Help with General Release, Please

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bluesky
Posts: 54
Joined: Wed Nov 02, 2005 8:20 pm
Location: California

Help with General Release, Please

Postby bluesky » Mon Feb 27, 2006 1:21 pm

Hello Mr. Szwak,

I am in the process of settling a case with an OC and the following sections I do not fully understand, and I was hoping that you can shed some light on it for me? I am willing to only release the claims that I have filed on, which are actual damages only.

I believe this section is saying that I agree to waive any other claims in addition to what I have already filed for:

Plaintiff hereby acknowledges that she may hereafter discover facts different from, or in addition to, those which she now claims or believes to be true with respect to the claims released herein, and agrees that this Agreement shall be and remain effective in all respects notwithstanding the discovery of such different or additional facts.

This section, I have to admit that I don't really understand. ?Especially the underlined part, why would they want this included, isn't this in their favor (creditor)

In furtherance of the release set forth above, Plaintiff hereby acknowledges that she is knowingly and voluntarily waiving her rights under Section 1542 of the California Civil Code to the full extent that he may lawfully waive all such rights and benefits pertaining to the subject matter hereof, and that the consequence of such waiver has been explained to him by his counsel and/or advisors. Plaintiff acknowledges that she is familiar with the provisions of Section 1542 which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR

Notwithstanding the provisions of Section 1542, and for the purposes of implementing a full and complete release in accordance with the terms set forth above, Plaintiff expressly acknowledges that this Release is intended to include in its scope all claims against the Released Parties which Plaintiff does not know or suspect to exist in his favor at the time of execution of this Agreement, and that this release contemplates the extinguishment of any such claim or claims. Plaintiff expressly waives any right to assert hereafter that any claims were excluded from this Agreement through ignorance, oversight, error or otherwise.

oh, and lastly, what about this part, is this necessary? I am in California.

The Agreement shall be deemed to be executed in Virginia and shall be governed and interpreted according to the laws of Virginia, without regard to any conflict of law provisions.

All the above sections I have crossed out in the Release, but I would like clarification and a second opinion.

Thank you so very much!

bluesky

David A. Szwak

Postby David A. Szwak » Tue Feb 28, 2006 6:18 pm

<<<am in the process of settling a case with an OC and the following sections I do not fully understand, and I was hoping that you can shed some light on it for me? I am willing to only release the claims that I have filed on, which are actual damages only. >>>

I am surprised that a defendant would settle without resolving all issues between you and them. That is not smart on their part. It would lead to piece-meal litigation.

<<Plaintiff hereby acknowledges that she may hereafter discover facts different from, or in addition to, those which she now claims or believes to be true with respect to the claims released herein, and agrees that this Agreement shall be and remain effective in all respects notwithstanding the discovery of such different or additional facts. >>>

It means you cannot later claim that you did not know you might have other facts to support your asserted or non-asserted but existing claims [as of the time of the release]. This language is usually including a release of all claims, etc. [not just claims for actuals/compensatory damages].

<<<This section, I have to admit that I don't really understand. ?Especially the underlined part, why would they want this included, isn't this in their favor (creditor)
In furtherance of the release set forth above, Plaintiff hereby acknowledges that she is knowingly and voluntarily waiving her rights under Section 1542 of the California Civil Code to the full extent that he may lawfully waive all such rights and benefits pertaining to the subject matter hereof, and that the consequence of such waiver has been explained to him by his counsel and/or advisors. Plaintiff acknowledges that she is familiar with the provisions of Section 1542 which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR >>>

You are the "Creditor" and they are having you acknowledge the rights in Section 1542 of your law but that you waive it. Section 1542 is to protect a consumer from unwittingly releasing rights or claims which the consumer does not know about.

<<<Notwithstanding the provisions of Section 1542, and for the purposes of implementing a full and complete release in accordance with the terms set forth above, Plaintiff expressly acknowledges that this Release is intended to include in its scope all claims against the Released Parties which Plaintiff does not know or suspect to exist in his favor at the time of execution of this Agreement, and that this release contemplates the extinguishment of any such claim or claims. Plaintiff expressly waives any right to assert hereafter that any claims were excluded from this Agreement through ignorance, oversight, error or otherwise. >>>

Same as above. They do not want to re-litigate with you later on claims [made per Section 1542] that you did not know of certain rights you may have.

<<<oh, and lastly, what about this part, is this necessary? I am in California.
The Agreement shall be deemed to be executed in Virginia and shall be governed and interpreted according to the laws of Virginia, without regard to any conflict of law provisions. >>>

They want to contractually designate Virginia law to be applied. That is a choice of law provision. You can reject any of the provisions. Mark through it. However, do not sign the release until you reach an agreement on the terms to be included and which are not. See the folder in this forum on settlement language and what to watch for.

I am not a California attorney but the language you are confronted with in part is a waiver of rights and in part a choice of law provision. Do you know what rights you will not have under Virginia law?

bluesky
Posts: 54
Joined: Wed Nov 02, 2005 8:20 pm
Location: California

Postby bluesky » Tue Feb 28, 2006 9:17 pm

Mr. Szwak,

Thank you for responding!

I am surprised that a defendant would settle without resolving all issues between you and them. That is not smart on their part. It would lead to piece-meal litigation


I only filed for actual damages because according to the RosenthalFDCPA if it is corrected within 15 days then there is no liability, and since the FCRA is not a strict liability and they corrected the inaccurate reporting in a timely manner (within about 10-15 days) I thought that I didn't have any s-2b claims and just sought the actual damages only from a credit card denial. Was that correct??

I am not a California attorney but the language you are confronted with in part is a waiver of rights and in part a choice of law provision. Do you know what rights you will not have under Virginia law?


Nope, I sure don't and would hate to have to tackle that too, as it is tough enough learning about Cali laws :)

I also have a question regarding another Release that I received today for my other suit. The following section I think is really overboard and I am not comfortable with it, as they want me to dismiss my case w/prejudice before I receive payment and deletion. Is this typical?

2. BLUESKY agrees to dismiss the CASE against the BANK with prejudice and deliver to the BANK a conformed copy of the dismissal (copy with the court seal) of the CASE (the “DISMISSAL”) and this executed AGREEMENT by 12:00 p.m. on Friday, March, 10, 2006.

6. Within five (5) business days of receiving the executed AGREEMENT and the DISMISSAL from BLUESKY, the BANK agrees to request that the three major credit reporting agencies (Equifax, Experian, and Trans Union) (the “AGENCIES”) delete the ACCOUNTS from BLUESKY’s credit profile.

7. Within ten (10) business days of receiving the executed AGREEMENT, the DISMISSALand a completed W9 form, the BANK agrees to issue a payment to BLUESKY in the amount of $2000.00.

This seems backwards to me.....??? :shock:

Thanks so much for your help! We are all so lucky to have your site!

bluesky

bluesky
Posts: 54
Joined: Wed Nov 02, 2005 8:20 pm
Location: California

Postby bluesky » Wed Mar 01, 2006 3:56 pm

Hello,

I have another questionr about my first release, as the bank and I are stuck at these parts. I crossed out the underlined part because I understand it to include additional claims not in my action. From my understanding they want me to release the account too from any future claims. Correct?? I told them I will release the case and the claims therein only.

The undersigned has reached an agreement with XXXBank with respect to a full and final compromise and settlement of all matters and all causes of action, limited to all claims relating to or arising from the Action styled Bluesky v. XXXXBank, Case No.: XXXXX.

and, the underlined parts in this section I crossed out too

The undersigned does hereby release and forever discharge XXXX Bank, XXXXXCorporation, and each of their respective past, present, and future employees, stockholders, officers, directors, partners, agents, brokers, contractors, servants, affiliates, subsidiaries, parents, departments, divisions, predecessors, successors and assigns (collectively, the “Released Parties”), and each of them, jointly and severally, from any and all claims or counterclaims, causes of action, remedies, damages, liabilities, debts, suits, demands, actions, costs, expenses, fees, controversies, set-offs, third party actions or proceedings of whatever kind of nature, whether at law, equity, administrative, arbitration or otherwise, against any and each of the Released Parties limited to those claims arising from or relating to in the Action styled Bluesky v. XXXBank and [u]account number xxxxxxx.[/u]

Again, thank you very much!

bluesky

HelpMe2006
Posts: 214
Joined: Sat Feb 25, 2006 5:46 pm

Postby HelpMe2006 » Wed Mar 01, 2006 4:28 pm

Mr. Szwak (David),

Could you post a copy of a general release template that would benefit us, the consumer, rather than the creditor.

I have gotten a general release and would like to counter, but would like one more favorable to me. Like if we agree on this settlement, the creditor agrees to hand over all information and be helpful in any way that would help me file suit against the CRA.

Something like that....

David A. Szwak

Postby David A. Szwak » Wed Mar 01, 2006 5:05 pm

<<<Nope, I sure don't and would hate to have to tackle that too, as it is tough enough learning about Cali laws >>>

Try calling Len Bennett, he is our Virginia lawyer on this site.

<<
2. BLUESKY agrees to dismiss the CASE against the BANK with prejudice and deliver to the BANK a conformed copy of the dismissal (copy with the court seal) of the CASE (the “DISMISSAL”) and this executed AGREEMENT by 12:00 p.m. on Friday, March, 10, 2006. >>>

You have no control over when the court signs the order. Alter it to say that you agree to file a motion and order to dismiss by a certain date and you will send them a copy. The language there is too heavy handed.

<<<6. Within five (5) business days of receiving the executed AGREEMENT and the DISMISSAL from BLUESKY, the BANK agrees to request that the three major credit reporting agencies (Equifax, Experian, and Trans Union) (the “AGENCIES”) delete the ACCOUNTS from BLUESKY’s credit profile. >>>

Okay, if they fail to do so, you can sue for breach of contract. Add language that they will supply you copies and proof of their compliance by some certain date/period after that.

<<<7. Within ten (10) business days of receiving the executed AGREEMENT, the DISMISSALand a completed W9 form, the BANK agrees to issue a payment to BLUESKY in the amount of $2000.00. >>>

You might ask for a status conference with the Judge and inquire about why they need a W9. Again, the court sends them the dismissal if they enrolled as counsel. Otherwise, you need a fax # to send them proof.

<<<This seems backwards to me.....??? Thanks so much for your help! We are all so lucky to have your site! >>>

Somewhat. Best wishes.

David A. Szwak

Postby David A. Szwak » Wed Mar 01, 2006 5:09 pm

<<>>

Release the account? Only you can supply a release.

<<<The undersigned has reached an agreement with XXXBank with respect to a full and final compromise and settlement of all matters and all causes of action, limited to all claims relating to or arising from the Action styled Bluesky v. XXXXBank, Case No.: XXXXX.

and, the underlined parts in this section I crossed out too

The undersigned does hereby release and forever discharge XXXX Bank, XXXXXCorporation, and each of their respective past, present, and future employees, stockholders, officers, directors, partners, agents, brokers, contractors, servants, affiliates, subsidiaries, parents, departments, divisions, predecessors, successors and assigns (collectively, the “Released Parties”), and each of them, jointly and severally, from any and all claims or counterclaims, causes of action, remedies, damages, liabilities, debts, suits, demands, actions, costs, expenses, fees, controversies, set-offs, third party actions or proceedings of whatever kind of nature, whether at law, equity, administrative, arbitration or otherwise, against any and each of the Released Parties limited to those claims arising from or relating to in the Action styled Bluesky v. XXXBank and account number xxxxxxx.>>>

Yes, I see now. They seek a release of any claims tied to the suit or the account. You should delete that and say that you refuse to release future claims. The Judge can intervene if they try to force a term that you did not agree on. Ask for a status conference with the Judge or Magistrate-Judge and tell them you are having problems perfecting a release per the terms of your settlement. Def is using heavy handed tactics to try and attain a release of future claims and to avoid liability if they re-report the account.

David A. Szwak

Postby David A. Szwak » Wed Mar 01, 2006 5:37 pm

STATE OF LOUISIANA
PARISH OF CADDO

RECEIPT AND RELEASE

For and in consideration of the total sum of *********** HUNDRED THOUSAND, ****** and NO/100 ($***,***.00) DOLLARS, this date paid, by ***********************, Inc. ["Released Party"] which the undersigned hereby acknowledges to have received in the form of a settlement check, no. ________, *********************, ["Releasor"], hereby pardons, discharges, forgives, acquits and forever releases the said Released Party from the claims set forth in the lawsuit, filed and captioned ********************* versus Trans Union, LLC, et al, civil action no. 3-02CV-****-H, United States District Court, in and for the Eastern District of *****, ******** Division, filed by Releasor against Released Party including, but not limited to, any type or category of damages, medical expenses, personal injuries, attorneys' fees, expert fees, and other litigation costs, though none of these alleged rights or claims are conceded or admitted by the Released Party but are alleged by the Releasor. This release is not a release of future claims which might arise after the date this release is signed by Releasor. The above consideration is acknowledged to be in full, final and complete settlement of the aforementioned demands, claims or rights made in the above mentioned proceeding.

IT IS FURTHER understood and expressly agreed that the payment herein referred to is in settlement of a disputed claim and is in no respect an admission of liability on the part of Released Party or on the part of Releasor and is inadmissible as evidence in any proceeding except in an action to enforce the settlement terms.

Further, the Releasor and Released Party are each responsible for their own respective attorneys' fees, litigation expenses and costs.

Further and reciprocally, Released Party hereby pardons, discharges, forgives, acquits and forever releases the said Releasor from any alleged demands or claims whatsoever and of any kind or nature, whether alleged in the lawsuit papers or not.

This settlement is strictly confidential and the terms of the settlement are not to be shared with any person or entity, except that Releasor may provide the information to his spouse, accountant and any governmental agency[ies] requiring disclosure of the monetary consideration.

Should any erroneous information appear on any credit report and is listed as reported by Released Party, Releasor shall provide written notice to Released Party, through its attorney of record, ************, Esq., and *************, Esq., of **********************, ***************************************, Los Angeles, California ***** and Releasor will provide Released Party a period of twenty [20] days to rectify any such mis-reporting. Released Party will provide Releasor a copy of communications showing any efforts to resolve any possible future mis-reporting.

Notwithstanding the foregoing, Released Party agrees to immediately take all necessary steps to clear its internal records of any and all records containing Releasor's personal identifiers and to insure that Released Party is not affirmatively reporting any information to any third party about Releasor. Further, Released Party agrees to immediately take all necessary steps to retract any assignment or transfer of any and all records or accounts, containing Releasor's personal identifiers, to third persons, including debt collection entities, and to insure that such third persons are directed not affirmatively reporting any information to any third party about Releasor and direct third persons to remove and suppress any reportings made or initiation by Released Party or any third persons obtaining said records or accounts, containing Releasor's personal identifiers, from Released Party.

Further, Released Party agree to immediately direct the credit reporting agencies to whom it subscribe[d] to delete, retract and suppress any credit reportings or reportings of inquiries or reportings of personal data about Releasor which were made or initiated by Released Party. Copies of those directives shall be produced to counsel for Releasor within thirty [30] days of the transmission to insure compliance.

THIS IS NOT A RELEASE OF FUTURE CLAIMS WHICH MAY ARISE BETWEEN THE PARTIES AFTER THE DATE THAT PLAINTIFF SIGNS THIS AGREEMENT.

A completely executed copy of this release is to be provided to David A. Szwak, Attorney at Law, Bodenheimer, Jones & Szwak, 509 Market Street, 7th Floor, Shreveport, Louisiana 71101, upon completion of signatures and within thirty [30] days from the date the release is tendered to Released Party.

Any party who succeeds in an action to enforce any of the terms of this settlement agreement is entitled to all damages, attorneys' fees, litigation expenses and costs incurred in the handling of such an action.

The terms of this settlement are not mere recitals but are real consideration in the formation of this agreement.

Sworn to and subscribed before me (us), Notary (Notaries), duplicate originals completely and finally executed on this the ___ day of _________________, 2006.

WITNESSES:
___________________________ _____________________________
*********************

___________________________

__________________________________________
NOTARY PUBLIC IN AND FOR
THE PARISH/COUNTY OF ________, STATE
OF ___________

WITNESSES:

__________________________ _____________________________
***************************, Inc.

__________________________ ___________________[print name]
________________________[title]

__________________________________________
NOTARY PUBLIC IN AND FOR
THE PARISH/COUNTY OF ________, STATE
OF ___________
Last edited by David A. Szwak on Wed Mar 01, 2006 10:17 pm, edited 1 time in total.

bluesky
Posts: 54
Joined: Wed Nov 02, 2005 8:20 pm
Location: California

Postby bluesky » Wed Mar 01, 2006 5:58 pm

Thank you!

bluesky


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