Opinion
23 cv 5612
10-18-2024
KIA FULLWOOD, Plaintiff, v. THE FEDERAL SAVINGS BANK, Defendant.
AFFIDAVIT OF JOHN T. CALK
Franklin U. Valderrama, Judge
John T. Calk states as follows:
1. I have personal knowledge of the facts set forth in this affidavit and could competently testify thereto if called as a witness.
2. I am the Chairman and Chief Executive Officer of The Federal Savings Bank.
3. The Federal Savings Bank is a federally-chartered savings bank that is headquartered in Chicago, Illinois and is engaged, inter alia, in the residential mortgage business throughout the United States.
4. Attached hereto as Sub-Exhibit 1 is a true and correct copy of a written employment agreement between Kia Fullwood and The Federal Savings Bank that was executed by the parties on July 9, 2021.
Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on August 31, 2023.
Exhibit A
Terms of Employment
These Terms of Employment is entered into between THE FEDERAL SAVINGS BANK. (“Company,” “we”, “us” or “our”) and Kia Full wood (“you” or “Employee”).
We are willing to employ you under the terms and conditions of this Term of Employment. Your employment is “at will”.
1. COMPENSATION
Compensation shall be paid to you in accordance with your Compensation Plan and any attachments hereto, including any Commission Agreement or Offer Letter if attached to this Agreement, as applicable. If attached hereto, such documents are incorporated herein by reference and subject to the terms of these Terms of Employment.. Your compensation will be reported to the Internal Revenue Service (“IRS”) and other applicable taxing authorities on a form W-2 with the appropriate tax withholdings as required by the IRS and/or state and local taxing authorities.
By signing these Terms of Employment, you acknowledge having received a copy of any Compensation Plan or Offer Letter (as applicable). The Company retains the right at all times to change or modify compensation, without prior notice, in the Company's sole discretion.
2. DUTIES
The Company agrees to employ you as a full-time employee. You agree to protect our best interests at all times and to fully comply with all applicable laws, regulations, and rules, including but not limited to the Real Estate Settlement Procedures Act (“RESPA”), the Illinois Residential Mortgage License Act (the “Act”), the Rules of the Illinois Division of Banks and Real Estate (the “Rules”), and/or all relevant other individual state laws and rules as applicable and national laws and regulations as they are now and may change in the future. As our employee, you may assist only the Company in our performance of activities as regulated by the Act and Rules. You may not assist any other licensee, exempt entity, or entity that should be licensed in the performance of any activity regulated by the Act and Rules. You may be compensated for the performance of activities regulated by the Act and Rules by us only.
During your employment, you further agree to diligently perform such duties (the “Duties”) as are allocated to you (for Inside Direct Mortgage Bankers, Outside Commissioned Mortgage Bankers, HECM Inside Direct Mortgage Bankers, HECM Outside Commissioned Mortgage Bankers including SVPs in these roles, the duties enumerated in your Compensation Plan) and exercise all due diligence and care in the performance of the Duties; comply with the reasonable and lawful directions given to you from time to time by the Company; comply with all Company policies and procedures, including, without limitation, those set forth in the Handbook, a copy of which has been provided to you; and promote and, consistent with the Duties, protect the Company's interests, always giving it the full benefit of your knowledge, expertise and skill.
Unless prevented by ill health or injury, you agree to devote the entirety of your working time, attention and abilities during your employment with the Company to the business of the Company, and will not, without the prior written consent of an authorized representative of the Company, accept any other employment or work for or be directly or indirectly engaged in or concerned with the conduct of any other business.
3. CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
(a) You acknowledge that the Company is engaged in a personal service business involving relationships with clients, including Controlled Business Arrangements (“CBA”) and Marketing Services Agreements (“MSA”), the success of which business depends in large part upon the undisturbed continuation of such relationships with clients, and that all goodwill created as a result of your contact with the Company's clients belongs to the Company. A Controlled Business Arrangement (“CBA”) shall mean any relationship with a bank, realtor, developer, title company or any other entity for which the Company has entered into an agreement for a CBA for the providing of financing for the customers of the CBA. A Marketing Services Agreement (“MSA”) shall mean an agreement with a bank, realtor, developer, title company or any other entity with which the Company has entered into an agreement to provide marketing services for the provision of financing for the customers of the parties to the MSA. You acknowledge that in the course of your employment with the Company, you have been and will become familiar with the Company's operations, trade secrets, customers, and clients and with other confidential information developed by and belonging to the Company, that such information coupled with the personal relationships and goodwill referenced in the preceding sentences of this subsection would enable you to compete unfairly against the Company during or upon termination of your employment with the Company.
(b) Accordingly, except with the express written consent of the Company's Board of Directors, you agree that from the date on which you execute this Term of Employment through the period ending 12 months after your employment with the Company terminates, regardless of the reason for such termination, you will not take any action designed to diminish, interfere with, or terminate the Company's relationships with any parties to any MSA or CBA that is in effect within the 180 days preceding the termination of Employee's employment, nor will Employee take any action designed to cause, encourage or facilitate any party to such a CBA or MSA to enter into a formal business arrangement with any other entity engaged in in residential mortgage lending. (c) From the date on which you execute this Term of Employment through the period ending 12 months after your employment with the Company terminates, regardless of the reason for such termination, you will not solicit, entice, cause, encourage, induce, facilitate, attempt to induce, aid or assist any other party or person in soliciting, inducing, facilitating, or attempting to induce: (1) any client or prospective client of the Company with whom you discussed potential loan options or scenarios in the twelve (12) months preceding termination of employment with the Company; (2) any person who provided confidential or proprietary information to the company within the preceding 12 months; or (3) any person who in the preceding 180 days closed a loan with the Company, to engage the services of another person or entity engaged in residential mortgage lending for the purpose of securing financing or refinancing of any residential mortgage loan.
(d) From the date on which you execute this Term of Employment through the period ending 12 months after your employment with the Company terminates, regardless of the reason for such termination, you will not entice, cause, encourage, induce, aid, assist or facilitate any employee to terminate their employment with the Company and/or become employed with another residential mortgage lender.
(e) If any of the restrictive covenants in this Term of Employment are held to be invalid or unenforceable by a court of competent jurisdiction, it is intended and understood by the parties that such invalidity or unenforceability will not affect the remaining restrictions, and the parties further intend and request that a court of competent jurisdiction interpret the restrictions in Section 3 so that they are enforceable to the maximum extent permitted under applicable law.
(f) You agree that in the event of any threatened, intended or actual breach of this Term of Employment by you, the Company will suffer irreparable damage, the exact amount of which may be impossible to ascertain, and for which the remedies at law may be inadequate, and for those reasons you further agree that the Company shall be entitled, in addition to reasonable attorneys' fees, costs and remedies otherwise available to the Company at law or in equity, to injunctions, both preliminary and final, enjoining and restraining such threatened, intended or actual breach, and you irrevocably consent to the issuance of such injunctive relief by any court of competent jurisdiction.
4. NON-DISPARAGEMENT
You agree that during and after your employment with the Company, you will not make any false, untruthful or misleading remarks, statements, speeches, or any other written or oral communication that is false, misleading or untruthful to any person or to the public or take any other action which would in any way falsely or untruthfully disparage, criticize, or embarrass, the Company, any of its affiliates, or their respective subsidiaries, employees, officers or directors. This provision shall not apply to or prohibit Employee from (i) filing any complaint or charge with a State, Federal, or County agency; (ii) reporting any good faith allegation of any law, rule or regulation to any appropriate federal, State, or local official or agency; (iii) participating in a proceeding before or providing truthful information in connection with any federal, State, or local government agency or otherwise disclosing information as required by law, regulation, or legal process; (iv) disclosing any information in obtaining confidential legal advice or (v) reporting or disclosing harassment and/or discrimination in violation of Section 2-102 of the Illinois Human Rights Act.
5. KEY CARD AND OTHER COMPANY PROPERTY
(a) Key Card: You acknowledge that the key card furnished to you is the sole property of the Company. Upon termination, you must return your key card in person to the office manager. This must be done within 24 hours of termination and between the hours of 9:00 a.m. and 5:00 p.m. If these items are not returned, the Company may, to the extent permitted by law, deduct the cost of the key card from your final paycheck. The key card is your sole responsibility. If lost or stolen, you agree to reimburse The Federal Savings Bank $20.00 for the key card. The following is your specific key card number:
Key Card #
(On back, lower left corner)
(b) Receipt for Supplies: You acknowledge that the items listed below have been furnished to you and are the sole property of the Company. Upon your resignation or termination they are to be returned. If they are not returned, the Company may, to the extent permitted by applicable law, deduct the cost of these items from your final paycheck. If during the course of your employment these items become damaged, they must be returned for repair or replacement. If any item should be lost you will reimburse the Company for the cost of said items.
___ Parking Pass ___ Desktop Computer/Modem
___ Access to all Printers ___ Office Key (Naperville)
(c) Return of All Other Company Property: Upon the Termination of your employment or at any time as directed by the Company, you agree to deliver immediately to the Company all property belonging to the Company or any of its customers or employees, and all other property relating to their business(es) which may be in your possession or under your control. You further agree that you and anyone acting on your behalf will not keep copies of any reproducible items or extracts from them and will not download any information stored on any computer storage medium.
6. EMPLOYEE WEBSITE
You acknowledge that on this date you received instruction on how to access the Company's Employee Website. By signing these Terms of Employment, you acknowledge your understanding that this website contains the Handbook and outlines many of the Company's policies, practices, and benefits related to your employment. The website also defines your obligations as an employee of the Company. You recognize that it is your responsibility to familiarize yourself with and be knowledgeable of the information contained therein. You also understand that this website will be updated regularly and without notice to the Employee and that it is your responsibility to review the website regularly and maintain a working knowledge of the most current information provided. Should you have any questions or concerns related to the website or its contents, it is your responsibility to approach your Manager for discussion.
7. AT-WILL EMPLOYMENT
You acknowledge and agree that you are an “at will” employee of the Company. This means that the Company may terminate your employment at any time and for any reason, with or without cause, and that you too may choose to resign for any reason. Your at-will employment may not be eliminated or modified except in a written document signed by the Company's President and/or CEO.
8. CHOICE OF LAW; ARBITRATION; FORUM SELECTION
(a) Choice of Law. These Terms of Employment are made and entered into in the State of Illinois and shall in all respects be interpreted, enforced, and governed by and in accordance with the laws of the State of Illinois.
(b) Forum Selection. The Parties agree that any litigation between them must be brought in Cook County, Illinois and cannot be initiated in any other location, regardless of where Employee works or resides. Notwithstanding the foregoing, if Employee does not out-out of the arbitration provisions set forth herein, as consideration for agreeing to arbitrate claims as set forth below, such arbitration shall, upon Employee's timely request, be conducted within one hundred (100) miles (or as close as is otherwise reasonably practicable) of the location where Employee worked for the Company.
(c). Arbitration. In the event of a Covered Dispute instead of litigating the dispute before a court and/or jury, the Parties shall exclusively submit such a matter to binding arbitration in accordance with the rules of JAMS Arbitration applicable to employment claims, provided however, that notwithstanding any rules in JAMS to the contrary, employees' claims may not be brought collectively or joined in any manner with any claims of other employees, and there will be no provision or allowance for any class or collective actions. The parties will share equally in the cost of such Arbitration, and shall be responsible for their own attorneys' fees, provided that if the Arbitration is brought pursuant to any statutory claim for which attorneys' fees were expressly recoverable, the Arbitrator shall award such attorneys' fees and costs consistent with the statute at issue. Moreover, if the claim is de minimus in comparison with the amount of the arbitration fee or as is otherwise required by law to render such an agreement enforceable, Employer may, in its discretion, agree to pay Employees share of the Arbitration Fee. Employee may opt out of Arbitration relieving both parties of the obligations to Arbitrate by (1) sending a notarized letter to the attention of Employee's immediate supervisor copied to the Company's Benefits and Licensing Department, both sent via Certified Mail within 30 days of the execution of this Agreement expressly opting out of Arbitration; or (2) striking the entirety of this Section 8 (c) and initialing here as follows: __ (do not initial here unless you wish to opt out of this Term).
Leave this field blank to "opt in" and accept this term
(d) As defined herein, a Covered Dispute includes any dispute over the wages, hours, working conditions, terms, rights, responsibilities or obligations between the Parties or arising out of their employment relationship, provided that a Covered Dispute does not include, nor may it be defined in any manner to prohibit or restrict either Party from (i) filing any temporary restraining order or other litigation concerning the violation of Section 3 of this Agreement; (ii) filing, reporting or participating in any complaint, charge, or proceeding with/before a State, Federal, or County agency; (iii) providing truthful information in connection with any federal, State, or local government agency or otherwise disclosing information as required by law, regulation, or legal process; or (iv) requiring the arbitration of any claim that would cause this Agreement to violate any lawful rule, statute or regulation.
9. CONSUMER REPORTING AGENCY AUTHORIZED ACCESS AGREEMENT
You understand that as a designated representative of the Company, you are authorized to request and receive consumer reports from a consumer reporting agency. You hereby agree that you shall only request consumer reports on individuals with whom the Company has a permissible purpose to receive a consumer report. You further agree not to obtain consumer reports on yourself, associates or any other person except in the exercise of your official duties. You further agree to keep confidential the passwords and/or user identification numbers with which to access consumer reports and not share such numbers with other employees who do not have official responsibilities to obtain such reports.
You understand that the Fair Credit Reporting Act (“FCRA”) stipulates that anyone who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be subject to fine and/or imprisonment.
You acknowledge your duty to comply with the provisions of the FCRA and any other credit reporting requirements at all times during your employment, and you hereby agree to indemnify the Company and its employees from any liability resulting from your actions that are unlawful under the provisions of the FCRA or any other applicable credit reporting law.
10. COMPENSATION
You expressly agree and acknowledge that your Compensation Plan contains the details of your compensation as an employee of the Company.
11. PRIOR AGREEMENTS
You represent and warrant to the Company that you are not presently a party to any agreement containing a non-competition provision, non-solicitation provision or other restriction that would interfere with the performance of your duties on behalf of the Company. You further certify that you have not disclosed or used, and will not disclose or use during your employment with the Company, any confidential information that you acquired as a result of any previous employment or under a contractual obligation of confidentiality before your employment by the Company.
12. ENTIRE TERM OF EMPLOYMENT
These Terms of Employment and any attached documents provided herewith and incorporated herein by reference set forth the entirety of all terms of your employment with the Company and supersede any written or oral understanding, promise, or Term of Employment directly or indirectly related to it. By signing below, you acknowledge and agree that any prior written or oral understanding, promise or Term of Employment between the Company and you will be deemed to have been terminated by mutual consent. Any amendments, additions or changes to this Term of Employment are valid only if they are made in a writing that is signed by you and an authorized representative of the Company. Notwithstanding the foregoing, if the Company, via its president or CEO, distributes any document by email that by its express terms, is intended to impact or change the manner in which commission is calculated, then any such email shall be considered a writing signed by all parties hereto.