SETTLEMENT AGREEMENT AND RELEASE 


This Settlement Agreement and Release ("Agreement") is made as ofthis 30th day of 

March 2012, by, between, and among the Federal Deposit Insurance Corporation as Receiver for 

IndyMac Bank, F.S.B. ("FDIC-R"), and Boris Frenkel (sued erroneously as "Boris Frankel"), an 

individual and doing business as Appraisal Choice (referred to herein as "Appraiser") 

(individually, the FDIC-R and Appraiser may be referred to herein as a "Party" and collectively 

as the "Parties"). 

WHEREAS: 

FDlC-R represents that prior to July 11, 2008, IndyMac Bank, F.S.B. ("lndyMac" or the 

"Bank"), was a depository institution organized and existing under the laws of the United States. 

FDIC-R further represents that on July 11, 2008, the Office ofThrift Supervision closed the 

Bank and appointed the Federal Deposit Insurance Corporation as its receiver. FDIC represents 

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

and privileges ofthe Bank, including those with respect to its assets. 

FDIC-R initiated a lawsuit on July 5, 2011, against Appraiser entitled Federal Deposit 

Insurance Corporation, as Receiver for lndyMac Bank, F.S.B. v. Boris Frankel, eta/., Case 

No. Cl 1-03279, currently pending in the United States District Court, Northern District of 

California, San Jose Division (the "Lawsuit"). FDIC-R's July 5, 2011 complaint in the Lawsuit 

references one appraisal (the "Appraisal") completed under the name "Appraiser Choice" for 

Hilltop Mortgage, Inc. and signed by Alexander Furman for the real property located at 2311 

Sirrah Way, Greenfield, California 93927 (the "Property"). FDIC-R's complaint in the Lawsuit 

also references a loan ultimately purchased by Indy Mac and secured by the Property: a mortgage 

loan in the amount of$560,000.00 to (referred to herein as the "Loan"). 
A dispute has arisen with respect to claims by the FDIC-R against Appraiser for damages 

arising from the over-valuation of the Property (hereinafter any and all present and future claims 

by the FDIC-R against Appraiser arising from losses set forth in the Lawsuit are referred to as 

the "Claims"). The Parties engaged in settlement negotiations as a result of the Claims. The 

Parties now deem it in their best interests to enter into this Agreement to avoid the uncertainty, 

trouble, and expense of litigation. 

NOW, THEREFORE, in consideration ofthe promises, 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 FDIC-R executes this agreement, Appraiser shall pay the FDIC-R the 

total sum of $65,000.00 (the "Settlement Payment"). The Settlement Payment shall be made by 

check made payable to "Mortgage Recovery Law Group Client Trust Account." 

B. The Parties agree to the jurisdiction ofthe federal court in California for the purposes of 

enforcing this Agreement. The Parties further agree that the prevailing party in any dispute 

enforcing this Agreement shall be entitled to reasonable attorney fees and costs. Any extension 

of time for delivery ofthe Settlement Payment shall not prejudice the FDIC-R's right to take 

other action or seek any relief during or after such period of extension, including the right to 

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

SECTION II: Releases. 

Each Party acknowledges that this Agreement applies to all claims for injuries, damages, 

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

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unknown, foreseen or unforeseen, patent or latent) which each Party may have against the other 

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

Civil Code §1542 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 follows: 

A 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. 

Each Party understands and acknowledges that the significance and consequence ofits 

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

additional damages arising out of the Claims, the claims and causes of action that were or could 

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 consciously intends these consequences even as to 

claims for damages that may exist as of the date of this release but which that Party does not 

know exists, and which, ifknown, would materially affect that Party's decision to execute this 

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

error, negligence, or any other cause. 

A. The FDIC-R 's Release. 

Upon receipt ofthe Settlement Payment, plus any accrued interest, and except as 

provided in PARAGRAPH II.C., below, the FDIC-R, for itself and its successors and assigns, 

hereby releases and discharges Appraiser and its officers, directors, representatives, heirs, 

executors, administrators, successors and assigns, from any and all claims, demands, contracts, 

obligations, damages, actions, and causes of action, direct or indirect, in Jaw or in equity 

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belonging to the FDIC-R, arising out of or relating to the facts and circumstances giving rise to 

the Claims. 

B. Appraiser's Release. 

Effective simultaneously with the release in PARAGRAPH II.A. above, Appraiser, on 

behalf of itself, and its respective employees, officers, directors, representatives, 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 Appraiser, arising out ofor relating to the facts and circwnstances alleged by the 

Claims. 

C. Exceptions to Release by FDIC-R. 

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

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 Appraiser or any other person or entity for liability, if any, 

incurred as the maker, 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 claims acquired by FDIC-R as successor in interest to the Bank 

or any person or entity other than Bank; 

b. against any person or entity not expressly released by the FDIC-R 

in this Agreement; or 

c. against Defendant Alexander Furman individually and dba Real 

World ("Furman"), including claims against Furman arising from the Appraisal or Lawsuit.; or 

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II 

2. Notwithstanding any other provision ofthis Agreement, nothing herein 

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

Deposit [nsurance Corpomtion in the exercise of its supervisory or regulatory authority to 

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

penalties, restitution or other relief it is authorized to seek pursuant to its supervisory or 

regulatory authority against any person, or which may arise by operation of law, 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. 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, et. seq., if appropriate. 

SECTION Ill: Insolvency. 

A. Insolvency. 

Appraiser warrants as to payments made by him or on his behalf that at the time of such 

payment, he is not insolvent nor will the payment made by or on his behalf render him insolvent 

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

is made by Appraiser and not by his counsel. 

B. Preferences. 

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

due to a final order by a court that the transfer of the Settlement Payment or any portion thereof 

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

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

equity, pursue any ofthe rights and remedies set forth in paragraph II(C) above, and/or otherwise 

permitted by law. 

SECTION IV: Severability 

1. If any term, provision, covenant or condition of this Agreement is held by a court of 

competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full 

force and effect to the greatest extent permitted by law and shall in no other way be affected, impaired or 

invalidated. 

SECTION V: Notices. 

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

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

II 


II 


If to the FDIC-R: 

Paul Levin 


Mortgage Recovery Law Group 


700 North Brand Boulevard, Suite 830 
 IGlendale, California 91203 (b)(4),(b)(6) 

If to Appraiser: 

Peter Catalanotti 


Manning & Kass, Ellrod, Ramirez, Trester LLP 


One California Street, Suite 1100 


_ San Francisco, Califola 94111 

(b)(4),(b)(6) 

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SECTION VI: Other Matters. 


A. No Admission of Liability. 

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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 infirmity by any ofthem regarding any 

claim or defense, and that the Agreement shall not be offered or received in evidence by or 

against any Party hereto, except to enforce its terms. 

B. Execution in Counterparts. 

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

herein and all such counterparts when so executed shall together constitute the final Agreement, 

as if cine document had been signed by all Parties hereto; and each such counterpart, upon 

execution and delivery, shall be deemed a complete original, binding the Party or Parties 

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

C. Binding Effect. 

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

authorized to sign this Agreement on behalf ofthe 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, 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 to 

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

therein. 

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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 authorized 

attorney(s) or other representative(s). 

F. Specific Representations, Warranties and Disclaimer. 

FDIC-R acknowledges that Appraiser Alexander Furman admits to being the sole creator 

ofthe appraisal that is the subject of the litigation. FDIC-R further acknowledges that Boris 

Frenkel has consistently maintained under oath that he did not participate in creating the 

appraisal that is the subject matter of the FDIC-R's action and that Mr. Furman did so without 

input or permission from Mr. Frankel. The FDIC-R pursued Mr. Furman separately in the 

referenced litigation. 

G. Reasonable Cooperation. 

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

the terms and conditions ofthis 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 perform the terms ofthis Agreement. 

2. Further, Appraiser agrees to cooperate fully with the FDIC-R in 

cmmection 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 documents relevant to the Appraisal, Claims or 

Lawsuit requested by the FDIC-R without the necessity of subpoenal b. making 

himself available upon request by the FDIC-R at reasonable times and places for interviews 

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regarding facts relevant to the Appraisal, Claims or Lawsuit; 

c. appearing to testify, upon request by the FDIC-Rrelated to the 

Appraisal, Claims or Lawsuit without the necessity of subpoena; 

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

any matter relevant to the Appraisal, Claims or Lawsuit. 

H. Choice of Law. 

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

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

conflicts oflaws. 

I. Advice of Counsel. 

Each Party hereby acknowledges that he or it has 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 its counsel. 

J. Title and Captions. 

All section titles and captions contained in this Agreement are for convenience only and 

shall not affect the interpretation of this Agreement. 

K. Authorship/Construction. 

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

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

which party drafted it. 

IN 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. 

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(b)(6) 

Plaintiff FDIC as Receiver for 

lndyMac Bank, F.S.B. 

By: .. L--1________J 

Name: R ~c:..\.t4~ S ~ G ~ 1£ 

By: 

Date: 

Defendant Boris Frankel 

Title: 

Date: 

C. o u W~e.. ( 

..fi - l - \ ? 

Approved as to form: 

Mortgage Recovery Law 

Group,LLP 

Manning & Kass 

Ellrod, Ramirez, Trester LLP 

By: 

Michael H. Delbick 

Attorneys for Plaintiff Federal 

Deposit Insurance Corporation as 

Receiver for lndyMac Bank, F.S.B. 

By: 

Peter C. Catalanotti 

Attorneys for Defendant Boris 

Frenkel (erroneously sued as Boris 

Frankel) 

Date: Date: 

10 

Plaintiff FDIC as Receiver for Defendant Boris Frankel 

__ lndvMac Bank. F.S.B. 

(b)(6) 

By: By: ­

1 

Name: R,;c;.\c.4~ S .G.~ U Date: 

Title: Co u !.l!(e. ( 

Date: J;" - l - \.2. 

Approved as to form: 

Mortgage Recovery Law Manning & Kass 

Grouo.LLP Ellrod, Ramirez, Trester LLP 

(b)(6) 

By: -[--- By: 

MichaelA: Delbick Peter C. Catalanotti 

Attorneys for Plaintiff Federal Attorneys for Defendant Boris 

Deposit Insurance Corporation as Frenkel (erroneously sued as Boris 

Receiver for IndyMac Bank, F.S.B. Frankel) 

Date: S/1/;-z_ Date: . I 

10 

May 06 12 08:00p p.2 

Plaintiff FDIC as Receiver for 

IndyMac Bank, F.S.B. 

By: 

Name: _______________________ 

Title: 

Date; 

Approved as to form: 

Mortgage Recovery Law 

Group, LLP 

By: 

Michael H. Delbick 

Attorneys for Plaintiff Federal 

Deposit Insurance Corporation as 

Receiver for lndyMac Bank, F.S.B. 

Date: 

(b)(6) 

By: 

Date: 

Manning & Kass 

Ellro.~d.....u.~................~ (b)(6) 

By: 

Peler C. atalanotti 

Attorne rs for Defendant Boris 

Frenkel (erroneously sued as Boris 

Frankel) 

Date: 5/-=t/,.z,

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