United States District Court, D. Maryland
EDWARD J. AND VICKI FANGMAN, et al., Plaintiffs,
GENUINE TITLE, LLC, et al. Defendants.
Richard D. Bennett, United States District Judge.
August 8, 2017, this Court conducted a Final Fairness Hearing
on the Proposed Class Action Settlement (ECF No. 432-2)
(“Settlement Agreement”) of all claims asserted
in this action against Defendant PNC Bank, N.A.
(“PNC”). Via Order dated that same day (ECF No.
479), this Court granted final approval of the Settlement
Agreement, dismissed all claims against PNC, and approved the
requested service awards for Class Representatives Gerald F.
and Ruby B. Coggins, Lusetha Rolle, and Rose A. Lease, in the
total amount of $15, 000, including their settlement
benefits. See Order, ¶¶ 1, 9, 13,
ECF No. 479. Final Judgement has been entered in this case
against PNC in an “amount necessary to fund the Settlement
Benefits payable to the Settlement Class Members, in
accordance with the Settlement Agreement, ” as
discussed further infra. Id. ¶¶
pending before this Court is Settlement Counsels'
Petition for Attorneys' Fees and Expenses (ECF No. 462),
in which Settlement Counsel request an award of
attorneys' fees and expenses in an amount equal to 25% of
the Common Fund, to be paid in addition to, and not
out of, the Common Fund. PNC objects to any award “in
excess of 20% of the [C]ommon [F]und.” See
Response, ECF No. 465. The parties' submissions have been
reviewed, and no additional hearing on the issue of
attorneys' fees and expenses is necessary. See
Local Rule 105.6 (D. Md. 2016). For the reasons stated
herein, the pending Settlement Counsels' Petition for
Attorneys' Fees and Expenses (ECF No. 462) is GRANTED,
but in the reduced amount of $199,
425.61, an award equal to 20% of
the estimated value of the Common
January of 2014, Plaintiffs Edward J. and Vicki Fangman
brought this class action against Defendant Genuine Title,
LLC alleging, inter alia, violations of the Real
Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. §§ 2607(a), (b). See Compl., ECF
No. 2. Defendant PNC Bank, N.A. (“PNC”) was named
as a Defendant in the First Amended Complaint (ECF No. 47).
An additional thirteen home mortgage lenders have also been
named as Defendants (collectively “Lender
Defendants”) via the First and Second Amended
Complaints in this action. Attorneys Michael Paul Smith,
Sarah Zadrozny, Timothy J. Maloney, and Veronica Nannis of
the law firms of Smith, Gildea & Schmidt, LLC
(“SGS”) and Joseph, Greenwald & Laake, P.A.
(“JGL”) (hereinafter “Settlement
Counsel”) have represented all Plaintiffs, including
the PNC Plaintiffs, throughout this litigation.
prosecuting this case, Settlement Counsel have incurred
significant expense and have undergone significant
investigation. For example, in July of 2013, Plaintiffs filed
a Petition for Emergency Appointment of a Receiver for the
purpose of retrieving and preserving the documents, books,
and records of Genuine Title in the Circuit Court for
Baltimore County, Maryland. That court granted the petition
on July 30, 2014, and Settlement Counsel were able to
retrieve vast amounts of evidence from Genuine Title's
records, including the identities of potential PNC Class
Members. PNC filed a Motion to Dismiss the Second Amended
Complaint on July 21, 2015 (ECF No. 165), to which Plaintiffs
responded on September 4, 2015 (ECF No. 175). Following a
hearing on November 24, 2015, this Court denied PNC's
Motion to Dismiss with respect to Plaintiffs' claims
under the Real Estate Settlement Procedures Act in a
Memorandum Opinion and Order dated December 9, 2015 (ECF Nos.
211 & 212).
parties filed a Joint Motion to Preliminarily Approve
Settlement on January 20, 2017 (ECF No. 432), attaching the
Settlement Agreement (ECF No. 432-2). This Court held a
Preliminary Fairness Hearing on February 1, 2017 and granted
the parties' Joint Motion via Order dated that same date
(ECF No. 435). This Court's Order designated Michael Paul
Smith, Sarah Zadrozny, Timothy J. Maloney, and Veronica
Nannis of the law firms of Smith, Gildea & Schmidt, LLC
(“SGS”) and Joseph, Greenwald & Laake, P.A.
(“JGL”) as Settlement Counsel.
6.1 of the Settlement Agreement provides for the payment of
the following benefits to the PNC Class Members:
Within ninety (90) days after the Finality of the Settlement,
the Settlement Administrator shall issue a check from the
Common Fund account to each member of the Settlement Class
who did not file a complete and valid Request for Exclusion
by the Exclusion Deadline, in an amount equal to 220% of the
Section 1100 Charges that were paid to Genuine Title
(excluding Line 1108 title underwriter's fees) as
reflected on the member's final HUD-1 Settlement
Statement for the member's PNC loan less any Consumer
Redress Payment actually paid and received by such Settlement
have indicated that the Common Fund totals approximately
respect to attorneys' fees and expenses, the Settlement
Agreement provides that Settlement Counsel shall limit their
requested attorneys' fees and expenses to an amount equal
to 25% of the Common Fund. Settlement Agreement, ¶ 12,
ECF No. 432-2. The Agreement further provides that PNC
reserves the right to oppose any petition for attorneys'
fees and expenses that seeks more than an aggregate
award equal to 20% of the Common Fund. Id.
Attorneys' fees and expenses shall be paid in addition
to, not out of, the Common Fund.
the terms of the Settlement Agreement, a notice plan was
completed pursuant to which all members of the PNC Class were
informed of the Settlement Agreement's terms, including
the provisions for payment of attorneys' fees and
expenses. See id. ¶ 10. No objections to the
terms of the Settlement Agreement have been filed. On August
8, 2017, this Court conducted a Final Fairness Hearing on the
proposed settlement and granted final approval of the
Settlement Agreement that same day.
Counsel have requested an award of attorneys' fees and
expenses in an amount equal to 25% of the Common Fund, or
$249, 282.01. Mem. Supp. Mot., p. 29, ECF No. 462-1. PNC
objects to any award in excess of 20% of the Common Fund.
23(h) of the Federal Rules of Civil Procedure provides that
“[i]n a certified class action, the court may award
reasonable attorney's fees and nontaxable costs that are
authorized by law or by the parties' agreement.”
Fed.R.Civ.P. 23(h). Additionally, the Real Estate Settlement
Procedures Act (“RESPA”) provides that
“[i]n any private action brought pursuant to this
subsection, the court may award to the prevailing party the
court costs of the action together with reasonable attorneys
fees.” 12 U.S.C. § 2607(d)(5). As this Court has
previously noted, “[t]here are two primary methods of
calculating attorneys' fees: the lodestar method and the
‘percentage of recovery' method.”
Whitaker v. Navy Fed. Credit Union, No. RDB-09-2288,
2010 WL 3928616, at *4 (D. Md. Oct. 4, 2010). “The
lodestar method requires the multiplication of the number of
hours worked by a reasonable hourly rate, the product of
which this Court can then adjust by employing a
‘multiplier.' ” Id. “The
percentage of the recovery method involves an award based on
a percentage of the class recovery, set by the weighing of a
number of factors by the court.” Id.
reasons explained in this Court's prior Memorandum
Opinion of November 18, 2016 (ECF No. 411), the
“percentage of recovery” method shall be used to
calculate Settlement Counsels' attorneys' fees and
expenses in this case. However, this Court will cross-check
the “percentage of recovery” analysis with a
lodestar analysis. This Court has previously recognized that
“using the percentage of fund method and supplementing
it with the lodestar cross-check . . . take[s] advantage of
the benefits of both methods.” Singleton v.
Domino's Pizza, LLC, 976 F.Supp.2d 665, 681 (D. Md.
2013) (quoting In re The Mills Corp. Securities
Litig., 265 F.R.D. 246, 261 (E.D. Va. 2009)).
“Percentage of Recovery” Analysis
the United States Court of Appeals for the Fourth Circuit
“has not yet identified factors for district courts to
apply when using the ‘percentage of recovery'
method, . . . District courts ...