AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE 

THIS AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE (the 

"Agreement") is made and entered into by and between Federal Deposit Insurance Corporation, 

as Receiver for IndyMac Bank, FSB ("FDIC" or "Plaintiff'), Mac5 Mortgage, Inc. ("Mac5") and 

Capital Title LLC ("Capital Title"). Macs and Capital Title may be referred to collectively as 

"Defendants" and the Plaintiff and Defendants may be referred to herein as the ''Parties." 

REClTALS 

This agreement is made with reference to the following facts: 

A. On or about August 5, 2010, Plaintiff filed a complaint for money damages 

against Mac5, Capital Title and others (the "Complaint"), alleging causes of action against both 

Macs and Capital Title for breach of contract, negligence and negligent misrepresentation, and a 

(b)(4);(b) 

fn) separate cause ofaction against Capital Title for breach offiduciary duty, in connection with two 

(b)(4);(b) 

rn, mortgage loans funded by IndyMac Bank, F.S.B. ("IndyMac") to a borrower named '----~ 

'--=--..='totaling $1,170,000, secured by a residential property located at ________, 

-~ 

.._ 

(the ''Loans"). Plaintiff represents and warrants that it, and not 

One West Bank, FSB, has the sole right to bring this action. The action the Complaint initiated 

is entitled Federal Deposit Insurance Co,poration as Receiver for IndyMac Bank, FSB v. Mac5 

Mongage, Inc. et al., is currently pending in the United States District Court for the District of 

Colorado, Case No. 10-cv-01870 (CMA)(MEH) (the "Action''). 

B. On or about October 1, 2010, Capital Title answered the Complaint, generally 

denying its allegations and asserting affirmative defenses. 

C. On or about October 4, 2010, Mac5 answered the Complaint, generally denying 

its allegations and asserting affirmative defenses. 
------

D. Defendants have defended and denied, and continue to deny, the validity of 

Plaintiffs claims asserted in the Complaint. 

E. The Parties deem it in their best interests to enter into this agreement to avoid the 

uncertainty, trouble, and expense of further litigation. By this agreement, the Parties intend to 

memorialize the tenns oftheir compromise and settlement ofthe Action. 

AGREEMENT AND MUTUAL RELEASE 

NOW, THEREFORE, in consideration ofthe 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. Preamble, Recitals and Exhibits. The foregoing preamble and recitals are true and 

correct and are integral parts ofthis agreement. 

2. Settlement Payment by Mac5 to Plaintiff No later than thirty (30) business days 

following fuU execution of this Agreement, Defendant Macs shall pay Plaintiff the amount of 

One Hundred Fifty Thousand Dollars and No Cents ($150,000.00). This settlement payment (b )( 4) (b )( 4) 

alI be made by wiring the funds to ''Mortgage Recovery Law Group Client Tru~stLAcce~~~~_L----­

Reference: Macs Escrow 

Settlement. The Parties agree that timely receipt ofthe Settlement Payment is an essential term 

ofthis agreement, and a condition to the effectiveness ofthis agreement. 

3. Settlement Payment bv Capital Title to Plaintiff. No later than thirty (30) 

business days following full execution of this Agreement, Defendant Capital Title shall pay 

~ Plaintiff the amount ofOne Hundred Fifty Thousand Dollars and No Cents ($150,000.00). This {b)(4) 

~entpayment shall be made by wiring the funds to ''Mortgage Recovery Law Group Clien 

Trust Account,'' 

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Reference: Capital Title Escrow Settlement. The Parties agree that timely receipt of the 

settlement payment is an essential term ofthis agreement, and a condition to the effectiveness of 

this agreement. 

4. Dismissal ofthe Action. Together with the execution of this agreement, counsel 

for Plaintiff and Defendants shall execute a Stipulation of Dismissal of the Action, with 

prejudice. Opon the receipt and clearing of the Settlement Payment, so that good and clear funds 

in the amount agreed to herein are actually received by Plaintiff, counsel for Plaintiff shall tile 

the executed Stipulation ofDismissal with the Court. 

5. 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. 

6. Release by Plaintiff The FDIC hereby releases and forever discharges Mac5 and 

its current and former officers, directors, employees, agents, sureties, bonding companies, 

insurers, attorneys, subsidiaries, predecessors, related companies, parent companies, successors, 

assigns and affiliates, of and from any and all claims, and demands of every kind and nature, in 

law, equity or otherwise, known and unknown, suspected and unsuspected, disclosed and 

undisclosed, for damages actual and consequential, attorneys' fees and costs, past, present and 

future, arising out of the claims or causes of action set forth in the Action or the facts, 

occurrences and transactions alleged therein, the Loans, and the Properties, except as expressly 

reserved in Paragraph 7, below. 

The FDIC hereby releases and forever discharges Capital Title and its current and former 

officers, directors, employees, agents, sureties, bonding companies, insurers, attorneys, 

subsidiaries, predecessors, related companies, parent companies, successors, assigns and 

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affiliates, of and from any and all claims, and demands of every kind and nature, in law, equity 

or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed, for 

damages actual and consequential, attorneys' fees and costs, past, present and future, arising out 

ofthe claims or causes of action set forth in the Action or the facts, occurrences and transactions 

alleged therein, the Loans, and the Properties, except as expressly reserved in Paragraph 7, 

below. 

7. Express Reservations from Release by Plaintiff. Notwithstanding any other 

provision contained herein, by this agreement, Plaintiff does not release, and expressly preserves 

fully and to the same extent as ifthe Agreement had not been executed any claims brought by the 

FDIC as receiver on behalf of any other failed institution or governmental entity, or any claims 

(b)(4);(b) 

fn) arising from the closing of the Loans against any other transaction participant concerning the (b)(4);(b) 

n) 

This agreement does not waive or release any claim Plaintiff may have 

relating to or arising from any loan other than the Loans at issue 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, or any other federal department or agency, 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 

8. No Admission of Liability. Plaintiff acknowledges that this agreement does not 

constitute an admission by Defendants as to the merits of any claim that the FDIC or its 

predecessors in interest, including [ndyMac, has asserted, or could have asserted, in the Action 

and that Defendants have denied and continue to deny that Defendants have any liability to 

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Plaintiff as alleged in the Action. Likewise, Defendants acknowledge that this agreement does 

not constitute an admission by Plaintiff that any asserted claim is or was in any way lacking in 

merit, and Defendants also acknowledge that this agreement does not constitute an admission by 

Plaintiff as to the merits of any claim that Defendants have asserted, or could have asserted, in 

the Action. Nevertheless, Plaintiff and Defendants 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 Plaintiff and Defendants in the manner and upon the tenns and conditions set 

forth in this agreement. 

9. Representations and Warranties. The Parties represent and warrant to and agree 

with each other as follows: 

a. Plaintiffand Defendants 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. 

b. 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. 

c. This Agreement is fully integrated and contains the entire agreement ofthe 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 supersedes and replaces any and all 

prior negotiations and agreements between the Parties hereto, whether written or 

oral. 

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d. Plaintiff and Defendants have made such investigation of the facts pertaining to 

the releases contained herein as they deem necessary. 

e. The tenns of 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 of this Agreement, the 

role ofthe Party in drafting and preparation ofthe Agreement shall not be referred 

to in order to construe the Agreement against that Party, and that 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. 

h. Plaintiff warrants and represents that the FDIC, as receiver for IndyMac Bank, 

FSB is the only entity with the legal right to bring this lawsuit 

I0. Consideration. The consideration received Ln connection with this Agreement is 

fair, adequate and substantial and consists only ofthe terms set forth in this Agreement. 

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 and Assigns. 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, 

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successors, representatives and assigns. 

l3. Applicable Law. This Agreement has been negotiated and exchanged in the State 

of Colorado. As such, this Agreement and all matters relating thereto shall be governed by the 

laws of the State of Col.orado without regard to its principles of conflicts oflaw. In addition, in 

the event of any disputes arising between the Parties out ofthis Agreement, the Parties agree that 

the exclusive venue in which all disputes shall be resolved shall be by way of an action filed in 

the United States District Court for the District ofColorado. 

14. Execution and Delivery Required - Effective Date. This instrument shall not be 

considered to be the Agreement (defined above) or an enforceable contract, nor shall it create 

any obligation whatsoever on the part of any or all of the Parties, nor shall it or any ofits terms 

constitute an undertaking by any ofthe Parties unless and until the date on which counterparts of 

it have been signed by and exchanged amongst all Parties (via facsimile, e-mail or otherwise) 

(the "Effective Date"). Until the Effective Date, any Party who may already have signed and 

exchanged one or more counterparts of this agreement with other Parties shall have the right to 

revoke such signature. On the Effective Date, this instrument shall become the Agreement and 

shall become a binding and enforceable contract. 

15. Counterparts. This Agreementmay be executed in one or more counterparts, each 

ofwhich when executed and delivered shall be an original, and all ofwhich when executed shall 

constitute one and the same instrument. Signatures on this Agreement, or any counterpart ofthis 

Agreement, transmitted by facsimile machine or electronic mail in pdf fonnat shall have the 

same force and effect as original signatures. 

l 6. Construction. Each of the masculine, feminine and neuter genders shall include 

the others. The singular shall include the plural and vice-versa. 

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17. 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. 

18. Warranty ofAuthority. Each Party or attorney whose signature LS affixed hereto 

in a representative capacity represents and warrants that be or she is authorized to execute this 

agreement on behalf of and to bind the entity on whose behalfhis or her signature is affixed and 

that he or she is acting in the scope of such agency 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 ofthe obligations imposed by the Agreement. 

19. Attorneys' Fees and Costs. Plaintiff and Defendants each agree to pay their own 

costs, attorneys' fees and expenses incurred in connection with the Action. 

20. Captions and Headings. The captions, paragraph numbers and paragraph 

headings appearing in this Agreement are inserted only as a matter ofconvenience and in no way 

define, limit, construe or describe the scope or intent ofthis agreement, nor in any way affect this 

Agreement. 

21. Notices. Any notice required under this Agreement shall be in writing and shall 

be sent via both e-mail and either by (i) hand delivery or certified or registered mail, postage 

prepaid, with return receipt requested, or (ii) fax, with a conformed copy by US Mail, postage 

prepaid, and with such writing to be addressed to the Parties as follows: 

Person To Receive Notice Notification Information 

Defendant Macs: Brad Wyatt 

225 Union Blvd, Ste 350 

Lakewood, Colorado 80228 

Telephone: (720) 407-6338 

Fax: (720) 407~6343 

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Person To Receive Notice Notification [nformation 

With a copy to: John Keen, Esq. 

Gordon & Rees, LLP 

555 l ?'h Street, Ste 3400 

Denver, Colorado 80202 

Telephone: (303) 534-5160 

Fax: (303) 534-5161 

Defendant Capital Title: Joel Shallow 

9436 Pinyan Trail 

Lone Tree, Colorado 80124 

===--=-= I 

With a copy to: Frederick J. Skillern 

Montgomery Little & Soran, P.C. 

5445 OTC Parkway, Suite 800 

Greenwood Village, Colorado 80111 

Phone: (303) 773-8100 

Fax: (303) 220-0412 

Plaintiff: Paul A. Levin, Esq. 

Mortgage Recovery Law Group 

700 N. Brand Blvd., Suite 830 

Glendale, CA 92103 

Tel. No.: (818) 630-7900 

Fax No.: (818) 630-7920 

Email: -

With a copy to: Stephen M. DeHoff. Esq. 

Friesen Lamb, LLP 

1675 Larimer Street, Suite 675 

Denver, Colorado 80465 

Tel. No.: (720) 904-6000 

Fax No.: (720) 904-6006 

Email: 

The above addresses may be changed by any Party as to such Party by providing the other 

Parties notice ofany address change in the same manner as is provided above, and which change 

shall be effective as to any Party upon receipt ofwritten notice from the other Party. In the event 

that written notice, demand, or request is made as provided in this paragraph, that writing shall 

(b)(6) 

(b)(6) 

(b)(6) 

(b)(6) 

(b)(6) 

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be deemed to have been received by the Party to whom it was addressed on the earliest of(i) the 

date that the notice was hand delivered, (ii) the date the notice was sent via facsimile (so long as 

a facsimile transmittal confinnation sheet is contemporaneously generated by the facsimile 

machine from which the transmission occurred), or (iii) three days after properly addressed 

notice was deposited with the U.S. Postal Service, applicable postage prepaid. 

22. Remedies. All Parties shall be entitled to all remedies available at law or in 

equity for any violation of this Agreement, including, but not limited to the remedy of specific 

performance. 

23. Further Assurances. The Parties shall execute such other.documents as may be 

reasonably necessary to carry out the terms and conditions ofthis Agreement. 

24. Survival. All warranties, representations, covenants, and agreements set forth 

herein shall survive the Effective Date. 

25. Compliance Dates. In the event that any date specified in this Agreement shall be 

on a Saturday, Sunday, or a nationally-declared holiday, then the date so specified shalJ be 

deemed to be the next business day following such date, and compliance by such business day 

hereunder shall not be deemed a default by either ofthe Parties under this Agreement. 

26. Waiver. The waiver by one Party of the performance of any covenant or 

condition herein shall not invalidate this Agreement, nor shall it be considered to be a waiver by 

such Party of any other covenant or condition or of any later instance of the previously waived 

covenant or condition. The waiver by any Parties of the time for performing any act shall not 

constitute a waiver at the time for performing any other act or an identical act required to be 

performed at a later time. 

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27. Jury Trial Waiver. The Parties hereby waive any and all rights that they may 

otherwise have to a trial by jury in any action, proceeding, claim; counterclaim or third party 

complaint, whether in contract or tort, at law or in equity, arising out ofor in any way related to 

this Agreement. 

28. Entire Agreement. This Agreement contains the complete agreement of the 

Parties concerning the subjects ofthis agreement and supersedes all prior drafts ofthis Agreement 

and all other prior agreements, promises, acknowledgements, representations and warranties, if 

any, that may have been made between or among the Parties concerning that subject of this 

agreement, whether in connection with the negotiation of this agreement or otherwise. This 

agreement has been the product of negotiation. The Parties have had the opportunity to obtain 

independent advice from counsel. Prior draft documents were prepared, exchanged and 

discussed by some or all of the Parties before finally reaching and entering into this agreement. 

[n any number of instances, words used in prior drafts may have been changed or removed from 

the language ultimately agreed to in this Agreement. In the event of a dispute over the meaning 

of any ofthe provisions or requirements ofthis Agreement, the fact that other words may have 

been used or deleted from earlier draft documents or provisions in such draft documents that 

were modified before being included herein, shall not be used to aid in the construction of the 

meaning and legal effect of this Agreement. This Agreement may not be modified or changed 

except by a written instrument executed by all of the Parties and no rights under it may be 

waived except by a writing signed by the waiving Party. No promises, representations, 

warranties, agreements or other understandings exist between the parties with respect to the 

subject matter of this agreement, and this agreement supersedes and discharges any and all prior 

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promises, acknowledgements, representations, warranties, agreements or other understandings 

that existed or may have existed between the Parties. 

IN WITNESS WHEREOF, the Parties hereto have executed this agreement on the dates 

set forth below. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER FOR INDYMAC (b)(6) 

BANK. F.S.B. 

Ar~\\ 

Dated: ~ h l 1, 2011 By: 

Its: C. C) ~ uJ \ e, \ 

' 

MACS MORTGAGE, INC. 

Dated: March __, 2011 By: 

Its: 

CAPITAL TITLE, LLC 

Dated: March _, 2011 By: 

Its: 

APPROVED AS TO FORM: 

MORTGAGE RECOVERY LAW GR~~ 

Dated: _l_,2011 B~ I ~ 1 

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promises, acknowledgements, representations, warranties, agreements or other understandings 

lhat existed or may have existed between the Parties. 

(N WITNESS WHEREOF, the Parties hereto have executed this agreement on the dates 

set forth below. 

FEDERAL DEPOSJT INSURANCE 

CORPORATION, AS RECEIVER FOR INDYMAC 

BANK, F.S.B. 

Dated: March --J2011 By: 

lts: 

MACS MORTGAGE, INC. 

Dated: March___, 2011 By: 

Dated: March 2.£,d 2011 

APPROVED AS TO FORM: 

Dated: March ~ 2011 

Its: 

(b)(6) 

CAPITAL TITLE, LLC 

By: 

t5•--',,""CJ_M~'f2_,_,~"'-=-------

MORTGAGE RECOVERY LAW GROUP. LLP 

B~ ----------------

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

promises, acknowledgements, representations, warranties, agreements or other understandings 

that existed or may have existed between the Parties. 

IN WITNESS WHEREOF, the Parties hereto have executed this agreement on the dates 

set forlb below. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER FOR fNDYMAC 

BANK, F.S.B. 

Dated.: March ___J 201 I By: 

Its: 

APR. 

Dated:,Maren.!::}__, 20 I 1 

y 

MACS MORTGAGE, INC. 

By: _J,,,- -----,--------L------ l_,/ 

Its: 1:>g.A D t..,,J)~ 11 

(b )(6) 

CAPITAL TITLE, LLC 

Dated: March ___J 2011 By: 

Its: 

APPROVED AS TO FORM~ 

c.. 

Dated: Marcb __, 201 1 

MORTGAGE RECOVERY LAW GROUP, LLP 

By: 

12 
------------

Paul Levin 

Attorney for PlaintiffFederal Deposit 

Tnsurance Corporation, as Receiver for 

IndyMac Bank. F.S.B. 

(b)(6) 

GORDON & R~ES, LLP 

Dated: March __, 2011 By: 1⁄2 z-::,:r.een=.=----------- --

omey for Defendant Mac5 Mortgage, Inc, 

(b)(6) 

MONTGOMERY LITTLE & SORAN, P.C. 

By: 

Frederick J. Skillern 

Attomey for Defendant Capital Title LLC 

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