Agreement — Oto Analytics, LLC v. Benworth Capital Partners PR LLC et al., No. 3:23-cv-01034-GMM

Full text

EXHIBIT 9
Case 3:23-cv-01034-GMM     Document 123-9     Filed 07/01/24     Page 1 of 8

AME OED LOAN SERVICING
AGREEMENT
This Amended Loan Servicing Agreement (the "Agreement") is dated September 23, 2021, and is between
Benworth Capital Partners PR LLC, a Puerto Rico limited liability company and Puerto Rico Mortgage Lender/
Servicer, NMLS No. 2234263, License No. IH-253, having an address at Plaza 221, 221 Avenida Ponce de Leon,
Suite 140, San Juan, Puerto Rico ("SERVICER") and Benworth Capital Partners LLC, a Florida limited liability
company and Florida Mortgage Lender Servicer, NMLS No. 374363, License No. MLD359, having an address at
700 Biltmore Way, Suite C-1, Coral Gables, FL 33134 ("Lender" ). The prior Loan Servicing Agreement signed
May 31, 2021 is null and void. The parties agree as follows:
Benworth Capital Partners LLC is a commercial mortgage lender/servicer and is organized in the State of Florida
under the rules of the National Mortgage Licensing System and the laws of the State of Florida, Office of
Financial Regulation (OFR) under Chapt er 494 of the Florida St atues.
Benworth Capital Partners PR LLC is a commercial mortgage lender/servicer and is organized in the
Commonwealth of Puerto Rico under the rules of the National Mortgage Licensing System and the laws of
Puerto Rico Oficina del Comisionado de lnstitutos Financieros (OCIF).
1. Scope.
a. Lender retains SERVICER as Lender's agent to employ commercially reasonable efforts to collect all
scheduled payments on various Loans originated by Lender ("Loan") which are evidenced by one or
more promissory note(s) ("Note") and secured by one or more deed(s) of trust/mortgages ("Deed of
Trust"), including the protection of the security for the Loan. SERVICER shall consult with and follow
instructions from Lender on non-routine collection matters.
b. Lender retains SERVICER as Lender's agent to assist with its portfolio of Paycheck Protection Program
loans ("PPP loans"), mainly by assisting with obtaining Forgiveness for said loans, Servicing,
administering Guaranteed Purchase, and to provide Fraud monitoring for said loans.
2. Term and Termination. This Agreement shall commence as of the date of this agreement and continue
throughout as "SERVICER" receives all necessary documents to service loans and this Agreement executed
by all parties. This Agreement shall terminate when any of these events occur: (a) payment in full of all Loans
and reconveyance of the deed(s) of trust securing all the Loans; (b) 30-days written notice of t ermination by
SERVICER to Lender; (c) 30-days written notice by Lender to SERVICER accompanied by instructions
identifying the new person or entity to whom loan servicing shall be t ransferred; (d) issuance of a trustee's
deed following a foreclosure of the Loan or final distribution of surplus proceeds whichever occurs last. Prior
to the effectiven ess of any termination, SERVICER shall deliver to Lender all of Lender's funds (less any
amounts due Servicer), an appropriate accounting and all necessary documentation. At termination, Lender
shall immediately reimburse SERVICER for any outstanding advances made pursuant to this agreement said
funds cannot be intercepted as st ated above.
3. Specific Loan Servicing Functions.
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• As to mortgage loans, SERVICER shall: (a) issue payment coupons or monthly statements to the
borrower directing Loan repayment to SERVICER; (bl issue payoff demands, beneficiary
statements and verifica tions of mortgage; (c) demand, receive and collect all Loan payments and
Loan payoff funds, and/or partial paydowns and deposit them immediately to SERVICER'S trust
account and pay any such funds received to Lender within 25-days of receipt by the SERVICER; (d)
issue annual income t ax statements to the borrower and Lender; (e) answer borrower inquiries,
demands and requests; (f) grant appropriate payment deferrals; however, the SERVICER shall not
extend the Loan's maturity date without Lender approval, (g) maintain adequate insurance
coverage which means that the SERVICER will monitor the continued effectiveness and claims on
any property insurance listed in the Loan escrow instructions. Should borrower not pay for
renewal of insurance, SERVICER may pay said premium or bind or obtain coverage for the Lender
through its carrier, if said product is available; should property be impounded for insurance and
federal or state law requires that servicer maintain the insurance when there is an impound
account, thus requiring servicer to advance insurance payment, Servicer to be reimbursed for
advance, (h) receive notices of property tax delinquencies, should a tax service be ordered through
escrow or thereafter. SERVICER shall not be responsible should tax service fail to send timely
notice; (i) execute and deliver on behalf of Lender and in Lender's name any documents necessary
or convenient for the exercise of any rights or duties which Lender may have under the Loan; (j)
endorse to SERVICER'S Trust Account any checks or money orders payable to Lender and to
immediately deposit them into SERVICER'S trust account; (k) intentionally deleted; (I) notify
Lender in writing within 5-days of the recording of any of Notice of Default or Notice of Trustee
Sale on any senior liens about which Lender has informed SERVICER and on serviced loans; (m)
notify Lender in writing within 5 days of the recording of any notice of default on their own loan
(n) notify Lender within 5 days of the receipt of any payment constituting an amount greater than
or equal to five monthly payments, together with a request for partial or tot al satisfaction of the
mortgage, in which case the notice shall also indicate any further transfer or delivery instructions;
(o) promptly forward to Lender a copy of any Notice of Sale or of any request for satisfaction on
the Loan; (p) Lender within 15- days of any installments which becomes delinquent over 30-days;
(q) provide a year-end accounting if required by statute or regulation; (r) promptly communicate
to Lender any material information about collection of the Loan; and, (s) have the trust accounts
of the SERVICER and of any affiliate, if any, inspected by an independent certified public
accountant at no less than three-month intervals.
• As to PPP loans, on a daily basis SERVICER shall diligently communicat e with borrowers to
encourage them to apply for Forgiveness. This shall occur through phone communication, text,
voice mail and emails.
As to PPP loans, SERVICER shall monitor all fraudulent loan applications and submit SBA OIG
investigations. SERVICER will also submit Suspicious Activity Reports to FINCEN of the United
States Treasury Department.
As to PPP loans, SERVICER shall facilitate the response to all subpoenas and request for
information from any and all governmental agency.
As to PPP loans, SERVICER shall submit fraudulent or non-performing loans to the United States
Small Business Administration (SBA) for Guaranteed Purchase.
Case 3:23-cv-01034-GMM     Document 123-9     Filed 07/01/24     Page 3 of 8

As to PPP loans, SERVICER shall administer servicing functions for the Lender.
As to PPP loans, SERVICER shall monitor any PPP loan Bankruptcy filings and submit appropriate
documentation to Bankruptcy court if needed.
As to PPP loans, SERVICER shall work with Lender's customers who have submitted a Forgiveness
Application to the SBA and are required by the SBA to provide additional information needed to
the SBA to process the Forgiveness Application (each customer shall be referred to as an "Audited
Applicant"). Specifically, SERVICER shall assist all Lender's Audited Applications which receive a
request under the SBA's requests for " lender additional information needed" or "all docs request"
(each application shall be referred to as an "Audited Application").
a. SERVICER shall check the SBA's forgiveness portal on a daily basis for any new Audited
Applications.
b. Upon receipt from the SBA of an Audited Application, SERVICER shall send the
required notification, along with a request for additional documents, to the Audited
Applicant within five (5) days.
c.
SERVICER shall attempt to contact the Audited Applicant for thirty (30) days by
telephone and email.
d. SERVICER shall assist Audited Applicants to perform all necessary steps to ensure the
initial responsive submission of an Audited Application to the SBA.
e. SERVICER cannot guarantee that the Audited Applicant will be responsive to
SERVICER's request for documentation, and compensation to SERVICER shall not be
contingent upon completed Audited Applications, but rather on SERVICER making
attempts to contact the Forgiveness Applicant no less than four (4) times after
SERVICER communicates the initial request from the SBA to the Forgiveness Applicant.
f.
SERVICER shall be responsible for submitting the notice of SBA decision on the
Audited Application to the Audit Applicant, and work with the borrower on any
appeals.
g. SERVICER shall notify Lender if information is needed from Lender, who shall provide
the requested information to SERVICER within five (5) days from the date of the
request for timely submission to the SBA.
h. The SBA may also request an explanation as to Lender's proposed forgiveness
amount. As to these requests, Lender shall be solely responsible to provide responses
to the SBA.
i.
Lender shall designate a contact to which SERVICER can direct all requests for
information, as well as status updates regarding the forgiveness files.
4. Handling of Funds and Notices. Payments received by SERVICER pursuant to this agreement shall not be
commingled with the assets of the SERVICER or used for any transaction other than the transaction for which
the funds are received (unless directed by Lender or Lender's agent). If the source for the payment is not the
maker of the note, the SERVICER shall inform the Lenders in writing of the source for payment . If the
SERVICER transmits to Lenders the SERVICER'S own funds to cover payments due from t he borrower but
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unpaid as a result of a dishonored check, the SERVICER may recover the amount of the advances from t he
trust fund when the past due payment is received or within 10 days of billing lender. Neither SERVICER nor
any other person, is authorized by this Agreement or by law to issue, or to engage in any practice constituting,
any guarantee or to engage in the practice of advancing payments on behalf of the borrower.
5.SERVICER Reliance of Information and Lender Representations. The undersigned Lender represents that
Lender, or its assignees, if any, owns the entire beneficial interest in t he Loan. Lender agrees that SERVICER
may rely on all prior servicing records and information provided to SERVICER by Lender or by a predecessor
loan servicer and that SERVICER has no obligation or duty to research or verify such prior servicing records
and information.
6. Authority of SERVICER. Without further authorization, Lender expressly authorizes SERVICER to take any
actions set forth in this Agreement including, but not by way of limitation, those necessary to engage in loss
mitigation, forbearance agreements, loan modifications, to initiate, conduct and conclude a non-judicial or
judicial foreclosure or to exercise, on behalf of Lender, any remedies Lender may have. Lender understands
that SERVICER does not have a propriety modification or forbearance plan available to offer borrowers.
Lender represents that the Loan does not currently fall under any mandated government programs for
payment assistance should the borrower default. Unless the Lender provides SERVICER with a written copy
of Lender's proprietary loan modification or forbearance plan, Lender represents to SERVICER that Lender
has no such plans. SERVICER is not authorized to enter into any forbearance plan or loan modification
without the written consent of Lender unless mandated by statute or regulation. Lender authorization
shall be on a loan-by-loan basis and shall be considered a "non-routine" matter. Upon Lender's consent,
SERVICER may enter, on Lender's, or its assignee's behalf, a loan modification or forbearance plan.
Lender authorizes SERVICER to employ outside services ("Contractors" ) reasonably necessary in the SERVICER
sole discretion to protect Lender's interest in the Loan. These Contractors may include, but are not limited
to, appraisers, attorneys, accountants, foreclosure agents/trustees, and services provided by SERVICER or by
affiliated firms that are not within the scope of this Agreement (e.g., foreclosure agent or trustee w hen a
foreclosure must be commenced). Whether Contractor's fees and costs have been incurred or whether they
are yet to be incurred, upon SERVICER'S demand, Lender shall pay said Contractor fees and costs as directed
by SERVICER. SERVICER may produce a copy of this Agreement as evidence of its authority. Should property
be located in a city or county in which an ordinance exists where registration fees, inspection fees, etc. exist,
Lender understands that Lender is responsible for payment of said fees, either directly by request of
SERVICER or reimbursement to SERVICER.
7.
Default of Borrower. Upon borrower's default under the Loan Documents and after receiving
inst ructions of Lender, SERVICER, or its designated Contractor (e.g., trustee, substitute trustee, or foreclosure
agent) are each authorized by Lender to take any and all reasonable or necessary actions on behalf of Lender
to: (1) satisfy or complete any conditions precedent to initiating, processing and concluding a non-judicial or
judicial foreclosure, including, but not limited to, t aking any actions required or permitted by the Loan
Documents or pursuant to State law; and (2) to initiate, process, and conclude a non-judicial foreclosure
including, but not limited to, taking any actions required or permitted by the Loan Documents or pursuant to
State law. The authority granted by the Lender under this Agreement includes, but is not limited to, SERVICER
and a Contractor selected by SERVICER (e.g., trustee, substitute trustee, or foreclosure agent) each of whom
is authorized to take all actions on behalf of Lender relating to executing and processing a Notice(s) of Default;
a Declaration of Mortgage SERVICER included in the Notice(s) of Default; using a title company or vendor of
SERVICER'S choice for recording documents on behalf of Lender, SERVICER or its Contractor; to prepare and
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Case 3:23-cv-01034-GMM     Document 123-9     Filed 07/01/24     Page 5 of 8

record a Substitution of Trustee if needed· to order a Trustee's Sale Guarantee or litigation guaranty; to mail
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"Post-Notice of Default Solicitation Letter" if necessary; to post, publish and take any and all other action
regarding a Notice of Foreclosure Sale; to request a bid or postponement information; to send required
postponement letters under Lender's or SERVICER'S name; to conduct and/or continue a Foreclosure Sale;
to distribute all funds received whether reinstatement, payoff, or trustee sale proceeds. For each default of
borrower, Lender authorizes SERVICER, in its sole discretion, to direct any and all foreclosure actions through
foreclosure sale (which includes final distribution of any surplus proceeds), reinstatement, redemption or
other legal satisfaction or extinguishment of the Deed ofTrust/Mortgage. Lender understands that SERVICER
may "underbid" to commence bidding, but SERVICER shall not accept less than full credit bid at Foreclosure
sale without Lender's approval. Additionally, SERVICER has authority to quote payoff/reinstatements, or
redemption figures to borrower and to collect all funds on Lender's behalf and release to lenders. While
having the authority to do so, Lender agrees that SERVICER may refuse to take any action to initiate, process
or conclude a non-judicial or a judicial foreclosure: (1) without an instruction from Lender; and, (2) until
Lender has deposited any fees, costs, instructions, and documents required by SERVICER or by Contractor
(e.g., trustee, substitute trustee or foreclosure agent).
8. Protective Advances. Lender shall make such advances that are necessary and prudent to protect and to
collect Lender's interest in the Loan. SERVICER, in its absolute discretion, may, but is not obligated to, advance
its own funds to protect the security of Lender's Loan, including making advances to cure senior liens,
property insurance, foreclosure expenses, repairs, advertising, litigation expenses, and similar items, but not
Loan payments. SERVICER shall be reimbursed such advances within 10 days after the SERVICER'S written
demand on Lender. SERVICER may be entitled to fees for these advances. To secure SERVICER's advances,
Lender hereby irrevocably assigns to SERVICER, to the extent of advances owed to SERVICER, the next Loan
payments or portion of loan payoff received after a SERVICER advance is made. Should Lender not reimburse
SERVICER upon SERVICER'S demand for any fees or advances due SERVICER, SERVICER has the right to deduct
said amount from any funds due Lender (including funds from other loans serviced by SERVICER to the extent
of said Lender's interest in said other loans being serviced by SERVICER).
9. Loan Documents. SERVICER shall retain custody as agent for Lender of the original note, deed of trust,
mortgage, and any other document SERVICER feels is necessary to properly service the Loan. Lender is to
receive notice of receipt of original documents at time of receipt by SERVICER. On assigned investor loans,
the custody of documents shall be agreed upon by all parties.
10.Compensation. For its services, SERVICER shall be paid the following amounts, broken down as follows:
TYPE OF SERVICE
o SERVICER
to Lender
Mortgage Loan
75% of the dmerentia
25% of the differential
Servicing Fee
fee
fee
Mortgage Late Charge
503/o
50%
(10%)
Mortgage loan
$50.00
0
preparation and
recording of each
Request for Notice
Mortgage loan Set Up
$125.00
0
Fee
-
Should
all
) 0 1 /
Case 3:23-cv-01034-GMM     Document 123-9     Filed 07/01/24     Page 6 of 8

documentation not be
received at the onset
or
additional
work
must be performed to
set up this file, an
additional fee in the
amount of "$75.00-
$150.00" shall be
charged to Lender
Mortgage
Default If default interest is 25%,
75%
Interest
25%
75%
If default interest is 18%,
25%
Mortgage Prepayment
Penalty
50%
50%
PPP loan forgiveness
5500.00 per file
0
Fee
PPP loan Fraud
550.00 per tile
0
Monitoring Fees and
Guaranteed Purchase
PPP loan Servicing
65 bps
0
In addition, all payoff demand/reinstatement fees, verification of mortgage fees, wire fees, NSF fees,
overnight charges, forbearance agreement/modification fees, and bankruptcy administration fees are 100%
due to SERVICER-- SERVICER'S compensation is subject to change upon 30-days written notice to Lender;
Lender may avoid changes by terminating this Agreement in writing within the 30-day period. Should Lender
cancel servicing, a $50.00 fee per file cancelled shall apply in addition to the minimum servicing fee charge
per file. Should SERVICER be required or requested to perform additional services outside the scope of this
Agreement (e.g., trial testimony, deposition testimony, travel and waiting time in litigation matters), an
hourly rate of $75.00 to $250.00 per hour may apply, depending upon the type of personnel needed to
perform said duty. This does include SERVICER'S testimony time in court or in deposition. To secure
SERVICER'S COMPENSATION, Lender hereby irrevocably assigns to SERVICER, to the extent of compensation
owed to SERVICER, the next Loan payments or portion of loan payoff received from this loan or any other
loan which may be owned by Lender after SERVICE R'S compensation has not been paid.
11. Value of Real Estate Security. Lender further understands and agrees that the security for any Note and
Deed of Trust/Mortgage is directly related to the equity in the security real estate ("Secured Property").
Lender understands that the value or saleability of real estate can change at any time and, therefore, that
equity in the security real estate can increase or decrease. Lender hereby releases SERVICER from any liability
what soever in connection with the det ermination of the value of the Secured Property.
12. Lender Indemnification of Servicer. Lender agrees to hold harmless, indemnify and defend SERVICER
from any and all claims, demands, judgments, actions, and liability [herein collectively "Claims"], including
attorney's fees and costs incurred in responding t o and/or defending against such Claims, arising from, or
relating to in any way, the loan(s) and mortgages(s) which are the subject of this Agreement ("Indemnity").
Case 3:23-cv-01034-GMM     Document 123-9     Filed 07/01/24     Page 7 of 8

Indemnity under this Agreement shall also apply to Claims arising from, or relat ed to: (1) the SERVICER'S
conduct under this Agreement except for conduct of the SERVICER that is adjudicat ed to be the direct result
of SERVICER'S gross negligence or willful misconduct; (2) the conduct of Lender's Brokers who originated the
Loan for either the original lender or for the borrower; (3) Any conduct of any predecessor or successor loan
servicer; (4) the trustee, substitute trustees, foreclosure agents and vendors providing foreclosure related
services; and, SERVICER'S agents, employees, managing members, officers and directors.
13.Survival. The provisions of this Agreement relating to indemnity and all provisions relating to SERVICER'S
fees, costs, and reimbursements for advances, shall survive the termination of this Agreement.
14.Notice. Notices pursuant to this Agreement shall be in writing and may be served by email with
confirmation that the e-mail was delivered and read, facsimile with transmission and receipt verification;
personal delivery; overnight delivery or certified mail, return receipt requested, at t he SERVICER's addresses
set forth at the beginning of this Agreement and at the Lender's address set forth below beneath th e Lender's
signature. Either party may change that party's address for notice by sending written notice to the other
party. Notices pursuant to this paragraph shall be deemed received one business day after it was sent or
transmitted as set forth herein or 2 business days after actual receipt, whichever is earlier.
15. Venue. This Contract shall be governed in all respects by the laws of Puerto Rico. Any lawsuit or other
action brought by or against either of the parties based upon or arising from this Contract shall be brought
in a court or other forum of competent jurisdiction in Puerto Rico.
16. Counterparts. This Agreement may be executed in duplicate counterpart, and each such counterpart
together shall constitute one document. This Agreement shall be considered fully executed as of the dat e
last signed. This Agreement may be signed and the signatures may be transmitted by scan and email, and
such faxed or scanned signatures shall be considered as original signatures.
AGREED & ACCEPTED:
y: Bernardo Navarro
NMLS #329578
Benworth Capital Partners R LLC,
a Pu to Rico limite~ liab'J~
By: Claudia P. Navarro
NMLS #341277
Case 3:23-cv-01034-GMM     Document 123-9     Filed 07/01/24     Page 8 of 8

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