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HomeMy WebLinkAbout954318MORTGAGE 080321 This Mortgage is made the day of July, 2010, by and between Steve E. Ashworth and Brenda A. Ashworth, husband and wife, hereinafter referred to as the "Mortgagor and Carlton E. Loewer, Cathy A. Loewer, Robert A. Griffith, and Linda G. Griffith, joint tenants with rights of survivorship, hereinafter referred to as "Mortgagee The Mortgagor, for and in consideration of the sum of Eighty Four Thousand Dollars ($84,000.00) lawful money of the United States and other valuable consideration, loaned to the Mortgagor by the Mortgagee, the receipt of which is hereby confessed and acknowledged, does hereby mortgage to the Mortgagee, all interest in and to the following described real property situate in the County of Lincoln, State of Wyoming: Lot 2 of Elk Ridge Ranches At Henry's Mountain, Lincoln County, Wyoming as shown on the official plat thereof filed March 29, 2006 as Receiving No. 917085, in the Office of the Clerk of Lincoln County, Wyoming as Plat No. 79 -F. 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, reservoirs and reservoir rights, and irrigation and drainage rights; and all easements, appurtenances and incidents now or hereafter belonging or appertaining there to; subject, however, to all covenants, conditions, easements, and rights -of -way, 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 Mortgagor hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagor covenants that at the signing and delivery of this Mortgage, said RECEIVED 7/12/2010 at 10:57 AM RECEIVING 954318 BOOK: 750 PAGE: 321 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 602 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 and will defend the title to all of said property against all IawfuI claims and demands, and that the same is free from all encumbrances. However, this Mortgage is subject to the express condition that if the Mortgagor pays, or causes to be paid, to the Mortgagee the sum of Eighty Four Thousand Dollars {$84,000.00} together with interest, until paid, according to the conditions of a Promissory Note 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, then this Mortgage and said note shall cease and be null and void. Mortgagor and Mortgagee further covenant and agree as follows: 1. Payment. Mortgagor 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. Prepayments. The Mortgagor shall have the privilege of paying any principal sum or sums plus accrued interest, in addition to the payments herein required, at any time without premium or penalty of any kind, and it is understood and agreed that any such prepayment shall be credited first to interest and the balance to principal in the inverse order of when due. 3. Transfer of the Property. If all or any part of the property or any interest herein is sold or transferred by any means by Mortgagor without Mortgagee's prior written consent, excluding the creation of a lien or encumbrance subordinate to this Mortgage or a transfer by devise, descent or by operation of law upon the death of a 004423 joint tenant, Mortgagee may, at Mortgagee's option, declare all the sums secured by this Mortgage to be immediately due and payable. Any delay or failure on the part of the Mortgagee to demand payment shall not prejudice the Mortgagee's right there to. Mortgagee shall have waived such option to accelerate if, prior to the sale or transfer, Mortgagee at Mortgagee's sole discretion, enters into a written agreement with the person whom the property is to be sold or transferred expressly consenting to such assumption and setting forth any new terms or conditions of this Mortgage as may be requested by the Mortgagee in exchange for the Mortgagee agreeing to an assumption of this Mortgage. 4. Taxes and Assessments. Mortgagor shall pay all taxes, assessments, homeowner's assessments, and other lawful charges levied or assessed against said property. 5. Maintenance of Property. Mortgagor 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. Mortgagor shall not permit said property, or any part hereof, to be Levied upon or attached in any legal or equitable proceeding, and 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. 6. Insurance. Mortgagor and Mortgagee shall keep the improvements now existing or hereinafter erected on said premises insured against loss caused by the elements, fire, earthquake, and other calamities, with extended coverage provisions, to the full insurable value thereof for the term of this Mortgage, and will pay when due all premiums on such insurance. All insurance shall be carried in responsible insurance companies licensed in Wyoming. The insurance proceeds, or any part thereof, may, at 4 000324 the option of the Mortgagee, be applied either to the reduction of the indebtedness hereby secured or used in reconstruction. In the event of foreclosure of this mortgage or other transfer of title to the said premises in extinguishment of the indebtedness secured hereby, all right, title and interest of the Mortgagor in and to any insurance policies then in force shall pass to the purchaser or grantee. Notwithstanding the foregoing, insurance shall not be required as long as there are no improvements on the property. 7. Default. If the Mortgagor defaults in the payment of the indebtedness hereby secured, for a period of twenty (20) days after written notice, or materially impairs Mortgagee's security interest in any manner, or in case of breach of any covenant or agreement herein contained, the whole of the then indebtedness secured hereby, both principal and interest, 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 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 default. 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 Mortgagor hereby grants the Mortgagee the power to foreclose by advertisement and sale as provided by 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 Mortgagor agrees to pay all costs of enforcement or foreclosure, including a reasonable attorney fee. The failure of the Mortgagee to foreclose 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. 00325 The net proceeds from such sale shall be applied to the payment of: first, the costs and expenses of the foreclosure and sale, including a reasonable attorney fee, and all moneys expended or advanced by the Mortgagee pursuant to the provisions of this Mortgage; second, all unpaid taxes, assessments, claims and liens on said property, which are superior to the lien hereof; third, the balance due Mortgagee on account of principal and interest on the indebtedness hereby secured; and the surplus, if any, shall be paid to the Mortgagor. 8. Sufficiency 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 Mortgagor executing the note or notes for which this Mortgage is security shall be personally bound to pay the unpaid balance, and the Mortgagee shall be entitled to a deficiency judgment. 9. Assignment 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, use and enjoyment of all property aforesaid, and to all rents, issues and profits thereof, from the accruing 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. On refusal, the delivery of such possession, rents, issues and profits may be enforced by the Mortgagee by any appropriate suit, action or proceeding. Mortgagee shall be entitled to a Receiver for said property and all rents, issues and profits thereof, after arty such default, including the time covered by foredosure proceedings and the period of redemption, and without regard to the solvency or insolvency of the Mortgagor, or the then owner of said property, and without regard to the value of said property, or the sufficiency thereof to discharge the Mortgage debt and foreclosure costs, fees and expense. Such Receiver may be appointed by any court of competent jurisdiction upon ex parte application, notice being hereby expressly waived, and the appointment of any such 5 CCCO3 Receiver on any such application without notice is hereby consented to by the Mortgagor. All rents, issues and profits, income and revenue of said property shall be applied by such Receiver according to law and the orders and directions of the court. 10. Notices. All notices, demands or other writing in this 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. Service shall be 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: Mortgagor: P. 0. Box /W /a 7�hcu�h WY 8-9J0 Mortgagee: P. 0. Box 1204 Thayne, WY 83127 11. Set -off. Mortgagor shall not be entitled to set -off or any similar rights against amounts secured hereby. 12. Headings. The headings used in this Mortgage are for convenience only and are not to be used in its construction. 13. Binding Effect and Construction; Amendment. The covenants, agreements and conditions herein contained shall run with the land and bind, and the benefits and advantages shall inure to, the respective heirs, devisees, Legatees, executors, administrators, successors and assigns of the parties hereto, and all subsequent owners, encumbrances, tenants and subtenants of the property. Whenever used the singular number shall include the plural, the plural the singular, and the use of 000327 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 statutes, including the power to sell. The acceptance of this mortgage and the note or notes it secures, by the Mortgagee shall be an acceptance of the terms and conditions contained therein. This Mortgage may not be changed or terminated orally. This Mortgage shall be governed by the laws of the State of Wyoming. 14. Release. Upon payment of all sums secured by this Mortgage, Mortgagee shall release this Mortgage without charge to Mortgagor. Mortgagor shall pay all costs of recordation, if any. 15. Waiver of Homestead. Mortgagor hereby relinquishes and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. 16. Payment Through Escrow. The parties hereby appoint the Hickman Land Title Company, P. 0. Box 386, Logan, UT 84321 as Escrow Agent and shall deliver to the Escrow Agent a copy of the Promissory Note and Mortgage. All payments provided for herein, shall be made to the said Escrow Agent for the account of Seller. Buyer shall pay the acceptance fee and any and all installment fees of the Escrow Agent. The parties agree that they shall hold harmless the Escrow Agent against all costs, damages, attorney's fees, expenses and liabilities which in good faith and without fault on its part it may incur or sustain in connection with this escrow, and in connection with any Court action arising out of this Contract. The parties hereto agree to execute any additional escrow instructions reasonably required by the Escrow Agent. 7 these presents the day and year first above w STATE OF WYOMING COUNTY OF, AMA, WITNESS my hand and official seal. My Commission Expires 10/11/2011 .7inu lllllllllllllll mein /lllellllla 000328 IN WITNESS WHEREOF, the said Mortgagors hereunto signed and sealed Steve E. Ashwo The foregoing instrument was acknowledged before me this day of July, 2010 by Steve E. Ashworth and Brenda A. Ashworth. .eeseoeseaeMo N e�xxea� D. Notary Public F County of State of My Commission expires: ioirt 1,90 Fenton Notary Public .a Lincoln f Wyoming mi ii 6 a s 5 w' m VA