Agreement, including the payments of settlement proceeds or the underlying claims, shall require joint approval of the Parties. Any disputes shall be decided by the mediator, the Honorable Chief Judge Joseph R. Goodwin. 21

51 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 23 of 27 PageID #: 1317 The Parties agree that documents and information provided in connection with the administration of the settlement of this matter are deemed Confidential pursuant to the agreed Protective Order (ECF No. 20), and shall be subject to the terms thereof. 36. Preservation of Privilege Nothing contained in this Agreement or any Order of this Court, and no act required to be performed pursuant to this Agreement or any Order of this Court, is intended to constitute, cause or effect any waiver, in whole or in part, of any attorney client privilege, work product protection, or common interest or joint defense privilege, and each Class Member agrees not to make or cause to be made in any form any assertion to the contrary. 37. Authority of Class Counsel Class Counsel unconditionally warrant and represent that they are authorized by Plaintiff, for whom they are attorneys of record, and the attorneys of record for Nationstar warrant and represent that they are authorized by Nationstar, to take all appropriate action required or permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms and to execute any other documents required to effectuate the terms of this Agreement. The Parties and their counsel shall cooperate with each other and use their best efforts to effect the implementation of the Settlement. 38. Tax Consequences This Agreement is enforceable regardless of its tax consequences. The Parties understand and agree that the payments set forth in this Agreement reflect the settlement of disputed legal claims and that Nationstar makes no representations regarding the Agreement s tax consequences. 22

52 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 24 of 27 PageID #: 1318 No opinion concerning the tax consequences of the Settlement to individual Class Members is being given or will be given by the Parties or their counsel, nor is any representation or warranty in this regard made by virtue of this Agreement. Plaintiff must consult his own tax advisors regarding the tax consequences of the Settlement, including any payments provided hereunder and any tax reporting obligations he may have with respect thereto. Each Class Member s tax obligations, and the determination thereof, are the sole responsibility of the Class Member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual Class Member. Each Class Member specifically agrees that he or she is solely responsible for any and all taxes, interest and penalties due and owing, if any, should the payments or any portion thereof, be taxable. 39. Release, Limitations This Agreement does not release claims arising out of the failure of either Party to perform in conformity with the terms of this Agreement. 40. Jury Waiver The Parties voluntarily and intentionally waive any right that they may have to a trial by jury in any action, proceeding or litigation directly or indirectly arising out of, or relating to, this Agreement. 41. Knowing and Voluntary Assent The Parties acknowledge that this Agreement is executed voluntarily by each of them, without any duress or undue influence on the part of, or on behalf of any of them. The Parties further acknowledge that they have had the opportunity for representation in the negotiations for, 23

53 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 25 of 27 PageID #: 1319 and in the performance of, this Agreement by counsel of their choice and that they have read this Agreement and/or have had it fully explained to them by their counsel and that they are fully aware of the contents of this Agreement and its legal effect. 42. Counterparts and Facsimile Signatures This Agreement may be executed in any number of counterparts and with facsimile signatures, and all such counterparts shall be construed together and constitute a single form of this Agreement. 43. Headings and Captions The headings and captions inserted into this Agreement are for convenience only and in no way define, limit or otherwise describe the scope or intent of this Agreement, or any provision hereof, or in any way affect the interpretation of this Agreement. (Remainder of Page Intentionally Left Blank) 24

54 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 26 of 27 PageID #: 1320

55 Case 3:11-cv Document 70-1 Filed 05/14/12 Page 27 of 27 PageID #: 1321

56 Case 3:11-cv Document 70-2 Filed 05/14/12 Page 1 of 4 PageID #: 1322 EXHIBIT B

57 Case 3:11-cv Document 70-2 Filed 05/14/12 Page 2 of 4 PageID #: 1323 If you have a loan secured by real property in West Virginia that was serviced by Nationstar Mortgage, LLC, any time from February 15, 2007 through July 1, 2011, you could get benefits from a class action settlement. Nationstar Mortgage, LLC Settlement Administrator c/o Kurtzman Carson Consultants, LLC P.O. Box Novato, CA

58 Case 3:11-cv Document 70-2 Filed 05/14/12 Page 3 of 4 PageID #: 1324 LEGAL NOTICE NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION THIS IS NOT A SUIT AGAINST YOU. The purpose of this Notice is to advise you that a Settlement has been reached in a class action lawsuit (the Lawsuit ) against Nationstar Mortgage LLC ( Nationstar ). The Notice is being sent to you because Nationstar s records indicate that you are included in the Settlement, and that you are entitled to a cash payment. This Notice describes the case in general and does not address all of the issues in detail. You may review a copy of the Settlement Agreement, Class Action Complaint, and the Court s Order Preliminarily Approving Settlement at the following website: What is the Lawsuit About? The Lawsuit alleges that Nationstar improperly charged West Virginia borrowers late fees over the $15 limit allowed by statute. The Lawsuit also claims that Nationstar sent borrowers demand letters demanding payment of improper expenses of collection and refused to accept partial loan payments from borrowers prior to the date of acceleration of their loans. Nationstar denies that it acted improperly or did anything wrong. However, Nationstar has agreed to the Settlement solely to avoid the burden, expense, risk, and uncertainty of continuing the Lawsuit. Who is Included in the Settlement? Nationstar s records indicate that you are a Class Member. A Class Member is any borrower whose loan was secured by real property located in West Virginia and whose loan was serviced by Nationstar at any time from February 15, 2007 through July 1, 2011, and who either: (a) had late fees over $15 imposed on his or her loan account; (b) had instances of form debt collection letters mailed with the terms expenses of collection ; or (c) had instances of a partial loan payment to Nationstar that was returned prior to the date of acceleration of the loan payments. What Does the Settlement Provide? (1) Automatic Cash Payment to Class Members. Class Members will receive a cash payment for each late fee over $15 charged, each demand letter sent, and each returned partial loan payment prior to the date of acceleration of the Class Member s loan. Allocations will vary, but the amount of the cash payment per instance is estimated to be approximately $88.37, after deductions for attorneys fees, expenses, and the service award. (Note: this amount is subject to change and may be reduced depending on the number of claims for default expenses that are submitted). The total amount of the Settlement is $1,500, (2) Additional Payments to Class Members Who Paid Improper Default Fees If you believe you actually paid improper default expenses, such as foreclosure attorneys fees, that were not waived, reimbursed, or otherwise credited to your loan account, you may contact the Settlement Administrator to request a Claim Form. After you complete and return the Claim Form, you may receive a reimbursement for each improper default expense that you actually paid. Reimbursements shall be paid out of the total settlement amount. (Note: Reimbursements may be reduced depending on the number and dollar amount of claims for improper default expenses that are submitted). (3) Service Award. The plaintiff who brought this lawsuit, David J. Triplett, will request $5, for serving as class representative. In addition to the class claims, plaintiff also asserted individual claims against Nationstar. The parties negotiated a separate settlement of plaintiff s individual claims. (4) Attorneys Fees and Costs. Class counsel are John W. Barrett and Jonathan R. Marshall, Bailey & Glasser LLP, 227 Capitol Street, Charleston, WV They will request attorneys fees of one-third the total amount of the Settlement. (5) Non-Monetary Benefits of Settlement. Nationstar has agreed that it will not engage in the following conduct, except when allowed to do so by state or federal law: (a) charge West Virginia borrowers late fees over $15; (b) send demand letters to West Virginia borrowers seeking payment of expenses of collection or default fees; (c) return partial loan payments to West Virginia borrowers prior to the date of acceleration of their loans; and (d) demand payment of attorneys fees from West Virginia borrowers. (6) Opinion of Class Counsel. Class counsel considers it to be in the best interest of the class to enter into this Settlement on the terms described in light of the potential recovery, Nationstar s defenses, and the uncertainties of continued litigation. (7) Release. If the Court approves the Settlement, Class Members will be legally bound by all orders and judgments of the Court, and will not be able to sue or continue to sue Nationstar about any legal claims they have or may have up until the Effective Date of the Settlement, arising out of, related to, or in any manner concerning or involving claims for charging excessive late fees, issuing demand letters demanding payment of expenses of collection, returning partial loan payments prior to the date of acceleration, or default-related expenses. The Court s Fairness Hearing The U.S. District Court for the Southern District of West Virginia will hold a hearing in this case (David J. Triplett v. Nationstar Mortgage LLC, Case No. 3:11-cv-238), on, 2012 at a.m./p.m., in the Courtroom of the Honorable Judge Robert C. Chambers, United States Courthouse, Sidney L. Christie Federal Building, 845 Fifth Avenue, Room 101, Huntington, West Virginia Class Members do not need to attend the hearing. What Are Your Options? (1) Do Nothing. To accept the Settlement, do nothing. If the Settlement is approved, a check will be mailed to you. If you change your address, please inform the Settlement Administrator at the address below; OR (2) Request a Claim Form. To make a claim for improper default fees charged to your loan account that you

59 Case 3:11-cv Document 70-2 Filed 05/14/12 Page 4 of 4 PageID #: 1325 actually paid, you must contact the Settlement Administrator and request a Claim Form. The Claim Form must be fully completed and returned in the mail to the Settlement Administrator, postmarked no later than, 2012, or such claims will be waived and released. (3) Exclude Yourself. You may opt out and exclude yourself from the Settlement. If you opt out, you will not receive any cash payment, and you will not release any claims you may have against Nationstar. If you opt out, you will be free to pursue whatever legal rights you may have by pursuing your own lawsuit against Nationstar at your own risk and expense. To exclude yourself from the Settlement, you must mail a letter to the Settlement Administrator (address below) stating that you wish to do so. You must postmark your letter no later than, 2012; OR (4) Object to the Settlement. If you object to the Settlement, you must submit your objection in writing to the Settlement Administrator (address below) stating that you wish to object. You must postmark your objection no later than, Any Class Member who has timely objected may appear at the fairness hearing and be heard (individually or through his or her own counsel). Objections must state the name, address, telephone number, and signature of the objector, and must state specifically and in detail all reasons for the objections. PLEASE DIRECT QUESTIONS TO: SETTLEMENT ADMINISTRATOR Address Toll-Free Phone Number For additional information, you may also visit the Settlement Administration website: v

60 Case 3:11-cv Document 70-3 Filed 05/14/12 Page 1 of 3 PageID #: 1326 EXHIBIT C

61 Case 3:11-cv Document 70-3 Filed 05/14/12 Page 2 of 3 PageID #: 1327 David J. Triplett v. Nationstar Mortgage LLC c/o Kurtzman Carson Consultants LLC P.O. Box Novato, CA Claim No. John Smith C/O KCC 1234 Main Street Anytown, WV Name/Address Change (if any): First Name Last Name Address,, City State Zip 1. Claimant Information: address: PROOF OF CLAIM FORM David J. Triplett v. Nationstar Mortgage LLC Settlement Administrator c/o Kurtzman Carson Consultants LLC P.O. Box, Novato, CA ( ) ( ) Area Code Daytime Telephone Number Area Code Evening Telephone Number If you claim that Nationstar charged you improper default expenses, such as foreclosure attorneys fees, that were not waived, reimbursed, or otherwise credited to your loan account, and that you actually paid, you must fill this Proof of Claim Form out completely and mail it to the address given below. This Proof of Claim Form must be notarized and postmarked no later than, If you provide incomplete, incorrect, or inaccurate information, your claim may be denied. 2. If you claim that you actually paid improper default expenses, please check the box below to verify that you are the Settlement Class Member identified above and that you believe you may be entitled to payment for an improper default expense. [ ] I/we believe that my/our loan account was charged an improper default fee, that was not waived, reimbursed, or credited to my/our loan account, and that I/we actually paid. Please provide the number of such fees charged and a brief description of each fee, including the amount of the fee and the date it was charged (you may attach a separate page if additional space is needed): MAIL YOUR COMPLETED PROOF OF CLAIM FORM TO THE FOLLOWING ADDRESS: David J. Triplett v. Nationstar Mortgage LLC Settlement Administrator c/o Kurtzman Carson Consultants LLC P.O. Box Novato, CA TO BE ENTITLED TO THE BENEFITS OF THIS SETTLEMENT, YOUR PROOF OF CLAIM FORM MUST BE POSTMARKED BY, PROOF OF CLAIM FORMS NOT POSTMARKED ON OR BEFORE SUCH DATE WILL NOT BE ACCEPTED ABSENT COURT ORDER. Counsel are not responsible for any lost or untimely claims, so you may want to ensure your Proof of Claim Form was received by

62 Case 3:11-cv Document 70-3 Filed 05/14/12 Page 3 of 3 PageID #: 1328 mailing it via Certified Mail, Return Receipt Requested. You may also want to keep a copy of the completed Proof of Claim Form for your files. By signing below, I/we represent that the information contained in this Proof of Claim Form is true and correct and state as such under penalty of perjury. I/we understand my/our claim may be subject to audit, verification, and court review, and that I/we may need to submit additional information to establish that my/our claim is valid. I/we also understand that by submitting this claim I/we am/are releasing all Settled Claims in the Lawsuit, as detailed in the Notice of Proposed Class Action Settlement and the Class Settlement and Release Agreement. Borrower Signature: Co-Borrower Signature: Date (mm/dd/yyyy): Date (mm/dd/yyyy): STATE OF WEST VIRGINIA CITY/COUNTY OF, to wit: The above Proof of Claim was subscribed and sworn to (or affirmed) before me on this day of, by, proved to me on the basis of satisfactory evidence to be the person who appeared before me. My Commission Expires: Notary Public v

63 Case 3:11-cv Document 70-4 Filed 05/14/12 Page 1 of 5 PageID #: 1329 EXHIBIT D

64 Case 3:11-cv Document 70-4 Filed 05/14/12 Page 2 of 5 PageID #: 1330

65 Case 3:11-cv Document 70-4 Filed 05/14/12 Page 3 of 5 PageID #: 1331

66 Case 3:11-cv Document 70-4 Filed 05/14/12 Page 4 of 5 PageID #: 1332

67 Case 3:11-cv Document 70-4 Filed 05/14/12 Page 5 of 5 PageID #: 1333