Frequently Asked Questions

  1. Why did I receive a Notice
  2. What is the Lawsuit about?
  3. Why is this a class action?
  4. Why is there a Settlement?
  5. How do I know if I am in the Settlement?
  6. What does the Settlement provide?
  7. What can I get from the Settlement?
  8. What am I giving up to stay in the Class?
  9. How can I get a payment?
  10. When will I get my payment?
  11. How do I get out of the Settlement?
  12. If I do not exclude myself, can I sue the Defendants for the same thing later?
  13. If I exclude myself, can I still get a payment?
  14. How can I tell the Court if I do not like the Settlement?
  15. What is the difference between objecting and excluding?
  16. Do I have a lawyer in this case?
  17. How will the lawyers be paid?
  18. When and where will the Court decide whether to approve the Settlement?
  19. Do I have to come to the Hearing?
  20. May I speak at the Hearing?
  21. What happens if I do nothing at all?
  22. How do I get more information?
  1. Why did I receive a Notice

    You have a right to know about a proposed Settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the Settlement.

    The Court in charge of this case is the General Court of Justice, Superior Court Division, Wake County, North Carolina (the “Court”), and the case is called Brogden, et al. v. Kenney Properties, Inc., et al., Case No.
    18-CVS-10880. The individual who sued is called the Representative Plaintiff, and the companies being sued are called the Defendants.

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  2. What is the Lawsuit about?

    The lawsuit alleges that the Defendants unlawfully threatened and charged complaint filing fees, sheriff service fees, and attorneys’ fees (“Eviction Fees”) when filing summary ejectment/eviction actions against their tenants.

    The lawsuit, as amended, brought four claims for relief: a violation of the North Carolina Residential Rental Agreements Act (N.C.G.S. § 42-46), a violation of the North Carolina Debt Collection Act (N.C.G.S. § 75-50 et seq.), a violation of the North Carolina Unfair and Deceptive Trade Practices Act (N.C.G.S. § 75-1.1 et seq.), and for declaratory judgment.

    The Defendants deny these claims, contend that they have numerous defenses to the action, and deny that class certification is required or appropriate.

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  3. Why is this a class action?

    In a class action, one or more people, called the “Representative Plaintiff(s),” sue on behalf of people who have similar claims. All these people are in a “class” or “Settlement Class Members,” except for those who exclude themselves from the Class. The Honorable Rebecca Holt in the General Court of Justice, Superior Court Division, Wake County, North Carolina is in charge of this class action.

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  4. Why is there a Settlement?

    The Defendants deny that they did anything wrong.  Both sides want to avoid the cost of further litigation. The Court has not decided in favor of the Representative Plaintiff or the Defendants. The Representative Plaintiff and her attorneys think the Settlement is best for everyone who is affected. The Settlement provides the opportunity for Settlement Class Members to receive Settlement benefits.

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  5. How do I know if I am in the Settlement?

    There are two types of Class Members in this Action:

    A)    Collection Letter Class Members

    You are a Collection Letter Class Member if you are a natural person who at any point between September 4, 2014 and June 25, 2018, resided in any of the properties in North Carolina owned and/or managed by Defendants, and you received a letter that you would either be charged with Eviction Fees upon the filing of a summary ejectment action or that you owe Eviction Fees. 

     

     

    B)    Eviction Fee Class Members

    You are an Eviction Fee Class Member if you at any point between September 4, 2014 and June 25, 2018, resided in any of the properties in North Carolina owned and/or managed by Defendants, and you were charged and actually paid Eviction Fees.

    Excluded from the Settlement Classes are (1) persons who are employees, directors, officers, and agents of Defendants; (2) persons who timely and properly exclude themselves from the Settlement Class as provided in the Agreement; (3) anyone who has previously executed a written release of all claims against Defendants related to the collecting of Eviction Fees and would otherwise be a member of the Settlement Class; and (4) the Court, the Court’s immediate family, and Court staff.

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  6. What does the Settlement provide?

    The Settlement provides for a Settlement Fund in the amount of $500,000.00 which shall be used to pay all costs associated with the Settlement, including but not limited to: (a) the costs of notice and administration of the Settlement, including for a Settlement Notice and Settlement Administrator to process claims, objections, and opt-out requests; (b) the payment of valid approved claims; (c) attorneys’ fee awards (if any); (d) attorneys’ costs (actually incurred litigation expenses and other hard costs apart from fees); (e) service awards (if any) to the Representative Plaintiff; and (f) any other expenses.

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  7. What can I get from the Settlement?

    If you are a member of the Move Out Statement/Collection Letter Class, you must submit a valid and timely Claim Form either online at www.NCKTenantClassAction.com or print it off and mail it to the address below postmarked by December 23, 2020.  If you submit such a Claim Form, you are eligible to receive up to $50.00 if you certify under penalty of perjury that you received a Move Out Statement/Collection Letter threatening that Defendants would assess additional fees if you did not pay your full rent by a certain date. You may be eligible to receive up to $150.00 if you certify under penalty of perjury that you received more than one Move Out Statement or Collection Letter and provide the month and the year when those Letters were received. To qualify for the maximum award amount, you must provide specific information and the months and the years of at least three of the Move Out Statement or Collection Letters you received.

    If you submit a valid and timely Claim Form, the amount you actually receive may be significantly different depending on how many valid claims are ultimately submitted by other Class Members. The available Settlement Fund will be distributed on a proportional basis once the Settlement becomes final.  The Collection Letter Class has been allotted $25,000.00 of the Settlement Fund. The exact amount of compensation will be determined after administrative expenses, service award, and attorneys’ fees and costs are deducted.

    You must submit a valid Claim Form to obtain Move Out Statement/Collection Letter benefits.

    You do NOT need to file a claim to obtain Eviction Fee benefits.  Defendants’ records demonstrate that you were charged and actually paid Eviction Fees to Defendants during the Relevant Time Period. Accordingly, each Eviction Fee Class Member may receive compensation of up to approximately $380.00 for each time the Eviction Fee Class Member was charged and paid Eviction Fees subject to an adjustment if the Collection Letter Class claims are undersubscribed.

    The available Settlement Fund will be distributed on a proportional, per violation basis once the Settlement becomes final.  The Class has been allotted the remainder of the Settlement Fund and any unclaimed funds, should there be any. The exact amount of compensation will be determined after administrative expenses, service award, and attorneys’ fees and costs are deducted, and awards may be subject to a pro rata reduction if oversubscribed.

    If you are a member of the Eviction Fee Class, you can also be a member of the Move Out Statement/Collection Letter Class.  You must submit a Claim Form if you want to obtain Move Out Statement/Collection Letter Class benefits in addition to Eviction Fee Class benefits for which you are eligible automatically as explained above.

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  8. What am I giving up to stay in the Class?

    Unless you exclude yourself from the Settlement, you cannot sue the Released Persons, continue to sue, or be part of any other lawsuit against the Released Persons about the claims released in this Settlement. It also means that all of the decisions by the Court will bind you. The Released Claims and Released Persons are defined in the Settlement Agreement and describe the legal claims that you give up if you stay in the Settlement Classes.

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  9. How can I get a payment?

    Eviction Fee Class Members do not need to submit a claim to obtain Eviction Fee benefits.  Defendants’ records will be used to determine your eligibility to participate in the Settlement. Eviction Fee Class Members are also members of the Move Out Statement/Collection Letter Class.  As an Eviction Fee Class Member, you must submit a Claim Form as explained below if you want to obtain Collection Letter Class benefits in addition to Eviction Fee Class benefits for which you are eligible automatically. Defendants’ records will be used to determine your eligibility to participate in the Settlement, and it can be paid via PayPal or via check.

    MAIL: Brogden v. Kenney Properties, c/o Settlement Administrator, P.O. Box 43501, Providence, RI  02940-3501

    EMAIL: info@NCKTenantClassAction.com

    Please read the instructions carefully, fill out the Claim Form, and mail it postmarked no later than
    December 23, 2020 or submit your Claim Form online at the Settlement Website, www.NCKTenantClassAction.com, by December 23, 2020.

    If you do not submit a valid Claim Form by the deadline, you will not receive a payment, and your claims will be extinguished.

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  10. When will I get my payment?

    Payments will be made after the Court grants “final approval” to the Settlement and after all appeals are resolved. If the Court approves the Settlement, there may be appeals. It’s always uncertain whether these appeals can be resolved and resolving them can take time.

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  11. How do I get out of the Settlement?

    To exclude yourself, you must mail or email the Settlement Administrator, including the following:

    1. A caption or title that identifies it as “Request for Exclusion in Brogden v. Kenney Properties, Inc., et al., Case No. 18-CVS-10880”;
    2. Your full name, address and telephone number;
    3. A statement that you wish to be excluded from the Settlement Class.
    4. Your original signature.

    Your request for exclusion must be emailed or postmarked no later than December 14, 2020 to the Settlement Administrator at:

    SETTLEMENT ADMINISTRATOR

    Class Action Opt-Out

    Brogen v. Kenney Properties
    c/o Settlement Administrator

    P.O. Box 43501

    Providence, RI  02940-3501

    Email: info@NCKTenantClassAction.com

    No person or entity may opt out on behalf of another Class Member.

    If you don’t include the required information or timely submit your request for exclusion, you will remain a Settlement Class Member and will not be able to sue the Released Persons about the claims in this lawsuit.

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  12. If I do not exclude myself, can I sue the Defendants for the same thing later?

    No. Unless you exclude yourself, you give up any right to sue the Defendants and Released Persons for the claims that this Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit. If you properly exclude yourself from the Settlement Class, you shall not be bound by any orders or judgments entered in the Action relating to the Settlement Agreement.

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  13. If I exclude myself, can I still get a payment?

    No. You will not get any money from the Settlement if you exclude yourself. If you exclude yourself from the Settlement, do not send in a Claim Form asking for benefits.

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  14. How can I tell the Court if I do not like the Settlement?

    Any Class Member who does not timely and properly opt out of the Settlement may object to the fairness, reasonableness, or adequacy of the proposed Settlement under N.C. Gen. Stat. §1A-1, Rule 23.  Each Class Member who wishes to object to any term of the Agreement must do so, in writing, by filing a written objection with the Clerk of the Court and mailing it to Settlement Class Counsel, and counsel for Defendants.

    The written objection must include: (i) the objector’s name, address, and telephone number; (ii) the name of this Action and the case number; (iii) a statement of each objection; (iv) proof of Class membership; and (v) a written brief detailing the specific basis for each objection, including any legal and factual support the objector wishes to bring to the Court’s attention and any evidence the objector wishes to introduce in support of the objection.

    If the objection is made through an attorney, the written objection must also include: (1) the identity and number of the Settlement Class Members represented by objector’s counsel; (2) the number of such represented Settlement Class Members who have opted out of the Settlement Class; and (3) the number of such represented Settlement Class Members who have remained in the Settlement Class and have not objected. If the attorney intends to seek fees and expenses from anyone other than the objectors he or she represents, the attorney shall also file with the Court and serve upon Class Counsel and Defendants’ Counsel not later than fourteen days before the Fairness Hearing or as the Court may otherwise direct a document containing the following: (1) the amount of fees sought by the attorney for representing the objector and the factual and legal justification for the fees being sought; (2) a statement regarding whether the fees being sought were calculated on the basis of a lodestar, contingency, or other method; (3) the number of hours already spent by the attorney and an estimate of the hours to be spent in the future; and (4) the attorney’s hourly rate.

    Objectors must also make themselves available for deposition by counsel for the Parties between the time the objection is filed and a date no later than five (5) days before the Fairness Hearing, and the objection must include the dates when the objector is available for deposition.

    Any Settlement Class Member who files and serves a written objection satisfying the requirements of this section may appear at the Fairness Hearing, either in person or through personal counsel hired at the Settlement Class Member’s expense, to object to any aspect of the fairness, reasonableness, or adequacy of the Settlement. Class Members, or their attorneys, intending to make an appearance at the Fairness Hearing must deliver to Class Counsel and Defendants’ Counsel and have file-marked by the Court, no later than December 14, 2020 or as the Court otherwise may direct, a Notice of Intent to Appear. The Notice of Intent to Appear must: (1) state how much time the Settlement Class Member anticipates needing to present the objection; (2) identify, by name, address, and telephone number all witnesses the Settlement Class Member proposes to have testify; (3) summarize in detail the anticipated testimony of all such witnesses; (4) identify all exhibits the Settlement Class Member intends to offer in support of the objection; and (5) attach complete copies of all such exhibits.

    Your objection, along with any supporting material you wish to submit, must be filed with the Court, with a copy delivered to Class Counsel, Defendants’ Counsel and Settlement Administrator no later than December 14, 2020 at the following addresses:

    CLASS COUNSEL

    DEFENDANTS’ COUNSEL

    COURT

    SETTLEMENT ADMINISTRATOR

    Scott Harris

    Patrick Wallace

    Whitfield Bryson LLP

    900 W. Morgan Street

    Raleigh, NC 27603

    Edward H. Maginnis

    Karl S. Gwaltney

    Maginnis Law, PLLC

    4801 Glenwood Avenue
    Suite 310

    Raleigh, NC 27612

    Reid C. Adams

    Jonathan R. Reich

    Womble Bond
       Dickinson (US) LLP

    One W. 4th Street

    Winston-Salem, NC 27101

    Wake County Courthouse

    316 Fayetteville Street Mall Raleigh, NC 27601

    Brogen v.
    Kenney Properties

    c/o Settlement

    Administrator

    P.O. Box 43501

    Providence, RI  02940-3501

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  15. What is the difference between objecting and excluding?

    Objecting is simply telling the Court that you don’t like something about the Settlement. You can object to the Settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you don’t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object to the Settlement because it no longer affects you.

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  16. Do I have a lawyer in this case?

    Yes. The Court has appointed “Class Counsel” as designated in Question 15 of this Notice to represent the Settlement Classes. 

    You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

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  17. How will the lawyers be paid?

    Class Counsel intends to file a motion on or before December 30, 2020 seeking an award up to one-third (1/3) of the Settlement Fund in fees and approximately $2,500.00 in out-of-pocket expenses, as well as a service award in the amount of $2,500.00 for the Representative Plaintiff, to be drawn from the Settlement Fund. The Court will determine the amount of fees and expenses, and service awards.

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  18. When and where will the Court decide whether to approve the Settlement?

    The Court will hold a Fairness Hearing on January 14, 2021, at 12:30 a.m. via Webex.Class Members wishing to view the Fairness Hearing should contact Class Counsel.

    At the Fairness Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider how much to pay Class Counsel and the Representative Plaintiff. If there are objections, the Court will consider them at this time. After the Hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

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  19. Do I have to come to the Hearing?

    No. Class Counsel will answer any questions that the Court may have, but you may come at your own expense. If you submit an objection, you don’t have to come to Court to talk about it. As long as you filed and mailed your written objection on time to the proper addresses, the Court will consider it. You may also pay your own lawyer to attend, but it’s not necessary.

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  20. May I speak at the Hearing?

    Yes. You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your “Notice of Intent to Appear.” Your request must be filed with the Clerk of the Court and served on Class Counsel and Defendants’ Counsel no later than December 14, 2020.

    Any such request must state the name, address, and telephone number of the Class Member, as well as the name, address, and telephone number of the person that shall appear on his or her behalf.  Any request for appearance that fails to satisfy these requirements, or that has otherwise not been properly or timely submitted, shall be deemed ineffective and a waiver of such Class Member’s rights to appear and to comment on the Settlement at the Fairness Hearing.  Only the Parties, Settlement Class Members, or their counsel may request to appear and be heard at the Fairness Hearing.  Persons or entities that opt out may not request to appear and be heard at the Fairness Hearing.

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  21. What happens if I do nothing at all?

    If you are a Move Out Statement/Collection Letter Class Member and do nothing, you will not get a payment from the Settlement. Unless you exclude yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Released Persons about the legal issues in this case, ever again.

    If you are an Eviction Fee Class Member and do nothing, you will receive a payment as described above. You won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Released Persons about the legal issues in this case, ever again.

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  22. How do I get more information?

    If you have additional questions, you can visit the Settlement Website or contact the Settlement Administrator:

    MAIL: Brogden v. Kenney Properties, c/o Settlement Administrator, P.O. Box 43501, Providence, RI  02940-3501

    EMAIL: info@NCKTenantClassAction.com

    TOLL-FREE: 1-866-748-5148

    Updates will be posted at the Settlement Website www.NCKTenantClassAction.com as information about the Settlement process becomes available.

    PLEASE DO NOT CONTACT THE COURT OR THE
    CLERK’S OFFICE CONCERNING THIS CASE.

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