SETTLEMENT AGREEMRNT AND Rl~LI~ASE 

-.,..&. 

'Ibis Settlement Agreement and Release ("Agreement") is made as ofthi~ay of May, 

2013, by, between, and among the Federal Deposit Insurance Corporation as Receiver for 

AmTrust Bank, Cleveland, Ohio ("FDIC-R"), on the one hand, and Michael F. Oakes, 

individually and doing business as Oakes Appraisal ("Oakes"), on the other hand, (individually, 

the PDIC-R and Oakes may he referred to herein as a "Party" and collectively as the "Parties"). 

WIIEREAS: 

Prior to December 4, 2009, AmTrust Bank, Cleveland, Ohio, previously known as Ohio 

Savings Bank ("Bank"), was a depository institution organized and existing under the laws of the 

United States. 

On December 4, 2009, the Office of Thrift Supervision closed the Bank and appointed 

the Federal Deposit fnsurance Corporation as its receiver. 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 the claims which are subject to this Agreement. 

On or about May 31, 2007, Am Trust purchased a loan originated by CCSP, LLC doing 

business as National Funding Solutions ("NFS') to borrowcrL..I ____ ····-·······-·······-·······-········-·······-·······....~Iinanamount (l:>)(4.),(b) 

(6) 

(b)( 4 )?(l:>J. of.$47.6~900(thc''Loan'')ineonnectionwit~ I purchase of a residential property located at 

!~l( ),(l>lJ I !.as Vegas, Nevada (hereinafter the Qransaction")· Oakes {~l(4).(b) 

(b)( 4 ),Jl:>l apprai-scdthepropcrtyforthOTransaction. (6) 

A dispute has arisen between the Pa11ics with respect to claims by the FDIC-R related to 

Oakes' actions in appraiser the Property (hereinafter any and all present and future claims by the 

(b)( 4 )?Jl:>) .FlJIG-RagainstOakesinconnectionwiththcEJrransaction arc referred to as the "Claims"). 

(6) 

The Parties en~aged in settlement negotiations as a result of the Claims. The Parties now deem it 

472159.1 

I 

I 
in their best interests to enter into this Agreement to avoid the uncertainty, trouble, and expense 

of litigation. 

NOW, THEREFORE, in consideration of the promises, undertakings, payments, and 

releases stated herein, the sufficiency of which consideration is hereby acknowledged, the 

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

SECTION 1: Payment to FJ)IC-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, Oakes shall pay the FDIC-R the 

total sum of One Hundred Twenty Five Thousand Dollars ($125,000) (the "Settlement 

Payment"). The Settlement Payment shall be made by check made payable to "Mmtgage 

Recovcty Law Group Client Trust Account," mailed to Mortgage Recovery I .aw Group, I J ,P, 

Attn: Andrew P. Baeza, Esq. 700 N. Brand Blvd, Ste. 830, Glendale, California 91203, 

Reference: AmTrust/Oakes Settlement. 

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

determined by subparagraph A above ("Settlement Payment Due Date"), then the FDIC-R, in its 

sole discretion, shall have the right to: 

1. extend the period of time 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. § 662l(h)(3); or I· 

I 

2. enforce this Agreement and, in such event, Oakes agrees to jurisdiction in 

Federal District Court in Nevada and to pay all of the FDIC-R's reasonable attorney's 

fees and costs expended in enforcing the terms of this Agreement; or 

2 

472159.1 
3. declare this Agreement null and void, move to vacate any dismissal order, 

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

which Oakes waives any and all objections and defenses and covenant and agree not to 

assert any o~jections and defenses; and/or 

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

Any extension of time for delivery of the Settlement Payment shall not prejudice the FDIC-R's 

right to take other action or set!k any relief during or after such period of extension, including the 

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

SECTION II: Releases. 

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

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

unknown, foreseen or unforeseen, patent or latent) which that Party may have against another 

Patty arising from the Claims. 

A. The FDIC-R's Release. 

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

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

releases and discharges Oakes and his respective employees, 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 law or in 

equity belonging to the FDIC-R, arising out of or relating to the Claims. 

B. Oakes' Release. 

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

of himself: and his respective employees, officers, directors, representatives, heirs, executors, 

3 

472159.1 
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 Oakes, arising out of or relating to the Claims. 

C. Exceptions to Release by FDIC-R. 

1. Notwithstanding any other provision of this Agreement, the FDIC-R docs 

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 Oakes, 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 Hank 

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. which are not expressly released in PARAGRAPI I If. A. above. 

2. Notwithstanding any other provision of this Agreement, nothing herein 

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

Deposit Insurance Corporation 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 seck pursuant to its supervisory or 

regulatory authority against any person, or which may arise by operation oflaw, rule, or 

regulation. 

4 

472159.1 
3. Notwithstanding any other provision of this Agreement, this Agreement 

does not waive any claims brought on behalf of another failed institution or any claims which 

could be brought by the United States through the Department of Justice, the United States 

Attorney's Office for any federal judicial district, or any other governmental entity. 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. 

Sii:C'I'ION III: Insolvency. 

A. Insolvency. 

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

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

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

is made by Oakes 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 

its sole discretion, the FDIC-R may, without waiver of any 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 

i. 

petmitted by law. 

SECTION IV: Termination. 

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

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

5 

472159.1 
to any ofthe claims of the FDIC-R, the parties to this Agreement shall be deemed to have 

reverted to their respective status as of 5:00p.m. Eastern Time, January 31,2013. 

SI~CTION 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: 

lfto the FDIC-R: 

David R. Hall 

Parsons Behle & I .atimer 

20 l South Main Street, Suite 1800 

Salt Lake City, UT 84111 

(801) 536-6612 

(b )(6) ············...__1-_--------------_···········_···· __ _____. 

If to Oakes: 

Michael M. Edwards 

Wilson Elser Moskowitz Edelman & Dicker LLP 

300 south Fourth Street, 11th Floor 

Las Vegas, NV 89101 

(702) 727-1400 

SECTION VI: Other Matters. 

A. No Admission of Liability. 

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 of liability or infirmity by any of them regarding any 

claim or defense, and that the Agreement shall not he otlcrcd or received in evidence by or 

against any Party hereto, except to enforce its terms. 

6 

472159.1 

i 

I' 
B. Execution in Counterparts. 

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

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

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

execution and delivery, shall be deemed a complete original, binding the Pa1ty or Parties 

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

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 behalf of the 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 he 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. 

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 thejr respective authorized 

atlorney(s) or other rcprcscntativc(s). 

7 

4721 59.1 
F. Reasonable Cooperation. 

1. The undersigned Parties agree to cooperate in good faith to dlectuate 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 of this Agreement. 

2. Further, Oakes 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 documents 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 

Claim; 

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

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

sole discretion, to he relevant to the Claim; 

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

determined by the FDIC-R in its sole discretion, to be related to the Claim, without the necessity 

of subpoena; 

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

any matter, as determined by the FDIC-R in its sole discretion, to be relevant to the Claim. 

G. 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 of Nevada, without regard to its 

8 

472159.1 
conflicts of laws. 

H. 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 arc for convenience only and 

shall not affect the interpretation of this Agreement. 

K. Authorship/Construction. 

This Agreement sets f(Jrth 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 patty drafled it. 

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

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

FDIC as Receiver for AmTrust 

(b )(6) iJY:l ;~·~~~...:·:~d Ubio 

Name: '/?.fr,e /5 /k. Jttc G...,,t,., I( 

Title: {c,vr75eJ._ ................ _._ 

Date: /#~ rf. J-1 ~0 / "3 

472159.1 

By: 

Name: 

Title: 

Date: 

Michael F. Oakes dba Oakes 

Appraisal 

----------------------- ! 
03/27/2013 04:57 F~X 3954357 OAKES APPRAISALS ~002 

cont1icts of laws. 

H. Advice of Counsel. 

Each Party hereby acknowledges that he or it has consulted with and obi.ained the advice 

of counsel priot to executing this Agreement, and that this Agreement h~s been explained to that 

Party by his or its counsel. 

J. Iilli< k!tld ().pHon~. 

AH section ticles and captio11S contained in this Agreemem are for convenience only and 

Nhall not aftecr the inrerpretation of this Agreement 

K. Author!'hip/Consum::,tkm. 

'flris Ag1:eemem sers forth terms and ugceement$ jointly negotiated by the Parties. It is 

exprel>sly agreed rhat thi~ Agreen1.ent shall not be con!;tn;ed for or against any party by reason of 

which party drafted it. 

1N WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

by each of them or their dul)' authorb:ell representatives on the dates hereinafter sub$Cri~l 

By: 

Title: 

Date: 

FDIC as Receiver fc;r AmTrust 

Bank, Clev~l.and, Ohio 

Michael F. OQkes dba Oakes 

Appraisal 6 0 

By; L.,__ _______ --__,l (bJ(6) 

Date: 

9