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HomeMy WebLinkAbout911744WHEN RECORDED RETURN TO: First American Title Insurance Company Equity Loan Services Division 720 - 3rd Ave. Suite 2020 Seattle, WA 98104 RECEIVED 9/12/2005 at 2:13 PM RECEIVING # 911744 BOOK: 597 PAGE: 299 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY MORTGAGE THIS MORTGAGE SECURES OBLIGATORY FUTURE ADVANCES MIN 100037506854886323 THIS MORTGAGE, as amended and extended (this "Mortgage") is signed to secure advances under a GMAC Mortgage Corporation Home Equity Line of Credit agreement (the "Agreemem"); it is dated as of August 1, 2005 , and is made by Larry D. Clark and Alpha L. Clark, Husband and Wife as Tenants by the Entireties who reside(s) at 2009 Apsen Springs Road, Kemmerer, W'Y 83101 as mortgagor(s), in favor of (;MAC Mortgage Corporation 7 Carnegie Plaza, Cherry Hill, NJ 08003 , as mortgagee. Borrower irrevocably mortgages, grants, and conveys to all Mortgage Electronic Registration Systems Inc. PO Box 2026 Flint, MI 48501-2026 (MERS) acting solely as a nominee for Lender and Lender's successors and assigns. Throughout this Mortgage, "we", "us" and "our" refer to mortgagor(s). "LENDER" refers to GMAC Mortgage Corporation or its assigns. The "Account" refers to the Home Equity Line of Credit account established by LENDER under the Agreement. "Borrower" refers to each person who signs the Agreement as borrower. The Agreement and this Mortgage, taken together, are called the "Credit Documents." "Signer" refers to any person (other than LENDER) who has signed a Credit Document. DESCRHrrION OF SECURITY By signing this Mortgage., we mortgage to MERS as nominee LENDER, subject to the terms of this Mortgage, (a) the real estate located at 2009 Apsen Springs Road, Kemmerer , County of Lincoln , State of Wyoming 83101 , more fully described in Schedule A; (b) all buildings or other structures on the property; (c) all rights we may have in any road, alley easement or license regarding the property or in any mineral, oil, gas or water which is part of the property; (d) all rents and royalties from the property; (e) all proceeds of any insurance on the property and all refunds of premiums on such insurance; (f) all proceeds of any taking (Or threatened taking) of the property by any governmental authority ("condemnation"); and (g) all fkxtures on the property at any time (collectively, the "Property"). The Property includes all rights and interests which we now have or which we may acquire in the future. For example, if the security mortgaged under this Mortgage is a leasehold estate and we subsequently acquire fee title to the Property, the rights and interests granted to MERS acting solely as a nominee for LENDER by this Mortgage will include the fee title that we acquire. This Mortgage .is also a Security Agreement under the Wyoming Uniform Commercial Code and we hereby grant MERS acting solely as a nominee for LENDER a security interest in the personal property described in (d) through (g) above. SECURED OBLIGATIONS THIS MORTGAGE SECURES OBLIGATORY FUTURE ADVANCES. We have signed this Mortgage to secure payment to LENDER of up to $ 50,000.00 , plus FINANCE CHARGES and any other amounts due LENDER under the Agreement (the "Total Balance Outstanding") and to secure performance by Borrower under the Agreement and our performance of the covenants of this Mortgage (collectively, the "Secured Obligations"). PRIORITY OF ADVANCES The lien of this Mortgage will attach on the date this Mortgage is recorded, with priority over subsequently recorded mortgages. The indebtedness evidenced by the Credit Documents is a revolving indebtedness. The Credit Documents provide that amounts may be advanced, repaid and readvanced from time to time in accordance with the terms and provisions of the Agreement. Accordingly, the aggregate advances during the term of the Credit Documents may exceed the Credit Limit. However, the Total Balance Outstanding less FINANCE CHARGES and certain special charges at any time (the "Earning Balance Outstanding") shall never exceed the Credit Limit, except for advances made to protect the lien of this Mortgage. We agree that the lien and security title of this Mortgage shall not be deemed released or extinguished by operation of law or implied intent of the parties if the Total Balance Outstanding is zero as of the date of this Mortgage or ia from time to tk-ae reduced to zero by payments made to LENDER. REPRESENTATIONS AND DUTIES We promise that, except for Permitted Liens; (a) we own the Property; (b) we have the right to mortgage the Property to LENDER; and (c) there are no outstanding claims or charges against the Property. The term "Permitted Lien" means (x) any mortgage, deed to secure debt or deed of trust ("security instrument") disclosed to LENDER by any Signer in applying for the Account, to the extent that the amount secured by such security instrument does not exceed the amount disclosed on such application; and (y) any liens, claims and restrictions of record that do not individually or collectively 'have a material adverse impact upon LENDER's security, the value of the Property or the Property's current'use. GMAC-WY -1- :.:,00298 STATE OF WYOMING, Lincoln County ss: The ~regoinginstmment wasacknowledgedbe~re me Wis June 22nd, 2004 by Glenn A Hackwell and Dorothy A Hackwell and Glenn A. Hackwell - Co Trustee and Dorothy A Hackwell - Co Trustee My Commission Expires: Notary Public (~-6(WY) (ooos) Page 15 of 15 Initials: Form 3051 1/01 Each of us gives a general warranty of title to LENDER. This means that each of us will be fully responsible for any losses which LENDER suffers because someone has rights in the Property other than Permitted Liens. We promise that we will defend our ownership of the Property against any claims of such right. We will neither take nor permit any action to partition, subdivide or change the condition of title to to all or any part of the Property. We will not amend any Permitted Lien without LENDER's prior written consent. CERTAIN PROVISIONS OF THE AGREEMENT We understand that LENDER may, under certain circumstances set forth in the Agreement, cancel its obligation to make further advances and/or require repayment at once of the Total Balance Outstanding. Under the Agreement, FINANCE CHARGES are based on the "prime rate" published in The Wall Street Journal or in certain circumstances the "prime rate" published in The New York Times or a similar index selected by LENDER. The rate of FINANCE CHARGES changes on a daily basis as the index or the amount outstanding under the Agreement increases or decreases. We understand that Borrower will not receive advance notice of such changes. PROMISES AND AGREEMENTS We agree with LENDER as follows: 1. TIMELY PAYMENT. Except as limited by paragraph 10 below, Borrower shall pay when due all sums owed LENDER under the Credit Documents. 2. APPLICATION OF PAYMENTS. All payments shall be applied by LENDER as set forth in the Agreement. 3. MORTGAGES AND DEEDS OF TRUST; CHARGES; LIENS. We shall make payments when due and perform all our obligations under any mortgage, deed of trust or other security agreement on the Property. We shall pay or cause to be paid when due all loans, taxes, assessments, charges, fines, impositions and rents of any kind relating to the Property ("Assessments"). Receipts evidencing such payments shall be delivered to LENDER upon its request. Except for Permitted Liens, we shall not allow any encumbrance, charge or lien on the Property to become prior to this Mortgage 4. HAZARD INSURANCE; CONDEMNATION. (a) We shall, at our cost, keep all improvements on the Property insured against loss by hazards included in the term "extended coverage" or by any other hazards LENDER may reasonably specify. Hazard insurance shall be in an amount equal to the lesser of (i) the full replacement cost of the building that is part of the Property or (ii) the amount of this Mortgage plus the total amount of all Permitted Liens; but never less than the amount necessary to satisfy any coinsurance requirement contained in the insurance policy. We may choose the insurance company, subject to approval by LENDER which may not be unreasonably withheld. All insurance policies and renewals must be in a form acceptable to LENDER and must include a standard mortgagee clause in favor of LENDER. LENDER shall have the right to hold the policies and renewals, subject to the terms of any Permitted Liens. If we pay the premiums directly, we shall provide LENDER with all renewal notices and, if requested by LENDER, all receipts for premiums.~ If policies and renewals are held by any other person, we shall supply copies of them to LENDER within ten calendar days after they are issued. In the event of loss, we shall give prompt notice to the insurance company and LENDER. LENDER may file a proof of loss if we fail to do so promptly. (b) The proceeds of any condemnation of the Property shall be paid to LENDER, subject to any Permitted Liens. We shall give LENDER notice of any such threatened condemnation and sign all documents required to carry out this paragraph 4. No condemnation settlement may be made without LENDER's prior written approval which shall not be unreasonably withheld. (c) Subject to the terms of any Permitted Lien, LENDER may elect that the proceeds of any insurance or condemnation (after payment of all reasonable costs, expenses and attorneys' fees paid or incurred by LENDER and us) shall be applied to pay the Secured Obligations, to repair or reconstruct the Property, and/or pay for our loss. In the event that such Proceeds are nor used entirely for repair and ~r~c0nstrucfion, we shall provide LENDER with a new appraisal or valuation of the Property, conducted by a p~rson or entity and in a form reasonably acceptable to LENDER, unless LENDER waives this requirement in writing. The receipt of proceeds shall not cure or waive any default or notice of default under this Mortgage or invalidate any act done pursuant to such notice. If the Property is abandoned by us, or if we fail to respond to LENDER in writing within 30 calendar days from the date notice of a proposed insurance or condemnation settlement is given to us, LENDER may settle the claim, collect the proceeds and apply them as set forth above. 00301 If the Property is acquired by LENDER, all of our right, title and interest in and to any insurance or condemnation proceeds shall become the property of LENDER to the extent of the sums secured by this Mortgage. 5. MAINTENANCE OF THE PROPERTY; LEASEHOLDS; CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. We shall: use, improve and maintain the Property in compliance with law; keep the Property in good repair and pay when due all repair costs; prevent waste; impairment and/or deterioration of the Property; and comply with the provisions of any lease of the Property. If the Property is a part of a condominium project or a planned unit development, we shall promptly perform all of our obligations under the governing documents of the project or development. 6. PROTECTION OF LENDER SECURITY. We shall appear in and defend any action or proceeding which may affect the security of LENDER under this Mortgage or result in violation of paragraph 3 above. If such an 'action is filed, we violate this Mortgage or Borrowers violate this Agreement, then LENDER may disburse funds and do whatever it believes necessary to protect the security of this Mortgage. In doing so, LENDER shall give us notice but it need not make demand or release us from any obligation. Any amounts paid by LENDER under this paragraph 6, with FINANCE CHARGES at the variable rate in effect under the Agreement, shall be paid by us upon demand. Until paid by us, such amounts are secured by this Mortgage. LENDER is not required to incur any expense or take any action under this Mortgage and no action taken shall release us from any duty. 7. INSPECTION. Representatives of LENDER may inspect the Property from time to time. Except in an emergency, LENDER must first give notice specifying reasonable cause for the inspection. 8. FINANCE CHARGES AFTER END OF ACCOUNT AND/OR JUDG1V[ENT. To the extent permitted by law, we agree that FINANCE CHARGES after the end of the Account and/or after a judgment is entered shall continue to accrue at the rates and in the manner specified in the Agreement. 9. OUR CONTINUING DUTIES AND LENDER'S RIGHTS; WAIVERS. No waiver of any LENDER right under the Credit Documents shall release or limit our liability, Borrower's liability, or that of our successors or Borrower's successor, nor shall any waiver affect the lien or priority of this Mortgage. LENDER shall not be required to start proceedings against any successor or modify payment terms by reason of any demand made by us or any successor. No LENDER act or failure to act shall waive any right under this Mortgage. All waivers must be in writing and signed by LENDER; they shall apply only to the extent and with respect to the event specified in the writing. Obtaining insurance, or paying taxes, other liens or charges shall not be a waiver of LENDER's right to demand payment at once of the sums secured by this Mortgage in the event of a default under the Credit Documents. 10. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY; CO-SIGNERS. This Mortgage shall bind us and our respective successors and permitted assigns for the benefit of LENDER and its successors and assigns. All agreements made by us or any successor are joint and several and may be enforced against each of us or any successor. Any Signer who does not execute the Agreement (a) is co-signing only to encumber that person's interest in the Property and to release all homestead and/or dower rights, (b) is not personally liable under the Credit Documents, and (c) agrees that LENDER and any Signer may modify either Credit Document, without consent and without modifying the interests of the rest of us under this Mortgage. 11. NOTICES. All notices shall be in writing. Except where applicable law requires otherwise: (a) LENDER notices shall be hand delivered or mailed by first class, registered or certified mail to the address of the Property or to such other address specified by the addressee in a written notice given to LENDER. Any LENDER notice shall be considered given on the day it is deposited in the U.S. mail or is hand-delivered. (b) Our notices shall be mailed to LENDER by first class, registered or certified mail to the address for such notices specified on our most recent monthly statement under the Agreement or to such other address specified by LENDER in a written notice given to us. Any such notice shall be considered given on the day it is received by LENDER. 12. GOVERNING LAW. This Mortgage will be governed by federal and Wyoming law. If any provision is invalid, illegal, or unenforceable, this Mortgage shall be interpreted as if such provision has never been inculded. 13. COPIES. We shall receive copies of the Credit Documents at the time they are signed or after this Mortgage is recorded. -3- 00302 14. EXERCISING REMEDIES. LENDER may exercise all of the rights and remedies provided by the Credit Documents or law, and any of these rights and remedies may be exercised individually or jointly, once or a number of times. The parties to this document are subject to the provision for Arbitration as set forth in the Agreement which is incorporated by reference as if set forth at length herein. 15. EVENTS OF DEFAULT. (a) The events set forth in paragraph 15Co) are Events of Default if and when LENDER gives any Signer notice of default, we agree to notify LENDER promptly upon the happening of any event that would be an Event of Default under either Credit Document upon the giving of notice by LENDER. (b) After giving notice of default, LENDER may end the Account and/or demand repayment at once of the Total Balance Outstanding in any of the following events: (i) the Account; There has been fraud or material misrepresentation by any Signer in connection with (ii) Borrowers have failed to meet the repayment terms of the Agreement for any amount outstanding; or (iii) Any action or inaction by any Signer has adversely affected the Property or any right of LENDER in the Property; to the extent permitted by law, this will include, but not be limited to, any Signer (or any legal representative or successor of any Signer) agreeing to sell, transfer or assign or selling, transferring or assigning any interest in the Property, without the prior written consent of LENDER. (c) Notwithstanding any language in this Mortgage to the contrary, LENDER will not give notice of default unless permitted by applicable law and LENDER will give us any grace period, right to cure and/or reinstatement right required by applicable law. This paragraph 15 is intended to give LENDER all rights permitted by applicable law. 16. REMEDIES. IF BORROWERS DO NOT REPAY AT ONCE THE TOTAL BALANCE OUTSTANDING WltlgN DUE, LENDER MAY EXERCISE ANY REMEDY £VAII, ABLE TO IT UNDER APPLICABLE LAW, INCLUDING FORECLOSURE. 17. FORECLOSURE BY ADVERTISEMENT. We hereby grant LENDER upon an Event of Default power to sell or cause the sale of the Property by advertisement and sale at public auction or vendue and to convey the Property to the purchaser in the manner provided by law. 18. APPOINTMENT OF RECEIVER. Upon an Event of a Default or our failure to pay taxes assessed against the Property and/or insurance premiums on the Property (which we agree shall constitute waste), LENDER shall be entitled to the appointment of a receiver if permitted by law. 19. SATISFACTION OF MORTGAGE. Upon payment and discharge of all sums secured by this Mortgage and termination of the Account, this Mortgage shall be void and LENDER shall satisfy this Mortgage, file a discharge or release and pay any recording costs. 20. REQUEST FOR NOTICES. LENDER requests that copies of notice of default, sale and foreclosure from the holder of any lien which has priority over this Mortgage be sent to LENDER at 7 Carnegie Plaza, Cherry Hill, NJ 08003 21. EXHIBITS, SCHEDULES AND RIDERS, ETC. The terms of any Exhibit, Schedule Rider attached to this Mortgage or executed and recorded with this Mortgage shall be treated as if fully set forth in this Mortgage. All of the Terms of the Agreement are made part of this Mortgage. 22. TIME OF ESSENCE. Time is of the essence in this Mortgage. 23. ACTUAL KNOWLEDGE. For purposes of the Credit Documents, LENDER shall not be deemed to have actual knowledge of any fact until it actually receives notice as set forth in paragraph 11 or until it receives written notice thereof from a source LENDER reasonably believes to be reliable. The date of receipt shall be determined by reference to the "Received" date stamped on such written notice by LENDER or its agent. 24. RELEASE. To the extent authorized by law, for ourselves and our successors and assigns, we hereby release and waive all rights under and by virtue of the homestead exemption laws of the State of Wyoming. -4- 00303 25. EXPENSES OF LITIGATION. In any proceeding to enforce any remedy of LENDER under the Credit Documents there shall be allowed and included, to the extent permitted by law, as additional indebtedness in the judgment or decree, any court costs and reasonable expenses which may be paid or incurred by LENDER for attorneys; appraisers; documentary and expert evidence; stenographers; publication; surveys; abstracts of title; title searches; title insurance policies; Torrens certificates; and similar items which LENDER reasonably considers necessary in such proceeding or to evidence to bidders at any sale the true condition of the title to or value of the Property. Such expenses may be estimated to the extent they will be incurred after entry of the decree. In any foreclosure by advertisement, all expenses permitted by statute that LENDER incurs in protecting the Property, maintaining the lien of this Mortgage and foreclosing the Mortgage shall be included in the redemption price and in the calculation of any deficiency. 26. CAPTIONS; GENDER; ETC. The headings in this Mortgage are not to be used to interpret or define its provisions. In this Mortgage, the masculine gender includes the feminine and/or nueter, singular numbers include the plurals, and plurals include the singular. 27. MERS. Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Mortgage, but, if necessary to comply with local law or custom MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of these interests, including, but not limited to, the right to foreclose and sell the property; and to take any action required of Lender including but not limited to, releasing and canceling this Mortgage. By signing this Mortgage, we agree to all of the above. WITNESSES: By: By: Alph~ L. Clark By: By: STATE OF WYOMING COUNTY OF SS. Onthe ]~ dayof /~rr~, , ~OOf before me personally came to me known to be the individual(s) described in and who executed the foregoing instrument, and acknowledged that he/she/they executed the same. County, Wyoming [~/ ~ft97 -5- 00304 MORTGAGE Title No. THIS INSTRUMENT PREPARED BY: Karen Gantt TO RECORDING REQUESTED BY: GMAC Mortgage Corporation UPON RECORDATION, MAIL TO: GMAC Mortgage Corporation 7 Carnegie Plaza, Cherry Hill, NJ 08003 RESERVE THIS SPACE FOR USE OF RECORDING OFFICE ' Schedule A ,--,00305 All that certain real property situated in the County of... Known as: 2009 Apsen Springs Road, Kemmerer, WY 83101 00306 EXHIBIT A THE LAND REFERRED TO IN THIS GUARANTEE IS SITUATED IN THE STATE OF WYOMING, COUNTY OF LINCOLN, AND IS DESCRIBED AS FOLLOWS: REFERENCE PARCEL # 14 A PARCEL OF LAND LOCATED IN THE SW1/4 OF SECTION 5, T21N Rll5W OF THE 6TH P.M., LINCOLN COUNTY, WYOMING, TO WIT: COMMENCING AT THE WEST 1/4 CORNER OF SAID SECTION 5; THENCE S 0 DEGREES 06'49" E, 380.65 FEET TO THE TRUE POINT OF BEGINNING; THENCE S 82 DEGREES 31'36" E, 2427.69 FEET TO A POINT; THENCE S 02 DEGREES 52'18" E, 600.63 FEET TO A POINT; THENCE N 86 DEGREES 48'16" W, 2439.41 FEET TO A POINT; THENCE N 0 DEGREES 06'47" W, 779.65 FEET TO THE TRUE POINT OF BEGINNING. Permanent Parcel Number: 12-2115-05-3-00-004.00 LARRY D. CLARK AND ALPHA L. CLARK, HUSBAND AND WIFE, AS TENANTS BY THE ENTIRETIES 2009 APSEN SPRINGS ROAD, KEMMERER WY 83101 Loan Reference Number : 3228045/685488632 First American Order No: 7717869 Identifier: ELS