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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OFFLORIDA 

FORT LAUDERDALE DIVISION

VINCENT J. MORRIS, STEVEN 

SIMMONS, YOLANDA UPTON, and 

MICHAEL LUZZI, on behalf of themselves 

and all others similarly situated,

Plaintiffs,

v. 

 CASE NO: 20-60633-CIV-SMITH

PHH MORTGAGE CORPORATION d/b/a 

PHH MORTGAGE SERVICES, on its own 

behalf and as successor by merger to OCWEN 

LOAN SERVICING, LLC, a New Jersey 

Corporation, and OCWEN LOAN SERVICING, 

LLC, a Florida Limited Liability 

Company, 

Defendants.

 / 

RESPONSE TO LETTER TO THE COURT FROM ATTORNEYS GENERAL OF NEW 

YORK AND MINNESOTA

Plaintiffs and Defendants jointly file this response to the letter filed with the clerk by

Elizabeth M. Lynch of the New York Attorney General’s Office and Mawerdi Hamid of the 

Minnesota Attorney General’s Office on December 10, 2020, seeking to further delay any decision 

on preliminary approval of the pending settlement. Doc. 98. Plaintiffs and Defendants respectfully 

oppose that request. Preliminary approval has been exhaustively briefed. The letter filed by these 

new proposed amici identifies no new argument relevant to preliminary approval that has not

already been addressed in the numerous briefs already on file with the Court. The purpose of 

preliminary approval is to allow class members to speak for themselves on the desirability of the 

settlement. While further delay is no doubt the goal of counsel for the existing Intervenors, who 

Case 0:20-cv-60633-RS Document 102 Entered on FLSD Docket 12/11/2020 Page 1 of 7
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continue to press ahead with their competing class actions while doing everything they can to delay 

this one, further delay is not in the best interests of the class. 

The letter filed by these new amici on the day before briefing of the Intervenors’ objections 

is set to conclude is a restatement of what Intervenors have already argued. This is not the first

time new amici and intervenors have appeared at the close of final briefing on preliminary 

approval. Indeed, the same thing happened the last time preliminary approval briefing was about 

to close. Compare Doc. 72 (“Motion of Proposed Amici Curiae National Association of Consumer 

Advocates, National Consumer Law Center, and Public Citizen for Leave to File an Amicus Brief 

in Response to the Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement and 

Certification of the Settlement Class,” filed on Friday, October 2, 2020) with Doc. 58 (setting 

Monday, October 5, 2020 as the deadline for proposed intervenors Torliatt, Bardak, and Williams 

to file their reply brief in response to Court’s “show cause” order). Delay to allow the same issues

to be briefed yet again does not benefit the class or the Court, but instead, is delay for the sake of 

delay. 

The proposed amici will have a full and fair opportunity to be heard after preliminary 

approval and before the final fairness hearing, per the normal procedure, as they acknowledge in 

their letter. See Doc. 98 at 4 (“Ordinarily, Attorneys General file objections after preliminary 

approval and before the fairness hearing.”). Proposed amici do not explain how upsetting this 

“ordinary” procedure benefits consumers or the Court; instead they offer only that “seeking leave 

to file an objecting amicus before the Court grants preliminary approval benefits the parties and 

the Court.” Id. Indeed, waiting until after class members have a chance to be heard to conduct an 

in-depth inquiry on the fairness of the settlement preserves the well-defined structure of Rule 23. 

Saccoccio v. JPMorgan Chase Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014) (“‘[T]he reaction 

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of the class is an important factor’ in determining whether to grant final approval.”); Gonzalez v. 

TCR Sports Broad. Holding, LLP, 2019 WL 2249941, at *5 (S.D. Fla. May 24, 2019) (same). Just 

as class members’ intervention before preliminary approval threatens Rule 23’s process for raising

substantive objections (Doc. 65 at 10–11), so too does filing an amicus brief at this stage. If an 

amicus brief is of value to the Court in evaluating the merits of the settlement, it ordinarily should 

be considered after preliminary approval, along with any objections of any putative class member, 

not in an effort to prevent class members from speaking for themselves. 

While accepting an amicus curiae brief is a matter of court discretion, the ultimate 

touchstone is whether the amicus is helpful to the court by adding something new to the briefing. 

See, e.g., United States v. Santiago-Ruiz, 2017 WL 11454398, at *2 (S.D. Fla. Dec. 4, 2017) 

(“Courts typically grant amicus status where the party contributes to the court’s understanding of 

the matter in question by proffering timely and useful information.”) (internal quotation omitted); 

Wyatt By & Through Rawlins v. Hanan, 868 F. Supp. 1356, 1359 (M.D. Ala. 1994) (approving 

participation of amicus curiae where the proposed amicus “can continue to bring to this litigation 

a helpful neutral and national perspective”). Where “extensive briefing” has already been 

submitted, an amicus submitting similar arguments generally will not add anything meaningful to 

the case. See, e.g., Maples v. Thomas, 2013 WL 5350669, at *1 (N.D. Ala. Sept. 23, 2013) (finding 

“the amici’s proposed briefs, while skillfully written, will not be helpful in this case because they 

cover arguments already discussed in the briefs of the parties”); see also Doc. 79 at 4–6. In such 

situations, “leave to file an amicus curiae brief should be denied.” Jin, 557 F. Supp. 2d at 137 

(internal quotation omitted).

Just like the earlier amici, proposed amici have not met this standard. They seek leave to 

repeat arguments Intervenors have already made, such as (1) notes should not be amended en 

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masse as part of a class settlement (compare Doc. 72-2 at 2, 5-6, Doc. 58 at 6, Doc. 66 at 4-5, and

Doc. 67 at 3–4 with Doc. 98 at 3); (2) that the settlement should not “legalize” fees that Plaintiffs 

have alleged to be illegal (compare Doc. 72 at 1, Doc. 72-2 at 2–3, Doc. 48 at 1–2, Doc. 57 at 3 

n.2, 4–5, Doc. 66 at 5, Doc. 67 at 3, and Doc. 71 at 1–2 with Doc. 98 at 3); (3) the note amendment 

violates the statute of frauds (compare Doc. 67 at 4 with Doc. 98 at 3-4); (4) the fee charged by 

Defendant is not reasonably related to the cost of services (compare Doc. 67 at 4-5 with Doc. 98

at 4); (5) the amount to be received by the class members is not sufficient (compare Doc. 72-2 at 

4, Doc. 48 at 2, and Doc. 57 at 3 with Doc. 98 at 4); (6) the speed of the settlement is somehow 

worrisome (compare Doc. 72-2 at 9, Doc. 67 at 5, and Doc. 57 at 4-5 with Doc. 98 at 4); and (7) 

the “reverter” provision renders the settlement illegitimate (compare Doc. 72-2 at 10, Doc. 58 at 

7, Doc. 66 at 5, Doc. 67 at 6, and Doc. 71 at 1 with Doc. 98 at 4). The putative class members 

who have intervened have already presented each of these arguments. But these objections are 

best considered in the normal course under Rule 23: after preliminary approval, when the entire 

settlement class will have been notified and have an opportunity to be heard in the discussion about 

the terms. See Doc. 92 (order denying motion for leave to file amicus brief by earlier proposed 

amici). 

Furthermore, contrary to the state Attorneys General’s claims that the fees are illegal, just 

yesterday Intervenors’ counsel lost yet another convenience fee class action when a Maryland 

federal court found that convenience fees for purely optional expedited payment methods are not

illegal, regardless of whether they are mentioned in the underlying note. Austin v. Lakeview Loan 

Servicing, LLC, 2020 WL 7256564, at *4 (D. Md. Dec. 10, 2020). The majority of Florida’s 

federal judges have held also that these fees are perfectly legal, even where not expressly 

authorized by the note. Doc. 65 at 7–8 n.2. 

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This proposed settlement has been pending for four months. The Court has allowed 

multiple rounds of briefing already. Further briefing and argument on the ultimate merits of the 

settlement should be deferred until class members have a chance to speak for themselves after 

receiving the notice contemplated by the proposed settlement. To allow them that opportunity, 

preliminary approval, not further delay, is the appropriate next step. 

Dated: December 11, 2020 

 Respectfully submitted,

/s/ Timothy A. Andreu 

Timothy A. Andreu (Fla. Bar No. 443778)

tandreu@bradley.com 

BRADLEY ARANT BOULT CUMMINGS LLP

100 North Tampa Street, Suite 2200

Tampa, FL 33602

P: (813) 559-5500

F: (813) 229-5946 

Michael R. Pennington (pro hac vice) 

mpennington@bradley.com 

BRADLEY ARANT BOULT CUMMINGS LLP

1819 Fifth Avenue North 

Birmingham, AL 35203 

P: (205) 521-8000 

F: (205) 521-8800 

Attorneys for Defendants 

/s/ Adam M. Moskowitz 

Adam M. Moskowitz (Fla. Bar No. 984280)

adam@moskowitz-law.com 

Howard M. Bushman (Fla. Bar No. 0364230) 

howard@moskowitz-law.com 

Joseph M. Kaye (Fla. Bar No. 117520) 

joseph@moskowitz-law.com

Barbara C. Lewis (Fla. Bar No. 118114) 

barbara@moskowitz-law.com

THE MOSKOWITZ LAW FIRM, PLLC

2 Alhambra Plaza

Case 0:20-cv-60633-RS Document 102 Entered on FLSD Docket 12/11/2020 Page 5 of 7
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Suite 601

Coral Gables, FL 33134

P: (305) 740-1423 

/s/ Josh Migdal 

Josh Migdal (Fla. Bar No. 19136)

josh@markmigdal.com 

Yaniv Adar (Fla. Bar No. 63804) 

yaniv@markmigdal.com 

MARK MIGDAL & HAYDEN

80 S.W. 8th Street, Suite 1999 

Miami, Florida 33130 

P: (305) 374-0440 

Attorney for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2020, I caused a copy of the foregoing document to 

be filed electronically with the Court’s CM/ECF system. Notice of this filing will be sent by email to all counsel of record by operation of the Court’s electronic filing system as indicated on 

the Notice of Electronic Filing. 

/s/ Timothy A. Andreu 

Attorney for Defendants 

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