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Justin D. Heideman (Utah State Bar #8897) Brandon G. Wood (Utah State Bar #10307) ASCIONE HEIDEMAN & MCKAY, LLC 2696 North University Avenue., Suite 108 Provo, Utah 84603 Phone: (801) 812-1000 Fax: (801)374-1724

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Associated through local counsel:

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DAVIS MILES,

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P.O. BOX 15070 MESA, AZ 85211

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Telephone:

PLLC

(480) 733-6800 Fax: (480) 733-3748

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STATE OF ARIZONA

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MARICOPA

COUNTY SUPERIOR

COURT

CASE NO. CV2007·011672 GARY WHITING, an individual, S~RTOAMENDEDCOMPLMNT D AMENDED COUNTERCLAIM

Plaintiff,

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!" ANN COLSON,

vs. I

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an individual; CHICAGO TITLE AGENCY OF ARIZONA, INC., an Arizona Corporation,

(Assigned to the

HOD.

Sam J. Myers)

Defendants.

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II:'------------------------------~------------------------------~ COMES NOW Defendant Ann Colson ("Defendant" or "Colson"), by and through

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undersigned counsel, and submits the following Answer to Plaintiff's Amended Complaint.

DEFENDANT 2 3

COLSON'S

AMENDED COUNTERCLAIM

COMES NOW Defendant and Counterclaim ant, ANN COLSON ("Colson"), and counterclaims against Plaintiff and Counterclaim Defendant, Gary Whiting ("Whiting"), as follows:

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1. Colson incorporates the allegations and denials of the foregoing Answer into this Amended 5 6 7

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Counterclaim. 2. The causes of actions asserted herein arise out of the same transaction or occurrence alleged in Plaintiffs

Amended Complaint. As such, venue and jurisdiction are proper.

3. Shortly after Colson and her husband, Nick Colson (''Nick''), married in 1997, they met

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Whiting while attending church. 11

4. Colson, Nick and Whiting became good friends, as did their families. 12 13

5. Colson, Nick and Whiting thereafter engaged in various business endeavors together.

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6. In approximately 2000, Colson began working as an assistant or secretary to Whiting in

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several businesses in which Whiting had ownership and which Whiting was managing. 7. During this time, Whiting held himself out as a trustworthy, dependable friend with

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Colson's best interest in mind. 18 19 20 21

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8. Given the parties many years of church and business relationship as well as their close friendship, Whiting had made himself into a person of trust for Colson and her children. 9. Beginning in late 2005, while Colson was experiencing some marital problems as well as problems between her children and Nick, Whiting told Colson that said problems were evidence

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that Nick did not love Colson and encouraged Colson to move out. 24 25 26

10. Whiting also told Colson that he felt Colson was to become a spouse to Whiting, even though Whiting was married, and encouraged Colson to leave Nick.

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11. In approximately May 2006, partly due to Whiting's urgings, Colson moved out of the home 2

where she and Nick were living and entered a "rent-to-own" contract on a home located at 5407

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East Catalina Avenue, Mesa Arizona, 78251 (the "Catalina Home") and began making

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rent/mortgage payments on the home. S 6 7 8 9

12. Whiting continued to insist Colson enter into the spousal arrangement with him and encouraged her to divorce Nick. 13. Whiting represented that if Colson agreed to said spousal arrangement, he would purchase the Catalina Home for Colson, Colson could live there for as long as she wanted, Whiting would

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provide Colson with monthly support and maintenance payments of at least $3,000.00, and Colson II

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would not work. 14. Whiting represented that if at any time after entering the foregoing arrangement Colson

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decided to opt out of the arrangement, she could keep the Catalina Home and he would pay her a

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$100,000.00 severance payment.

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15. During this time, Whiting assisted in making rental/mortgage payments on behalf of

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Whiting on the Catalina Home.

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16. In September 2006, due to Whiting's insistence and in reliance on his representations,

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Colson agreed to Whiting's proposal, except that she insisted she would continue to work as

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Whiting's secretary rather than quit her job, to which Whiting assented.

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17. At the time, Colson was making $3,000.00 per months working for Whiting's businesses.

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18. Colson paid the legal expenses for Colson's divorce from Nick, which was finalized in 24 25

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September 2006, and Whiting began making arrangements to purchase the Catalina Home for Colson.

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19. In the process of preparing to purchase the Catalina Home, World Savings Bank informed 2 3

Whiting that neither he nor his business entities qualified for any additional mortgages, as he had already obligated his business on several other mortgages in 2006 for homes he had purchased for

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other women entering into the same or a similar type of arrangement as Colson. S 6

20. For the same reasons, neither Whiting nor his business entities could qualify for a mortgage

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on a home Whiting was simultaneously wanting to purchase for Ms. Lynette Williams

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("Williams"), located at 1508 South Chestnut Circle, Mesa Arizona 85204 (the "Chestnut Home").

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21. In order to purchase the Catalina and Chestnut Homes pursuant to his arrangements with

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Colson and Williams respectively, Whiting devised a plan to circumvent the fact that neither he nor \I 12 13 14

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his entities qualified for additional mortgages. 22. Whiting transferred $100,000.00 into Colson's personal account in order that Colson qualify for mortgages for the purchase of the Catalina and Chestnut homes. 23. At Whiting's instruction, Colson applied for the mortgages and was approved.

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24. At the closing of the Catalina Home, Whiting instructed Colson to pay approximately 17

$63,590.18 as a down payment on said Home from the foregoing $100,000.00, which she did. 18 19

25. World Savings Bank paid the remaining balance due to consummate the transaction and

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issued a mortgage in Colson's name in the amount of$206,800.00 for the remaining balance.

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26. Closing on the Catalina home was consummated on October 16,2006 (See Exhibit A

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herein) 23

27. At the closing of the Chestnut Home, Whiting authorized the transfer of$125,000.00

from

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one of his business entities as down payment and earnest money toward the purchase of said Home. 28. World Savings Bank overpaid the remaining balance by $16,387.20 to consummate the transaction on the Chestnut Home, issued a mortgage in Colson's name in the amount of 13

$185,250.00 for the amount of the loan, and refunded Whiting's business the overage of 2 3

$16,387.20. 29. Thus, total funds contributed by business entities owned by Whiting toward the purchase of

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the Chestnut Home were $108,612.80. 5

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30. Closing on the Chestnut Home was consummated on October 13, 2006 (See Exhibit B herein) 31. The deeds to both the Catalina and the Chestnut Homes were issued in Colson's name, as were the mortgage obligations on both homes.

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32. Whiting made payments for a couple of months, on the Catalina Home through February 11

2007, and on the Chestnut Home through march 2007. 12

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33. In the fall of2007, Whiting had engaged a new woman in a spousal arrangement ("Mary").

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34. Shortly after this arrangement, Whiting started treating all of the other partners differently

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and stopped paying them support and wanted Ann Colson to quit her employment so he could stop

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paying her. 17

35. As a result of Mary's actions and Whiting's changed behavior, Williams approached 18 19

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Whiting's religious leader and informed him of the arrangements that Whiting had with these several women. 36. Whiting's religious leader approached Colson and asked her to confirm the allegations of

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Williams. 23

37. Colson confirmed the allegations. 24 25

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38. When Whiting found out about Colson's confirmation to his religious leader, he promptly fired her from being his personal assistant, which position she had held for the past 12 years.

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39. Because Whiting was making no payments on either Catalina or Chestnut Home after March 2 3

2007 and and because he has fired Colson, Colson was forced to borrow money to try to make mortgage payments in her name.

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40. Colson could not refinance because she had no money and no job. S 6 7 8 9

41. She did not have the support of her husband, as she is divorced. 42. Colson asked Williams help pay since Williams was living in Chestnut Home and was for her benefit per Williams' arrangement with Whiting. 43. Williams makes no payments

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44. Colson makes repairs to Chestnut home and files forcible detainer action so she can get 11 12 13 14 15

renters in to make payments. 45. Chestnut Home goes into foreclosure because Whiting not making payments according to his promises, Williams making no payments, and Colson has no ability to continue paying. 46. Colson's utilities turned off at the Catalina Home. She borrows more money to pay to keep

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get her utilities back on. 17

47. Whiting at some point in all this files the present quiet title Action. 18

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48. As Whiting's assistant, Colson had done the work for the arrangements Whiting had entered

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into with other women, prior to Colson entering the arrangement and seen Whiting performing on

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his promises to the other women.

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49. Colson relied on Whiting's representations to her based on her observation and experience

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of the other women. 50. Whiting generally had the women entering the arrangement with him sign a purported contract. 51. Neither Colson nor the other women were given a copy ofthis contract. 15

52, Colson did not sign anything until after she had been fired by Whiting at considerable 2 3

pressure from Whiting. 53. Whiting has provided Colson via supplemental initial disclosures in this action a purported

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"LLC Partnership Agreement" with Williams. 5 6 '1 8

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54. On information and belief, the terms of this purported agreement are the terms in the other written agreements Whiting had the women sign. 55. Notwithstanding the terms, as shown below, Whiting had promised Colson the terms aforementioned in this Amended Counterclaim.

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56. On information and belief, Counterclaim Defendant Gary L. Whiting ("Whiting"), a married 11

man, has entered into numerous LLC Partnership Agreements with several single women. In these 12

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agreements, Whiting provides housing, financial support, and a "commitment of time and emotional

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support on a non-exclusive basis, as Whiting has other partnership interests to pursue and

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maintain." (See "LOF NUMBER FIVE, LLC PARTNERSHIP AGREEMENT", purportedly

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executed by Whiting and Williams, attached hereto as "Exhibit C", for an example of such an

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agreement). 57. In exchange, the women maintain the property and form a "consortium" and "a fidelity

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relationship" with Whiting. (See "LOF NUMBER FIVE, LLC PARTNERSHIP AGREEMENT",

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attached hereto as "Exhibit A").

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58. Moreover, Whiting represents to the women that the home is theirs and that they are free to

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withdraw themselves from the LLC Partnership Agreement with Whiting and take everything 24 25 26

provided to them by Whiting, including specifically but not limited to equity in the home theretofore paid.

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59. Several, and possibly all, of Whiting's partners divorced their husbands in order to enter into 2 3

these arrangements with Whiting. 60. Upon information and belief, Whiting had entered into at least three of these agreements,

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and therefore had provided at least three houses to four single women, previous to any agreements S 6 7 8 9

with Colson and Williams. 61. Whiting therefore devised a plan to obtain two more homes in which to house his two newest "partners". 62. Whiting has made demands for the property to be transferred to him via quiet title, even

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though mortgages are in Colson's name and she is responsible for the monthly payments and he 11

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refuses to assume the mortgages himself. 63. In divorcing her husband, entering into the LLC Agreement, and having the properties

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purchased in her own name, Colson was relying on Whiting's representations that he would pay the

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mortgages and provide her with any and all funds necessary for her support.

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64. Colson indebted herself $5,583 to make payments on the Chestnut home and pay its 17

property taxes before not being able to make any more payments thereon. 18 19

65. Colson expended the following on the Chestnut home to make it marketable to renters or a

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new buyer, given Williams was not paying nor was Whiting, and Colson's credit was being

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destroyed for nonpayment:

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a. At least $\,300 in repairs, 23

b. $3,000 charges to Lowes 24 2S

c. $600 labor to rip out tile and paint the home.

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d. $1,000 in unpaid utilities and reconnection fees

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66. Colson has lost her job of$3,000 per month as of January 2007. 17

67. She has been working for only a couple months and makes at most $1,000 per month now 2 3

and is going to school. 68. She has nearly $400 thousand dollars of debt to her name with interest accruing very rapidly

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thereon. 5

FIRST CAUSE OF ACTION (Breach of Contract)

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69. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though 8 9

fully set forth herein.

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70. Whiting and Colson entered into a contract with substantially the same as those found in

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Exhibit A, in which Whiting promised to provide housing and financial support in exchange for

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Colson's maintenance of the Catalina property and a fidelity consortium with Whiting.

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71. Colson divorced her husband in order to enter into this arrangement with Whiting. 14

72. Colson performed her part of the contract by maintaining the Catalina Property and IS 16

consorting with Whiting. 73. Whiting has now ceased providing support and maintenance payments to Colson.

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74. Colson has been damaged by not receiving the fruits of her contract. 75. Whiting and Colson also entered into an oral contract in which Whiting would provide

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funds to Colson sufficient to obtain mortgages to purchase both the Chestnut and Catalina 21

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properties; in exchange, Colson would transfer the properties to Whiting once the mortgages were

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paid off.

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76. Colson performed her part of the contract by obtaining the properties and the respective mortgages.

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77. Whiting partially performed by making several months worth of payments. 27 28

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_78. Whiting ceased making payments on the mortgages, which action was inconsistent with the 2

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agreement between Whiting and Colson. 79. As a result, Colson has been required to pay the mortgage payments through her meager

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means, even being required to take out loans in order to meet the payments. 5 6 7 8 9

80. Colson has attempted to mitigate the damages by trying to obtain funds by requesting Williams-to pay rent for occupying the Chestnut property. 81. Wherefore, Counterclaim Plaintiff Colson asks this Court for damages as deemed appropriate.

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SECOND CAUSE OF ACTION (Breach of Covenant of Good Faith and Fair Dealing)

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82. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though

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fully set forth herein. 14

83. When Whiting and Colson agreed to obtain the Chestnut and Catalina properties pursuant to 15 16 17

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Whiting's plan, Colson assumed very few risks associated with the transaction. 84. Whiting suddenly stopped all payments on the mortgages, causing Colson to assume far greater risks than Colson had justifiably expected. 85. Colson and Whiting had also entered into a contract under which Whiting would provide

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Colson with payments of money to be used for her support. 21

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86. Whiting has ceased making support payments owed to Colson under the LLC Partnership Agreement. 87. Whiting's actions are preventing Colson from receiving the benefits and entitlements of

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both of the agreements entered into. 26 27

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88. Wherefore, Counterclaim ·Plaintiff Colson asks this Court for damages as deemed 2

appropriate.

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THIRD CAUSE OF ACTION (Fraud in the Inducement)

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89. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though fully set forth herein.

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90. Whiting represented to Colson that he would make the mortgage payments on the Chestnut 8 9 10 11

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and Catalina properties and that the properties would stay in her name until such time as the mortgages had been completely paid off. 91. Wherefore, Counterclaim Plaintiff Colson asks this Court for damages as deemed appropriate.

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FOURTH CAUSE OF ACTION (Negligent Misrepresentation)

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92. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though

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fully set forth herein. 17

93. When Whiting and Colson agreed to obtain the Chestnut and Catalina properties pursuant to 18 .19

Whiting's plan, Whiting represented to Colson that

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94. In divorcing her husband, entering into the LLC Agreement, and having the properties

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purchased in her own name, Colson was reasonably relying on Whiting's representations that he

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would pay the mortgages and provide her with any and all funds necessary for her support.

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95. Wherefore, Counterclaim Plaintiff Colson asks this Court for damages as deemed 14 25

appropriate.

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FIFTH CAUSE OF ACTION 27 28

(Fraudulent Misrepresentation) 20

96. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though 2

fully set forth herein.

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97. In divorcing her husband, entering into the LLC Agreement, and having the properties

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purchased in her own name, Colson was relying on Whiting's representations that he would pay the

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mortgages and provide her with any and all funds necessary for her support.

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98. Wherefore, Counterclaim Plaintiff Colson asks this Court for damages as deemed 8

appropriate.

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SIXTH CAUSE OF ACTION (promissory EstoppellDetrimental Reliance)

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99. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though 12

fully set forth herein.

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In the case the Court finds no contract was entered into, Whiting should be estopped

from not performing his promises to Colson.

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101.

When Whiting and Colson agreed to obtain the Chestnut and Catalina properties

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pursuant to Whiting'S plan, Whiting represented to Colson that he would pay all the monthly 18

payments and that the properties would stay in her name until they mortgages were paid off.

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102.

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Colson reasonably relied on Whiting's promise, and followed through Whiting's

plan until Whiting stopped making the monthly mortgage payments

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103.

In divorcing her husband, entering into the LLC Agreement, and having the

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properties purchased in her own name, Colson was relying on Whiting's representations that he 24

would provide her with a home and funds necessary for her support.

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104.

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Colson has sustained damage to her credit and finances, and has needed to take out

loans to meet the monthly mortgage obligations. 21

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II

LOF NUMBER FIVE, LLC PARTNERSHlP AGREEMENT This Partnership Agreement (hereinafter Agreement), effective this lst day of September, 2006, is by and between Gary L. Whiting and/or any entities he owns or controls, (h(:reinafier "Whiting") and Lynette Williams, (hereinafter "Williams"), and collectively known as the Parties. This Agreemcrn is intended to »rotecr the interests of Ms. Williams and Mr. Whiting in connection with the possession, ownership and right to quiet enjoyment of 1508 South Chestnut Circle, Mesa, AZ 85204 (hereinafter "Chestnut" or "the property") as well as other aspects of~ile parties' rdations:lip which is entered ' into for valuable consideration and with full and mutual C(1OS~'1lt after an opportunity for a consultation with independent counsel.

\WHEREAS this Agreement is based upon the following: A. The parties wish to formalize their business and partnersn:p relationship to establish their respective partnership rights, obligations and responsible bonding in this Partnership, in particular with respect to each other's interest in the Chestnut property and their partnership relationship. The Parties wish to enter into this Agreement to address Issues of ownership, investment, possession and management of the Chestnut property and their partnership relationship in connection therewith. B. The Parties wish to have this Agreement governed by the laws of the State of Arizona and governed pursuant to ARS Title 29 as well a:: applicable state and federal decisional law. AGR.EeMENT

NOW, THEREFORE, in exchange for valuable consideratior the receipt of which is hereby acknowledged. and in exchange for the mutual covenants, promises and consortium recognized herein, the Parties agree as follows: 1. Recital~. The recitals are hereby incorporated into the Agreement, 2. Own..~. \"11iting shall have ownership ofthe Chestnut Property for the purposes of investment. Further, given Whiting's professional demands on his time he cannot manage, supervise, maintain 01' upkeep th'~Property on his own accord. Whiting's ownership of Chestnut, wherein he will make the Property available for Williams to reside in, is Whiting~s capital omtriburion to the Partnership.

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3. Management and Suoer:visi..Qn. In exchange tor Whiting's consent to allow Williams (and her family if desired) to reside at Chestnut and have full rights of possession and quiet enjoyment for a twenty year period through June J, 2026 (and an option to renew for another twenty year period), v/illiams agrees to manage, supervise, maintain and upkeep the Property for 'N'hiting. In this connection Williams is obligated to maintain thelandscaping, ensure that the sprinkler system is in working order at all times, that all b'rshes and hedges are trimmed, that all landscaping is kept with a neat and clean appearance. Further, Williams agrees to pay for needed repeirs to the property up to $250 per month. Further: Williams agrees that any and all problems or repairs at the Property that exceed $250 per month shall be promptly brought 10 Whiling's attention in the event Williams is unable to address, remedy and pay for the problem herself. This shall serve as Williams capital contribution to the Partnership. 4. Partnership Partnership, the Chestnut marketplace,

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Investment. Additionally, as a further capital contribution to the Williams agrees ~,Jkeep \Vhitlng apprised of any potential buyers for Property so that Whiting can optil;,izl~ any sale opportunities in the as Whiting does not wish to "list" Chestnut .or saie on the MLS.

~C;:SI and Tax. Since Whiting will retain (ownership to Chestnut during this Partnership and his capital contribution is to make the residence available for Williams (and her family) to reside in. Whiting shall at all times pay, and be responsible for, any mortgages and other expenses associated with the Chestnut Property, and Whjtin~ shall tile any and stat~: or federal returns on the Property.

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6. William'!! Pro.fit or Buyout 00tiQil Rights. Accordingly, upon the sale of the Property or upon Williams' request at any time in W31l1in ~ to dissolve the Partnership, this Partnership shall dissolve and at Williams' ejection, Whiting shall pay Williams $,50,000 in a lump !'UIII payment as a "buy out" price from the Partnership, or 50% of the profits (.f any such sale, in liei. of'a distrio\Jtion of profits and losses. 7. Responsible Bonding COE.ntlllt.!l. TIlis Partnership Agreement creaes a responsible bond between Gary L. Whiting and Lynette Williams. which is a legal and lawful union between partners in 3 fidelity relationship with full and informed consent. To consummate Whiting's responsible bond with Ms. Williams in this Partnership, Whiting shall, as an' additional capital contrioution, mske a monthly maintenance payment of 13,600 to 'NiiHarps to cover an)' upkeep or discretionary expenses. 8. Con1unction Not Fiduciary Relatjo~. The partners here in shall ne,t be construed as fiduciaries but shall be construed as a fideliy asscciatlon, to facilitate the occupancy of the Property under a contract :If sale and to establish a personal fidelity conjunction which will preserve and protect the integrity of this artncrshlp. This partnership ussociatiou Includes ''\;"i''''8'' commitm~

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Initials

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and emotional support to the partnership on a non-exclusive basis, as Whiting has other partnership interests to pursue 31'Id maintain.

9. Wrap /\roumW£atton-Whiting,f1Hg:IW~"1!!mt.

This Partnership

Agreement is to facilitate a wrap around of an existillg Real Estate Purchase Contract between David J. and Ann K. Patton and Gary 'WhitinwlOF Number 5, LLC. for the purpose of providing occupancy and maintenance of the investment property, 150R South Chestnut Circle Mesa, AZ 85204, 10. Separate Property Not CommuJ'lJ1.vPropertv. To the extent provided by law. Gary L Whiting. a married man, take'S his int-::rest herein as a separate prop en)' interest and not a community property interest. Lynette Williams, an unmarried woman, takes her interest as a separate prclpm'ty interest herein. 1]. Re1eEise~~nant Nor to Sue, A5 further consideration and an inducement to execute this Agreement, and because Whiting is expressly assuming the financial burden of this Partnership Agreement, the Parties agree tc· release any claims against the other in this Partnership and agree not to commenceany legal proceedings against the other. In tltis connection, Ms. Williams acknowledges that her rights herein are fully' and completely protected by the "profit or buyout" option referenced above in paragraph 5. 12. Rep:-E;~;ntatl(lns and W.MIa;:lti~.Ms. w:man"ls represents and warrants that while she is possession of the Property she will not Cause an}' liens, encumbrances or other instruments atl"ectil1g title to be r ccorded against the; ~ubj.;ct Property. 13. Severance and Blue Pen,,!,) R~, lf any tCI1TI, clause or provision of this Agreement shall be held invalid, void, unenforceable or contrary to public policy for any reason. then the remainder ·~fthe Agreement shall rernain in effect in accordance with the Blue Pencil Rule. 14. Confidentiality. All information concerning this Agreemeru shall be held strictly confidential except as necessary to) enforce the terms of tais Agreement or as allowed or required by law, 1S. ~dYi~;cof Counsel. Whiting and Wi llinms each acknowl edge they have obtained the advice of their respective attorneys prior to executing; this Agreement (or waived the opportunity to do so), and each patty executes this Agreement with full knowledge of its significance and with the express lnrention of effecting its legal consequences. 16. ],Dtegralion. This Agreement (which also expressly wrap; the prior.T'l.itton-Whiting Purd.c.!,c Contract) contains the!: entire ;:.l\retnlcnt bc'i:wet:)1 the Parrtes. It has not beer. executed in reliance Oil th~ t.a~is <)i: any other oral (lr written representations or t rns, and no extrinsic oral (It' written representations or terms shall modify, or contradict the terms thereof. ~ /

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17. Choice a.nd Venue. This Agreement 1)"311 be construed under and according to the laws of the state of Arizona, and any action or legat proceeding arising out of this Agreement (or any tort, statutory or other claims}, sh a1lbe interpreted and enforced accordance with Arizona law and shall be hrougllt and maintained in Maricopa County, Arizona. Any federal court action (and any appeals to the federal courts) shall be initiated it, the federal district court of Arizona, 18. Attome)!§ Fees. With respect tel any contract, tort, statutory or other claims brought to interpret. enforce, or defend this Agreement (or any claims or defenses that are incidental to this Agreement), the prevailing part)' shall be entitled attorney's fees. eJ!:peJ1SCSand taxable CO.~Bincurred therein. 19. ~diilll. If Lynette Williams breaches th~ fidelity associaticn stipulations of this responsible bonding ~1g:·~t:1neat.Gary L. 'Whiting may elect either to continue this responsible bonding agreement or he may send t. notice in writing to Lynette Wtllisms that this agreement is breached and consequenrl f dissolved thereby invoking the buyout stipulations under paragraph 6. EXECUTION: 1HAVE READ THE ABOVE AGREEMENT,

I HAVE TA!<.£N TIME TO

CONSIDER ITS IMPLICATIONS, J FULLY UNDERSTAl'0 ITS CONTENTS AND J AOREE TO ITS TER.MSAND I VOLUNTARILY SUBMIT TO ITS EXECUnON AS INOICATED EY lvfY SIGNATURE BELOW~

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,," date

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*f-* Gra-nted *** See eSignature Page

Michael K. Jeanes, Clerk of Court *** Electronically Filed *** Lori Cummings Filing ID 217637 07/25/20082: 14:08 PM

P.C.

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GREGORY G. McGILL, ATTORNEY AT LAW

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4421 N. 75th Street, Suite 101 Scottsdale, Arizona 85251 (480) 970-6720 FAX (480) 970-6727 [email protected] Gregory G. McGill, No. 011020

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Attomey for Plaintiffs 6 7 8 9

SUPERIOR COURT OF ARIZONA

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COUNTY OF MARICOPA

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GARY WHITING, an individual, Plaintiff,

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No. CV2007-011672 CV2007-022735 (Consolidated)

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vs.

JUDGMENT

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ANN COLSON, an individual; CHICAGO TITLE AGENCY OF ARIZONA, INC., an Arizona corporation; CHICAGO TITLE INSURANCE COMPANY,

(Assigned to the Honorable Sam Myers)

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Defendants.

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LYNETTE WILLIAMS, an individual,

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(Mandatory E-Filing)

Plaintiff, vs. ANN COLSON, an individual, Defendant.

23 The COlU't,having reviewed the Stipulated Agreement ("Stipulated Agreement") dated 24

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July 23, 2008, entered into by Gary L. Whiting ("Whiting"), Plaintiff in Whiting v. Colson,

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CV2007-011672, and Ann Colson ("Colson"), Defendant and Counterclaimant in the same

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matter, and by Lynette Williams ("Williams"), Plaintiff in Williams v. Colson, CV2007-022735,

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and Ann Colson, Defendant in the same matter, and good cause appearing;

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

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1.

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That this consolidated case shall be placed on the inactive calendar for 120 days at

which time it will be dismissed with prejudice as to all parties unless a motion to set for trial is filed herein.

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That pursuant to the Stipulated Agreement there are four contracts which are valid

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and in full force and effect, as follows: (1) the Cummings-Whiting

contract (Catalina), (2) the

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Patton-Whiting

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9/1/2006 (Exhibit A attached to the Stipulated Agreement), and (4) an oral agreement between

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Colson and Whiting, the terms of which are substantially similar to those contained in Exhibit A.

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Further, for purposes of resolution herein, any purported contracts between Cummings and

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contract (Chestnut), (3) the Willi arn s- Whiting (LOF No.5 LLC) contract, dated

Colson and/or between the Pattons and Colson are hereby ordered and decreed to be of no effect.

13 3.

That Colson shall convey ownership to the Catalina property to Whiting, which

14 15

sale shall close on or before 90 days from this date. It is further adjudged and decreed that the

16

price shall be the outstanding and unpaid mortgage with World Savings Bank or assignee (the

17

"lender") plus routine closing costs and customary transaction costs, and title shall be conveyed

18

by Special Warranty Deed.

19

Catalina title by Colson ("Catalina Closing") shall take place simultaneously

20

Payment of the price for Catalina by Whiting and transfer of the on or before 90

days from this date, i.e., by 10/23/2008,

21 4.

That Whiting shall pay $50,000 to Colson in certified funds simultaneously

with

22 23 24

the Catalina Closing. 5.

That the title to Chestnut shall be transferred from Colson to Gary L. Whiting.

It

25

is further adjudged and decreed that in order to effect said transfer in light of the pending

26

Chestnut foreclosure proceeding and the due on sale clause in the lender's deed of trust, Whiting

27

shall, within 90 days of the date hereof, provide sufficient funds to Colson to fully reinstate her

28

loan as to Chestnut.

Whiting shall then acquire title to the Chestnut property from Colson by -2-

1

Special Warranty Deed for a price equivalent to Colson's outstanding

2

routine closing and transaction costs. Payment of the price for Chestnut by Whiting and transfer

3

of the Chestnut title by Colson ("Chestnut Closing") shall take place simultaneously

4

and unpaid mortgage plus

on or before

90 days from this date, i.e., by 10/23/2008.

5 6.

That pursuant to the Stipulated Agreement and for purposes of this case the

6 7

8

9

contract between Whiting and Williams dated 9/112006 is a valid contract and in full force and effect. 7.

That neither Whiting, nor Williams nor Colson nor any assignees, agents,

10

affiliates, heirs and/or relations shall be liable for fraud or any other allegation of wrongdoing

11

inappropriate

12

contracts.

conduct in connection with any of the above-referenced

or

contracts or purported

Whiting, Williams and Colson shall each be forever discharged from any claims,

13 assertions or causes of action related thereto.

14

15

8.

That neither Whiting nor Colson shall harass or contact the other party or

16

members of the other party's family; that and any restraining orders, protective orders,

17

injunctions against harassment or the like currently in effect against the other (or a family

18

member of the other) shall be withdrawn.

19

shall not permit any property damage or waste to the Catalina property, which representation

20

It is further ordered, adjudged and decreed that Colson

warranty shall extend to affiliates, relatives, or relations, ordinary wear and tear excepted.

and

It is

21 further ordered, adjudged and decreed that Colson makes no representation

or warranty that

22 23 24 25 26

27 28

Chestnut has not been damaged or subjected to waste because Colson has not been in possession of Chestnut during the litigation. 9.

That, pursuant to the Stipulated Agreement, the oral agreement between Whiting

and Colson shall be terminated upon entry of Judgment and satisfaction herein. 10.

That, pursuant to the Stipulated Agreement, Colson shall be fully responsible

her representations

and warranties that she has permitted no voluntary or consensual liens or -3-

for

1

deeds of trust to be placed on Catalina or Chestnut other than the World Savings Bank (or

2

assignee) mortgages referenced in the litigation and that to the best of her knowledge and belief

3

there are no involuntary

4

11.

or nonconsensualliens

or deeds of trust on Catalina or Chestnut.

That there is no admission of liability by any party herein, and upon entry of

5 Judgment pursuant to the Stipulated Agreement herein, all claims and actions and potential 6 claims or actions that arise out of the same transactions

7

and events that are the subject of the

8

Stipulated Agreement

9

agents, affiliates, heirs and relations, shall be dismissed with prejudice and forever discharged.

10

12.

11 ,

II

Ii

14

13.

This Judgment shall have res judicata and collateral estoppel effect upon

signature of the Court and entry with the Clerk. Pursuant to the agreement of Whiting, Williams and Colson, there is no just reason for delay and this Judgment is accordingly

I

being signed and

entered forthwith.

17

IT IS SO ORDERED, ADJUDGED AND DECREED.

18

DATED:

_

19 20 21

fees,

!

15 16

That Williams, Whiting and Colson shall each bear their own attorney's

costs and expenses incurred herein.

12 13

herein between Whiting, Williams and Colson, as well as their assignees,

THE HONORABLE

22 23

24 25

26 27

28 -4-

SAM J. MYERS

eSignature

Page -- 241550749_SCAN0560_000.pdf

Granted Signed on this day, July 25, 2008

/5/ Sam Myers Judicial Officer of Superior Court