IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2005 Term
Nos. 31744 & 31745

JACKIE LUCAS, JANICE LUCAS, JACK OVERBAUGH,
CHARLOTTE OVERBAUGH, DALE MICHAELSON,
PANSY MICHAELSON, AND ANGELA MICHAELSON,
INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,

V.

FAIRBANKS CAPITAL CORP., A CORPORATION,
R. VANCE GOLDEN, III, JOHN DOE AND
ROBERT DOE, AS TRUSTEES,
Defendants.

Submitted: January 12, 2005
Filed: March 18, 2005

The underlying putative class action lawsuit was filed on January 2, 2003, in the Circuit Court of Lincoln County, by plaintiffs Jackie and Janice Lucas, Jack and Charlotte Overbaugh, Dale and Pansy Michaelson, and Angela Kennedy, individually and on behalf of all others similarly situated (hereinafter collectively referred to as “the Lucases”), against defendants Fairbanks Capital Corp. (hereinafter referred to as “Fairbanks”), and R. Vance Golden, III (hereinafter referred to as “Mr. Golden”). (See footnote 1) The Lucases are homeowners who are obligated under home loans for which Fairbanks is the loan servicer. (See footnote 2) The Lucases alleged numerous wrongful acts by Fairbanks in performing its loan servicing activities, such as failing to post or improperly posting payments tendered, charging and collecting unlawful fees, and illegally pursuing foreclosure. They asserted causes of action against Fairbanks for breach of the duty of good faith and fair dealing, illegal pursuit of foreclosure, and collection of unauthorized charges.

Mr. Golden, the second named defendant in the Lucases law suit, serves as trustee or substitute trustee on many West Virginia deeds of trust for loans serviced by Fairbanks. The Lucases asserted claims against Mr. Golden for breach of fiduciary duty as trustee and illegal pursuit of forfeiture. The Lucases sought actual and punitive damages against both Fairbanks and Mr. Golden, and further sought to enjoin Fairbanks and Mr. Golden from pursuing “illegal practices as alleged.” In addition, the Lucases filed a motion for a temporary injunction to enjoin Fairbanks and Mr. Golden from foreclosing on any properties in West Virginia. On or about January 8, 2003, the Circuit Court of Lincoln County entered an order granting the temporary injunction and directing that Mr. Golden “shall not proceed with any foreclosure on behalf of defendant Fairbanks on loans serviced by Fairbanks in the State of West Virginia until further order of this Court.”

Thereafter, on or about January 17, 2003, the Lucases filed a motion seeking partial judgment on the pleadings and a motion to certify questions. Substantial proceedings followed, including significant settlement discussions. The parties ultimately reached a monetary settlement of the action. However, the parties apparently disagreed as to whether they had also resolved issues related to declaratory or injunctive relief, which led the Lucases to file a motion to enforce settlement. Following a hearing on or about December 8, 2003, the circuit court approved, at least on a preliminary basis, the monetary settlement, but did not act on the motion to enforce settlement as it related to other relief.

Click here to review the full text of these proceedings: Lucas, et al. v. Fairbanks Capital Corp.
http://www.state.wv.us/wvsca/docs/Spring05/31744.htm