SETTLEMENT AND ASSIGNMENT AGREEMENT 

The Federal Deposit Insurance Company (the "FDIC"), Receiver for Bank United, FSB, 

of Coral Gables, Florida (''BankUnited"), and Camner Lipsitz, P.A. and Alfred Camner 

individually (collectively, the "Defendants," and, together with the FDlC, the "Parties"), hereby 

enter into this Settlement and Assignment Agreement ("Agreement") on this ~·tv..-day of 

fv....t...Jvtk. 

~ey2015. 

WHEREAS, BankUnited was closed by the Office ofThrift Supervision on May 21, 

2009, and the FDIC was appointed as its Receiver; and, 

WHEREAS, the Defendant Camner Lipsitz, P.A. performed legal services for 

BankUnited from 2004 through 2009; 

WHEREAS, the FDIC has the right pursuant to 12 U.S.C. § 1821 (d)(2)(A)(i) of the 

Financial lnstitutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") and other 

authority to assert claims against the Defendants and may proceed in various capacities (e.g., for 

the benefit of creditors and shareholders ~ and, 

WHEREAS, by Jetter dated March 4, 2010, the FDIC sent a demand for payment of civil 

damages (the "Demand Letter") asserting certain claims (the "FDIC's Claims") against the 

Defendants based on the Defendants' alleged legal malpractice; and, 

WHEREAS, the Defendants are insured under a professional liability insurance policy 

from Catlin Insurance Company ("Catlin"), Policy Numberj 

"Policy"), with a liability limit of $5,000,000; and, 

--- j(thc-~--~.Cb 11J 

WHEREAS, the Policy had a policy period of March 7, 2009, through March 7, 2010; 

and, 

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WHEREAS, Catlin has been provided with all relevant information necessary to 

investigate, evaluate, and adjust the subject claims and otherwise perform its obligations under 

the Policy, but has failed to do so; and, 

WHEREAS, the Parties engaged in mediation to facilitate arm's-length negotiations 

designed to avoid litigation, save litigation expense, including further depletion of the insurance 

policies, and to prevent on the part of the insured Defendants a potentially substantial liability; 

and, 

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WHEREAS, Catlin was provided with a mediation statement that included a liability and 

damages analysis regarding liability and recoverable damages of up to $55.6 million associated 

with the Defendants' legal malpractice, professional negligence, and/or breaches of fiduciary 

duty alleged to have occurred during its Policy Period that likely exceed the Policy's limit; and, 

WHEREAS, Catlin denied coverage for the FDIC's Claims, and refused to make any of 

its policy limits available to fund a settlement with the FDIC; and, 

WHEREAS, Catlin has been provided with numerous opportunities to effectuate a 

settlement of the FDIC's Claims within the limits ofthe Policy, but has refused to even attempt 

to negotiate or to consider any such settlement; and, 

WHEREAS, by refusing to even attempt a potential settlement of the FDIC's Claims, 

Catlin refused to protect the interests of the insured Defendants~ and, 

WHEREAS, the Parties do not intend to release or impact any claims against Catlin; and, 

WHEREAS, the Parties have taken into consideration the factual allegations underlying 

the FDIC's Claims, any applicable defenses thereto, the amount ofthe FDIC's Claims, the 

evidence in the case, the potential verdict range represented by such suits, as well as the public 

interest and related factors; and, 

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WHEREAS, this Agreement is the product of anns-length negotiations between the 

Parties, each represented by counsel; and, 

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WHEREAS, the Defendants have agreed to settle the .FDIC's Claims for the sum of$6.36 

million dollars, and have agreed to assign their rights under the Policy and any claims against 

Catlin to the FDIC; and, 

NOW, THEREFORE, the undersigned Parties agree as follows: 

I. SETTLEMENT AGREEMENT: In consideration of the promises, 

representations, and warranties set forth herein, and without admitting any liability in connection 

with the FDIC's Claims, Defendants agree to settle the FDIC's Claims for $6.36 million dollars, 

and to assign the FDIC the Defendants' rights and claims against Catlin. The FDIC and the 

Defendants agree that this settlement is a compromise of disputed claims, and that such 

settlement is not to be construed as an admission on the part of the Defendants of any liability or 

res pons ibi I ity at any time or for any purpose whatsoever. If the Defendants perform all duties 

and promises required by this Agreement and the FDlC resolves its claims against Catlin, as set 

forth in paragraph 5 below, the FDIC will grant the Defendants a covenant not to sue for the 

FDIC's Claims. 

2. ASSIGNMENT OF RIGHTS AND CAUSES OF ACTION: The Defendants 

hereby assign to the FDIC their right, title, and interest in the Policy and any and all causes of 

action they may have against Catlin (including any and all damages related to those causes of 

action) pursuant to the Policy, common law of bad faith or similar law, and under Florida Statute 

§ 624.155, as a result of Catlin's refusal to provide the Defendants with the full benefits due 

under the Pol icy or to consent to a settlement within the I imits of the Policy, subject to the 

conditions of this Agreement. As further consideration for this Agreement, the Defendants also 

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specifically assign their entitlement to assert the attorney client privilege and/or work product 

immunity with respect to any attorney client communications or attorney work product made 

regarding the FDIC's Claims, or made regarding any cause of action the Defendants may have 

against Catlin. 

3. CAUSES OF ACTION ON DEFENDANTS' BEHALF: The Parties agree that 

4 

the FDIC may, at its sole discretion, prosecute causes of action seeking coverage under the 

Policy and/or bad faith on its own behalf, or as Assignee of any or all of the insured Defendants. 

Regardless of the style of the case, and even if not joined as party plaintiffs or party defendants, 

the Defendants agree to cooperate with the FDIC in the provision of information necessary to the 

lawsuit(s). 

4. CONDITIONS OF ASSIGNMENT: 

A. The Defendants, by this Agreement, assign one hundred percent (1 00%) of 

their interest to the FDIC in any damages recovered by the FDIC in any action brought pursuant 

to this Agreement against Catlin and/or any of its agents. The Defendants shall have no interest 

in or be responsible for any attorney's fees or costs awarded in connection with any such action. 

B. The Defendants will cooperate fully with the FDIC and its counsel in the 

pursuit or defense of the contemplated lawsuits or bad faith claims involving Catlin, including: 

(1) providing any necessary documentation upon request, provided that the Defendants have 

possession or control of the requested documentation; (2) attending depositions and/or any 

reasonably necessary conferences or meetings called by the FDIC subject to reasonable notice 

and availability; and (3) otherwise providing truthful infonnation which may be called for in the 

FDIC's discretion incident to the lawsuits or bad faith claims contemplated by this Agreement. 

The FDIC shall not be obligated to pay fees or costs incurred by counsel representing the 

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Defendants as personal counsel, should any choose to engage such counsel in responding to 

discovery requests or agreeing to depositions, mediations, or trial. 

C. The FDIC and its counsel shall have the sole discretion on whether to 

5 

pursue litigation against Catlin and the choice of any cause of action to be asserted against 

Catlin. The FDIC and its counsel shall further have sole authority to compromise, resolve, or try 

any action pursuant to this Agreement, as they deem appropriate. Similarly, the FDIC and its 

counsel may, in its sole discretion, determine whether or not to appeal an adverse decision, or to 

defend any appeal taken by Catlin. 

5. NO RELEASE OF LIABILITY: The Parties have reviewed the Florida Supreme 

Court case of Rosen v. FIGA, 802 So. 2d 291 (Fla. 2001), and each agree that it is neither the 

intention of the Defendants nor the FDIC to release or discharge Catlin from any of its liability to 

the Defendants or the FDIC in connection with the Policy, or under the law. The Defendants are 

also not released or discharged from liability. The FDIC agrees to seek satisfaction of the 

settlement from Catlin first and the Parties agree to toll any limitations period related to the 

FDIC's Claims. Should the FDIC recover an amount equal to, or greater than, the amount 

agreed to in this Agreement ($6.36 million dollars), plus interest and costs; prevail in whole or in 

part in any subsequent lawsuit or claim against Catlin ("Catlin Lawsuit.,); lose, withdraw. 

dismiss or elect not to pursue the Catlin Lawsuit; and/or resolve its differences with Catlin; then 

the FDIC shall provide a covenant not to sue the Defendant for the FDIC's Claims, provided, 

that the Defendants have faithfully discharged the terms, conditions, and/or warranties contained 

in this Agreement and have fully cooperated with the FDIC as described herein. 

6. ASSIGNMENT PRIOR TO DISCHARGE OF LIABILITY: This Assignment is 

given prior to the discharge of any liability for payment on the Agreement, and as a condition 

64357824 .. 1 
precedent to the waiver of any deficiency action against the Defendants should the Agreement 

not be fully satisfied. In addition, this Assignment is given in consideration of the FDIC's: (i) 

subsequent agreement to forbear further proceedings asserting the FDIC's Claims against the 

Defendants; and (ii) granting a covenant not to sue the Defendants to recover the amount of the 

settlement of the FDIC's Claims from the personal assets of the Defendants. Furthennore, this 

Assignment is given in exchange for cooperation by the Defendants. 

7. COSTS OF LITIGATION: Any action brought against Catlin and/or its agents 

pursuant to this Agreement shall be prosecuted or defended by the FDIC, and it will bear full 

financial responsibility for the prosecution and defense of its own fees and costs for such suits 

and actions. 

8. SEVERABILITY OF RELEASE AND ASSIGNMENT: If for any reason this 

6 

Agreement is rendered invalid or unenforceable as to any Defendant, the Agreement shall remain 

effective as to the others. 

9. CONSTRUCTION OF AGREEMENT: This Agreement, its effect, and 

enforceability shall be construed under the laws of the State of Florida. 

10. MERGER CLAUSE: This Agreement constitutes the entire agreement and 

understanding of the Parties with respect to the subject matter of this Agreement and supersedes 

any prior and contemporaneous, oral or written agreement, negotiations and discussions with 

respect to the subject matter of this Agreement. 

I 0. REPRESENTATION BY COUNSEL: The Parties have each reviewed this 

Agreement through counsel of their choosing or been afforded the opportunity before signing 

this Agreement. 

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II. EXECUTION OF AGREEMENT: The Parties have expressly agreed that this 

Agreement may be executed in counterparts. 

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8 

j l By:_~--E~r~ri~n~Cra-m--ne-r-,--------~(dra~te~) For Camner Lipsitz, P.A. 

STATE OF FLORJDA ) 

) ss. 

COUNTY OF MIAMI DADE ) 

/ +-i-. 

SWORN TO AND SUBSCRIBED before me this _b__ day of ·IY: ,'M- 0~ 

201 5, by Errin Camner, who DID/DID NOT take an oath and who: 

k is personally known to me; or 

_produced identification:------------

My Commission Expires: 

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/~;~;;;;:;;~';;, GEOVANNIA R BEOUER 

i •, t/1, • ~ MY COMMISSION #FF005303 

·--~~;~, ~~'!,! EXPIRES April 4, 2017 ............ 1-1011 :lnA•OI.!I:I FknldnNohuySorvlcu.cuun 

otary Public •· 
J=======-···~1....,....········,........·· ·_9 

Alfred Camner (date) 

STATE OF FLORIDA ) 

) ss. 

COUNTY OF MIAMI DADE ) 

SWORN TO AND SUBSCRIBED before me this {rt- day of rVI/}{{.Ci/.. ... 

2015, by Alfred Camner, who DID/DID NOT take an oath and who: 

2<-is personally known to me; or 

_produced identification: __________ _ 

My Commission Expires: 

.. ~~;.,.·::i.:~;~\ GEOVANNIA R BEQUER 

(."'. ~ .. ·~~) MY COMMISSION #FF005303 

\~~1S..?.~'!l EXPIRES April4, 2017 .... ,~!.~~ ....... 1~071 !lOMlUia Flurld"NullayRoiVI•ll>.lllllll . 

64357824_1 

\ ~ !Notary Pubhc ·~./ 

<=· ... i' u 
By: 

STATE OF FLORIDA ) 

) ss. 

COUNTY OF MIAMI DADE ) 

;f 

·······················H)················· 

L-~re~vffii~.~unt,~··cc~o~u~ns~e~Itc~~a~te) Fefthe Federal Deposit Insurance 

Corporation 

.tf., 

SWORN TO AND SUBSCRIBED before me this JQ_ day of -/77 !NrC/~ 

2015, by Steven E. Smith, who DID/DID NOT take an oath and who: 

.1_ is personally known to me; or 

_produced identification:-----------

My Commission Expires: 

,,.,~-;.~~:~~~'<~> KAREN LYNN MUNCE-GATES 

V~~f~ Norary Puotic. ~tale of. Texas 

;,~··.'1'..:# My CommJSSton Exp1res 

""Z:i.:i~:i~:~~ .. , November 254 2017 

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Notary Public 

(b)(~)