Loading...
HomeMy WebLinkAbout938055 6010816513 MORTGAGE This mortgage is made the'~ of March, 2008, by and between Joseph 000334 C,). j .f: oj) ~y; -ê ",0 [] ,>-- . ,C:.' ,~~:: :>" :- ..j.... -a .ft ~:) 0 III ;:: >, -0 r .~ t'j ':"'" J.... fÈ ~ ~ ë '!.) ~ C '::1 -t.. :---1 r._; :-~'><f i~': N .i1 ~ P. Dwyer and Lauren Dwyer, husband and wife, of 1119 15Ú1 Street, Santa Rosa, California 95404 hereinafter referred to as "Mortgagors," and Elizabeth Snyder, a single woman, of 4981 Underwood Drive, Santa Rosa, California, 95409, hereinafter referred to as "Mortgagee." The Mortgagors, to secure payment of a promissory note totaling the amount of Seventy Two Thousand Dollars ($72,000.00), together with any additional tenns as set forth in the Promissory Note, of even date herewith, and the Settlement Agreement and Mutual Release of All Claims, dated February 22, 2008 (the "Settlement Agreement"), and the Escrow Instructions, and other valuable consideration, to secure the payment of a settlement between the Mortgagors by the Mortgagee, the receipt and sufficiency of which is hereby acknowledged, DOES HEREBY MORTGAGE to the Mortgagee, the following ' described real property situated in Lincoln County, Wyoming: Lot 5 of Henry's Mountain Estates, Lincoln County, Wyoming, according to that plat filed in the Office of Lincoln County Clerk on November 4, 1996, Instrument No. 828555, as Plat No. 371. Together with all buildings and improvements thereon, or which may hereafter be placed thereon; all fIxtures now or hereafter attached to said premises; all water and water rights; ditches and ditch rights; and all easements, appurtenances and incidents now or hereafter belonging or appertaining thereto; subject, however, to all covenants, conditions, rights-of-way, and easements of sight and record, if any, and to mineral, mining and other exceptions, reservations and conditions of record. TO HAVE AND TO HOLD the said real and personal property forever, the Mortgagors hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagors covenants that at the signing and delivery of this Mortgage, said Mortgagor is lawfully possessed of said personal property; is lawfully seized in fee simple of said real property, or has such other estate as is stated herein; has good and lawful right to mortgage, sell and convey all of said property; and warrants that, except for a fIrst mortgage granted in favor of Countrywide Home Loans in the amount of approximately Seventy Seven Thousand Dollars ($77,000.00), Loan No. 2035689, which RECEIVED 4/7/2008 at 9:07 AM RECEIVING # 938055 BOOK: 691 PAGE: 334 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY Mortgage Page lof7 mortgage was duly recorded in the Land Records of the Lincoln County Clerk's office, the same is free from all encumbrances. However, this Mortgage is subject to the express condition that if the Mortgagors pays, or causes to be paid, to the Mortgagee the principal sum of Fifty Seven Thousand Dollars ($57,000.00) balance, according to the conditions of the Promissory Note (the "Promissory Note"), dated of even date herewith, which Promissory Note was executed and delivered by the Mortgagor to the Mortgagee, which sum or sums of money the Mortgagor hereby covenants to pay, and until such payment, performs all of the covenants and agreements herein to be performed by Mortgagor, the ultimate maturity date of said note being ninety days from February 22, 2008, or May 22, 2008, then this Mortgage and said note shall cease and be null and void. According to the Promissory Note and Settlement Agreement, payments of the principal amount shall be paid in two installments, the fIrst being in the amount of Fifteen Thousand ($15,000) Dollars on February 22, 2008, receipt of which is hereby acknowledged, and the second being in the amount of Fifty-Seven Thousand ($57,000) Dollars, no later than the close of business on April 7, 2008, MST. Mortgagors and Mortgagee further covenant and agree as follows: L Pavrnent. Mortgagors shall pay the indebtedness as herein provided, and the lien of this instrument shall remain in full force and effect during any postponement or extension of time of payment of any part of the indebtedness secured hereby. 2. Prepavrnents. Mortgagors shall have the privilege of paying any principal payment herein required, at any time without premium or penalty of any kind, prior to the due date, and it is understood and agreed that any such prepayment shall be credited to the balance of principal due. 3. Transfer of the Propertv. Mortgagors shall not sell or transfer the property as long as any amount remains unpaid hereunder. In the event of any such sale or transfer without such consent, Mortgagors shall remain fully liable hereunder, and Mortgagee, at Mortgagee's election, may declare the entire principal balance immediately due and owing together with all applicable charges according to the terms of the Promissory Note secured hereby, and may proceed to collect the same in any manner provided by law or equity, or by the terms hereof. If Mortgagee, in Mortgagee's sole Mortgage Page 2 of7 0()0335 discretion, elects to give consent to any such transfer, then Mortgagee may insist upon the following as a condition to such consent: a. The continuing liability of Mortgagors under the Promissory Note and this Mortgage; b. Satisfactory evidence of the ability and financial capacity of the assignee or transferee to make required payment and otherwise perfonn under the note and this Mortgage; c. Approval of the tenns and conditions of all the instruments proposed in connection with such sale, conveyance or transfer; d. The payment by Mortgagors of reasonable expenses incUlTed by Mortgagee in reviewing the infonnation and materials submitted by Mortgagors regarding the detennination set forth above, including reasonable attorney's fees incurred by Mortgagee. 4. Mortg:ages. Taxes. Assessments. Expenses. As of February 22, 2008, Mortgagors shall pay all existing mortgage payments to Countrywide on loan number 2035689, as well as all taxes and assessments levied or assessed against said property, and all utilities, maintenance expenses, and any and all expenses incurred on or in relation to the property, for any reason whatsoever. 5. Maintenance of ProJ¡)ertv. Mortgagors shall not commit or permit waste, nor be negligent in the care of said property, and shall maintain the same in as good condition as at present, reasonable wear and tear excepted, and will do nothing on or in connection with said property which may impair the security of the Mortgagee hereunder. Mortgagors shall not permit said property, or any part hereof, to be levied upon or attached in any legal or equitable proceeding, except to the extent that such levy or attachment is being contested in good faith by appropriate proceedings. Mortgagors agree to pay in full the amount of any such levy or attachment within ten (10) days after a final judgment including appeals thereon has been entered. Mortgagors shall not, except with the consent in writing of the Mortgagee, or as is otherwise provided and permitted in this Mortgage, remove or attempt to remove said improvements or personal property, or any part hereof, from the premises on which the same are situated. Mortgage Page 3 of? 000336 6. Mortgagee Authorized to Make Payments. If Mortgagors default in the payment of the taxes, assessments or other lawful charges, including any other mortgage payments or fails to keep improvements on said premises insured, the Mortgagee may, without notice or demand, pay the same, and if the Mortgagor fails to keep said property in good repair, the Mortgagee may make such repairs as may be necessary to protect the property, all at the expense of the Mortgagors. The Mortgagors covenant and agree that all such sums of money so expended, together with all costs of enforcement or foreclosure, and a reasonable attorney fee, shall be added to the debt hereby secured, and agrees to repay the same and all expenses so incurred by the Mortgagee, with interest thereon from the date of payment at the same rate as provided in the note hereby secured, until repaid, and the same shall constitute a lien on all of said property and be secured by this Mortgage. Default. If the Mortgagor defaults in the payment of the indebtedness hereby secured, for a period of five (5) days after written notice, or in case of breach of any covenant or agreement herein contained or within the Settlement Agreement or Promissory Note or Escrow Instructions, the whole of the then indebtedness secured hereby, together with all other sums payable pursuant to the provisions hereof, shall, at the option of the Mortgagee, become immediately due and payable, anything herein or in the said note to the contrary notwithstanding, and failure to exercise said option shall not constitute a waiver of the right to exercise the same in the event of any subsequent defaults will be in default under this Mortgage, the Promissory Note and the Settlement Agreement if any one of the following occurs: a) If Mortgagor fails to timely execute and deliver this Mortgage and related Promissory Note to Alliance Title; b) If Mortgagor fails to pay the remaining $57,000 owed to Mortgagee pursuant to the Promissory Note, Settlement Agreement and Escrow Instructions on or before the close of business, April 7, 2008, Mountain Standard Time; c) If Mortgagor fails to obtain and record a full release of Mortgagee on the existing mortgage to Countrywide Home Loans by May 22, 2008. Note: If Mr. Dwyer provides documentation verifying that he has paid the Countrywide Mortgage in full by May 22, 2008, then Countrywide's failure to issue a recordable release of the mortgage on or before May 22, 2008, shall not constitute a default, provided that Mr. Dwyer shows proof of a written demand sent certified mail, Mortgage Page 4 of? 000337 return receipt requested to Countrywide directing it to record a release of mortgage within 35 days of the May 22, 2008 deadline. In the event of default, no notice shall be required in the event that Mortgagee elects to enforce the provisions, or foreclose, this Mortgage, and the Mortgagee may enforce the provisions of, or foreclose, this Mortgage by any appropriate suit, action or proceeding at law or in equity, and cause to be executed and delivered to the purchaser or purchasers at any foreclosure sale a proper deed of conveyance of the property so sold. The Mortgagors hereby agree that liquidated damages shall be paid to Mortgagee in the amount of Five Thousand ($5,000) Dollars in addition to the whole indebtedness secured hereby in the event of default. The Mortgagors hereby grant the Mortgagee the power to foreclose by advertisement and sale as provided by Wyoming statute. All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity and may be exercised concurrently, independently or successively. The Mortgagors agrees to pay all costs of enforcement or foreclosure, including all attorneys' fees. The failure of the Mortgagee to foreclosure promptly upon a default shall not prejudice any right of said Mortgagee to foreclose thereafter during the continuance of such default or right to foreclose in case of further default or defaults. The net proceeds from such sale shall be applied to the payment of: fIrst, all unpaid taxes, assessments, claims and liens on said property which are superior to the lien hereof; second, all monies expended or advanced by the Mortgagee pursuant to the provisions of this Mortgage; third, the attorney's fees and costs incurred by Mortgagee in connection with the default of the Mortgagors, including the costs and expenses of the foreclosure and sale; fourth, the liquidated damages amount; and í1fth, the balance due Mortgagee on account of principal on the indebtedness hereby secured; and the surplus, if any, shall be paid to the Mortgagors. 7. Sufficiencv of Foreclosure Proceeds. If the property described herein is sold under foreclosure and the proceeds are insuffIcient to pay the total indebtedness hereby secured, the Mortgagors shall be personally bound to pay the unpaid balance and the Mortgagee shall be entitled to a defIciency judgment. 8. Assienment of Rents. If the right of foreclosure accrues as a result of any default hereunder, the Mortgagee shall at once become entitled to exclusive possession, Mortgage Page 5 of 7 000338 use and enjoyment of all property aforesaid, and to all rents, issues and profits thereof from the occurring of such right and during the pendency of foreclosure proceedings and the period of redemption, and such possession, rents, issues and profits shall be delivered immediately to the Mortgagee on request. 9. Notices. All notices, demands, or other writing in tlùs Mortgage provided to be given, made or sent by either party to the other shall be in writing and shall be validly given or made only if personally delivered with a receipt obtained from the person receiving the notice, or sent by certified United States mail return receipt requested, or if sent by Federal Express or other similar delivery service keeping records of deliveries and attempted deliveries. Such service shall conclusively deemed made upon receipt if personally delivered or, if delivered by mail or delivery service, on the first business day delivery is attempted or upon receipt, whichever is sooner. The parties' mailing addresses are as follows: Mortgagors: Joseph P. Dwyer and Lauren Dwyer c/o Jack Edwards, Esq. Luthi & Voyles, LLC P.O. Box 820 Thayne, WY 83127-0820 Mortgagee: Elizabeth Snyder clo Andrea Richard, Esq. and Erika M. Nash, Esq. The Richard Law Firm, P.C. P.O. Box 1245 Jackson, WY 83001 10. Headinf?s. The headings used in tlùs Mortgage are for convenience only and are not to be used in its construction. 11. Bindinl! Effect and Construction. The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective heirs, devisees, legatees, executors, administrators, successors, and assigns of the parties hereto. Whenever used the singular member shall include the plural, the plural the singular, and the use of any gender shall include all genders. The term "note" includes all notes herein described if more than one. The terms "foreclosures" and "foreclose" as used herein, shall include the right of foreclosure by any suit, action or proceeding at law or in equity, or by advertisement and sale of said premises, or in any other manner now or hereafter provided by Wyoming law including the power to sell. Mortgage Page 6 of7 000339 12. Accevtance. The acceptance of this mortgage and the note it secures by the Mortgagee shall be an acceptance of the terms and conditions contained herein. 13. Redemvtion Period, Mortgagors acknowledge and agree that the mortgaged property is not agricultural property, and that the Wyoming statutory redemption period of three months for residential property shall apply in any foreclosure proceeding hereunder. 14. Release. Upon payment of all sums secured by this Mortgage, Mortgagee shall release this Mortgage without charge to Mortgagors. Mortgagors shall pay all costs of recordation, if any. 15. Facsimile Sil!I1ature. The facsimile signature of a party shall be deemed to have the same force and effect as an original, and this Mortgage, in whole or in part, shall not be deemed void or voidable for lack of an original signature. 16. Waiver of Homestead. Mortgagors hereby relinquishes and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. IN WITNESS WHEREOF, the said Mortgagors have hereunto signed and sealed these presents the day and year first above written. B~ Joseph P. D B,tf¡utJIP/I, ~ Lauren Dwyer STATE OF CALlFORNIA ) ) ss. ) COUNTY OF SONOMA -" 8'-f1-. The foregoing MORTGAGE was acknowledged before me this ¿. day of March, 2008 by Joseph P. Dwyer and Lauren Dwyer. WITNESS my hand and official seal. () ··LJi ~lL tary Public 12 ' y commission Expires: €c, {6 I 'lðf/7 Mortgage Page 7 of 7 000340