(b)(2) 

a rec.eived ~~ VJI/J\} ] 

SETTLEMENT AGREEMENT AND MUTUAL RELEASE 

THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE 

("Settlement Agreement") is entered into and made effective as of the_ day of August, (b)(D 2010 ("Effective Date"), by and between the Federal Deposit Insurance Corporation as

Receiver for Indy Mac Bank, FSB ("FDIC") and imortgage.com, Inc. ("imortgage.com"). 

The. FDIC and imortgage.com may hereinafter be referred to individually as a "Party" or 

collectively as the "Parties". 

RECITALS 

1.1 On or about March 6, 2003, IndyMac Bank, F.S.B. ("INDYMAC") and 

imortgre.com entered into a business relationship governed by a Seller Contract and eMITS User Agreement (hereinafter "Contract") . 

..... 1.2 Pursuant to the terms of the Contract, imortgage.com sold to INDYMAC 

the mortgage loans that are identified on EXhibit "A" attached to this Settlement 

Agreement. The mortgage loans identified in Exhibit "A" as well as all other mortgage 

loans sold and/or delivered directly by imortgage.com to INDYMAC are collectively 

referred to herein as the "LOANS". 

1.3 The FDIC c1aims that imortgage.com breached the Contract by refusing to 

repurchase and/or indemnify for losses sustained on certain loans after receiving demands 

to do so. imortgage.com disputes the claims relating to those certain loans. 

1.4 On or about January 7, 2010, the FDIC filed a lawsuit entitled FEDERAL 

DEPOSIT INSURANCE CORPORATION as Receiver for INDYMAC BANK. FSB v. 

iMORTGAGE.COM, INC., a Delaware Corporation in the United States District Court, 

Central District ofCalifornia, Case No. CVI0-0114 (hereinafter "Action") seeking 

damages arising from the repurchase and/or indemnification obligations of 

imortgage.com. 

1.5 Without admitting liability, the Parties desire to and have agreed to settle 

all repurchase and indemnification claims relating to the LOANS upon the terms and 

conditions hereinafter set forth. 

AGREEMENT 

NOW, THEREFORE, in consideration ofthe mutual covenants and promises set 

forth herein, and for other good and valuable consideration, the receipt and sufficiency of 

which are hereby acknowledged by the Parties, the Parties, intending to be legally bound, 

agree as follows: 

SETILEMENT AGREEMENT & MUTUAL RELEASE 

Page I of8 
(b)(4) 

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

1.6 Recitals. The Recitals set forth above are incorporated into the body of 


this Settlement Agreement as though fully set forth herein. 


1.7 Payment of the Settlement Funds. imortgage.com shall pay to the FDIC 


the total sum of Six Hundred Fifteen Thousand Dollars ($615,000.00) (the "Settlement 


Funds"). Payment ofthe Settlement Funds shall be made as follows: 


By no later than September 7, 2010, imortgage.com shall make a payment of One 

Hundred Seventy Thousand Dollars ($170,000). 

By no later than October 7, 2010, imortgage.com shall make a payment of One 


Hundred Seventy Thousand Dollars ($170,000). 


Beginning on November 15, 2010, and on the fifteenth calendar day of each 


month thereafter, the sum of Twenty-Five Thousand Dollars ($25,000) shall be 


made until the balance of the Settlement Funds is paid in full. 


Payments shall be made by wire transfer made navahle to "jortgage Recovery (b)(4) Law Group Trust Account," Account Numbed · _Routing Number: 


---1· · IReference: imortgage.com Settlement. 

-n 


u ­

1.8 Concurrently with the signing and delivery of this Settlement Agreement, 

imortgage.com shall execute a Stipulation for Judgment in the amount of Six Hundred 

Fifteen Thousand ($615,000) in the form attached hereto as Exhibit 1. The Stipulation 

for Judgment incorporates by reference a proposed form of Judgment as Exhibit A to the 

Stipulation for Judgment. Both the Stipulation for Judgment and the proposed form of 

Judgment are incorporated by reference herein and their terms are made a part ofthis 

Settlement Agreement. 

1.9 In the event irnortgage.com defaults by failing to make a timely pa}rrnent 

to the FDIC as set forth in this Settlement Agreement, the FDIC shall give written notice 

ofthe default and notice of the FDIC's intent to have Judgment entered. The notice of 

default shall be given via mail and facsimile addressed to: (1) John Tate, Esq., Davis 

Wright Tremaine, LLP, 865 S. Figueroa St., Suite 2400, Los Angeles, CA 90017, fax 

numberl - · · ·-·- land (2) Jay Johnson, at imortgage.com, Inc., 4800 N. Scottsdale 

Road, Suite 3 800, Scottsdale, AZ 85251. 

1.10 imortgage.com shall have seven (7}business days from receipt of the 

notice ofdefault to cure the default. If imortgage.com fails to cure the default within 

seven (7) business days, the FDIC shall retain all consideration it has received, and it 

may, in its sole discretion, seek entry of Judgment against imortgage.com, and enforce 

any Judgment entered against imortgage.coin. Judgment may be entered by ex parte 

application (without testimony or trial and imortgage_.com waives the right to a court 

SEITLEMENT AGREEMENT & MUTUAL RELEASE 

Page 2of8 
and/or jury trial) after notice is given to imortgage.com as provided for in paragraph 1.9 

ofthis Settlement Agreement. 

1.11 Within five (S) business days of the FDIC's counsel's receipt of the fully 

executed Settlement Agreement ~nd Stipulation for Judgment, the FDIC's counsel shall 

file a Stipulation and Order Dismissing Action with the Court Retaining Jurisdiction to 

Enforce the Stipulation for Judgment. · 

1.12 The Parties shall bear their own costs and attorneys' fees incurred in the 

Action. 

RELEASE 

1.13 Unknown Claims. Except for the obligations arising under this 

Settlement Agreement, each Party acknowledges that this Settlement Agreement applies 

to all claims for injuries, damages, or losses of any type or nature (whether those injuries, .... ~ 

damages, or losses are known or unknown, foreseen or unforeseen, patent or latent) 

which each Party may have against the other Party arising from the obligation to 

repurchase and/or indemnify for losses associated with the LOANS. Each Party hereby 

expressly waives application of California Civil Code §1542 and any other similar statute 

or rule with respect to the LOANS. 

1.14 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." 

1.15 Except for the obligations arising under this Settlement Agreement, each 

Party understands and acknowledges that the significance and consequence of its waiver 

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

additional damages arising out of the obligation to repurchase and/or indemnify for losses 

associated with the LOANS, the claims and causes of action that were or could have been 

asserted relating to the obligation to the repurchase and/or indemnify for losses associated 

with the LOANS, or any facts or circumstances related to the obligation to repurchase 

and/or indemnify for losses associated with the LOANS, that Party will not be able to 

make any claim against the other Party for those damages. Furthennore, each Party 

acknowledges that it consciously intends these consequences even as to claims for 

SETIT..EMENT AGREEMENT & MUTUAL RELEASE 

Page3of8 
damages that may exist as of the date ofthis release but which that Party does not know 

exists, and which, if known, would materially affect that Party's decision to execute this 

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

oversight, error, negligence, or any other cause. 

1.16 Except for the obligations arising under this Settlement Agreement, each 

Party hereby fully, finally, and forever releases and discharges the other Party, and any 

and all of its respective past, present, and future affiliates, employees, members, partners, 

joint venturers, independent contractors, attorneys, insurers, investors, successors, 

assigns, representatives, officers, directors, shareholders, independent contractors, 

predecessors, successors and assigns, and any corporation, partnership or limited liability 

company which was or is at any time the parent or wholly owned subsidiary of such 

entity, and any such corporation's, partnership's or limited liability company's officers, 

directors, employees, or any corporation, partnership or limited liability company which 

was or is an affiliate ofsuch entity by virtue ofcommon ownership or control, and any 

such corporation's, partnership's or limited liability company's, officers, directors, and/or 

employees of and from any and aU actions, causes of action, claims, demands, damages, 

debts, losses, costs, expenses, attorney fees or other liabilities of every kind and nature 

whatsoever, whether legal or equitable and whether known or unknown, arising out of, 

resulting from, or relating to, in any manner, the obligation to repurchase and/or 

indemnify for losses associated with the LOANS, the claims and causes of action that 

were or could have been asserted relating to the obligation to repurchase and/or 

indemnify for losses associated with the LOANS, or any facts or circumstances related to 

the obligation to repurchase and/or indemnify for losses associated with the LOANS. 

1.17 Notwithstanding any other provision in this Settlement Agreement, the 

FDIC does not release, and expressly preserves fully and to the same extent as ifthe 

Settlement Agreement had not been executed any action taken by any other federal 

agency. In addition, this Settlement Agreement does not purport to waive, or intend to 

waive, any claims which could be brought by the United States through either the 

Department of Justice or the United States Attorney's Office for any federal judicial 

district. In addition, the FDIC 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., ifappropriate. · 

1.18 No Admission. It is agreed that no Party hereto admits liability or 

wrongdoing of any nature, and that this Settlement Agreement is made as a compromise 

ofdisputed claims. 

1.19 Fair Meaning. The Parties hereto further agree that the language of all 

parts ofthis Settlement Agreement shall in all cases be construed as a whole, according to 

its fair meaning, and not strictly for or against any of the Parties. 

SETILEMENT AGREEMENT & MUTUAL RELEASE 


Page 4 of8 

-. ..... 


1.20 Governing Law. The Parties agree to submit to the Courts ofthe County 

of Los Angeles, California, for any dispute arising out ofthis Settlement Agreement, or 

related thereto, and consent to the jurisdiction of said Courts and further agree that any 

and all matters of dispute shall be adjudicated, governed and controlled under Ca1ifomia 

law. 

1.21 Attorneys' Fees. Should any action be commenced to enforce, interpret, 

or seek damages, injunctive relief, or specific performance for violation ofthis Settlement 

Agreement, the prevailing party shall, in addition to any other available relief, be entitled 

to an award of reasonable attorney's fees and litigation expenses incurred in the 

prosecution or defense of the action, including any appeal. 

1.22 Severability. The Parties hereto agree that if any provision ofthis 

Settlement Agreement is declared by any court to be iiJegal or invalid, the validity ofthe 

remaining parts, terms or provisions shall not be affected thereby, and such illegal or 

invalid part, term or provision shall be deemed not to be part ofthis Settlement 

Agreement. 

1.23 Binding Effect. This Settlement Agreement shall be binding upon and 

inure to the benefit ofthe Parties and their respective heirs, personal representatives, 

successors, and assigns. 

1.24 Review and Understanding. The Parties have_entered into this 

Settlement Agreement voluntarily, having fully read and fully understanding the meaning 

and effect of all ofits terms and provisions, and fully understanding its and their costs 

and risks. Each Party has consulted with legal counsel concerning this Settlement 

Agreement and has conducted such inquiry as they deem necessary and advisable prior to 

entering into this Settlement Agreement. The Parties enter into this Settlement 

Agreement understanding that facts or other circumstances may exist which are presently 

unknown or undisclosed, or which are different from or other than those which they 

believe to be the case, and the Parties voluntarily assume all risks attendant to such 

unknown, undisclosed, different, or additional facts or other circumstances. 

1.25 Number. Whenever applicable, the singular shall include the plural, and 

the plural shall include the singular. 

1.26 Counterparts/Execution. This Settlement Agreement may be executed 

in one or more counterparts, all of which shall form a single agreement. A Party's 

signature on this Settlement Agreement by facsimile shall be valid and effective for all 

purposes as an original signature, provided, however, that the original signature shall be 

produced upon request. 

1.27 Waiver. No term or condition ofthis Settlement Agreement shall be 

SETTLEMENT AGREEMENT & MUTUAL RELEASE 


Page 5 of8 

.... 


deemed to have been waived, nor shall there be an estoppel against the enforcement of 

any provision ofthis Settlement Agreement, except by written instruments signed by the 

Party charged with the waiver or estoppel. No written waiver shall be deemed a 

continuing waiver unless specifically stated therein, and the written waiver shall operate 

only as to the specific term or condition waived, and not for the future or as to any other 

act than that specifically waived. 

1.28 Headings. The headings ofparagraphs herein are intended solely for the 

convenience ofreference and shall not contr~l the meaning or interpretation of any of the 

provisions of this Settlement Agreement. 

1.29 Subsequent Agreements. The Parties agree that, upon the reasonable 

request of the other Party, they shall execute, acknowledge, and deliver any additional 

instruments or documents that may reasonably be required to carry out the intentions of 

this Settlement Agreement, including such instruments as may be required by the laws of 

any jurisdiction, now in effect or hereinafter enacted, that may affect the rights ofthe 

Parties as between themselves or others with respect to their rights and obligations 

created by this Settlement Agreement. 

1.30 Enforcement. If any enforcement ofthis Settlement Agreement is 

necessary or ifany dispute arises after the entry ofthe Judgment against imortgage.com, 

the Parties to this Settlement Agreement agree that th~ United States District Court, 

Central District ofCalifornia, Western Division, shall retain jurisdiction to enforce this 

Settlement Agreement pursuant to California Code ofCivil Procedure §664.6 until 

performance in full of the terms ofthis Settlement Agreement. 

1.31 The Parties specifically agree that: ( 1) this Settlement Agreement is only 

admissible as evidence and subject to disclosure in enforcement proceedings of any 

obligations arising under this Settlement Agreement and/or to enforce the releases given, 

(2) imortgage.com shall not oppose a motion under Code ofCivil Procedure §664.6 to 

enter judgment pursuant to the terms ofthis Settlement Agreement on the ground that this 

Settlement Agreement is confidential or otherwise privileged, and (3) imortgage.com 

specifically waives the confidentiality privilege that may apply to this Settlement 

Agreement for purposes of its enforcement in a court oflaw. 

1.32 The FDIC warrants and represents that it has retained, owns and/or has the 

rights to settle and release all repurchase and indemnification claims relating to the 

LOANS. . 

1.33 Entire Agreement. The Parties hereto further agree and promise that this 

Settlement Agreement sets forth the entire agreement between and among the Parties 

with respect to the repurchase and/or indemnification obligations in connection with the 

LOANS, and fully supersedes any and all prior negotiations, agreements or 

SETTLEMENT AGREEMENT & MUTIJAL RELEASE 


Page 6 of8 

understandings made between or among the Parties. This Settlement Agreement shall not 

be modified except in a writing signed by the Parties or their authorized representatives. 

IN WITNESS WHEREOF, and intending to be lega11y bound hereby, the Parties 

have executed this Settlement Agreement as of the date set forth in the opening paragraph 

of this Settlement Agreement. 

For: 	 Federal Deposit Insurance For: imortgage.com, Inc. 

Corporation as Receiver for 

IndyMac Bank, FSB (b)(6) 

By: 	 By: I 

..... Title: CC)i.),))\.·...._{ 

Name: ---------------------­

Title: 

Date: Date: 

SETTLEMENT AGREEMENT & MUTUAL RELEASE 


Page 7 of8 

EXHIBIT"A" 

lndyMac Loan Borrower Last 

(b)(6) 

...... 

NnmhPr Name Address City 

~MONT 

State 

CA 

Zip 

92223 

MODESTO 

RANCHO 

CUCAMONGA 

CHINO 

CHINO 

CA 

CA 

CA 

CA 

95356 

91739 

91710 

91710 

CHINO CA 91710 

LAS VEGAS NV 89178 

RIPON CA 95366 

BUCKEYE AZ 85396 

LAS VEGAS NY 89178 

LAS VEGAS NY 89178 

BRENTWOOD CA 94513 

TEMECULA CA 92591 

RANCHO 

CUCAMONGA CA 91739 

RANCHO 

CUCAMONGA CA 91739 

TEMECULA CA 92591 

ELK GROVE 

BUCKEYE 

BUCKEYE 

BUCKEYE 

ELK GROVE 

ELK GROVE 

TEMECULA 

MESA 

WEST 

SACRAMENTO 

QUEEN CREEK 

CERES 

LATHROP 

SAN JACINTO 

SAN JACINTO 

LATHROP 

LATHROP 

SAN JACINTO 

CA 

AZ 

AZ 

AZ 

CA 

CA 

CA 

AZ 

CA 

AZ 

CA 

CA 

CA 

CA 

CA 

CA 

CA 

95624 .. 

85326 

85326 

85326 

95624 ·-· 

95624 

92591 

85212 -

95691 

85242 

95307 ----­

95330 

92583 

92583 

95330 -

95330 

92583 

SETTLEMENT AGREEMENT & MUnJAL RELEASE 


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