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HASHOP v. MAGNA MORTGAGE

United States District Court, Northern District of Illinois


April 22, 2003

HASHOP
v.
MAGNA MORTGAGE

The opinion of the court was delivered by: James Zagel, District Judge

OPINION

Defendants in this case ask that I enforce its October 17, 2001, Order of Final Approval and Dismissal and to enter an Order enjoining Teressa Momon's action against the Magna defendants currently pending in the Alabama state court.

The dispute between Ms. Momon and defendants concerns the procedure for opting out of the settlement class. Ms. Momon argues that she timely opted out of the class, whereas defendants argue that she is too late. The issue arises out of conflicting language between the Notice of Proposed Settlement of Class Action ("the Notice") and the Hashop Settlement Agreement and Preliminary Hashop Settlement Approval Order. The former states that to opt out of the class, one must send a written request no later than September 19, 2001, while the latter states that the request must be received by that date. These documents are clear in their language, and they are clearly at odds with each other. It is undisputed that Ms. Momon sent her request to opt out on September 18, 2001, and she has provided evidence of this. The question is whether this is sufficient to effectuate Ms. Momon's opting out of the settlement class.

Defendants argue that the Hashop Settlement Agreement and Preliminary Hashop Settlement Approval Order trump the Notice. However, Ms. Momon was sent the Notice, not the Hashop Settlement Agreement nor the Preliminary Hashop Settlement Approval Order. Therefore, she could not have known that these documents contained a different procedure than the Notice that she received. Ms. Momon has proved, quite clearly, that she has followed the procedure that she was given, and there is no evidence that she proceeded in bad faith. Therefore, I am denying defendants' motion.

Defendants have also requested an award of attorneys' fees incurred in pursuing this motion. Because Ms. Momon has pursued her case in good faith, such an award is inappropriate, and I deny this request as well. See Official Aviation Guide Co. v. American Aviation Associates, 162 F.2d 541, 543 (7th Cir. 1947).

20030422

© 1992-2003 VersusLaw Inc.



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