Preview
JUSTIN PENN (SBN CA 302350)
jpenn@hinshawlaw.com
MICHAEL MAUCERI (SBN CA 311220)
mmauceri@hinshawlaw.com
SHALINI BHASKER (SBN CA 326729)
sbhasker@hinshawlaw.com
HINSHAW & CULBERTSON LLP
350 South Grand Ave., Suite 3600
Los Angeles, CA 90071-3402
Telephone: 213-680-2800
Facsimile: 213-614-7399
Attomeys for Plaintiff and Cross-Defendant Velocity
Investments, LLC and Cross-Defendant Velocity Portfolio
Group, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SANTA CLARA
11
12 VELOCITY INVESTMENTS, LLC, Case No.: 16CV300096
13 Plaintiff,
DECLARATION OF MATTHEW
14 vs. DIPOALO IN SUPPORT OF CROSS-
DEFENDANT VELOCITY PORTFOLIO
15 MARIA CANUL, GROUP, INC.’S SPECIAL MOTION TO
STRIKE THE FIRST AMENDED
16 Defendant. CROSS-COMPLAINT
17
MARIA ANTONIA CANUL, on behalf of [Filed Concurrently with Special Motion to
18 herself and all others similarly situated, Strike, Request for Judicial Notice, and
[Proposed] Order]
19 Cross-Complainant,
Date:
20 VS. Time:
Dept.: 3
21 ‘VELOCITY INVESTMENTS, LLC, a New
Jersey limited liability company; VELOCITY
22 PORTFOLIO GROUP, INC., a Delaware
corporation; and ROES 2 through 10, inclusive,
23
Cross-Defendants. Complaint Filed: September 20, 2016
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HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE
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AMENDED DECLARATION OF MATTHEW DIPOALO
I, Matthew DiPoalo, declare as follows:
1 I am employed by Plaintiff and Cross-Defendant VELOCITY INVESTMENTS,
LLC and am the Director of Outsourcing, a position I have held for 3 years. The facts set forth
herein are true and correct based on my personal review of the documents related to Defendant and
Cross-Complainant MARIA CANUL and Ms. Canul’s account, as well as my personal knowledge
of Velocity Investments, LLC’s relationship with LendingClub, as well as Velocity Investments,
LLC’s relationship with its parent company Velocity Portfolio Group, Inc. If called upon as a
witness, I could and would competently testify as to the matters in this declaration. My regular job
10 duties include reviewing loan files in the ordinary course of my workday, including loan documents
11 and related documentation for WebBank and LendingClub loans. I have reviewed the information,
12 including loan documents, regarding Ms. Canul’s loan that is at issue in this lawsuit.
13 2. On or about June 6, 2012, Ms. Canul requested a loan through LendingClub.
14 LendingClub is the sole contact for Ms. Canul in these types of online lending arrangements. Ms.
15 Canul executed the Borrower Agreement, and all other contract documents for the loan, which
16 informed her that LendingClub would be servicing the loan.
17 3 LendingClub is a marketplace lender that, at the time of Ms. Canul’s loan, was a
18 non-bank financial company that leveraged technology to reach potential borrowers, evaluate
19 creditworthiness, and obtain credit sources for loans. LendingClub’s loans are originated by
20 WebBank and provide investors the opportunity to participate in loans originated through
21 WebBank’s website. I am informed and believe that LendingClub works to secure an investor for
22 the client’s loan (in this case Ms. Canul), and once an investor has agreed to the loan, WebBank
23 funds the loan, as happened with the Canul loan. The investor assigns LendingClub all rights
24 regarding the loan as part of the investor’s agreement with LendingClub, including the right to
25 accept payments. After the loan is funded, WebBank transfers the loan to LendingClub. Payments
26 are made to LendingClub by the client, and LendingClub communicates with the client, in
27 accordance with the rights assigned to LendingClub by the investors. I am informed and believe
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that if the client becomes delinquent in their payments, LendingClub makes the decision to charge
off the debt, and LendingClub makes the decision whether to sell the debt.
4 The Loan Agreement, paragraph 3, gives LendingClub the authority to sign the loan
agreement in the form of Exhibit A to the Loan Agreement. A true and correct copy of the Loan
Agreement is attached hereto as Exhibit 1. Once an investor is identified and LendingClub
consummates the loan, a final Truth in Lending Disclosure Statement will be provided. A true and
correct copy of the final Truth in Lending Disclosure Statement for loan ID XXX2945 provided to
Ms. Canul is attached hereto as Exhibit 2. The final Truth in Lending Disclosure Statement reflects
the total $15,000 credit received (minus $600 fee) for a total $14,400 borrowed, with a first payment
10 date of July 12, 2012.
11 5 A true and correct copy of the Certificate of Loan Sale is attached hereto as Exhibit
12 3. The Certificate of Loan Sale reflects that WebBank transferred Ms. Canul’s loan to LendingClub
13 on or about February 27, 2015. In the Certificate of Loan Sale, LendingClub is the “Transferee.” I
14 am informed and believe that Ms. Canul failed to make or stopped making payments on her loan,
15 and thereafter that LendingClub charged off the debt.
16 6 After charging off the debt of Ms. Canul’s loan, LendingClub then orchestrated the
17 sale of the debt to Velocity Investments, LLC. A true and correct copy of the Bill of Sale of Ms.
18 Canul’s debt, loan ID XXX2945, is attached hereto as Exhibit 4. Ms. Canul’s loan was contained
19 in Lot 211 which was sold to Velocity Investments, LLC.
20 7 Velocity Investments, LLC purchased Ms. Canul’s LendingClub Account, loan ID
21 XXX2945. Notably, Velocity Portfolio Group, Inc. is not the owner of the account and had no
22 involvement in the activities at issue in the First Amended Cross-Complaint. Velocity Portfolio
23 Group, Inc. did not file the collection complaints against Canul or any prospective class member
24 and does not engage in filing collection complaints as part of its business. Moreover, Velocity
25 Portfolio Group, Inc. is not Velocity Investments, LLC. Velocity Portfolio Group, Inc. is the parent
26 corporation of Velocity Investment, LLC, and the two entities have at all relevant times maintained
27 corporate formalities and separateness. Each of their respective corporate forms, and the relationship
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of their corporate forms to one another, was not created, established, carried out, or maintained with
deceptive or fraudulent intent or to commit a fraud or misconduct. Velocity Porfolio Group, Inc.
maintains separate accounting and operational functions from Velocity Investment, LLC, including
financial or banking accounts, and neither entity fails to maintain corporate records. Further,
Velocity Portfolio Group, Inc. and Velocity Investments, LLC have different businesses and
functions, such that Velocity Investments, LLC is not a mere shell of Velocity Portfolio Group, Inc.
8. In conjunction with its purchase of Ms. Canul’s debt, Velocity Investments, LLC
received certain documents and information from LendingClub, which Velocity Investments, LLC
maintains. This information and these business records provide account specific information for
10 each account that was transferred, including for Ms. Canul. The documents that Velocity
11 Investments, LLC received for Ms. Canul’s account include the contract documents, the Truth in
12 Lending Disclosure Statement, attached hereto as Exhibit 2, the Certificate of Loan Sale, attached
13 hereto as Exhibit 3, and the Bill of Sale, attached hereto as Exhibit 4.
14 9. Velocity Investments, LLC agreed to a protective order in Pajarit v. Velocity
15 Investments, case no. 17-CIV-03046, which was signed by the Court on May 9, 2018. In light of
16 the protective order, Velocity Investments, LLC produced various policies and procedures and
17 financials relating to Velocity Portfolio Group, Inc., and its related companies, including its
18 subsidiary, Velocity Investments, LLC, to Fred Schwinn and his office, counsel of record in this
19 action. Mr. Schwinn and his office knew of the existence of Velocity Portfolio Group, Inc., as the
20 parent company of Velocity Investments, LLC since at least May of 2018. On October 15, 2019,
21 Mr. Schwinn’s office filed a joint supplemental brief in the Pajarit case describing Velocity
22 Investments, LLC as a subsidiary of Velocity Portfolio Group, Inc., confirming that Mr. Schwinn
23 and his office know of Velocity Portfolio Group, Inc.
24 Executed this _34 day of December 2021, at Wall, New Jersey.
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26 Vth
Dh ah
Matthew DiPoalo
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HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE
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HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE
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S35xx
Signature Certificate
RS Document Ref.: MPIM6-8FBVR-Q95GH-LJJGZ
Document signed by:
Matthew DiPoalo
E-mail:
mdipoalo@velocityrecoveries.com Wattle. Deal
Signed via link
(pss 82 eaeczscseecre)
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Document completed by all parties on:
03 Jan 2022 15:39:22 UTC
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EXHIBIT 1
Loan Agreement - Lending Club
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Lending Club
Welcome Anthony!
Loan Agreement
The following terms, together with your loan request on the Site, as defined herein, constitute a binding agreement (the
"Agreement") between you and WebBank, a Utah-chartered industrial bank ("WBK," "we," or "us"). BY
ELECTRONICALLY SIGNING THE AGREEMENT, YOU HAVE SIGNIFIED YOUR AGREEMENT TO
THESE TERMS. Under this Agreement, you agree to receive and repay one or more installment loans from us,
through the website lending platform at www.Lendingclub.com, including any subdomains thereof (the "Site") operated
by LendingClub Corporation, a Delaware corporation ("LendingClub"). These terms affect your rights and you should
read them carefully and print a copy for your records. Your agreement to these terms means you agree to borrow and
repay the money if your loan is funded under the terms of this Agreement, consent to our privacy policy, agree to
transact with us electronically, and agree to have any dispute with us resolved by binding arbitration.
1. Loan Terms. Your loan will have a principal balance between $1,000 and $35,000 in the specific amount and on the
terms set forth in the disclosures provided to you (see the disclosures at
http://www
Jendingclub.com/account/truthInLending
action). You agree and acknowledge that the initial loan
disclosures made to you are estimates (other than APR) and may be as much as 40% less than the initially requested
amounts. All loans are unsecured, fully-amortizing, closed-end loans with either a three (3)-year or five (5)-year term.
Please see you Borrower Membership Agreement and other information provided to you in connection with registering
your loan request on the Site for additional details. Your obligations, including your obligation to repay principal and
interest, are set forth in this Agreement and in the Note or Notes that you will make to us, as described in section 3
below.
2. Credit Decisions. Your loan request must include your annual income and such other information as we may obtain
through the Site. We will consider public assistance, alimony, child support, or separate maintenance income as income
if you choose to include such sources of income in your application and such income is likely to continue. We reserve
the right to verify any information you submit by requiring you to produce appropriate documentation or other proof,
and also reserve the right to conduct such verification through a third party. You hereby authorize us to request and
obtain data from a third party to verify any information you provide to us in connection with your loan request. We may
terminate consideration of your application at any time in our sole discretion.
3. Loan Funding and Closing. You may post a loan request on the Site, and LendingClub investors ("Investors") will
be able to review your loan request. Investors may commit funds to purchase, in various amounts, Member Payment
Dependent Notes ("MPDNs") that LendingClub may issue to Investors who commit funds for your loan request. You
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Loan Agreement - Lending Club
acknowledge that a Investor's commitment to purchase a MPDN corresponding to all or a portion of your loan from us
does not confer any rights to you. You understand that individual Investors make their own decisions whether to commit
funds for your loan. LendingClub may also choose to commit funds for all or part of your loan request but is not
obligated to do so.
Your loan will close and issue, unless you notify us in writing of your election to terminate your loan request
sufficiently far in advance of the loan closing for us to cancel the loan, if:
(i) within 14 days following the posting of your loan request, the aggregate amount of funding commitments through the
Site fulfills your listed loan request in full, or
(ii) at the end of the 14 days following the posting of your unsecured loan request, the aggregate funding commitments
through the Site are greater than or equal to 60% of your listed loan request but less than 100%.
If at the end of the posting period for your loan request, the funding commitments through the Site are less than 60% of
your original loan request, you may elect to:
(i) accept this lesser amount at which point your loan will close,
(ii) withdraw your loan request, or
(iii) withdraw your loan request and relist it on the Site.
Funding of your loan request might be available before the expiration of the 14-day period set forth above. In no event,
will we be obligated to notify you of the date upon which your loan may or will fund.
If we extend a loan to you, you agree to execute by power of attorney as described below, and be bound by the terms set
forth in, the form of promissory note attached as Exhibit A (the "Note") as to your loan. You agree to execute multiple
Notes if we request you do so, provided that the aggregate principal amounts of such Notes shall equal the total amount
of your loan. LendingClub will execute your Note(s) on your behalf pursuant to a power of attorney you grant to
LendingClub when registering your loan request. You authorize us to disburse the loan proceeds by Automated Clearing
House ("ACH") transfer to your designated account or on your behalf to your selected designee. Following our
disbursement of the loan proceeds as set forth above, we will assign the Note(s) and your loan to LendingClub.
BY COMPLETING YOUR APPLICATION AND SUBMITTING YOUR LOAN REQUEST, YOU ARE
COMMITTING TO OBTAIN A LOAN FROM US IN THE AMOUNT AND ON THE TERMS SET FORTH IN
‘YOUR AGREEMENTS WITH WBK (OR ITS ASSIGNEES) AND THE DISCLOSURES PROVIDED TO YOU IN
CONNECTION WITH YOUR REQUEST, SHOULD YOUR REQUEST BE FUNDED. YOU HAVE NO RIGHT TO
RESCIND THE LOAN ONCE MADE BUT YOU MAY PREPAY THE LOAN AT ANY TIME WITHOUT
PENALTY. We will not lend you any funds unless and until sufficient commitments are received from Investors and/or
LendingClub.
4. Making Your Loan Payments. You authorize us and our successors and assigns to debit your designated account by
ACH transfer for the amount of each payment due on each due date. You may elect to make payments by personal
check by contacting support@lendingclub.com or by regular mail at LendingClub Corporation, 71 Stevenson St. Suite
300, San Francisco, CA 94105, Attention: Loan Processing Department. If you elect to make payments by check, you
acknowledge and agree that there will be a $15 check processing fee per payment, subject to applicable law. If you elect
to make payments by check, you must send the check either (i) by regular mail to Lending Club Corporation, Dept
#34268, P.O. Box 39000, San Francisco, CA 94139, or (ii) by overnight mail or UPS delivery to Wells Fargo Lock Box
Services, Dept #34268, 3440 Walnut Ave, Window H, Fremont, CA 94538. This authorization does not affect your
obligation to pay when due all amounts payable on your loan, whether or not there are sufficient funds therefore in such
accounts. The foregoing authorization is in addition to, and not in limitation of, any rights of setoff we may have. With
regard to payments made by automatic withdrawal, you have the right to stop payment of automatic withdrawals or
revoke your prior authorization for automatic withdrawals by notifying your financial institution at least three (3)
banking days before the scheduled date of transfer. You must notify us of the exercise of your right to stop a payment or
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Loan Agreement - Lending Club
revoke your authorization for automatic withdrawals at least three (3) banking days before the scheduled date of
transfer. All payments are to be applied first to the payment of all fees, expenses and other amounts due (excluding
principal and interest), then to accrued interest, and the balance on account of outstanding principal; provided, however,
that after an Event of Default (as defined below), payments will be applied to your obligations as we determine in our
sole discretion.
5. Other Borrower Obligations. You agree that you (A) are a US citizen or permanent resident and (B) will not, in
connection with your loan request: (i) make any false, misleading or deceptive statements or omissions of fact in your
listing, including but not limited to in the loan title, or in your loan description; (ii) misrepresent your identity, or
describe, present or portray yourself as a person other than yourself; (iii) give to or receive from, or offer or agree to
give to or receive from any LendingClub member or other person any fee, bonus, additional interest, kickback or thing
of value of any kind except in accordance with the terms of your loan; (iv) represent yourself to any person, as a
representative, employee, or agent of ours, or purport to speak to any person on our behalf; (v) provide, in your loan
request or in communications on the Site related to your loan request, information upon which a discriminatory lending
decision may be made, such as your race, color, religion, national origin, sex, marital status, age, any exercise of your
consumer rights or the existence of alimony, child support, or separate income (unless you have included such income
in your application to be considered for loan qualification) or (vi) use any of the loan proceeds to fund any post-
secondary educational expenses, including, but not limited to, tuition, fees, books, supplies, miscellaneous expenses, or
room and board (see Section 472 of 20 U.S.C. 108711 http://www.law.cornell.edu/uscode/search/display.html?
terms=108711&url=/uscode/html/uscode20/usc_sec_20_00001087--11000-.html for a complete list). You acknowledge
and agree that we may rely without independent verification on the accuracy, authenticity, and completeness of all
information you provide to us. You certify that the proceeds of the loan will not be used for the purpose of purchasing or
carrying any securities or to fund any illegal activity.
6. Fees. A non-refundable origination fee paid by you to LendingClub as provided under your agreement with
LendingClub will be deducted from your loan proceeds, so the loan proceeds delivered to you or on your behalf
will be less than the full amount of your issued loan. You acknowledge that the origination fee will be considered part
of the principal on your loan and is subject to the accrual of interest. You agree to pay a fee of $15, if ACH transfers or
checks are returned or fail due to insufficient funds in your account or for any other reason. Each attempt to collect a
payment is considered a separate transaction, so an unsuccessful payment fee will be assessed for each failed attempt.
The bank that holds your designated account may assess its own fee in addition to the fee we assess. If any payment is
more than 15 days late, we may charge a late fee in an amount equal to the greater of 5% of the outstanding principal
and interest or $15. If a payment is more than 30 days late, we shall charge such late fee. We will charge only one late
fee on each late payment. These fees may be collected using ACH transfers initiated by us from your designated
account. Any such late fee assessed is immediately due and payable. Any payment received after 6:00 P.M., Mountain
time, on a banking day is deemed received on the next succeeding banking day.
7. Default and Termination. You will be deemed in default on your loan (each, an "Event of Default") if you: (1) fail
to pay timely any amount due on your loan; (2) file or have instituted against you any bankruptcy or insolvency
proceedings or make any assignment for the benefit of creditors; (3) die; (4) commit fraud or make any material
misrepresentation in this Agreement, the Note, or any other documents, applications or related materials delivered to us
in connection with your loan; or (5) fail to abide by the terms of this Agreement. Upon the occurrence of an Event of
Default, we may exercise all remedies available to us under applicable law, this Agreement, and the Note, including
without limitation (1) demand that you immediately pay all amounts owed on your loan or (2) terminate this Agreement.
Any loans you obtain prior to the effective date of termination resulting from listings you placed on the Site shall remain
in full force and effect in accordance with their terms.
8. Collection & Reporting of Delinquent Loans. We reserve the right to report loan payment delinquencies at or in
excess of 30 days to one or more consumer reporting agencies in accordance with applicable law. You agree to pay all
costs of collecting any delinquent payments, including reasonable attorneys' fees, as permitted by applicable law.
9. Assignment of Your Loan. Following the closing of your loan you hereby agree that we may, without notice to you,
(i) assign all of our right, title and interest in this Agreement to LendingClub and (ii) assign your Note(s) to
LendingClub. You understand that the LendingClub may sell, assign or transfer your Note(s) without your consent.
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10. NO GUARANTEE. WE DO NOT WARRANT OR GUARANTEE (1) THAT YOUR LOAN REQUEST WILL
BE FUNDED, OR (2) THAT YOU WILL RECEIVE A LOAN AS A RESULT OF POSTING A REQUEST.
11. Entire Agreement. This Agreement and any Note represents the entire agreement between you and us regarding the
subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether
oral, written or electronic, between us with respect to your loan request and loan. The WBK Privacy Notice attached as
Exhibit B is incorporated by reference into this Agreement.
12. Consent to Electronic Transactions and Disclosures. THIS AGREEMENT IS FULLY SUBJECT TO YOUR
CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES, WHICH CONSENT IS SET FORTH IN
THE TERMS OF USE FOR THE SITE.
13. Notices. All notices and other communications to you hereunder may be given by email to your registered email
address or posted on the Site, and shall be deemed to have been duly given and effective upon transmission. You
acknowledge that you have sole access to such email account and your area on the Site and that communications from
s may contain sensitive, confidential, and collections-related communications. If your registered email address
changes, you must notify LendingClub of the change by sending an email to support@lendingclub.com or calling 888-
596-3157. You also agree to update your registered residence address and telephone number on the Site if they change.
14. NO WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO
REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
15. LIMITATION ON LIABILITY. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS
OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY
TO YOU REGARDING THE EFFECT THAT THE AGREEMENT MAY HAVE UPON YOUR FOREIGN.
FEDERAL, STATE OR LOCAL TAX LIABILITY.
16. Miscellaneous. The parties acknowledge that there are no third party beneficiaries to this Agreement. You may not
assign, transfer, sublicense or otherwise delegate your rights or obligations under this Agreement to another person
without our prior written consent. Any such assignment, transfer, sublicense or delegation in violation of this section 16
shall be null and void. We are located in the state of Utah and this Agreement and the Note will be entered into in the
state of Utah. The provisions of this Agreement will be governed by federal laws and the laws of the state of Utah to the
extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of
the laws of any other jurisdiction. Any waiver of a breach of any provision of this Agreement will not be a waiver of
any other subsequent breach. Failure or delay by either party to enforce any term or condition of this Agreement will not
constitute a waiver of such term or condition. If at any time after the date of this Agreement, any of the provisions of
this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision
shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provisions of this Agreement. The headings in this Agreement are for
reference purposes only and shall not affect the interpretation of this Agreement in any way
17. Arbitration.
a. Either party to this Agreement, or LendingClub, may, at its sole election, require that the sole and exclusive forum
and remedy for resolution ofa Claim be final and binding arbitration pursuant to this section 17 (the "Arbitration
Provision"), unless you opt out as provided in section 17(b) below. As used in this Arbitration Provision, "Claim" shall
include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or
connected with you), on the one hand, and us and/or LendingClub (or persons claiming through or connected with us
and/or LendingClub), on the other hand, relating to or arising out of this Agreement, any Note, the Site, and/or the
activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent
provided otherwise in the last sentence of section 17(f) below) the validity or enforceability of this Arbitration
Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise
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Loan Agreement - Lending Club
from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise.
Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The
scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to
LendingClub Corporation, 71 Stevenson St., Suite 300, San Francisco CA, 94105, Attention: Loan Processing
Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the
terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement
to which it applies by date; provide your name, address, and social security number; and be signed by you. You may
send the opt out notice in any manner you see fit as long as it is received at the specified address within the specified
time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf
by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your
behalf.
c. The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or JAMS. The
arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with,
the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision
or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this
Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the
arbitration consent to have the rules and policies of the administrator apply.
d. If we (or LendingClub) elect arbitration, we (or LendingClub, as the case may be) shall pay all the administrator's
filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees
(other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with
countervailing law if contrary to the administrator's rules. We (or LendingClub, as the case may be) shall pay the
administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid
by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request
that we (or LendingClub) pay them and we agree (or LendingClub agrees) to do so. Each party shall bear the expense of
its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees,
these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-
arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any
opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects
of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision
and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual
arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal
right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent
jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an
equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED
ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY
GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE
ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT
AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all
parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of
two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single
transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the
rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a)
determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other
than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No
administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section 17(f), and
any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any
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Loan Agreement - Lending Club
challenge to the validity of this section 17(f) shall be determined exclusively by a court and not by the administrator or
any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by
and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable
statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive
law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of
procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential
information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this
Agreement and the relationship of the parties and/or LendingClub; (ii) the bankruptcy or insolvency of any party or
other person; and (iii) any transfer of any loan or Note or any other promissory note(s) which you owe, or any amounts
owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than section
17(f) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain
valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such
proceedings in section 17(f) are finally adjudicated pursuant to the last sentence of section 17(f) to be unenforceable,
then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine
Claims or make awards beyond those authorized in this Arbitration Provision.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT
BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION
PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND
VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR
JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
Exhibit A
NON-NEGOTIABLE PROMISSORY NOTE
Borrower name and address: (not visible to investors)
$
» 20_
For value received, I ("Borrower") promise to pay to the order of WebBank or any subsequent holder ("you" or
"Lenders") of this Promissory Note (the "Note") the principal sum of $ ) Dollars with
interest as set forth below. I intend to be legally bound by this Note. I have read, understood, and agreed to all of the
terms of this Note.
Interest. This Note bears interest during each calendar month from the date hereof until paid, at a fixed rate of
(%). Interest is calculated on a monthly basis upon the unpaid balance with each payment representing 1/12th of a year.
Payments. Principal and interest is to be paid during and throughout the period of months in the following
manner:
Payments of principal and interest in the amount of ($ ) Dollars are to be made by the
Borrower to the Lender commencing , 20_, and on the same day of each successive month thereafter
until ,20__, when the full amount of unpaid principal, together with unpaid accrued interest is due and
payable. If the monthly anniversary is on the 29th, 30th, or 31st of the month, and the following month does not have a
29th, 30th, or 31st day, the monthly payment will be due on the last day of the month in which the payment was due.
The last payment might be of a slightly different amount to adjust for rounding.
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Loan Agreement - Lending Club
All payments on this Note are to be made in immediately available lawful money of the United States. Borrower
authorizes Lender to debit Borrower's designated account by Automated Clearing House ("ACH") transfer for the
amount of each payment due on each due date. Borrower may elect to make payments by personal check by contacting
support@lendingclub.com or by regular mail at LendingClub Corporation, 71 Stevenson St., Suite 300, San Francisco
CA, 94105, Attention: Loan Processing Department. If Borrower elects to make payments by check, borrower
acknowledges and agrees that there will be a $15 check processing fee per payment, subject to applicable law. This
authorization does not affect Borrower's obligations to pay when due all amounts payable under this Note, whether or
not there are sufficient funds therefore in such accounts. The foregoing authorization is in addition to, and not in
limitation of, any rights of setoff Lender may have. With regard to payments made by automatic withdrawal, Borrower
has the right to stop payment of automatic withdrawals or revoke Borrower's prior authorization for automatic
withdrawals by notifying Borrower's financial institution at least three (3) banking days before the scheduled date of
transfer. Borrower will notify Lender of the exercise of Borrower's right to stop a payment or revoke Borrower's
authorization for automatic withdrawals at least three (3) banking days before the scheduled date of transfer. All
payments are to be applied first to the payment of all fees, expenses and other amounts due to Lender (excluding
principal and interest), then to accrued interest, and the balance on account of outstanding principal; p
Preview
JUSTIN PENN (SBN CA 302350) jpenn@hinshawlaw.com MICHAEL MAUCERI (SBN CA 311220) mmauceri@hinshawlaw.com SHALINI BHASKER (SBN CA 326729) sbhasker@hinshawlaw.com HINSHAW & CULBERTSON LLP 350 South Grand Ave., Suite 3600 Los Angeles, CA 90071-3402 Telephone: 213-680-2800 Facsimile: 213-614-7399 Attomeys for Plaintiff and Cross-Defendant Velocity Investments, LLC and Cross-Defendant Velocity Portfolio Group, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA CLARA 11 12 VELOCITY INVESTMENTS, LLC, Case No.: 16CV300096 13 Plaintiff, DECLARATION OF MATTHEW 14 vs. DIPOALO IN SUPPORT OF CROSS- DEFENDANT VELOCITY PORTFOLIO 15 MARIA CANUL, GROUP, INC.’S SPECIAL MOTION TO STRIKE THE FIRST AMENDED 16 Defendant. CROSS-COMPLAINT 17 MARIA ANTONIA CANUL, on behalf of [Filed Concurrently with Special Motion to 18 herself and all others similarly situated, Strike, Request for Judicial Notice, and [Proposed] Order] 19 Cross-Complainant, Date: 20 VS. Time: Dept.: 3 21 ‘VELOCITY INVESTMENTS, LLC, a New Jersey limited liability company; VELOCITY 22 PORTFOLIO GROUP, INC., a Delaware corporation; and ROES 2 through 10, inclusive, 23 Cross-Defendants. Complaint Filed: September 20, 2016 24 25 26 27 28 1 HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE ‘350 South Grand Ave., Suite 3600 os Angeles,CA 27-3402 1036477\309665274 v1 Document Ref: MPIM6-8FBVR-Q95GH-LJJGZ Page 1 of 5 AMENDED DECLARATION OF MATTHEW DIPOALO I, Matthew DiPoalo, declare as follows: 1 I am employed by Plaintiff and Cross-Defendant VELOCITY INVESTMENTS, LLC and am the Director of Outsourcing, a position I have held for 3 years. The facts set forth herein are true and correct based on my personal review of the documents related to Defendant and Cross-Complainant MARIA CANUL and Ms. Canul’s account, as well as my personal knowledge of Velocity Investments, LLC’s relationship with LendingClub, as well as Velocity Investments, LLC’s relationship with its parent company Velocity Portfolio Group, Inc. If called upon as a witness, I could and would competently testify as to the matters in this declaration. My regular job 10 duties include reviewing loan files in the ordinary course of my workday, including loan documents 11 and related documentation for WebBank and LendingClub loans. I have reviewed the information, 12 including loan documents, regarding Ms. Canul’s loan that is at issue in this lawsuit. 13 2. On or about June 6, 2012, Ms. Canul requested a loan through LendingClub. 14 LendingClub is the sole contact for Ms. Canul in these types of online lending arrangements. Ms. 15 Canul executed the Borrower Agreement, and all other contract documents for the loan, which 16 informed her that LendingClub would be servicing the loan. 17 3 LendingClub is a marketplace lender that, at the time of Ms. Canul’s loan, was a 18 non-bank financial company that leveraged technology to reach potential borrowers, evaluate 19 creditworthiness, and obtain credit sources for loans. LendingClub’s loans are originated by 20 WebBank and provide investors the opportunity to participate in loans originated through 21 WebBank’s website. I am informed and believe that LendingClub works to secure an investor for 22 the client’s loan (in this case Ms. Canul), and once an investor has agreed to the loan, WebBank 23 funds the loan, as happened with the Canul loan. The investor assigns LendingClub all rights 24 regarding the loan as part of the investor’s agreement with LendingClub, including the right to 25 accept payments. After the loan is funded, WebBank transfers the loan to LendingClub. Payments 26 are made to LendingClub by the client, and LendingClub communicates with the client, in 27 accordance with the rights assigned to LendingClub by the investors. I am informed and believe 28 2 HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE ‘350 South Grand Ave., Suite 3600 os Angeles,CA 27-3402 1036477\309665274 v1 Document Ref: MPIM6-8FBVR-Q95GH-LJJGZ Page 2 of 5 that if the client becomes delinquent in their payments, LendingClub makes the decision to charge off the debt, and LendingClub makes the decision whether to sell the debt. 4 The Loan Agreement, paragraph 3, gives LendingClub the authority to sign the loan agreement in the form of Exhibit A to the Loan Agreement. A true and correct copy of the Loan Agreement is attached hereto as Exhibit 1. Once an investor is identified and LendingClub consummates the loan, a final Truth in Lending Disclosure Statement will be provided. A true and correct copy of the final Truth in Lending Disclosure Statement for loan ID XXX2945 provided to Ms. Canul is attached hereto as Exhibit 2. The final Truth in Lending Disclosure Statement reflects the total $15,000 credit received (minus $600 fee) for a total $14,400 borrowed, with a first payment 10 date of July 12, 2012. 11 5 A true and correct copy of the Certificate of Loan Sale is attached hereto as Exhibit 12 3. The Certificate of Loan Sale reflects that WebBank transferred Ms. Canul’s loan to LendingClub 13 on or about February 27, 2015. In the Certificate of Loan Sale, LendingClub is the “Transferee.” I 14 am informed and believe that Ms. Canul failed to make or stopped making payments on her loan, 15 and thereafter that LendingClub charged off the debt. 16 6 After charging off the debt of Ms. Canul’s loan, LendingClub then orchestrated the 17 sale of the debt to Velocity Investments, LLC. A true and correct copy of the Bill of Sale of Ms. 18 Canul’s debt, loan ID XXX2945, is attached hereto as Exhibit 4. Ms. Canul’s loan was contained 19 in Lot 211 which was sold to Velocity Investments, LLC. 20 7 Velocity Investments, LLC purchased Ms. Canul’s LendingClub Account, loan ID 21 XXX2945. Notably, Velocity Portfolio Group, Inc. is not the owner of the account and had no 22 involvement in the activities at issue in the First Amended Cross-Complaint. Velocity Portfolio 23 Group, Inc. did not file the collection complaints against Canul or any prospective class member 24 and does not engage in filing collection complaints as part of its business. Moreover, Velocity 25 Portfolio Group, Inc. is not Velocity Investments, LLC. Velocity Portfolio Group, Inc. is the parent 26 corporation of Velocity Investment, LLC, and the two entities have at all relevant times maintained 27 corporate formalities and separateness. Each of their respective corporate forms, and the relationship 28 3 HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE ‘350 South Grand Ave., Suite 3600 os Angeles,CA 27-3402 1036477\309665274 v1 Document Ref: MPIM6-8FBVR-Q95GH-LJJGZ Page 3 of 5 of their corporate forms to one another, was not created, established, carried out, or maintained with deceptive or fraudulent intent or to commit a fraud or misconduct. Velocity Porfolio Group, Inc. maintains separate accounting and operational functions from Velocity Investment, LLC, including financial or banking accounts, and neither entity fails to maintain corporate records. Further, Velocity Portfolio Group, Inc. and Velocity Investments, LLC have different businesses and functions, such that Velocity Investments, LLC is not a mere shell of Velocity Portfolio Group, Inc. 8. In conjunction with its purchase of Ms. Canul’s debt, Velocity Investments, LLC received certain documents and information from LendingClub, which Velocity Investments, LLC maintains. This information and these business records provide account specific information for 10 each account that was transferred, including for Ms. Canul. The documents that Velocity 11 Investments, LLC received for Ms. Canul’s account include the contract documents, the Truth in 12 Lending Disclosure Statement, attached hereto as Exhibit 2, the Certificate of Loan Sale, attached 13 hereto as Exhibit 3, and the Bill of Sale, attached hereto as Exhibit 4. 14 9. Velocity Investments, LLC agreed to a protective order in Pajarit v. Velocity 15 Investments, case no. 17-CIV-03046, which was signed by the Court on May 9, 2018. In light of 16 the protective order, Velocity Investments, LLC produced various policies and procedures and 17 financials relating to Velocity Portfolio Group, Inc., and its related companies, including its 18 subsidiary, Velocity Investments, LLC, to Fred Schwinn and his office, counsel of record in this 19 action. Mr. Schwinn and his office knew of the existence of Velocity Portfolio Group, Inc., as the 20 parent company of Velocity Investments, LLC since at least May of 2018. On October 15, 2019, 21 Mr. Schwinn’s office filed a joint supplemental brief in the Pajarit case describing Velocity 22 Investments, LLC as a subsidiary of Velocity Portfolio Group, Inc., confirming that Mr. Schwinn 23 and his office know of Velocity Portfolio Group, Inc. 24 Executed this _34 day of December 2021, at Wall, New Jersey. 25 26 Vth Dh ah Matthew DiPoalo 27 28 4 HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE ‘350 South Grand Ave., Suite 3600 os Angeles,CA 27-3402 1036477\309665274 v1 Document Ref: MPIM6-8FBVR-Q95GH-LJJGZ Page 4 of 5 5 10 11 12 13 14 15 16 a 18 19 20 21 22) 23 24 25 26 27 28 5 HINSHAW & CULBERTSON UP AMENDED DECLARATION OF MATTHEW DIPOALO IN SUPPORT OF SPECIAL MOTION TO STRIKE [350 South Grand Ave., Suite 3600 os Angeles, CA 27-3402 1036477\309665274 v1 Document Ref: MPIM6-8FBVR-Q95GH-LJJGZ Page 5 of 5 S35xx Signature Certificate RS Document Ref.: MPIM6-8FBVR-Q95GH-LJJGZ Document signed by: Matthew DiPoalo E-mail: mdipoalo@velocityrecoveries.com Wattle. Deal Signed via link (pss 82 eaeczscseecre) pees TATA TTT Document completed by all parties on: 03 Jan 2022 15:39:22 UTC Page 1 of 1 Ke eS Signed with PandaDoc.com PandaDoc is a document workflow and certified eSignature solution trusted by 25,000+ companies worldwide. fh: fm: F EXHIBIT 1 Loan Agreement - Lending Club = of This website does not support this version of Internet Explorer. Please upgrade to the latest version for a better experience. Upgrade Now Lending Club Welcome Anthony! Loan Agreement The following terms, together with your loan request on the Site, as defined herein, constitute a binding agreement (the "Agreement") between you and WebBank, a Utah-chartered industrial bank ("WBK," "we," or "us"). BY ELECTRONICALLY SIGNING THE AGREEMENT, YOU HAVE SIGNIFIED YOUR AGREEMENT TO THESE TERMS. Under this Agreement, you agree to receive and repay one or more installment loans from us, through the website lending platform at www.Lendingclub.com, including any subdomains thereof (the "Site") operated by LendingClub Corporation, a Delaware corporation ("LendingClub"). These terms affect your rights and you should read them carefully and print a copy for your records. Your agreement to these terms means you agree to borrow and repay the money if your loan is funded under the terms of this Agreement, consent to our privacy policy, agree to transact with us electronically, and agree to have any dispute with us resolved by binding arbitration. 1. Loan Terms. Your loan will have a principal balance between $1,000 and $35,000 in the specific amount and on the terms set forth in the disclosures provided to you (see the disclosures at http://www Jendingclub.com/account/truthInLending action). You agree and acknowledge that the initial loan disclosures made to you are estimates (other than APR) and may be as much as 40% less than the initially requested amounts. All loans are unsecured, fully-amortizing, closed-end loans with either a three (3)-year or five (5)-year term. Please see you Borrower Membership Agreement and other information provided to you in connection with registering your loan request on the Site for additional details. Your obligations, including your obligation to repay principal and interest, are set forth in this Agreement and in the Note or Notes that you will make to us, as described in section 3 below. 2. Credit Decisions. Your loan request must include your annual income and such other information as we may obtain through the Site. We will consider public assistance, alimony, child support, or separate maintenance income as income if you choose to include such sources of income in your application and such income is likely to continue. We reserve the right to verify any information you submit by requiring you to produce appropriate documentation or other proof, and also reserve the right to conduct such verification through a third party. You hereby authorize us to request and obtain data from a third party to verify any information you provide to us in connection with your loan request. We may terminate consideration of your application at any time in our sole discretion. 3. Loan Funding and Closing. You may post a loan request on the Site, and LendingClub investors ("Investors") will be able to review your loan request. Investors may commit funds to purchase, in various amounts, Member Payment Dependent Notes ("MPDNs") that LendingClub may issue to Investors who commit funds for your loan request. You file:///C\/NRPortbl/Active/A2481/309669467_1.html[1/4/2022 10:57:16 AM] Loan Agreement - Lending Club acknowledge that a Investor's commitment to purchase a MPDN corresponding to all or a portion of your loan from us does not confer any rights to you. You understand that individual Investors make their own decisions whether to commit funds for your loan. LendingClub may also choose to commit funds for all or part of your loan request but is not obligated to do so. Your loan will close and issue, unless you notify us in writing of your election to terminate your loan request sufficiently far in advance of the loan closing for us to cancel the loan, if: (i) within 14 days following the posting of your loan request, the aggregate amount of funding commitments through the Site fulfills your listed loan request in full, or (ii) at the end of the 14 days following the posting of your unsecured loan request, the aggregate funding commitments through the Site are greater than or equal to 60% of your listed loan request but less than 100%. If at the end of the posting period for your loan request, the funding commitments through the Site are less than 60% of your original loan request, you may elect to: (i) accept this lesser amount at which point your loan will close, (ii) withdraw your loan request, or (iii) withdraw your loan request and relist it on the Site. Funding of your loan request might be available before the expiration of the 14-day period set forth above. In no event, will we be obligated to notify you of the date upon which your loan may or will fund. If we extend a loan to you, you agree to execute by power of attorney as described below, and be bound by the terms set forth in, the form of promissory note attached as Exhibit A (the "Note") as to your loan. You agree to execute multiple Notes if we request you do so, provided that the aggregate principal amounts of such Notes shall equal the total amount of your loan. LendingClub will execute your Note(s) on your behalf pursuant to a power of attorney you grant to LendingClub when registering your loan request. You authorize us to disburse the loan proceeds by Automated Clearing House ("ACH") transfer to your designated account or on your behalf to your selected designee. Following our disbursement of the loan proceeds as set forth above, we will assign the Note(s) and your loan to LendingClub. BY COMPLETING YOUR APPLICATION AND SUBMITTING YOUR LOAN REQUEST, YOU ARE COMMITTING TO OBTAIN A LOAN FROM US IN THE AMOUNT AND ON THE TERMS SET FORTH IN ‘YOUR AGREEMENTS WITH WBK (OR ITS ASSIGNEES) AND THE DISCLOSURES PROVIDED TO YOU IN CONNECTION WITH YOUR REQUEST, SHOULD YOUR REQUEST BE FUNDED. YOU HAVE NO RIGHT TO RESCIND THE LOAN ONCE MADE BUT YOU MAY PREPAY THE LOAN AT ANY TIME WITHOUT PENALTY. We will not lend you any funds unless and until sufficient commitments are received from Investors and/or LendingClub. 4. Making Your Loan Payments. You authorize us and our successors and assigns to debit your designated account by ACH transfer for the amount of each payment due on each due date. You may elect to make payments by personal check by contacting support@lendingclub.com or by regular mail at LendingClub Corporation, 71 Stevenson St. Suite 300, San Francisco, CA 94105, Attention: Loan Processing Department. If you elect to make payments by check, you acknowledge and agree that there will be a $15 check processing fee per payment, subject to applicable law. If you elect to make payments by check, you must send the check either (i) by regular mail to Lending Club Corporation, Dept #34268, P.O. Box 39000, San Francisco, CA 94139, or (ii) by overnight mail or UPS delivery to Wells Fargo Lock Box Services, Dept #34268, 3440 Walnut Ave, Window H, Fremont, CA 94538. This authorization does not affect your obligation to pay when due all amounts payable on your loan, whether or not there are sufficient funds therefore in such accounts. The foregoing authorization is in addition to, and not in limitation of, any rights of setoff we may have. With regard to payments made by automatic withdrawal, you have the right to stop payment of automatic withdrawals or revoke your prior authorization for automatic withdrawals by notifying your financial institution at least three (3) banking days before the scheduled date of transfer. You must notify us of the exercise of your right to stop a payment or file:///C\/NRPortbl/Active/A2481/309669467_1.html[ 1/4/2022 10:57:16 AM] Loan Agreement - Lending Club revoke your authorization for automatic withdrawals at least three (3) banking days before the scheduled date of transfer. All payments are to be applied first to the payment of all fees, expenses and other amounts due (excluding principal and interest), then to accrued interest, and the balance on account of outstanding principal; provided, however, that after an Event of Default (as defined below), payments will be applied to your obligations as we determine in our sole discretion. 5. Other Borrower Obligations. You agree that you (A) are a US citizen or permanent resident and (B) will not, in connection with your loan request: (i) make any false, misleading or deceptive statements or omissions of fact in your listing, including but not limited to in the loan title, or in your loan description; (ii) misrepresent your identity, or describe, present or portray yourself as a person other than yourself; (iii) give to or receive from, or offer or agree to give to or receive from any LendingClub member or other person any fee, bonus, additional interest, kickback or thing of value of any kind except in accordance with the terms of your loan; (iv) represent yourself to any person, as a representative, employee, or agent of ours, or purport to speak to any person on our behalf; (v) provide, in your loan request or in communications on the Site related to your loan request, information upon which a discriminatory lending decision may be made, such as your race, color, religion, national origin, sex, marital status, age, any exercise of your consumer rights or the existence of alimony, child support, or separate income (unless you have included such income in your application to be considered for loan qualification) or (vi) use any of the loan proceeds to fund any post- secondary educational expenses, including, but not limited to, tuition, fees, books, supplies, miscellaneous expenses, or room and board (see Section 472 of 20 U.S.C. 108711 http://www.law.cornell.edu/uscode/search/display.html? terms=108711&url=/uscode/html/uscode20/usc_sec_20_00001087--11000-.html for a complete list). You acknowledge and agree that we may rely without independent verification on the accuracy, authenticity, and completeness of all information you provide to us. You certify that the proceeds of the loan will not be used for the purpose of purchasing or carrying any securities or to fund any illegal activity. 6. Fees. A non-refundable origination fee paid by you to LendingClub as provided under your agreement with LendingClub will be deducted from your loan proceeds, so the loan proceeds delivered to you or on your behalf will be less than the full amount of your issued loan. You acknowledge that the origination fee will be considered part of the principal on your loan and is subject to the accrual of interest. You agree to pay a fee of $15, if ACH transfers or checks are returned or fail due to insufficient funds in your account or for any other reason. Each attempt to collect a payment is considered a separate transaction, so an unsuccessful payment fee will be assessed for each failed attempt. The bank that holds your designated account may assess its own fee in addition to the fee we assess. If any payment is more than 15 days late, we may charge a late fee in an amount equal to the greater of 5% of the outstanding principal and interest or $15. If a payment is more than 30 days late, we shall charge such late fee. We will charge only one late fee on each late payment. These fees may be collected using ACH transfers initiated by us from your designated account. Any such late fee assessed is immediately due and payable. Any payment received after 6:00 P.M., Mountain time, on a banking day is deemed received on the next succeeding banking day. 7. Default and Termination. You will be deemed in default on your loan (each, an "Event of Default") if you: (1) fail to pay timely any amount due on your loan; (2) file or have instituted against you any bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (3) die; (4) commit fraud or make any material misrepresentation in this Agreement, the Note, or any other documents, applications or related materials delivered to us in connection with your loan; or (5) fail to abide by the terms of this Agreement. Upon the occurrence of an Event of Default, we may exercise all remedies available to us under applicable law, this Agreement, and the Note, including without limitation (1) demand that you immediately pay all amounts owed on your loan or (2) terminate this Agreement. Any loans you obtain prior to the effective date of termination resulting from listings you placed on the Site shall remain in full force and effect in accordance with their terms. 8. Collection & Reporting of Delinquent Loans. We reserve the right to report loan payment delinquencies at or in excess of 30 days to one or more consumer reporting agencies in accordance with applicable law. You agree to pay all costs of collecting any delinquent payments, including reasonable attorneys' fees, as permitted by applicable law. 9. Assignment of Your Loan. Following the closing of your loan you hereby agree that we may, without notice to you, (i) assign all of our right, title and interest in this Agreement to LendingClub and (ii) assign your Note(s) to LendingClub. You understand that the LendingClub may sell, assign or transfer your Note(s) without your consent. file:///C\/NRPortbl/Active/A2481/309669467_1.html[ 1/4/2022 10:57:16 AM] Loan Agreement - Lending Club 10. NO GUARANTEE. WE DO NOT WARRANT OR GUARANTEE (1) THAT YOUR LOAN REQUEST WILL BE FUNDED, OR (2) THAT YOU WILL RECEIVE A LOAN AS A RESULT OF POSTING A REQUEST. 11. Entire Agreement. This Agreement and any Note represents the entire agreement between you and us regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us with respect to your loan request and loan. The WBK Privacy Notice attached as Exhibit B is incorporated by reference into this Agreement. 12. Consent to Electronic Transactions and Disclosures. THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES, WHICH CONSENT IS SET FORTH IN THE TERMS OF USE FOR THE SITE. 13. Notices. All notices and other communications to you hereunder may be given by email to your registered email address or posted on the Site, and shall be deemed to have been duly given and effective upon transmission. You acknowledge that you have sole access to such email account and your area on the Site and that communications from s may contain sensitive, confidential, and collections-related communications. If your registered email address changes, you must notify LendingClub of the change by sending an email to support@lendingclub.com or calling 888- 596-3157. You also agree to update your registered residence address and telephone number on the Site if they change. 14. NO WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE 15. LIMITATION ON LIABILITY. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THE AGREEMENT MAY HAVE UPON YOUR FOREIGN. FEDERAL, STATE OR LOCAL TAX LIABILITY. 16. Miscellaneous. The parties acknowledge that there are no third party beneficiaries to this Agreement. You may not assign, transfer, sublicense or otherwise delegate your rights or obligations under this Agreement to another person without our prior written consent. Any such assignment, transfer, sublicense or delegation in violation of this section 16 shall be null and void. We are located in the state of Utah and this Agreement and the Note will be entered into in the state of Utah. The provisions of this Agreement will be governed by federal laws and the laws of the state of Utah to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction. Any waiver of a breach of any provision of this Agreement will not be a waiver of any other subsequent breach. Failure or delay by either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. If at any time after the date of this Agreement, any of the provisions of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provisions of this Agreement. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement in any way 17. Arbitration. a. Either party to this Agreement, or LendingClub, may, at its sole election, require that the sole and exclusive forum and remedy for resolution ofa Claim be final and binding arbitration pursuant to this section 17 (the "Arbitration Provision"), unless you opt out as provided in section 17(b) below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or LendingClub (or persons claiming through or connected with us and/or LendingClub), on the other hand, relating to or arising out of this Agreement, any Note, the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of section 17(f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise file:///C\/NRPortbl/Active/A248 1/309669467_1.html[ 1/4/2022 10:57:16 AM] Loan Agreement - Lending Club from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to LendingClub Corporation, 71 Stevenson St., Suite 300, San Francisco CA, 94105, Attention: Loan Processing Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send the opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf. c. The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. d. If we (or LendingClub) elect arbitration, we (or LendingClub, as the case may be) shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We (or LendingClub, as the case may be) shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we (or LendingClub) pay them and we agree (or LendingClub agrees) to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein. e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three- arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent jurisdiction. f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section 17(f), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any file:///C\/NRPortbl/Active/A2481/309669467_1.html[ 1/4/2022 10:57:16 AM] Loan Agreement - Lending Club challenge to the validity of this section 17(f) shall be determined exclusively by a court and not by the administrator or any arbitrator. g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information. h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or LendingClub; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or Note or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than section 17(f) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in section 17(f) are finally adjudicated pursuant to the last sentence of section 17(f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision. THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY. Exhibit A NON-NEGOTIABLE PROMISSORY NOTE Borrower name and address: (not visible to investors) $ » 20_ For value received, I ("Borrower") promise to pay to the order of WebBank or any subsequent holder ("you" or "Lenders") of this Promissory Note (the "Note") the principal sum of $ ) Dollars with interest as set forth below. I intend to be legally bound by this Note. I have read, understood, and agreed to all of the terms of this Note. Interest. This Note bears interest during each calendar month from the date hereof until paid, at a fixed rate of (%). Interest is calculated on a monthly basis upon the unpaid balance with each payment representing 1/12th of a year. Payments. Principal and interest is to be paid during and throughout the period of months in the following manner: Payments of principal and interest in the amount of ($ ) Dollars are to be made by the Borrower to the Lender commencing , 20_, and on the same day of each successive month thereafter until ,20__, when the full amount of unpaid principal, together with unpaid accrued interest is due and payable. If the monthly anniversary is on the 29th, 30th, or 31st of the month, and the following month does not have a 29th, 30th, or 31st day, the monthly payment will be due on the last day of the month in which the payment was due. The last payment might be of a slightly different amount to adjust for rounding. file:///C\/NRPortbl/Active/A2481/309669467_1.html[ 1/4/2022 10:57:16 AM] Loan Agreement - Lending Club All payments on this Note are to be made in immediately available lawful money of the United States. Borrower authorizes Lender to debit Borrower's designated account by Automated Clearing House ("ACH") transfer for the amount of each payment due on each due date. Borrower may elect to make payments by personal check by contacting support@lendingclub.com or by regular mail at LendingClub Corporation, 71 Stevenson St., Suite 300, San Francisco CA, 94105, Attention: Loan Processing Department. If Borrower elects to make payments by check, borrower acknowledges and agrees that there will be a $15 check processing fee per payment, subject to applicable law. This authorization does not affect Borrower's obligations to pay when due all amounts payable under this Note, whether or not there are sufficient funds therefore in such accounts. The foregoing authorization is in addition to, and not in limitation of, any rights of setoff Lender may have. With regard to payments made by automatic withdrawal, Borrower has the right to stop payment of automatic withdrawals or revoke Borrower's prior authorization for automatic withdrawals by notifying Borrower's financial institution at least three (3) banking days before the scheduled date of transfer. Borrower will notify Lender of the exercise of Borrower's right to stop a payment or revoke Borrower's authorization for automatic withdrawals at least three (3) banking days before the scheduled date of transfer. All payments are to be applied first to the payment of all fees, expenses and other amounts due to Lender (excluding principal and interest), then to accrued interest, and the balance on account of outstanding principal; p