Case 1:12-cv-03145-PAB-MEH Document 116-1 Filed 08/11/14 USDC Colorado Page 1 of 7 

SF.TTLlt:MENT AND RELEASE AGREEMENT 

111is Settlement and Release Agreement ("Agreement") is made by, between, and among 

the following undersigned paliies: 

The Plaintiff Federal Deposit Insurance Corporation as Receiver for AmTrust Bank 

(".FDIC-R"), and the Defendants JosephS. Pace and JSP Properties and Appraisal (collectively 

the "Settling Defendants"), (individually, the FDIC-R and the Settling Defendants may be 

referred to herein ao; "Party" and collectively as the ''Parties"). 

RECITALS 

WHEREAS: 

Prior to December 4, 2009, AmTrust Bank ("Bank") was a depository institution 

organized and existing under the laws of the United States; 

On December 4, 2009, the Office of Thrift Supervision closed the Bank and pursuant to 

12 U.S.C. § l821(c), the Federal Deposit Insurance Corporation was appointed receiver. In 

accordance with 12 U.S.C. § 182l(d), the FDIC-R succeeded to all rights, titles, powers and 

privileges of the Bank, including those with r~spect to its assets. 

Among the assets to which the FDIC-R. succeeded were the Rank's claims, demands, and 

causes of action that arc subject to this Agreement; 

On Dct.:cmber 3, 2012, the FDIC-R filed a complaint for money damages against the 

Settling Defendants and others. 'Ibosc claims for damages are now pending in the United States 

District Court fhr the District of Colorado in FDIC v. Broom, Case Number 12-cv-03145-PABMEII (the "Action"). The Settling Defendants have denied liability in the Action. 

The undersigned Parties deem it in their best interests to enter into this Agreement to 

avoid the uncertainty and expense of further litigation. 

NOW, THEREFORE, in consideration ofthe promises, undertakings, payments, and 

releases stated herein, the sufficiency of which L:onsideration is hereby acknowledged, the 

undersigned Jlarties agree, each with the other, as follows: 

EXHIBIT A 
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SECTION 1: Payment to l~'DIC-R 

A. As an essential covenant and condition to this Agreement, within thirty (30) days 

ofthe.Parties' execution ofthis Agreement, the s~ttling Defendants, jointly and severally, agree 

to pay the l

7DIC-R the sum of$97,500 ("the Settlement Payment"). 

B. The Settling Defendants shall deliver the Settlement Payment to the FDIC-R by 

direct wire transfer into the Mortgage Recovery Law Group Client Trust Account or by certified 

or cashier's check drawn upon a depository institution acceptable to FDIC-R and made payable 

to the Mortgage Recovery Law Group Client Ttust Account. 

In the event that the Settlement Funds are not delivered to the FDIC-R (or its counsel) 

within thirty (30) days of the Parties' execution of this Agreement, interest shall accrue on all 

unpaid amounts at the rate of 5% per annum from the date of execution until the date of 

payment. 

C. If the FDIC-R does not receive the Settlement Payment in full on or before the 

date determined by subsection A above, then the FDTC-R, in its sole discretion, shall have the 

right at any time prior to receipt of the Settl~m~nt Payment in full (including all accrued 

interest) to: 

1. Extend the period of time for the Settlement Payment, including interest accruing 

fr<.>m the date determined by subsection A above, through the dat~ of payment; or 

2. Entorce this Agreement, in which event the Settling Defendants agree to 

juri.sdi<.:tion in United States District Court in Colorado and to pay all of the fUTC-R 's reasonable 

attorney's fees and costs expended in enforcing the terms of this Agreement; or 

3. Tctminate the Agreement, move to vacate any dismissal order, to which the 

Settling Defendants agree to consent, and re-institute the action on the FDIC-R's claims. The 

Settling Defendants further agree to waive any statute of )imitations that would bar any of the 

FDIC-R 's claims and waive all objections, defenses, claims or counterclaims, and covenant and 

agree not to assert any objections, defenses, claims or counterclaims that did not exist or were 

otherwise unavailable as of the date this Agreement was fully executed; and/or 

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4. Seek any other relief available to it in law or equity. 

Any ~xhmsion of time under Section I.C.l for delivery of the Settlement Payment or 

acceptance of a portion of the Settlement Payment shall not prejudice the FDIC-R's rights to take 

any of the actions set forth in Section I.C.2 through I.C.4 at any time prior to receipt of 

Settlement Payment (including all accrued interest) in full. 

SECTION II: Stipulation and Dismissal 

Within ten business days after the latter of (l) full execution of this Agreement by each of 

the Parties, and (2) receipt of the Settlement Payment, plus any accrued interest, the FDIC-R 

shall file a stipulation of dismissal with prejudice, executed by all Parties hereto, in the Action. 

SECTION Ill: Releases 

A. Th~_fPI~-E,'_s Releases. 

Upon receipt of the Settlement Payment in full and except as provided in Section IILC_, 

the FDIC-R, for itself and its successors and assigns, hereby releases and discharges the Settling 

Defendants and their respective heirs, executors, trustees, adminis1l:ators, representatives, 

insurers, successors, and assigns, from any and all claims, demands, obligations, damages, 

actions, and causes of action, direct or indirect, in law or in equity, belonging to the FDIC-R, 

arising from the loan at issue in the Action that relates to, the performance, nonperformance, or 

manner of per.fi>rmance of the Settling Defendants' respective functions, duties and actions as 

appraisers for the loan at issue in the Action, including the causes of action alleged in the Action_ 

B. The Settling Defendants' Release_ 

Effective simultaneously with the release granted in Section liLA. above, the Settling 

Defendants, on behalf of themselves individually, and their respective heirs, executors, 

administrators, agents, representatives, attorneys, insurers, .successors, and assigns, herc)Jy 

release and discharge the FDIC-R, and its employees, officers, directors, representatives, 

attorneys, successors and assigns, from any and all claims, demands, ob.ligations, damages, 

actions, and causes of action, direct or indirect, in law or in equity, that arise from or relate to, 

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the Bank or to the performance, nonperformance, or manner of pcrfmmance of the Settling 

Defendants' respective functions, duties and actions a::. alleged in the Action. 

C. Exce!iliQns from Releases By FDIC-R. 

1. Notwithstanding any other provision of this Agreement, the .FDIC-R docs not 

release, and expressly preserves fully and to the same extent as if this Agreement had not been 

executed, any claims or causes of action: 

a. against the Settling Defendants or any other person or entity for liability, if 

any, incurred as the muker, endorser or guarantor of any promissory note or indebtedness 

payable or owed by them to FDIC-R, the Bank, other financial institutions, or any other person 

or entity, including without limitation any such claims acquired by FDIC-R as successor in 

interest to the Bank or any person or entity other than Bank; and 

b. against any person or entity not expressly released by the FOlC-R in this 

Agreement. 

2. Notwithstanding any other provision of this Agreement, nothing in this 

Agreement shall be construed or interpreted as limiting, waiving, releasing, or compromisjng the 

jurisdiction and authority of the Federal Deposit Insurance Corporation in the exercise of its 

supervisory or regulatory authority or to diminish its ability to institute administrative 

enforcement or other proceedings seeking removal, prohibition, or any other relief it is 

authorized to seck pursuant to its supervisory or regulatory authority against any person. 

3. Notwithstanding any other provision ofthis Agreement, this Agr~cnt does not 

puxport to waive, or intend to waive, any claims that could be brought by the United States 

through the Department of Justice, the United States Attorney's Office f(Jr any federal judicial 

district, or any other department or agency ofthe United States as defined by 18 U.S.C. § 6. In 

addition, the .FDIC-R specifically reserves the right to seek court-ordered restitution pursuant to 

the relevant provisions of the Victim and Witness Protection Act, 18 U.S. C. § 3663, ~t. §~,if 

appropriate. 

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SECTION IV: Representations and Acknowledgements 

A. Authorized Signatories. All of the 1mdersigned persons represent and warrant that 

they are Parties hereto or are a11thorized to sign this Agreement on behalf of the respective Party, 

and that they have the full power and authority to bind such Party to each and every provision of 

this Agreement. This Agreement shall be binding upon and inure to the benefit of the 

undersigned Parties and their respective heirs, executors, administrators, representatives, 

successors and assigns. 

B. Advice of CounseL Each Party hereby acknowledges that he, she, or it ha..c;; 

consulted with and obtained the advice of counsel prior to executing this Agreement, and that 

this Agreement has been explained to that Party by his or her counseL 

Sl!:CTION V: Reasonable Cooperation 

A. The Parties agree to cooperate in good faith to effectuate all the terms and 

conditions of this Agreement, including doing, or causing their agents and attorneys to do, 

whatever is reasonably necessary to effectuate the signing, delivery, execution, filing, recording, 

and entry, of any documents necessary to conclude the Action, and to otherwise perfonn the 

terms ofthis Agreement. 

S.ll~CTION VI: Other Matters 

A. ~..Q_,6..gplission of Liability_ The undersigned parties each acknowledge and agree 

that the matters set forth in this Agreement constitute the settlement and compromise of disputed 

claims and def~mscs, that this Agreement is not an admission or evidence of liability or infinnity 

by any of them regarding any claim or defense, and that the Agrec:ment shaJI not bu offered or 

received in evidence by or against any Party except to enforce its tenns. 

B. Ex.~ut~on in Counterparts. This Agreement may be exel:Uted in collilterparts by 

one or more of the Parties and all such counterparts when so executed shall together constitute 

the final Agreement, as if one document had been signed by alll'cutics; and each such 

colUltcrpart, upon execution and delivery, shall be deemed a complete original, binding the 

Parties subscribed thereto upon the execution by all Parties to this Agreement. 

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(b)(6) .... 

(b)(6) .. 

.. . ... ..... . .. . .... . .. 

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C. Choice of Law. This Agreement shall be interpreted, construed and enlorct:d 

according to applicahle federal law, or in its absence, the laws of the State of Colorado. 

D. Notices. Any notices required hereunder shall be sent by registered mail, first 

class, return receipt requested, and hy email, to the following: 

If to the FDlC-R: 

Paul A. Levin, Esq. 

Mortgage Recovery Law Group, 

700 N. Brand Blvd., Suite 830 

Glendale, CA 91203 

(818) 630-7901 

I ··························· ································ ································ 

If to the Settling Dctcndants: 

Keith Boughton, Esq. 

Elder & Phillips, P.C. 

562 White Avenue 

Grand Junction, CO 81501 

(970) 243-0946 

With a courtesy copy to: 

Jason D. Melichar, Esq. 

Wilson Elser Moskowitz Edelman & Dickl:r LLP 

1512 Larimer Street Suite 550 

Denver, CO 80202 

(303) 572-5320 

E. Entire Agreement and Amendments. This Agreement constitutes the entire 

agreement and understanding between and cunong the undersigned parties concerning the matters 

set forth herein and supersedes any prior agreements or understandings. TI1is Agreement may 

not be amended or modified, nor may any of its provisions be waived, except in writing signed 

by the Parties bound thereby, or by their respective authorized attomcy(s), or other 

rcprcscntative(s). 

F. Titles and Captions. All section titles and captions contained in this Agreement 

are for convenience only and shall not atlcct the interpretation of this Agreement. 

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lN WITNESS WHEREOF, the Parties hereto have cau~cd this Agre~ment to be executed 

by each of them or their duly authorized representatives on the dates hereinafter subscribed. 

l'EDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

(b) ( 6) ~~;.-;~:·.~ .. ~~: .. ~:................................................. I 

· ·nate: 11 .~~---t {ll·r--. · By:lL..·-····_····_····_· ...._ ..... _ ...___ ~ ______ ___. 

AMTRlJST BANK ./ 

Title: -~~ ....... -:'~;):: ..... · ......,;.·._· ______ _ 

Print Name:/ -~j-;r~:; "'"~;( jt·"i,·· · (~/1 I{ .... · ~--·---·· ,. .... -

JSP PROPERTIES AND APPRAISAL. 

Date: By: 

Title: -------------

Print Name: -----------

JOSEPHS. PACE 

Date: -------- By: ---

Print Name: Josep~_ S. Pa~~---

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed 

by each of them or their duly authorized representatives on the dates hereinafter subscribed. 

Date: ----·--- By: 

Title: 

Print Name: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

AMTRUST BANK 

-----------------

-----------------

--------··-------.. 

JSP P~OPERTIES AND APPRAISAL. 

(b)(6) Dale: rr::f/7 ··············································································t·~·y: •······················································· , 

/j) • -l !l Title: ·.--(. t,. Jv-...I / f 6tP"'""' s Lv-. 

J .~ ;J Print Name: ---~~~,~~~~~---- - u.s c.. 11 l,_ ~. "''-·'--. 

JOSEPHS. PACE 

(b)(6) nate: {/t;/0 lly: ~L_, ___ G __ __J----

Print Name: Joseph S. Pace 

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