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AGREEMENT, ESTOPPEL AFFIDAVIT, AND
STATEMENT OF VOLUNTARY SURRENDER
ûOnS1.9
WHEREAS,THIS AGREEMENT, ESTOPPEL AFFIDAVIT, AND
STATEMENT OF V~~NTARY.SURRENDER is made and entered into as of
this / (fi'1- day of f cern ~2008 by and between Joseph B. Kusnersyk
and Kimberly A. Kusnersyk, ("Grantors"), whose present mailing address is P.O.
Box 283, Quarryville, PA 17566 and Mortgage Electronic Registration Systems,
Inc., as nominee for Novastar Mortgage, Inc., (the "Grantee"), whose mailing
address is clo Fidelity National FC Solutions, 1270 Northland Drive, #200,
Mendota Heights, MN 55120.
w !! N E SSE! H:
1. On July 21, 2006, Grantors executed and delivered a mortgage (the
"MortQaQe") in favor of the Mortgage Electronic Registration Systems, Inc., as
nominee for Novastar Mortgage, Inc, whose underwriter was the Grantee,
originally encumbering the property covered by said Mortgage, which is
described as follows:
STAR VALLEY RANCH PLAT lWENTY-lWO (22)
LOT lWENTY-ONE (21) AS PLATTED AND
RECORDED IN THE OFFICIAL RECORDS OF
LINCOLN COUNTY, WYOMING.
with an address of
155 South Forest Drive, Thayne, WY 83127
Hereto and by this reference made a part hereof, together with all buildings and
improvements situate on said real property and all fixtures and appurtenances
thereto (collectively the "Property") and securing a promissory note ("Note") of
the same date.
2. Said Note was secured by the Mortgage dated July 21, 2006 in the
original principal amount of $269,875.00 which was executed and delivered by
Grantors to Mortgage Electronic Registration Systems, Inc., as nominee for
Novastar Mortgage, Inc, whose underwriter was the Grantee, together with
interest and other indebtedness described in the Mortgage. The Mortgage was
recorded in the records of the office of the County Clerk and ex-officio Register of
Deeds in and for Lincoln County, State of Wyoming, on August 9, 2006, at
Reception No. 921102 in Book 629 at Page 578.
3. Grantors are in default in the payment of the principal and accrued
interest due on the Note and in certain other matters described in the Note and
the Mortgage, and are unable to otherwise meet their obligations in full
thereunder. As a result of such default, the Grantee has elected to accelerate
and declare the entire unpaid principal balance, accrued but unpaid interest, and
other indebtedness due under the Note and the Mortgage immediately due and
payable. As of December 4, 2008, the aggregate amount due and owing to the
Grantee on the Note and the Mortgage, together with accrued but unpaid interest
thereon and protective advances, but not including attorneys' fees and costs of
collection, is $287,974.24 (the "Indebtedness")
4. Grantors acknowledge that the Indebtedness of $287,974.24
plus attorneys' fees and costs of collection is due and owing to the Grantee on
the Note and the Mortgage; that Grantors have defaulted in the payment of the
Note and in certain other matters described in the Note and the Mortgage; and
that as a result of such default, the Grantee is, and has been, entitled to
foreclose the lien of the Mortgage as to the property.
DILPkg
RECEIVED 1/22/2009 at 3:24 PM
RECEIVING # 944828
BOOK: 713 PAGE: 519
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
DIL Package
Kusnersyk 08-11182
Page 1 of 3
000520
5 For good and sufficient consideration, Grantors have,
contemporaneously with the èxecution of this Agreement, made, executed, and
delivered to the Grantee, its successors and assigns, (a) a deed in lieu of
foreclosure'dated as of even date herewith, conveying to the Grantee all of
Grantors' right, title, equity including their equity of redemption and statutory right
of redemption. Grantors hereby acknowledge, agree, and certify that the
conveyance of the property to the Grantee under the respective terms of the
Deed in Lieu of Foreclosure constitutes, as a whole, the absolute conveyance
and unconditional sale to the Grantee of all of Grantors' right, title, equity, and
interest of every kind and character in and to the property, together with any and
all buildings and improvements thereon situate and any and all fixtures and
appurtenances thereto, with a full release of all homestead rights, if any, in and to
the property and also constitutes, as a whole, the conveyance, transfer, and
assignment to the Grantee of all of Grantors' rights of possession thereof, rights
to rentals and profits therefrom, and equity of redemption and statutory right of
redemption in and to the property.
6. Grantors acknowledge, agree, certify, and warrant that they
have full power and authority to execute and deliver the Deed in Lieu of
Foreclosure and this instrument; that the Deed in Lieu of Foreclosure and this
instrument are valid and legally binding upon Grantors, enforceable against them
in accordance with its terms. Grantors further acknowledge, agree, certify, and
warrant that the transaction contemplated by the Deed in Lieu of Foreclosure and
this instrument are of a tangible benefit to them and that the Deed in Lieu of
Foreclosure has been given voluntarily by Grantors to the Grantee, in good faith
on the part of Grantors and the Grantee, without any fraud.
7. Grantors acknowledge and agree that the Deed in Lieu of
Foreclosure is intended and understood to be an absolute conveyance and
unconditional sale to the Grantee with full extinguishment of Grantors' equity of
redemption and statutory right of redemption, with full release of Grantors' right,
title, and interest of every kind and character in and to the property; that such
conveyance was not, and is not now, intended as a mortgage, trust conveyance,
deed of trust, or security instrument of any kind; and that the consideration for
such conveyance is as recited in this Agreement.
8. Grantors acknowledge and agree that the Deed in Lieu of
Foreclosure shall not restrict the right of the Grantee, at its election, to institute a
foreclosure of the lien of the Mortgage as to the property, and that while Grantors
have been personally released from any further liability for payment of the Note,
the Grantee may retain the lien of the Mortgage as to the property and any and
all evidences of the released portion of the Indebtedness secured thereby, and
may deem the released portion of the Indebtedness unpaid and in default for the
purpose of instituting and perfecting foreclosure of the property pursuant to law
as against third parties who may have or claim an adverse interest in or a lien
upon any of said Property. The Grantee agrees to release, in whole or in part,
the property from the lien of the Mortgage when and as it sells the Property.
Grantee has forgiven and fully released Grantors from any and all debt,
obligation, cost and charges existing under and by virtue of the promissory note
dated July 21, 2006. However, nothing contained in this Agreement shall be
interpreted or construed to prejudice those contractual rights of Grantors which
have vested under this instrument and the Deed in Lieu of Foreclosure.
9. Grantors hereby agree that: (a) Grantors are and shall
remain liable for satisfaction of utility bills and charges for water, fuel, oil, heat,
electricity, power, sewer, sanitation, and other utilities or services used at the
buildings, if any, located on the property through the date of this agreement; and
(b) The acceptance by the Grantee of title to the Real Property in lieu of
foreclosure pursuant to the terms of the Deed in Lieu of Foreclosure shall not
create any obligations on the part of the Grantee to third parties who have claims
OILPkg
OIL Package
Kusnersyk 08-11182
Page 2 of 3
000521
of any kind whatsoever against Grantors with respect to the Real Property, and
the Grantee does not hereby assume or agree to discharge any claims of such
third parties or any liabilities of Grantors in any way connected with or pertaining
to any of the Real Property.
10. Grantors and the Grantee acknowledge and agree that the
interest that has been acquired by the Grantee in the Real Property pursuant to
the Deed in Lieu of Foreclosure shall not merge with the interest of the Grantee
in such property under the Mortgage. It is the express intention of each of the
parties hereto that such interest shall not merge, but shall be and remain at all
times separate and distinct, notwithstanding any union of such interest in the
Grantee at any time by purchase or otherwise, and that the right, title, interest,
and lien of the Grantee in the property created by the Mortgage shall be and
remain at all times valid and continuous. Nothing contained in this Agreement
shall be interpreted or construed to prejudice those contractual rights of Grantors
which shall have vested under this instrument and the Deed in Lieu of
Foreclosure.
11. This Agreement has been made and executed for the pro-
tection and benefit of the Grantee, and the Grantee's successors and assigns,
and all other parties hereafter dealing with or who may acquire an interest in the
property which is the subject of the Deed in Lieu of Foreclosure and this
instrument; and the Deed in Lieu of Foreclosure and this instrument shall bind
the respective legal representatives, successors, and assigns, as applicable, of
Grantors.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement, Estoppel Affidavit, and Statement of Voluntary Surrender to be
executed and delivered as of the day and year first above written.
GRANTORS:
Joseph B. Kusnersyk and Kimberly A.
Kusnersyk
By O~ß~~
J~B. K snersyk
By: ¥k~ a ~~
Kimbe y A. Kusn syk
ACKNOWLEDGMENT
STATE OF '<e.~S',->c,-ç\.\t....
COUNTY OF ~.ec~~,
)
) SS.
)
The foregoing instrument w~s acknowledged before me Joseph B.
Kusnersyk and Kimberly A. Kusnersyk this \O~ day of\:)à-tN\.'o~(
2008
My Commission Expires:
COMMONWEALTH OF P~Nr')!>'~ ,- '. .:;;!~g~__1
NOTARIAL SEAL
CATHERINEJ. SMITH, Notary Public
West Chester Boro., Chester County
- M Commission Expires May 27, 2009 -.J
Witness my hand and official seal.
~~k~
Notary Public
DIL Package
Kusnersyk 08-11182
Page 3 of 3