(b)(6)

APPROVED AS TO FORM:

Dated: .

2010

KRALIK & JACOBS LLP

By:

Lois Meonitz Jacobs
Attomeys for the Federal Deposit
Insurance Corporation, as Receiver for

Ai and

IndyMac Bank, F.S.B.
Dated: Ay. gant Ate, 2030 GAGLIONE, DOLAN & KAPLAN
By’
Lindsay MicMenamin
Attomoys for Richard W. Hackney dba
Hackney Appraisal Service
~j2-

FDIC v, Hackney, otc. otal.

cnn canna

1380!

AAA THAT NUR iO

Were 7A RERF Idan?


and for each and every one of its respective current and former officers, directors, joint
venturers, parmers, employees, agents, servants, administrators, executors, predecessors,
successors, subsidiaries, parents, affiliates, attorneys, insurers, representatives and
assigns, conservators and/or receivers, and all persons or entities acting by, through,
under, for, on behalf of or in concert with them, past or present, fully and forever release,
acquit and discharge the FDIC and its current and former officers, directors, joint
venturers, parners, employees, agents, servants, administrators, executors, predecessors,
successors, subsidiaries, parents, affiliates, attorneys, insurers, representatives and
assigns, conservators and/or receivers, and all persons or entities acting by, through,
under, for, on behalf of, or in concert with them (the “FDIC Releasees”), past or present,
jointly and severally, from and against any and all rights, claims, debts, demands, acts,
agreements, liabilities, obligations, damages, costs, fees (including, without limitation,
those of attorneys), expenses, actions and/or causes of action of every nature, character
and description, or causes of liability, rights and offset rights, whether at law or in equity,
whether known or unknown, suspected or unsuspected, asserted or unasserted, including
without limitation injunctive or equitable relief, any award of actual, consequential,
incidental, liquidated, or other types or categories of damages, any award of punitive or
exemplary damages, any claims for attorneys’ fees, costs or expenses of litigation and
any other type of relief which Hackney may have or might have against the FDIC, the
FDIC Releasees or any of them, pertaining to the Loan, the Property, the Complaint, and
any and all facts, occurrences and transactions alleged in the Action, provided. however,
that this release is not a general release but is expressly and specifically limited to the
Loan, the Property, the Complaint, and any and all facts, occurrences and transactions
alleged in the Action, and is not intended nor shall it be deemed to release any other

-5-

FDIC v. Hackney, ete. ot at.


To the FDIC:
Kralik & Jacobs LLP
Lois M. Jacobs, Esq.
Anastasia E. Bessey, Esq.
35 North Lake Avenue, Suite 620
Pasadena, California 91101
11. Modifications. This Agreement may not be amended, canceled, revoked
or otherwise modified except by written agreement subscribed by all of the Parties to be
charged with such modification.

12. Agreement Binding on Successors. This Agreement shall be binding

upon, and shall inure to the benefit of, the Parties hereto and their respective officers,
directors, joint venturers, partners, employees, agents, servants, heirs, administrators,
executors, successors, representatives and assigns.

13. Severability. In the event any provision of this Agreement shall be held to
be void, voidable or unenforceable, the remaining provisions shall remain in full force
and effect.

14. Governing Law. This Agreement shall be construed in accordance with,
and be governed by, the laws of the United States and the State of California.

15. Warranty of Authority. Each Party or attorney whose signature is affixed
hereto in a representative capacity represents and warrants that he or she is authorized to
execuie this Agreement on behalf of and to bind the entity on whose behalf his or her
signature is affixed and that he or she is acting in the scope of such agenoy and authority.
Each Party specifically represents and warrants that no signatures other than those made
on this Agreement are necessary to bind the Parties to all of the obligations imposed by
the Agreement.

16. Alfomeys" Fees and Costs. The FDIC and Hackney each agree to pay

-10-

BDAC v. Macknoy, ete, et al,


was in any way lacking in merit, and Hackney also acknowledges that this Agreement
does not constitute an admission by the FDIC as to the merits of any claim that Hackney
has asserted, or could have asserted, in the Action. Nevertheless, the FDIC and Hackney
have concluded that continued litigation would be expensive and protracted and that it is
desirable that the Action be settled fully and finally as between the FDIC and Hackney in
the manner and upon the terms and conditions set forth in this Agreement.

8. Waiver under Section 1542 of California Civil Code. Subject to the
limitations contained therein and in paragraph 6, above, the releases as set forth in
paragraphs 4 and 5 are intended by the Parties to be read and interpreted as broadly as
possible to affect the releases set forth therein regardless of whether the claims are
presently known or unknown to the Parties. This Agreement is made by the FDIC and
Hackney freely and with independent legal advice and counsel, and the FDIC and
Hackney are fully aware of the provisions of Section 1542 of the Civil Code of the State
of California, which reads as follows:

“& GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING

THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST

HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT

WITH THE DEBTOR.”

However, this is a limited release and not a general release and is only intended to
release those claims specifically identified in paragraphs 4 and 5 of the Agreement and is
specifically limited by the limitations contained in those paragraphs and in paragraph 6 of
this Agreement. Nevertheless, to the extent Civil Code section 1542 (a3 well as any other

-7-
FDIC v, Hackney, otc. et al.


claims, demands, causes of actions, debts, obligations, losses damages, liabilities, casts,
expenses, attorneys” fees, penalties, compensation, right to indemnity and/or demands as
to any other loans or matters that Hackney may have or might have against the FDIC or
the FDIC Releases, including without limitation any other claims, demands or actions

regarding any other matter.

6. Express Reservations from Releases by FDIC. Notwithstanding any other

provision contained herein, by this Agreement, the FDIC does not release, and expressly
preserves fully and to the same extent as if the Agreement had not been executed (a) any
claims or causes of action that do not arise from or relate to (i) the Loan, (ii) the Property,
or (ii}) any and all facts, occurrences and transactions alleged in the Action, and (b) any
action taken by or any claims that may be asserted by any other federal agency as to any
matters, including without limitation any matters that may be based upon or arise out of
the acts alleged in the Action. In addition, this Agreement does not purport to waive, nor
is it intended to waive, any claims which could be brought by the United States through
either the Department of Justice, the United States Attorney's Office for the State of
California, Central District, or any other federal judicial district, including any rights, if
appropriate, to court ordered restitution pursuant to the relevant provisions of the Victim
and Witness Protection Act, 18 U.S.C. § 3663, et seq.

7. No Admission of Liability. The FDIC acknowledges that this Agreement
does not constitute an admission by Hackney as ta the merits of any claim that the FDIC
or its predecessors in interest, including IndyMac, has asserted, or could have asserted, in
the Action and that Hackney has denied and continues to deny that Hackney has any
liability to the FDIC as alleged in the Action. Likewise, Hackney acknowledges that this

Agreement does not constitute an admission by the FDIC that any asserted claim is or

-6-
FDIC v. Hockney, ete, etat,


of this Agreement, the role of the Party in drafting and preparation of the
Agreement shall not be referred to in order to construe the Agreement
against that Party, and the canon of contractual interpretation shall not be
applied.

f. This Agreement has been carefully read by each of the Parties and the
contents thereof are known and understood by each of the Parties. This
Agreement is signed freely by each party executing it.

g. The Parties have not assigned or transferred any of their claims being
released herein.

10. Notices.

a. All notices required or permitted to be given hereunder shall be in writing
and mailed postage prepaid by certified or registered mail, return receipt
requested, or by personal delivery, te the appropriate address indicated
below or at such other place or places as any Party may, from time to time,
designate in a written notice given to the others. Notices shall be deemed
served three (3) days after the date of mailing thereof or upon personal
delivery.

b. The designated notice addresses for Hackney and the PDIC are as follows:

To Hackney:
Gaglione, Dolan & Kaplan
Jack M. LaPedis, Esq.
Lindsay MceMenarnin, Esq.

20750 Ventura Boulevard, Suite 238
Woodland Hills, California 91364

FDIC v, Hackney, eta, et al,


AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE

THIS AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE
hereinafter, the “Agreement”) is made and entered into by and between FEDERAL
DEPOSIT INSURANCE CORPORATION, as Receiver for IndyMac Bank, F.S.B.
(“IndyMac”) (FEDERAL DEPOSIT INSURANCE CORPORATION in its capacity as
Receiver for IndyMac is referred to herein “FDIC”), and RICHARD W. HACKNEY,
individual doing business as HACKNEY APPRAISAL SERVICE (“Hackney”). FDIC
and Hackney may be referred to herein individually as “Party” and callectively as the
“Parties.”

RECITALS

This Agreement is made with reference to the following facts:

A. On or about April 23, 2009, FDIC filed a complaint (the “Complaint”) for
money damages against Hackney and Does 1 through 10, inclusive. The Complaint
alleged causes of action against Hackney for negligent rmisrepresentation and breach of

contract / third party beneficiary, in connection with an appraisal by Hackney (the

“Hackney Appraisal”) of a residential real property located at{

Big Bear City, CA 92314 (the “Property”). The Complaint alleged that IndyMac relied
on the Hackney Appraisal in deciding to purchase a mortgage loan secured by the
Property (the “Loan”) and that the Hackney Appraisal had been negligently prepared and
contained material misrepresentations. The pending action which the Complaint initiated
is entitled Federal Deposit Insurance Corporation as Receiver for IndyMac Bank, F.S.B.
v. Richard W. Hackney. etc.. etal., and is currently pending in the United States District
Court for the Central District of California, Western Division (the “Court”}, Case No. CV

-1-

FIC v, Harkey, ete ot al

(b)(6)


(b)(6)

ar

TA RORB AG Oa SOR Ar Herren (]

their own costs, attorneys” fons and expenses incucred in connection with the Action, In
the event that any action. suit or other proceeding is ingduned to ramady: prevent oF
obtain relief from: a breach of this Agreement, atising mut ofa breach of this Agreemunt,
involving claims within the seaps of the releays contained in this Agranment oF
pensining © 9 declaration of sights under this Agreement. the prevailing Party shall
yesover ile roasonable stameys’ feds incurred in geek and every such action, sail or other
procedding, losivding any and atl appeals of patitions theraftam,

17, Sountexpam. This Agreement mey be executed In one ar more
shunterparta, each of which when executed and doltvered shall be an anginal, ana ali oo
which when etecuced shall constinnie one and the same instrament. Signatures on this
Agroement, or any countarpart of this Agroanunt, transi: irred by facuiniic machine or
elegtronie wail in .pdf format shall heve the same force and effeat as original signatures,

EN WITNESS WHEREOF. the Parties hore have exacuted this Agrecinient on
the dates set forch below.

Dated: aw 2040 FEDERAL DEPOSIT INSURANEE

CORPORATION, AS RECEIVER FOR
INDYMAC BANK, ?.8.5,

ay:

FO mt nie = met me 9

med: 1s APG. s010 RICHARD W. HACKNEY, an individual doing
‘pysingsnas Hackney Appraisal Service

Richard OW Ruslana

edhe

DREE wr Bnchiony, Sy ob ah

Ld Benn ue IT weinnese

{b}6)

(b)(6)


their own costs, attorneys’ fees and expenses incurred in connection with the Action. In
the event that any action, suit or other proceeding is instituted to remedy, prevent or
obtain relief fram a breach of this Agreement, arising out of a breach of this Agreement,
involving claims within the scope of the release contained in this Agreement or
pertaining to a declaration of rights under this Agreement, the prevailing Party shall
recover its reasonable attorneys’ fees incurred in each and every such action, suit or other
proceeding, including any and all appeals or petitions therefrom.

17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be an original, and all of
which when executed shall constitute one and the same instrument. Signatures on this
Agreement, or any counterpart of this Agreement, transmitted by facsimile machine or
electronic mail in .pdf format shall have the same force and effect as original signatures.

IN WITNESS WHEREOEF, the Parties hereto have executed this Agreement on

the dates set forth below.
Dated: 4/9/10, 2010 FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER FOR
INDYMAC BANK, F.S.B.
(b)(6)
By:
Tock 8. Duncan
Its: Counsel
Dated: 22010 RICHARD W. HACKNEY, an individual doing

business as Hackney Appraisal Service

Richard W. Hackney

~ll-
FDIC v. Hackney, ete et al


or successor law of similar effect) applies to the Agreement, the FDIC and Hackney

waive any rights, benefits and protections they may have under section Civil Code 1542

to the extent necessary to effectuate the Releases set forth herein in Paragraphs 4 through

6, inclusive, herein.

9.

Representations and Warranties, The Parties represent and warrant to and

agree with each other as follows:

Rw

The FDIC and Hackney have received independent legal advice from
attorneys of their choice with respect to the advisability of entering into
this Agreement and of giving the releases provided herein.

In connection with the execution of this Agreement and the making of the
settlement provided for herein, no Party to this Agreement has relied upon
any statement, representation or promise of any other Party not expressly
contained herein.

This Agreement is fully integrated and contains the entire agreement of
the Parties hereto. There are no agreements or understandings between the
Parties hereto relating to the matters and releases referred to in this
Agreement other than as set forth in this Agreement, and this Agreement
snpersedes and replaces any and all prior negotiations and agreements
between the Parties hereto, whether written or oral.

The FDIC and Hackney have made such investigation of the facts
pertaining to the releases contained herein as they deem necessary.

The terms af this Agreement are contractual and are the result of
negotiation among the parties. Each Party has cooperated in the drafting
and preparation of this Agreement. Hence, in any construction to be made

-B-

FDIC v. Hacknay, otc, et al.


persons or entities acting by, through, under, for, on behalf of, or in concert with them
(the “Hackney Releasees”), past or present, jointly and severally, from and against any
and afl rights, claims, debts, demands, acts, agreements, liabilities, obligations, damages,
costs, fees (including, without limitation, those of attorneys), expenses, actions and/or
causes of action of every nature, character and description, or causes of liability, rights
and offset rights, whether at Jaw or in equity, whether known or unknown, suspected or
unsuspected, asserted or unasserted, including without limitation injunctive or equitable
relief, any award of actual, consequential, incidental, liquidated, or other types or
categories of damages, any award of punitive or exemplary damages, any claims for
attorneys’ fees, costs or expenses of litigation and any other type of relief which the
FDIC has, may have or might have against Hackney, the Hackney Releasees or any of
them, pertaining to the Loan, the Property, the Complaint, and any and all facts,
occurrences and transactions alleged in the Action, provided, however, that this release is
not a general release but is expressly and specifically limited to the Loan, the Property,
the Complaint, and any and all facts, occurrences and transactions alleged in the Action,
and ig not intended nor shall it be deemed to release any other claims, demands, causes of
actions, debts, obligations, losses, damages, liabilities, costs, expenses, attorneys’ fees,
penalties, compensation, right to indemnity and/or demands as to any other loans or
matters that the FDIC may have or might have against Hackney or the Hackney
Releasees, or any of them, including without limitation any other claims, demands or
actions regarding any other matters.

5. Release by Hackney. Subject to full performance of the obligations and
representations and warranties set forth in this Agreement, and effective simultaneously

with the release granted in Paragraph 4, above, Hackney, on behalf of itself individually

~4-
FDIC v. Hackney, etc. et al.


FDIC and Hackney agree that timely receipt of the Settlement Payment is an essential
term of this Agreement, and a condition to the effectiveness of this Agreement.

2. Dismissal of the Action. Together with the execution of this Agreement,
counsel for each Party shall execute a Stipulation of Dismissal of the Action as to
Hackney only with prejudice in the form attached hereto as Exhibit A. Within three days
after the receipt and clearing of the Settlement Payment, so that good and clear funds in
the amount agreed to herein are actually received by the FDIC, counsel for the FDIC
shall file the executed Stipulation of Dismissal with the Court.

3. Court to Retain Jurisdiction. The Parties agree that the Court shall have

continuing jurisdiction to enforce the provisions of this Agreement to the fullest extent
permitted by law.

4, Release by FDIC. Subject to full performance of the obligations and
representations and warranties set forth in this Agreement, and effective upon the receipt
and clearing of the Settlement Payment, so that good and clear funds in the amount
agreed to herein are actually received by the FDIC, and except as provided in Paragraph
6, below, the FDIC, for itself and for each and every one of its current and former
officers, directors, joint venturers, partners, employees, agents, servants, administrators,
executors, predecessors, successors, subsidiaries, parents, affiliates, attorneys, insurers,
representatives and assigns, conservators and/or receivers, and all persons or entities
acting by, through, under, for, on behalf of, or in concert with them, past or present, fully
and forever releases, acquits and discharges Hackney and his respective current and
former officers, directors, joint venturers, partners, employees, agents, servants,
administrators, executors, predecessors, successors, subsidiaries, parents, affiliates,

attorneys, insurers, representatives and assigns, conservators and/or receivers, and all

-4-
EDIE v. Hackney, ete., ef oh.


09-283! RGK (RCx) (the “Action”).

B. On or about June 4, 2009, Hackney answered the Complaint, generally
denying its allegations and asserting numerous affirmative defenses. An Order Re:
Striking Or Madifying Portions Of The Answer Of Richard W. Hackney DBA Hackney
Appraisal Service was filed on or about September 2, 2009,

C Hackney has defended and denied, and continues to deny, the validity of
FDIC's claims asserted in the Complaint.

DR, The Parties deem it in their best interests to enter into this Agreement to
avoid the uncertainty, trouble, and expense of farther litigation. By this Agreement, the
Parties intend to memorialize the terms of their compromise and settlement of the Action.

AGREEMENT AND MUTUAL RELEASE

NOW, THEREFORE, in consideration of the undertakings contained in this
Agreement, and other good, valuable and sufficient consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows:

1. . Settlement Payment io FDIC. No later than thirty G0) days following full
execution of this Agreement, Hackney shall deliver ia FDIC's counsel of record in the
Action a check(s) made payable ta “Mortgage Recovery Law Group Client Trust
Account, f’b/o Federal Deposit Insurance Corporation, as Receiver for IndyMac Bank,
F.S.B.” in the total amount of Seventy Thousand Dollars and No Cents ($70,000.00) (the
“Settlement Payment”). Hackney shall cause this check to be delivered as follows:

Kralik & Jacobs LLP

Atin: Leis Moonitz Jacobs

35 North Lake Avenue, Suite 620

Pasadena, California 91101,

FENC v, Hackney, etc. ef al.


(b)(6)

APPROVED AS TO FORM:

Dated: ¥. (3

, 2010

KRALIK & JACOBS LLP

Dated:

FRIC y, Hackney, etc, et al

2010

By:

Lois Moola Jacobs
Attorneys for the Federal Deposit
Insurance Corporation, as Receiver for
IndyMac Bank, F.S.B.

GAGLIONE, DOLAN & KAPLAN

By:

Lindsay McMenamin
Attorneys for Richard W. Hackney dba
Hackney Appraisal Service

--