| DEBRA A. VALENTINE General Counsel Rolando Berrelez Attorneys for Plaintiff UNITED STATES DISTRICT COURT
STIPULATED FINAL JUDGMENT AND ORDER Plaintiff, Federal Trade Commission ("Commission"), has filed a Complaint for a permanent injunction and other equitable relief pursuant to Sections 5(a) and 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45(a) and 53(b), and Section 108(c) of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1607(c), alleging that defendants LAP Financial Services, Inc. and Louis A. Pomerance ("defendants") have violated TILA, 15 U.S.C. §§ 1601-1666j, as amended, including, but not limited to, the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), as amended, TILA's implementing Regulation Z, 12 C.F.R. 226, as amended, and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), as amended. Plaintiff and defendants, by and through their respective counsel, have agreed to entry of this Stipulated Final Judgment and Order ("Order") by this Court, without trial or adjudication of any issue of fact or law. The said parties having requested the Court to enter this Order, it is therefore ORDERED, ADJUDGED, AND DECREED as follows: FINDINGS 1. This Court has jurisdiction over defendants and the subject matter of this action. Venue in the Western District of Kentucky is proper. 2. The Complaint states a claim upon which relief may be granted under Sections 101 to 171 of TILA, 15 U.S.C. §§ 1601-1666j, and Sections 5(a) and 13(b) of the FTC Act, 15 U.S.C. §§ 45(a) and 53(b). 3. The Commission has the authority under Sections 5(a) and 13(b) of the FTC Act, 15 U.S.C. §§ 45(a) and 53(b), and Section 108(c) of TILA, 15 U.S.C. § 1607(c), to seek the relief it has requested. 4. The activities of defendants are in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. § 44. 5. Defendants, while neither admitting nor denying any of the allegations of wrongdoing set forth in the Complaint, stipulate and agree to entry of this Order. 6. Plaintiff and defendants waive all rights to seek judicial review or otherwise challenge or contest the validity of this Order, and defendants waive any right that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412. 7. Entry of this Order is in the public interest. DEFINITIONS As used in this Order: A. The terms "amount financed," "annual percentage rate," "closed-end credit," "consumer," "consumer credit," "consummation," "credit," "creditor," "dwelling," "finance charge," "mortgage," "open-end credit," "payment schedule," "person," "points and fees," "residential mortgage transaction," "reverse mortgage transaction," "security interest," and "total of payments" are defined as set forth in Sections 103 and 128 of TILA, 15 U.S.C. §§ 1602 and 1638, and Sections 226.2, 226.4, 226.18, 226.22, 226.32, and 226.33 of Regulation Z, 12 C.F.R. §§ 226.2, 226.4, 226.18, 226.22, 226.32, and 226.33. B. The term "HOEPA" means the Home Ownership and Equity Protection Act of 1994 which, inter alia, amended TILA by adding Section 129 of TILA, 15 U.S.C. § 1639, and is implemented by, inter alia, Sections 226.31 and 226.32 of Regulation Z, 12 C.F.R. §§ 226.31 and 226.32. C. The term "HOEPA mortgage loan" means a consumer credit transaction consummated on or after October 1, 1995, that is secured by the consumer's principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction or an open-end credit plan, in which: (1) the annual percentage rate at consummation of the transaction will exceed by more than 10 percentage points the yield on Treasury securities having comparable periods of maturity to the loan maturity as of the 15th day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor; or (2) the total points and fees payable by the consumer at or before loan closing will exceed the greater of 8% of the total loan amount or $400 (adjusted annually by the Board of Governors of the Federal Reserve System ("FRB") on January 1 by the annual percentage change in the Consumer Price Index that was reported on June 1 of the preceding year), which is covered by HOEPA, pursuant to Section 129 of TILA, 15 U.S.C. § 1639, and Section 226.32 of Regulation Z, 12 C.F.R. § 226.32. As used herein, the "total loan amount" is calculated as described in Section 226.32(a)(1)(ii)-1 of the FRB Official Staff Commentary on Regulation Z, 12 C.F.R. § 226.32(a)(1)(ii)-1, Supp. 1. D. The term "open HOEPA mortgage loan" means a HOEPA mortgage loan that, on the date of entry of this Order, has not been paid off in full or foreclosed upon. E. The term "Regulation Z" means the regulation the FRB promulgated to implement TILA and HOEPA, 12 C.F.R. 226, as amended. The term also includes the FRB Official Staff Commentary on Regulation Z, 12 C.F.R. 226, Supp. 1, as amended. F. The term "TILA" means the Truth in Lending Act, 15 U.S.C. §§ 1601-1666j, as amended. ORDER I. Injunction Against HOEPA and Related FTC Act Violations IT IS THEREFORE ORDERED that defendants, and each of them, their successors, assigns, officers, agents, servants, employees, and all other persons or entities in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any business, entity, corporation, subsidiary, division or other device, in connection with offering or making any HOEPA mortgage loan, are permanently restrained and enjoined from: A. Failing to provide the notice required by Section 129(a)(1) of TILA, 15 U.S.C. § 1639(a)(1), and Section 226.32(c)(1) of Regulation Z, 12 C.F.R. § 226.32(c)(1), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a) ; B. Failing to disclose, or accurately disclose, the annual percentage rate, as required by Section 129(a)(2) of TILA, 15 U.S.C. § 1639(a)(2), and Section 226.32(c)(2) of Regulation Z, 12 C.F.R. § 226.32(c)(2), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); C. Failing to disclose, or accurately disclose, the regular payment amount, as required by Section 129(a)(2) of TILA, 15 U.S.C. § 1639(a)(2), and Section 226.32(c)(3) of Regulation Z, 12 C.F.R. § 226.32(c)(3), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); D. Failing to disclose, or accurately disclose, specified variable rate information, as required by Section 129(a)(2) of TILA, 15 U.S.C. § 1639(a)(2), and Section 226.32(c)(4) of Regulation Z, 12 C.F.R. § 226.32(c)(4), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); E. Failing to make any disclosure described in Section I.A through I.D of this Order clearly and conspicuously in writing at least three days prior to consummation of a HOEPA mortgage loan transaction, as required by Section 129(b)(1) of TILA, 15 U.S.C. § 1639(b)(1), and Section 226.31(b) and (c)(1) of Regulation Z, 12 C.F.R. § 226.31(b) and (c)(1), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); F. Including a prohibited "prepayment penalty" provision, in violation of Section 129(c) of TILA, 15 U.S.C. § 1639(c), and Section 226.32(d)(6) of Regulation Z, 12 C.F.R. § 226.32(d)(6), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); G. Engaging in a pattern or practice of extending credit to a consumer based on the consumer's collateral if, considering the consumer's current and expected income, current obligations, and employment status, the consumer will be unable to make the scheduled payments to repay the obligation, in violation of Section 129(h) of TILA, 15 U.S.C. § 1639(h), and Section 226.32(e)(1) of Regulation Z, 12 C.F.R. § 226.32(e)(1), and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); H. Making a direct payment to a home improvement contractor, in violation of Section 129(i) of TILA, 15 U.S.C. § 1639(i), and Section 226.32(e)(2) of Regulation Z, 12 C.F.R. § 226.32(e)(2); I. Selling or otherwise assigning any HOEPA mortgage loan without furnishing to the purchaser or assignee the notice required by Section 131(d)(4) of TILA, 15 U.S.C. § 1641(d)(4), and Section 226.32(e)(3) of Regulation Z, 12 C.F.R. § 226.32(e)(3); and J. Failing to comply with any other provision of HOEPA. II. Injunction Against TILA and Related FTC Act Violations IT IS FURTHER ORDERED that defendants, and each of them, their successors, assigns, officers, agents, servants, employees, and all other persons or entities in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any business, entity, corporation, subsidiary, division or other device, in connection with offering or extending consumer credit, are permanently restrained and enjoined from: A. Failing to make TILA disclosures in writing before consummation of a consumer credit transaction, as required by Sections 121(a) and 128(b)(1) of TILA, 15 U.S.C. §§ 1631(a) and 1638(b)(1), and Sections 226.17(a) and (b) and 226.18 of Regulation Z, 12 C.F.R. §§ 226.17(a) and (b) and 226.18 and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); B. Failing to disclose, or accurately disclose, the identity of the creditor making the disclosures, as required by Section 128(a)(1) of TILA, 15 U.S.C. § 1638(a)(1), and Section 226.18(a) of Regulation Z, 12 C.F.R. § 226.18(a) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); C. Failing to disclose, or accurately disclose, the amount financed, as required by Section 128(a)(2) of TILA, 15 U.S.C. § 1638(a)(2), and Section 226.18(b) of Regulation Z, 12 C.F.R. § 226.18(b) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); D. Failing to disclose, or accurately disclose, the finance charge, as required by Sections 106 and 128(a)(3) of TILA, 15 U.S.C. §§ 1605 and 1638(a)(3), and Sections 226.4 and 226.18(d) of Regulation Z, 12 C.F.R. §§ 226.4 and 226.18(d) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); E. Failing to disclose, or accurately disclose, the annual percentage rate, as required by Sections 107 and 128(a)(4) of TILA, 15 U.S.C. §§ 1606 and 1638(a)(4), and Sections 226.18(e) and 226.22 of Regulation Z, 12 C.F.R. §§ 226.18(e) and 226.22 and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); F. Failing to disclose, or accurately disclose, the payment schedule, as required by Section 128(a)(6) of TILA, 15 U.S.C. § 1638(a)(6), and Section 226.18(g) of Regulation Z, 12 C.F.R. § 226.18(g) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); G. Failing to disclose, or accurately disclose, the total of payments, as required by Section 128(a)(5) of TILA, 15 U.S.C. § 1638(a)(5), and Section 226.18(h) of Regulation Z, 12 C.F.R. § 226.18(h) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); H. Failing to disclose, or accurately disclose, whether or not a penalty may be imposed if the obligation is prepaid in full, as required by Section 128(a)(11) of TILA, 15 U.S.C. § 1638(a)(11), and Section 226.18(k)(1) of Regulation Z, 12 C.F.R. § 226.18(k)(1) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); I. Failing to disclose, or accurately disclose, any dollar or percentage charge that may be imposed before maturity due to a late payment, other than a deferral or extension charge, as required by Section 128(a)(10) of TILA, 15 U.S.C. § 1638(a)(10), and Section 226.18(l) of Regulation Z, 12 C.F.R. § 226.18(l) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); J. Failing to disclose, or accurately disclose, the fact that the creditor has or will acquire a security interest in the consumer's principal dwelling, as required by Section 128(a)(9) of TILA, 15 U.S.C. § 1638(a)(9), and Section 226.18(m) of Regulation Z, 12 C.F.R. § 226.18(m) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); K. Making any consumer credit disclosure that does not reflect the terms of the legal obligation between the parties, in violation of Section 226.17(c)(1) of Regulation Z, 12 C.F.R. § 226.17(c)(1) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); L. Failing to deliver the required notice of the right to rescind a consumer credit transaction in which a security interest is or will be retained or acquired in the consumer's principal dwelling, as required by Section 125(a) of TILA, 15 U.S.C. § 1635(a), and Section 226.23(b) of Regulation Z, 12 C.F.R. § 226.23(b) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); M. Engaging in any practice that deprives a consumer of the right to rescind, in violation of Section 125(a) of TILA, 15 U.S.C. § 1635(a), and Section 226.23(a) of Regulation Z, 12 C.F.R. § 226.23(a) and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a); and N. Failing to comply with any other provision of TILA or Regulation Z. III. Injunction Against FTC Act Violations IT IS FURTHER ORDERED that defendants, and each of them, their successors, assigns, officers, agents, servants, employees, and all other persons or entities in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any business, entity, corporation, subsidiary, division or other device, in connection with advertising, offering, brokering or extending credit, in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. § 44, are permanently restrained and enjoined from: A. Misrepresenting in any manner, directly or by implication, any material fact, including but not limited to:
B. Engaging in any act or practice that deprives a consumer of the HOEPA waiting period (15 U.S.C. § 1639(b)(1) and 12 C.F.R. § 226.31(c)(1)) or the TILA right to rescind (15 U.S.C. § 1635 and 12 C.F.R. § 226.23); IV. Payment of Consumer Redress IT IS FURTHER ORDERED that defendants, their successors and assigns, jointly and severally, shall pay redress to consumers in the amount of $250,000 (U.S. Dollars). Defendants shall wire transfer the sum of $250,000 into an escrow account designated by plaintiff, on or before five (5) days after the date of entry of this Order. This sum shall be used to provide redress to consumers who obtained HOEPA mortgage loans between October 1, 1995, and the date of entry of this Order, and to pay any attendant expenses of administration. The FTC shall determine, in its sole discretion, which consumers are eligible for redress as well as the amounts to be paid. A. If the Commission determines, in its sole discretion, that redress to consumers is wholly or partially impracticable, any funds not so used shall be deposited into the United States Treasury. Defendants shall be notified as to how funds are disbursed, but shall have no right to contest the manner of distribution chosen by the Commission. B. Notwithstanding any other provision of this Order, defendants agree that if they fail to meet the payment obligations set forth in Section IV of this Order, defendants shall pay the costs and attorneys fees incurred by the Commission and its agents in any attempts to collect amounts due pursuant to this Order. Defendants further agree that the facts as alleged in the Complaint filed in this action shall be taken as true in any subsequent litigation filed by the Commission to enforce its rights pursuant to this Order, including but not limited to, a nondischargeability complaint in any subsequent bankruptcy proceeding. C. Defendants further agree to provide the Commission and/or its designated agent with loan data concerning consumers who obtained HOEPA mortgage loans from defendants from October 1, 1995 to the date this Order is entered that may be needed to provide redress to consumers. Such loan data includes, but is not limited to: Name of borrower, current address, date of loan consummation, amount financed, finance charge, annual percentage rate, monthly payment amount, number of payments, amount and date of any balloon payment, loan payoff or end date, and the total settlement charges paid by the borrower in connection with the loan, identifying by type and amount any settlement charges listed on lines 800-811 on the HUD-1 settlement statement. Defendants shall provide such loan data within 14 days after receiving a written request by the Commission or its designated agent. V. Reformation of Contracts IT IS FURTHER ORDERED that, on or before fourteen (14) days after the date of entry of this Order, for each open HOEPA mortgage loan that is wholly or partially owned by any defendant on the date of entry of this Order, defendants, their successors and assigns, shall: A. If the note or contract contains a "prepayment penalty" provision in violation of Section 129(c) of TILA, 15 U.S.C. § 1639(c), and Section 226.32(d)(6) of Regulation Z, 12 C.F.R. § 226.32(d)(6), reform the note or contract by nullifying that provision; B. Mail or deliver to each consumer obligated in a note or contract reformed pursuant to Section V of this Order a clear and conspicuous written notice describing each change made in the note or contract and stating that each nullified provision will not be enforced by any party, and that does not contain any other information. VI. Letters to Assignees IT IS FURTHER ORDERED that, on or before fourteen (14) days after the date of entry of this Order, defendants, their successors and assigns, for each HOEPA mortgage loan that was sold or assigned to a third party prior to the date of entry of this Order without furnishing to the purchaser or assignee the notice required by Section 131(d)(4) of TILA, 15 U.S.C. § 1641(d)(4), and Section 226.32(e)(3) of Regulation Z, 12 C.F.R. § 226.32(e)(3), shall provide to each such purchaser or assignee a copy of this Order along with a letter identical to the one that appears in Attachment A to this Order. The letter shall clearly and conspicuously disclose the required information, and shall not contain any other information. VII. Truthfulness of Financial Statements IT IS FURTHER ORDERED that, within three (3) business days after the date of entry of this Order, defendant LAP Financial Services, Inc. shall submit to the Commission a sworn statement, in the form shown in Attachment B to this Order, that shall reaffirm and attest to the truthfulness, accuracy, and completeness of defendant LAP Financial Services, Inc.'s Financial Statement that was executed on November 18, 1998, and the related documents previously submitted to the Commission (together designated the "Financial Statement"). The Commission's agreement to this Order is expressly premised upon the truthfulness, accuracy, and completeness of defendant LAP Financial Services, Inc.'s financial condition as represented in the Financial Statement referenced above, which contains material information upon which the Commission relied in negotiating and agreeing to the terms of this Order, including the amount of monetary redress and the terms of the consumer redress payments stated in this Order. A. If, upon motion by the Commission, this Court finds that defendant LAP Financial Services, Inc. failed to file the sworn statement required by Section VII of this Order, filed a Financial Statement that failed to disclose any material asset or materially misrepresented the value of any asset, or made any other material misrepresentation in or omission from the Financial Statement, the judgment herein shall be reopened for the purpose of determining an appropriate additional amount for defendants to pay as redress to consumers in accordance with Section IV of this Order. B. For purposes of determining the amount of redress: (1) if the Financial Statement failed to disclose a material asset or materially misrepresented the value of an asset, forfeiture of the asset, or the fair market value (or difference in fair market value) thereof, calculated as of the date of entry of this Order, shall constitute an appropriate amount of redress; and (2) if the Financial Statement failed to report the transfer of any asset to another person, the fair market value of the asset shall constitute an appropriate amount of redress. If defendants cannot pay the fair market value of the asset, and such transfer was not to a bona fide purchaser for value, this Court shall impose a constructive trust for the benefit of injured consumers over the asset, and the asset shall be conveyed by the transferee to the Commission; provided, however, that in all other respects, this Order shall remain in full force and effect unless otherwise ordered by this Court. VIII. Commission's Authority to Monitor Compliance IT IS FURTHER ORDERED that the Commission is authorized to monitor defendants' compliance with this Order by all lawful means, including but not limited to the following means: A. The Commission is authorized, without further leave of court, to obtain discovery from any person in the manner provided by Chapter V of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 26 - 37, including the use of compulsory process pursuant to Fed. R. Civ. P. 45, for the purpose of monitoring and investigating defendants' compliance with any provision of this Order; B. The Commission is authorized to use representatives posing as consumers and suppliers to any defendant, defendants' employees, or any other entity managed or controlled in whole or in part by any defendant, without the necessity of identification or prior notice; and C. Nothing in this Order shall limit the Commission's lawful use of compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49 and 57b-1, to investigate whether any defendant has violated any provision of this Order or Section 5 of the FTC Act, 15 U.S.C. § 45. IX. Record Keeping Requirements IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Order, defendants, their successors and assigns, in connection with any business where:
A. Each disclosure statement, notice or other document provided by or on behalf of a defendant to any consumer pursuant to any provision of TILA, HOEPA or Regulation Z, including but not limited to Sections 226.18, 226.23, and 226.32 of Regulation Z, 12 C.F.R. §§ 226.18, 226.23, and 226.32; each waiver received pursuant to Sections 226.23(e) or 226.31(c)(1)(iii) of Regulation Z, 12 C.F.R. §§ 226.23(e) or 226.31(c)(1)(iii); each worksheet or other calculation tool used to produce TILA or HOEPA disclosures, including but not limited to computer programs and software; and all other records necessary to demonstrate defendants' compliance with TILA, HOEPA, and Regulation Z; provided, however, that nothing in Section IX.A shall be construed to supersede or limit defendants' ongoing obligation to retain evidence of compliance with Regulation Z pursuant to Section 226.25(a) of Regulation Z, 12 C.F.R. §226.25(a), and Section II.N of this Order; B. Each disclosure statement, notice or other document provided by or on behalf of a defendant to any person pursuant to any provision of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617, as amended, or its implementing Regulation X, 24 C.F.R. § 3500, as amended, including but not limited to all good faith estimates and settlement statements, regardless of whether they are the final versions thereof; C. Each credit application, report from a consumer reporting agency, property appraisal, and other document obtained concerning any applicant or application; D. Each note, contract, security agreement, mortgage, deed of trust, other document signed by the borrower or prepared in connection with the transaction (whether signed or not), and other documents relating to the servicing of an account, the collection of a delinquent or slow account or foreclosure, as well as each rider, amendment or other document that modifies any of the foregoing; E. Each loan register, ledger or other document that lists (chronologically, alphabetically or otherwise) loans made by any defendant, including such information as borrowers' names, loan numbers, loan types, dates of consummation, and/or loan amounts; F. Each written statement concerning a defendant's policies, procedures or practices in connection with extending credit, including but not limited to compliance with TILA, HOEPA or Regulation Z; G. Each printed advertisement and promotional item relating to credit, including but not limited to newspaper and magazine advertisements, pamphlets, brochures, flyers, mailers, and signs; H. Each audio and video tape used to advertise or promote credit, and a printed transcript for each such audio and video tape; I. In printed form, each advertisement and promotional item relating to credit posted in any Internet news group, on the World Wide Web, on any electronic bulletin board system, in any online interactive conversational space or chat room, in the classified advertising section of any online service, or in any other location accessible by modem communications, including an indication of the online location where the material was posted; J. Each complaint or refund request received in connection with an extension of credit and the response thereto; and K. Each signed statement secured by any defendant pursuant to Section X of this Order. X. Distribution of Order IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Order, defendants, their successors and assigns, shall: A. Provide a copy of this Order to, and obtain a signed and dated acknowledgment of receipt of same from, each officer or director, each individual serving in a management capacity, all personnel involved in responding to consumer complaints or inquiries, all sales personnel, whether designated as employees, consultants, independent contractors or otherwise, immediately upon employing or retaining any such persons, for any business where:
B. Maintain for a period of five (5) years after creation, and upon reasonable notice, make available to representatives of the Commission, the original signed and dated acknowledgments of the receipt of copies of this Order, as required in Section X.A of this Order. XI. Compliance Reporting by Defendants IT IS FURTHER ORDERED that, to assist the Commission in monitoring defendants' compliance with this Order, defendants, their successors and assigns: A. For a period of five (5) years from the date of entry of this Order, shall notify the Commission of the following:
B. One hundred eighty (180) days after the date of entry of this Order, shall provide a written report to the Commission, sworn to under penalty of perjury, setting forth in detail the manner and form in which such defendant has complied and is complying with this Order. This report shall include but not be limited to:
C. Upon written request by a representative of the Commission, shall submit additional written reports (under oath, if requested) and produce documents on fifteen (15) days notice with respect to any conduct subject to this Order; D. For the purposes of Section XI of this Order, "employment" includes the performance of services as an employee, consultant, or independent contractor; and "employer" includes any individual or entity for whom any defendant performs services as an employee, consultant, broker, or independent contractor; and E. For purposes of the compliance reporting required by Section XI of this Order, the Commission is authorized to communicate directly with any defendant. XII. Access to Business Premises IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Order, for the purpose of further determining compliance with this Order, defendants, their successors and assigns shall permit representatives of the Commission, within three (3) business days of receipt of written notice from the Commission: A. Access during normal business hours to any office or facility storing documents of any corporate defendant or any business where:
In providing such access, defendants shall permit representatives of the Commission to inspect and copy all documents relevant to any matter contained in this Order, and shall permit Commission representatives to remove such documents for a period not to exceed five (5) business days so that the documents may be inspected, inventoried, and copied; and B. To interview the officers, directors, and employees, including all personnel involved in responding to consumer complaints or inquiries, and all sales personnel, whether designated as employees, consultants, independent contractors or otherwise, of any business to which Section XII.A of this Order applies, concerning matters relating to compliance with this Order. The person interviewed may have counsel present. Provided that, upon application of the Commission and for good cause shown, the Court may enter an ex parte order granting immediate access to a defendant's business premises for the purposes of inspecting and copying all documents relevant to any matter contained in this Order. XIII. Mailing of Notices IT IS FURTHER ORDERED that all notices and reports required by this Order shall be made in writing and sent by first class United States mail to Associate Director, Division of Financial Practices, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. XIV. Continuing Jurisdiction of Court IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for all purposes, including construction, modification, and enforcement of this Order. XV. Acknowledgment of Receipt of Order by Defendants IT IS FURTHER ORDERED that, within five (5) business days after receipt by each defendant of this Order as entered by the Court, each defendant shall submit to the Commission a truthful sworn statement, in the form shown in Attachment C to this Order, that shall acknowledge receipt of this Final Order. JUDGMENT IS THEREFORE ENTERED under the terms and conditions recited above, each party to bear its own costs and attorney fees incurred in connection with this action. SO ORDERED, this day of , 199_. _____________________________ The parties hereby stipulate and agree to the terms and conditions set forth above and consent to entry of this Stipulated Final Judgment and Order. DATE: FEDERAL TRADE COMMISSION: Rolando Berrelez DEFENDANTS: LAP FINANCIAL SERVICES, INC. By: LOUIS A. POMERANCE, PRESIDENT LOUIS A. POMERANCE, Individually Michael Gosnell ATTACHMENT A Re: [Consumer(s) and loan number] Dear : In connection with the above loan, it appears we failed to furnish you with certain information required by the federal Home Ownership and Equity Protection Act of 1994, which is part of the Truth in Lending Act and took effect October 1, 1995. As a result of an investigation conducted by the Federal Trade Commission, we are now providing the following notice: Notice: This is a mortgage subject to special rules under the federal Truth in Lending Act. Purchasers or assignees of this mortgage could be liable for all claims and defenses with respect to the mortgage that the borrower could assert against the creditor. The described liability exists pursuant to Section 131(d) of the Truth in Lending Act, 15 U.S.C. § 1641(d). Please note that if you sell or otherwise assign this mortgage loan, you must give the above notice of potential liability to the purchaser or assignee. I enclose a copy of the Order entered by the Court on _______________, 199_, to settle charges filed by the Federal Trade Commission in FTC v. LAP Financial Services, Inc., et al., Civil No. _________________ (U.S. District Court, Western District of Kentucky), as well as the accompanying Complaint. The Federal Trade Commission recommends that you review this loan for possible law violations, and that you retain this letter as part of the loan file. In particular, if the loan contains any term prohibited by Section 226.32(d) of Regulation Z, 12 C.F.R. § 226.32(d), (see Paragraphs 20 and 21 of the Complaint), the FTC strongly recommends that you reform the note or contract as described in Section V of the Order. Otherwise, you will be on notice that the transaction violates the Home Ownership and Equity Protection Act . Sincerely, Louis A. Pomerance, President Enclosures ATTACHMENT B DEBRA A. VALENTINE Rolando Berrelez Attorneys for Plaintiff UNITED STATES DISTRICT COURT
DECLARATION OF LOUIS A. POMERANCE RE: FINANCIAL STATEMENT Pursuant to 28 U.S.C. § 1746, Louis A. Pomerance declares as follows:
I declare under penalty of perjury that the foregoing is true and correct. Executed on ________________, 199_. _________________________ ATTACHMENT C DEBRA A. VALENTINE Rolando Berrelez Attorneys for Plaintiff UNITED STATES DISTRICT COURT
DECLARATION OF LOUIS A. POMERANCE RE: RECEIPT OF ORDER Pursuant to 28 U.S.C. § 1746, Louis A. Pomerance declares as follows:
I declare under penalty of perjury that the foregoing is true and correct. Executed on ________________, 199_. _________________________ |