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3 messages Clayton D. Moseley <firstname.lastname@example.org> 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 Fri, Dec 3, 2010 at 3:10 PM
Midland v. Sheridan - Proposed Release Agreement.doc 53K
Jill Sheridan To: "Clayton D. Moseley" <email@example.com> Mr. Moseley,
Sat, Dec 4, 2010 at 12:51 AM
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 Credit Management, Inc.’s account number 8531397415 (the “Plaintiff Account”), WHEREAS, Midland Credit Management, Inc. (“MCM”) services the Plaintiff Account on behalf of Plaintiff, 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. 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 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 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,
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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 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].”
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 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 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.
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.
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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. 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. 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. (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 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 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
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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. Jill Sheridan Midland Credit Management, Inc By: Name: Title: AUTHORIZED REPRESENTATIVE
By: Date: Seal
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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