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3 messages

Clayton D. Moseley <clayton.moseley@hannalawoffice.com> Fri, Dec 3, 2010 at 3:10 PM
To:

Jill,

Pursuant to our earlier phone conversation, please find the enclosed proposed release agreement. Please review and
advise.

Have a good weekend,

Clayton D. Moseley, Esq.
Associate Attorney
Frederick J. Hanna & Associates, P.C.
1427 Roswell Road
Marietta, GA 30062
Ph.: 770.988.9055 x3004
Fax: 770.980.0528

Midland v. Sheridan - Proposed Release Agreement.doc
53K

Jill Sheridan Sat, Dec 4, 2010 at 12:51 AM
To: "Clayton D. Moseley" <clayton.moseley@hannalawoffice.com>

Mr. Moseley,

Unfortunately, I find that the terms of the agreement are not amenable to a "compromise" due to the extensive
expectation upon myself to release "any of all claims" against the Plaintiff, its affiliates, subsidiaries, attorneys, etc.
Make no mistake that the "Plaintiff Released Parties" referenced in the proposed agreement, have engaged in some
questionable conduct in relation to their pursuit of this "debt" and/or "account" including but not limited to potential
violations of the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the Georgia Fair Business
Practices Act. It is an unrealistic expectation that I should release any and all claims, known to me now or in the future,
against the Plaintiff I wish to preserve my rights as a consumer.

In addition, I intend to support my counterclaim and motion for attorney's fees at the close of this issue, which is a
viable and deserved resolution. I expect, as you stated on the phone,that your client will not entertain any other
settlements and releases. However, I am open to any communications you may have but I fully expect that we will be
going forward to trial next week.

Sincerely,
SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (the “Agreement”) is made this ___ day
of ______________ 2010, by and between Jill Sheridan (“Defendant”) and Midland Credit
Management, Inc. (“Plaintiff”) (collectively the “Parties”),

WHEREAS, Defendant incurred certain debt related to a Chase Bank (USA), N.A.
account identified by account number 4266841088936511 (the “Debt”) and Midland
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Credit Management, Inc.’s account number 8531397415 (the “Plaintiff Account”),

WHEREAS, Midland Credit Management, Inc. (“MCM”) services the Plaintiff
Account on behalf of Plaintiff,
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WHEREAS, Plaintiff has filed a complaint entitled, Midland Funding LLC,
Assignee of Chase Bank (USA), N.A.. v. Jill Sheridan, Case No. 10C07271-4 in the State
Court of Gwinnett, in the State of Georgia (the “Action”), and Defendant has filed a
counterclaim (the “Counterclaim”); and

WHEREAS, the Parties hereto desire to compromise, settle, and release any
and all claims arising out of and relating to the Plaintiff Account, any sale, assignment,
or transfer of the Plaintiff Account, the Action, or the Counterclaim.
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NOW THEREFORE in consideration of the mutual promises and covenants set
forth herein, the Parties agree as follows:

1. Dismissal of Action and Counterclaim. The Parties shall dismiss the
Action and Counterclaim with prejudice upon the execution of this Agreement. Each
party shall bear its own costs and fees.
2. Release by Defendant. In consideration of the promises contained
herein and the relinquishment of his legal rights regarding any claims arising out of or
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related to the Action, the Counterclaim, the Debt, and the Plaintiff Account, Defendant,
himself, his heirs, successors, legal representatives and assigns, do hereby release,
acquit and forever discharge Plaintiff and all of its affiliates, parents and/or subsidiary
corporations including, without limitation, its representative managing partners,
officers, directors, shareholders, employees, agents, assigns, successors, servants,
insurers, and representatives (including attorneys), together with any and all other
persons, firms and/or corporations who are or might be liable (collectively, the
“Plaintiff Released Parties”), from any and all claims, liabilities, demands, suits, and
causes of action of every nature and kind, whether vested or contingent, accrued or
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unaccrued, known or unknown, in law or in equity, matured or unmatured, whether
or not such claims were or could have been brought or raised in the Action, or as a
result of any sale, assignment, or transfer of or collection activities related to the Debt
and/or the Plaintiff Account, including without limiting the generality of the
foregoing, those claims expressly raised in the Action, those arising out of or relating
to the facts, circumstances, or occurrences surrounding the above-mentioned Action,

SETTLEMENT AGREEMENT AND RELEASE
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and those arising out of, relating to or resulting from the facts, circumstances, or
occurrences concerning the Debt and Plaintiff Account.

4. Release of Unknown Claims. This Agreement covers and includes all
claims that Defendant has against the Released Parties up to and including the date of
this Agreement, whether actually known or not, despite the fact that any applicable
state and/or federal law may provide otherwise. Defendant hereby waives any rights
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or benefits under California Civil Code § 1542, which provides: “A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH [DEFENDANT] 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 [MCM AND MCM-RELATED PERSONS].”
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5. Denial of Liability. It is expressly understood and agreed to by and
among the undersigned hereto that by entering into this Agreement, none of the
undersigned hereto admit the truth of the allegations made by any other party, and
this is a compromise of a disputed claim, which should not be construed as an
admission of liability on the part of any party.

6. Assigns and Successors-in-Interest. This Agreement shall be binding
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upon and inure to the benefit of the heirs, successors, and assigns of the undersigned
hereto.

7. Agreement Fully Read and Understood. This Agreement has been
carefully read by the undersigned and the contents are known and understood by the
undersigned. The recitals stated above are incorporated herein by reference. The
undersigned have each received independent legal advice from the attorneys of their
choice with respect to the preparation, review, and advisability of executing this
Agreement. Prior to execution of this Agreement by each party, the undersigned’s
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attorneys reviewed the Agreement, and the undersigned acknowledge that they have
executed this Agreement after independent investigation and without fraud, duress,
or undue influence.

8. Applicable Law. The existence, validity, construction and operation of
this Agreement, and all of its covenants, agreements, representations, warranties,
terms, and conditions, shall be determined in accordance with the laws of the State of
Georgia.
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9. Entire Agreement. This Agreement sets forth the entire agreement
between the undersigned, and fully supersedes any and all prior and/or
contemporaneous agreements or understandings between the undersigned, which
pertain to the subject matter hereof. The terms of this Agreement may not be
contradicted by evidence of any prior or contemporaneous agreement, and no
extrinsic evidence whatsoever may be introduced to vary its terms in any judicial
proceeding involving this Agreement.
SETTLEMENT AGREEMENT AND RELEASE
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10. Modification. This Agreement may be modified, but only if the
modification is in writing and signed by the undersigned to this Agreement.

11. Severability. Should any provision of this Agreement be declared or
determined by any court to be illegal or invalid, the validity of the remaining parts,
terms, or provisions shall not be affected thereby, and said illegal or invalid part, term,
or provision shall be deemed not to be part of this Agreement.
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12. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same document. Faxed signatures may be accepted as
originals.
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13. Request to Credit Bureaus. (a) After receipt of a fully executed copy of
this Agreement, MCM will request that the national credit reporting agencies (the
“Credit Bureaus”) to which it reports delete MCM’s reporting of the trade line(s)
associated with the Plaintiff Account. The request will be submitted via a “Universal
Data Form”. Defendant agrees that Plaintiff’s sole obligation shall be to submit the
request to remove MCM’s reporting of the trade line(s) associated with the Plaintiff
Account.
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(b) Defendant acknowledges that the Credit Bureaus are separate entities from
MCM and Plaintiff. Accordingly, Defendant acknowledges that MCM and Plaintiff
cannot guarantee, warrant, or take responsibility for the performance of the Credit
Bureaus with respect to changing, deleting, suppressing, or making entries regarding
any credit information or other information regarding Defendant or the Plaintiff
Account. Defendant represents that he understands the limitations on MCM and
Plaintiff in this regard, and that any action, omission and/or error by the Credit
Bureaus shall not be attributable to Plaintiff and shall not constitute a breach of this
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Agreement.

(c) Defendant acknowledges that the Credit Bureaus’ processes for acting on
MCM’s requests may take up to 120 days to be completed, and that MCM and Plaintiff
shall not have any obligation to follow up with the Credit Bureaus to ensure deletion.
Provided that MCM has requested deletion of the reporting of its trade line(s)
associated with the Plaintiff Account, Consumer hereby waives any and all claims,
whether arising in contract or tort, common law or statute, and/or federal or state
law (including, but not limited to, claims for any damages, attorneys’ fees and/or
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costs) against Plaintiff that may arise subsequent to the date of this Agreement or
which arise out of or relate to actions required to be taken by MCM/Plaintiff pursuant
to this provision.

14. Confidentiality. The undersigned hereto agree that they will not, at any
time, without the express written consent of each of the other party, communicate,
disclose or acknowledge the terms of the settlement, or this Agreement, to any person
SETTLEMENT AGREEMENT AND RELEASE
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or entity except as required by court order, except as may be necessary to delete the
trade line(s) of the Plaintiff Account with Credit Bureaus. The undersigned may
disclose that this matter has been settled to the undersigned’s satisfaction.

15. Mutual Drafting. This Agreement is the product of negotiations “at arms
length” between the undersigned, both of whom are represented by counsel. As such,
the terms of this Agreement is mutually agreed-upon, and no part of this Agreement
will be construed against the drafter.
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Jill Sheridan Midland Credit Management, Inc
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By: By:

Name:

Title: AUTHORIZED REPRESENTATIVE

Date: Date:
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NOTARIAL CERTIFICATE

STATE OF ______________ )
COUNTY OF ____________ )

Subscribed and sworn to (or affirmed) before me on this _____ day of ______________,
20____, by __________________________, proved to me on the basis of satisfactory evidence to
be the person(s) who appeared before me.
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Seal

Signature
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SETTLEMENT AGREEMENT AND RELEASE
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