sreupert

SETTLEMENT AGREEMENT AND RELEASE - Am I protected????

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Midland Funding LLC's Representation has offered me a second STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE. Attached to the Dismissal is a SETTLEMENT AGREEMENT AND RELEASE. I would like if someone would let me know if I'm being protected if I sign this agreement:

This settlement Agreement and Release (the "Agreement") is made this ___ day of ____ 2011, by and between John Doe ("Defendant") and Midland Funding LLC ("Plaintiff") (Collectively the "Parties"),

WHEREAS, Defendent incurred certain debt related to a Chase Bank USA NA account identified by account number XXXXXXXXXXXX (the "Debt") and Midland Funding LLC's account number XXXXXXXX (the "Plaintiff Account"),

WHEREAS, Midland Credit Management, Inc. ("MCM") services the Plaintiff Account on behalf of the Plaintiff,

WHEREAS, Plaintiff has filed a complaint entitled, Midland Funding LLC v. John Doe Case No. XXXXXXX in Springfield County, in the state of Wisconsin (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, assignement, 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 Defendand 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 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, thoseclaims expressly raised in the Action, those arising out of or relating to the facts, circumstances, or occurrences surrounding the above-mentioned Action, and those arising out of, relating to orresulting from the facts, circumstances, or occurances concerning the Debt and Plaintiff Account.

3. Release by Plaintiff 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 Plaintiff Account or the Debt, Plaintiff, itself, its representative managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, and representatives (including attorneys), do hereby release, acquit and forever discharge Defendant and all of his agents, assigns, successors, servants, and representatives (including attorneys), together with any and all other persons, firms, and/or corporations who are or might be liable (collectively, the "Defendent 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. In Addition, by operation of this Agreement, Plaintiff hereby represents that it will not effectuate ant future transfer, assignment, sale, trading, reaging, renaming, renumbering or any other conveyance of or activity relating to the Plaintiff Account referenced above, and will not apply to any other accounts currently owned or hereafter acquired by Plaintiff.

4. Release of Unkown Claims This agreement covers and incldes 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 MIDLAND FUNDING LLC.

(CONTINUED)

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5. Denial of Liability It is expressly understood and agreed to by and among the undersigned hereto that by entering this Agreement, none of the undersigned hereto admit the truth of the allegations made by any other party, and this compromise of a disputed claim, shich 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 existance, validity, construction and operation of the Agreement, and all of its covenants, agreements, representations, warranties, terms, and conditions, shall be determined in accordance with laws of the State of Wisconsin.

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 proceedings involving this Agreement.

10. Modification This agreement may be modified, but only if the modification is in writing and signed by the undersigned to this agreement.

11. Servability Should any provision of this agreement be declared or determined by a court to be illegal or invalid, the validity of the remaining parts, termsm 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 seperate entities from MCM and Plaintiff. Accordingly, Defendant acknowledges the MCM and Plaintif cannot quarantee, warrent, 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 in this regard, and that any action, omission and/or error by the Credit Bureaus shall not be attributed to the Plaintiff and shall not constitute a breach of this Agreement.

© Defendant acknowledges that the Credit Bureaus processes for acting on MCM's request 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 this 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 herto agree that they will not, at any ime, without the express written consent of each of the other party, communicate, disclose or acknowledge the terms of this settlement, or this Agreement, to any person 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 undersigneds 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 construes against the drafter.

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It looks just a bit one sided to me. They are basicly locking you into never suing them again in 13©, yet there is nothing that prevents them from going after you for another account.

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It looks just a bit one sided to me. They are basicly locking you into never suing them again in 13©, yet there is nothing that prevents them from going after you for another account.

No. It's fine. 13© refers to their limited liability of requesting the trade line be deleted. It is limited to their performance based on this action only.

This is a good mutual walkaway deal with trade line deletion.

There are no limitations for them suing you, or you suing them for other issues, just not this one.

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that agreement is ambiguous, especially the "release by defendant".

also the release by plaintiff has this line "and will not apply to any other accounts currently owned or hereafter acquired by Plaintiff."

that line should also apply to the "release by defendant".

if you are happy with what you're getting then i guess fine.

do you have counterclaims in this case?

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14. Confidentiality The undersigned herto agree that they will not, at any ime, without the express written consent of each of the other party, communicate, disclose or acknowledge the terms of this settlement, or this Agreement, to any person 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 undersigneds satisfaction.

What does "except as required by court order" mean? Other than one of parties violating the confidentiality clause, what other reason might there be for a court order?

The reason I'm asking is because the beginning of the agreement states:

"WHEREAS, Defendent incurred certain debt related to a Chase Bank USA NA account identified by account number XXXXXXXXXXXX (the "Debt") and Midland Funding LLC's account number XXXXXXXX (the "Plaintiff Account"),"

The OP is admitting he incurred a debt with Chase and Midland.

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The reason I'm asking is because the beginning of the agreement states:

"WHEREAS, Defendent incurred certain debt related to a Chase Bank USA NA account identified by account number XXXXXXXXXXXX (the "Debt") and Midland Funding LLC's account number XXXXXXXX (the "Plaintiff Account"),"

The OP is admitting he incurred a debt with Chase and Midland.

13(B)Defendant acknowledges that the Credit Bureaus are seperate entities from MCM and Plaintiff. Accordingly, Defendant acknowledges the MCM and Plaintif cannot quarantee, warrent, 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 in this regard, and that any action, omission and/or error by the Credit Bureaus shall not be attributed to the Plaintiff and shall not constitute a breach of this Agreement.

© Defendant acknowledges that the Credit Bureaus processes for acting on MCM's request 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.

They are refusing to accept responsibility for deleting the trade line from your credit report. The only thing they'll do is supposedly submit the paperwork for deletion but that's it. And if after four months the entry is still on your report, it's the credit bureau's fault not theirs;)

14. Confidentiality The undersigned herto agree that they will not, at any ime, without the express written consent of each of the other party, communicate, disclose or acknowledge the terms of this settlement, or this Agreement, to any person 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 undersigneds satisfaction.

So will the credit bureau report this as settled or not at all?

This looks a little one sided and a little complicated. Hopefully an attorney will chime in that has your best interests at heart.

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I stopped reading at number 4. Why are they proposing a waiver of section 1542 in a Wisconsin case???

In any event, the 1542 waiver operates to release unknown claims. I would think that provision should be mutual. You have a claim. They have a claim. If you release unknown claims, they should do so too, i.e.:

This agreement covers and incldes all claims that each party has against the other 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. Each party hereby waives any rights or benefits under California Civil Code 1542......[and they should just quote the section verbatim].

Edited by calawyer
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