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HomeMy WebLinkAbout9594176011019677 AGREEMENT, ESTOPPEL AFFIDAVIT, AND STATEMENT OF VOLUNTARY SURRENDER 000133 WHEREAS,THIS AGREEMENT, ESTOPPEL AFFIDAVIT, AND STATEMENT OF VOLUNTAR SURRENDER is made and entered into as of this 03 day of 2011 by and between Louis J. Apsey, "Grantor whose present mailing address 126 Roan Way, Etna, WY 83118 and the BAC Home Loans Servicing, L.P., (the "Grantee whose mailing address is 400 Countrywide Way, SV 35, P.O. Box 10232, Simi Valley, CA 93065 -6298. WITNESSETH: 1. On April 27, 2007, Grantor executed and delivered a mortgage (the "Mortgage in favor of the Mortgage Electronic Registration Systems, Inc., as nominee for First Bank of Idaho, fsb, dba First Bank of the Tetons, whose underwriter was the Grantee, originally encumbering the property covered by said Mortgage, which is described as follows: LOT 109 OF NORDIC RANCHES DIVISION NO. 8, LINCOLN COUNTY, WYOMING, ACCORDING TO THAT PLAT FILED IN THE OFFICE OF THE COUNTY CLERK AS PLAT NO. 312 -A with an address of 126 Roan Way, Etna, WY 83118 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 April 27, 2007 in the original principal amount of $284,000.00 which was executed and delivered by Grantor to Mortgage Electronic Registration Systems, Inc., as nominee for First Bank of Idaho, fsb, dba First Bank of the Tetons, 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 May 7, 2007, at Reception No. 929096 in Book 657 at Page 6. 3. Said mortgage was assigned to BAC Home Loans Servicing, L.P., its successors and assigns by that certain Corporate Assignment of Real Estate Mortgage dated January 7, 2011 and recorded in the records of the County Clerk and ex- officio Register of Deeds in and for Lincoln County, State of Wyoming, on January 14, 2011, at Reception 957634 in Book 760 at Page 710. 4. Grantor is 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 6, 2010, 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 $290,747.24 (the "Indebtedness 5. Grantor acknowledges that the Indebtedness of $290,747.24 plus attorneys' fees and costs of collection is due and owing to the Grantee on the Note and the Mortgage; that Grantor has defaulted in the payment of the Note DILPkg RECEIVED 5/25/2011 at 1:16 PM DIL Package RECEIVING 959417 Apsey 10 -24485 BOOK: 767 PAGE: 133 Page 1 of 3 JEANNE WAGNER LINCOLN COUNTY CLr "`EMMERER, WY 000134 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. 6. For good and sufficient consideration, Grantor has, contemporaneously with the execution 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. Grantor hereby acknowledges, agrees, and certifies 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 Grantor's rights, 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 Grantor's rights of possession thereof, rights to rentals and profits therefrom, and equity of redemption and statutory right of redemption in and to the property. 7. Grantor acknowledges, agrees, certifies, and warrants that he has 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 Grantor, enforceable against them in accordance with its terms. Grantor further acknowledges, agrees, certifies, and warrants 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 Grantor to the Grantee, in good faith on the part of Grantor and the Grantee, without any fraud. 8. Grantor acknowledges and agrees 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 Grantor's equity of redemption and statutory right of redemption, with full release of Grantor's 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. 9. Grantor acknowledges and agrees 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 Grantor has 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 Grantor from any and all debt, obligation, cost and charges existing under and by virtue of the promissory note dated April 27, 2007. However, nothing contained in this Agreement shall be interpreted or construed to prejudice those contractual rights of Grantor which have vested under this instrument and the Deed in Lieu of Foreclosure. 10. Grantor hereby agrees that: (a) Grantor is 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 DILPkg DIL Package Apsey 10 -24485 Page 2 of 3 000135 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 of any kind whatsoever against Grantor 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 Grantor in any way connected with or pertaining to any of the Real Property. 11. Grantor 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. 12. This Agreement has been made and executed for the protection 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. STATE OF OYV) 1 A� COUNTY OF My Commission Expires: DILPkg GRANTOR: Louis J. Apsey By: Loui Apsey ACKNOWLEDGMENT SS. r- doregoin• instrument was acknowledged before me Louis J. Apsey this \D _day of r� 2011 Witness my hand and official seal.' Notary Public ofa ,i z c .j Title (and Ran DIL Package Apsey 10 -24485 Page 3 of 3