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SETTLEMENT AGREEM.ENT AND RELEASE 


This Settlement Agreement and Release ("Agreement") is made as of this _ day of 


ecember~ 2011, by, between, and among the Federal Deposit Insurance Corporation as 

Receiver for AmTrust Bank, Cleveland, Ohio ("FD[C-R"), and Amerisave Mortgage 

Corporation ('•Amerisave") (individually. the FDlC-R and .Aroerisave may be referred to herein 

as a "Parti' and collectively as the "Parties"). 

WHEREAS: 

Prior to ece~ber 4~ 2009, AmTrust Bank, Cleveland, Ohiot previously known as Ohio 

Savings Bank ("Bank"), was a depository institution organiz-ed arid existing under the laws ofthe 

United States. 

On December 4, 2009, the Office of Thrift Sup~rvis_ion closed the Bank and appointed 

the Federal Deposit fnsurance Corporation as it~ receiver. In accordance with 12 U.S.C. § 

I82 i(d), the FDIC-R succeeded to all rights, titles, powers, and privileges orthe Bank, including 

those with respect to its assets,. 

Amerisave and the Bank entered into a Master Correspondent Loan Purchase Agreement 

dated August 20, 2003 ("Contract"). Pursuant to the terms of the Contract, Amerisave sold to 

the Bank various .residential mortgage loans. The Bank's assets now belonging to the FDIC~R 

include any and all of the Ba.'lk)s claims, demands, and causes of action, including all ofthe 

Bank's claims related to any and all loans Amerisave sold under the Contract to the Bank 

("Loans"). 

A dispute has arisen between the Parties wjth respect to claims by the FDIC·R to 

Amerisave for repurchase andior indemnity on certain ofthe Coans based on alleged breaches of 

representations and warraf?ties set forth in the Contract (hereinatter any and aJ I present and future 
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claims by the FDIC·R to Am~ isave Wider the ContraL-1 ofan obligation to repurchase or 

indemnify for losses associated with the Loans is referred to as the ..Claim.s'l The Parties 

engaged in settlement negotiations as a result ofthe Cl.aims. The Parties now deem it in their 

best interests to·enter into this Agreement to avoid the uncertainty, trouble. and expense of 

litigation. 

NOW, THEREr"'ORE, in consideration ofthe promjses, undertakings, payments, and 

releases stated herein, the sufficiency ofwhich consideration is hereby acknowledged, the 

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

SECTION 1: Payment to FDIC-R. 

A. As an essential covenant and condition to this Agreement, on or before thirty (30) 

· days following the date the FDJC-R executes this agreement~ Amerisave shall pay the FDIC-R 

the total sum ofOne Hundr~ Ninety~Nine Thousand Five Hundred Dollars ($199,500) (the 

"Settlement ayment~'). The Settlement Payment shall be made by wire transfer made payable to 

"'Mortgage Recovery Law Group Client Trust Account.'' Account Number: ._I ·_.f ····················· .................. .. .. (b)(4) 


IReference: AmTrust/Amerisave Settlement. 

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

determined by subparagraph A above ("Settlement Payment Due Dat "), then the FDIC-I{, in its 

sole discretion, shall have the right to; 

1. extend the period oftime for payment, including interest accruing from the 

Settlement Payment Due Date through the date of payment at a rate calculated in 

accordance with 26 U.S.C. §6621 (b)(3); or 

2. enforce this Agreement and, in such event, Ameris.ave agrees to 

jurisdiction in Federal District Court in California and to pay all ofthe FDJCwR's 

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

or 

3. declare tllis Agreement null and void, move to vacate any dismissal order~ 

to which Amerisave agrees to consent, and institute an action on the FDIC-R's claims, as 

to which Amerisave waives any and all objections and defenses and covenant and agree 

not to assert any objections and defenses; and/or 

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

Any extension oftime for delivery ofthe Settlement Payment shaH not prejudice the FDIC-R's 

right to take other action or seek any relief during or after such period (}fextension, including the 

right to bring an action to enforce the Agreement, or declare the Agreement null and void. 

SECTION ll: Releases. 

Each Party ackno,vledges that thls Agreement applies to all claims for injuri.es, damages, 

or losses of any type or nature (whether those .injuries, damages; or losses are known or 

unknown, foreseen or unforeseen, patent or latent) whi.ch that Party may have against another 

Party arising from the Claims. Each Party hereby expressly waives application ofCalifornia 

Civil Code§i 542 and any other similar statute or rule. 

Each Party certifies that they have read and understood the following provisions of 

California Civil Code §1542, which states. in pertinent part as foll<)WS: 

A general release does not extend to c.laims which the creditor does 

not know or suspect to exist in his or her favor at the time of 

executing the release$ which ifknown by him or her must luive 

materially affected his or her settlement with the debtor. 

Each Party wl.dcrstands and acknowledges that the significance and consequence ofits 

waiver ofCalifornia Civil Code §1542 is that even if any Party should eventually suffer 

additional damages arising out of the Claims. the claims and catJses ofaction that were or could 

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have been asserted relating to the Claims, or any facts or circumstances related to the Claims; 

that Party will not be able to make any claim against the other Party for those damages. 

Furthermore, each Party acknowledges that it consdously intends these consequences even as to 

claims for damages that may exist as ofthe date ofthis release but which that Party does not 

know exists. and wlrich, ifknown, would materially affe-et that Party's decision to execute this 

release, regardless ofwhether that Party's lack of knowledge is the result of ignorance, oversight, 

error, negligence, or any other cause. 

A. The FDIC-R's leasc. 

Upon receipt of the Settlement Payment, pJus any accrued interest, and except as 

provided in PARAGRAPH II.C., the FDIC"R• for itselfand its successors and assigns, hereby 

releases and discharges Amerisave and its respective employees~ officers, directors, 

representatives. heirs, executors) administrators, successors and assigns, from any and all claims, 

demands, contracts, obligations, damages.. actions, and causes ofaction, direct or indirect, in law 

or in equity belonging to the FDIC-R: arising out ofor relating to the facts and circUmstances 

giving rise to the Claims. 

B. Amerisave•s Release. 

Effective simultaneously with tl:!e release in PARAGRAPH !LA. above, Amerisave, on 

behalf of itself: and its respective employees, officers, directors, representati.ves, heirs, executors., 

administrators, successors and assigns, hereby releases and discharges the FDIC-R, and its 

employees, officers, directors, representatives, successors and assigns, from any and all claims 

belonging to Amerisflve, arising ou1 QfQr relating to the facts and circumstances alleged by the 

Claims. 

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C. Exceptions to Re1eas~,hy FDlC-R. 

1. Notwithstanding any other provision ofthis Agreement, the FOIC-R does 

not release, and expressly preserves fully and to the same extent as ifthis Agreement had not 

been executed, any claims or causes ofaction: 

a · against Amerisave or any other person or entity for Uability, if any) 

incurred as the maker, endorser or guarantor ofany 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 claims acquired by FDIC-R a8 successor in interest to the Bank 

or any person or entity other than Bank; 

b. against any person or eniity not expressly reteased by the FDIC-R 

in this Agreement; or 

c. which are not expressly released in PARA.GRAPH Il.A. above. 

2. Notwithstanding any other provision oftbJs Agreement, nothing herein 

limits, wmves, releases, diminishes or compromises the jurisdiction and authority ofthe Federal 

Deposit lnsurance Corporation in the exercise ofits supervisory or regulatory authority to 

insritute administrative enforcement or other proceedings seeking removal, prohibition, civil 

penalties, restitution or other reliefit is authorize-d to seek pursuant to its supervisory or 

regulatory authority against any person. or wl>ich may arise by operation oflaw, rule, or 

regulation. 

3. Notwithstanding any other provision ofthis Agreement, this Agreement 

does not waive any claims which could be brought by the United States through the Department 

ofJustice)the United States Attorney's Office for any federal judicial district. lu addition, the 

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FDIC~ specifically reserves the right to seek court ordered restitution pursuant to the relevant 

provisions ofthe Victim and Witness Protection Act, 18 U.S.C. § 3663, et. seq.• ifappropriate. 

SECTION Ill: Insolvency. 

A. Insolvency. 

Amerisave warrants as to payments made by or on its or its behalf that at the time of such 

payment, it is not insolvent nor \\111 the payment made by or on its behalf render it insolvent 

within the meaning and/or for the purposes ofthe United States Bankruptcy Code.· This warranty 

is made by Amerisavc and not by its counseL 

B. Preferences. 

In the event that the FDIC-R is required to return any portion ofthe Settlement Payment 

due to a final order by a court that the transfer ofthe Settlemen.t Payment or any portion thereof 

constituted a preference. voidable preference~ fraudulent transfer or similar transaction~ then, in 

its sole discretion, the FDIC-R may, without waiver ofany other rights it may have in law or 

equity, pursue any of the rights and remedies set forth in paragraph I(C} above, and/or otherwise 

permitted by law. 

SECTION IV: Termination. 

In the event the FDIC-R exercises its right to declare this Agreement null and vojd as 

provided herein, then, for the purposes of any statute ofHmitations or other time-based defense 

to any of the claims of the FDJC-R, the parties to this Agreement shall be deemed to have 

reverted to their respective status as of 5:00p.m. Eastern Time, December 1, 20ll. 

SECTION V: Notices. 

Any notices required hereunder shall be sent by registered mail, first class, return receipt 

requested, and may a1so be sent by email, to the following: 

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Ifto the FDIC-R: 

Michael Delbick · 


Mortgage Recovery Law Group 


700 North Brand Boulevard, Suite 830 


Glendale, California 9l203 


(818) 630·7905 

(b)(6}___1 ' ----- ­

lfto Amerisave: · 

Mark Lively, EVP. Credit rusk 


3350 Peachtree Rd. NE. Suite 1 000/1 Oth Floor. 


Atla:."lta, GA 30326 


404-424-0681 


(b)(6)_1 D ·- ----­

SECTION VI: Other Mattei'S. 

A. No Admission ofLiability. 

The undersigned Parties each acknowledge and agree that the matters set forth in this 

Agreement constitute the settlement and compromise of disputed claims and defenses, that this 

Agreement is not an admission or evidence ofliability or infinnity by any of them regarding any 

claim or defense. and that the Agreement shaH not be offered or received in evidence by of · 

against any Party hereto. except to enforce its terms. 

B. E~qcution in Counterparts. 

This Agreement may be executed in counterparts by one or more of the Parties named 

herejn and all such counterpatts when so executed shall together constitute the final Agreement, 

as ifone document had been signed by all Parties hereto; and eadt such counterpart, upon 

execution and delivery. shall be deemed a complete original, binding the Partyor Parties 

subscribed thereto upon the execution by aU Parties to this Agreement 

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C. Binding Effect. 

All of the undersigned persons represent and warrant that they are a Party hereto or are 

authorized to sign this Agreement on behalfofthe respective Party, and that they have the full 

pov.rer and authority to bjnd such Party to each and every provision of this Agreemen1. This 

Agreement shaU be binding upon and inure to the benefit ofthe undersigned Parties and their 

respective heirs, executors, administrators, representa-tive.<>, attorneys, successors and assigns. 

D. Entire Agreement. 

This Agreement constitutes the entire agreement and understanding between and among 

the undersigned Parties concerning the matters set forth herein and supersedes any prior 

agreements or understandings. No representations, warranties or inducements have been made 1o 

or relied on by any Party concerning this Agreement and. its exhibits other than those contained 

therein. 

E. Amendments. 

This Agreement may not be amended or modified, nor may any of its provisions be 

waived, except in writing by the Party or Parties bound thereby, or by their respective authori7.ed 

attomey(s) or other representative(s). 

F. Specific Representations, Warr!~!t~!~~--and Disclaimer. 

Amerisave·acknowledges that in detenniniug to settle the Claims released herein, the 

FDIC-R reasonably and justifiably relied Up<JD the accuracy offinancial information provided by 

Amerisave. IfAm.crisave failed to disclose, or misrepresented the nature or amO'unt oft any 

interest, legal, equitable, or beneficial, in any asset, Amerisavc agrees to cooperate fully with the 

FDlC-R to transfer its interest in the asset to the FDlC-R and to sign any and aJl documents 

necessary to transfer its interest in the asset to the FDIC-R. Mor~ov r, if Amerisave has failed to 

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disclose any interest~ legal, equitable. or enefic ~ in any asset, tlle FDIC-R in its sole 

discretion, may exercise one or more or all of the following remedies: (a) the J.TIIC-R may 

declare the releases granted. to Amerisavc as null and void; (b) the FDIC-R may retain the 

Settlement Payment; (c) the FDIC-R may sue Amerisave for damages) an injunction, and 

specific performance for the breach ofthis Agreement; and (d) the FDIC-R may seek to vacate 

any dismissal order and reinstate the FDIC- ~s claims against Amerisave. Amerisave agrees that 

ifit has failed to disclose. or misrepresented the nature or amount of, any interest, legal, 

equitable, or beneficia], in any asset, Amcrisave consents to the reinstatement of FDIC-R's 

claims and waive any statute of limitations defeme that would bar any of the FDIC-R's claims 

against it. 

G. Reasonable Cooperation. 

l. The undersigned Parties agree to cooperate in good faith to effectuate all 

1he terms and conditions ofthis Agreement, including doing, or causing their agents and 

attorneys to do, whatever is re~sonabl necessary to effectuate the signing, delivery, execution$ 

tiling, recording, and entry, of any documents necessary to perform t.lte tenus of this Agreement. 

2. Further, Amerisave agrees to cooperate fully with the fDIC-R in 

connection with any action required under this Agreement. Any such cooperation that involves 

any out of pocket costs is subject to reasonable reimbursement by 'the FDIC-R pursuant to its 

internal guidelines and policy for such reimbursement. Such cooperation shall consist of: 

a. producing all docwnents requested by the FDIC~R, without the 

necessity of subpoena) as determined by the FDIC-R, in its sole discretion, to be relevant to the 

Bank~ 

b. making themselves available upon request by the FDIC-R at 

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reasonable times and places for interviews regarding facts, as detennined by the FDIC-R in its 

sole discretion, to be relevant to the Bank; 

c. appearing to testify, upon request by the FDIC-R, in any matter 

detennined by the FDIC-R in it-; sole discretion, to be related to the Bank, 'Without the necessity 

ofsubpoena; 

d. signing truthful affidavits upon request by the FDIC-R, regarding 

any matter, as determined by the FDfC-R in its sole discretion~ to be relevant to the Bank. 

H. ChoiceofLaw. 

This Agreement shall be interpreted, construed and enforced according to applicable 

federal law, or in its absence, the internal laws ofthe State ofCalifornia. without regard to its 

c<Jnflicts oflaws. 

I. Advice of Counsel 

Each Party hereby acknowledges that he or it has consulted with and obtained the advice 

ofcounsel prior to executing this Agreement, and that this Agreement hns been explained to that 

Party by his or its counse!. 

J. Tit!e and Captions. 

All section titles and caption.<; contained in this Agreement are for convenience only and 

shall not affect the interpretation of this Agreement. 

Ill 

IIi 

IIi 

II! 

/// 

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K. Authorshlp!Construction. 

This Agreement sets forth terms and agreements jointly negotiated by the Parties. Tt is 

eKpressty agreed that this Agreement shall not be construed for or against any party by reason of 

which party drafted it. 

fN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

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

FDIC as Receiver for AmTrust Amerisavc Mortgage Corporation 

Name: .- "~ lfA. it{" (i. v·l' l ..,....-.......;.....;..;......RJ( A. Lt'JE'LY 

Title: Cov r~;& ( Title: EVP l. ~~~ \ R· S.: k 

Date: i_.J-- Date: C;Jr JO'i / 01 ?.... 

' I 

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