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HomeMy WebLinkAbout9604956011120149 AGREEMENT, ESTOPPEL AFFIDAVIT, AND STATEMENT OF VOLUNTARY SURRENDER 000Z'3 WHEREAS,THIS AGREEMENT, ESTOPPEL AFFIDAVIT, AND STATEMENT OF VOLUNTARY SURRENDER is made and entered into as of this k day of M 2011 by and between John A. Fabian and Melonie Blair- Fabian, "Gran or(s) whose present mailing address 625 East Broadway, Jackson, WY 83001 and the BAC Home Loan Servicing, L.P. fka Countrywide Home Loan 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 February 12, 2009, Grantors executed and delivered a mortgage (the "Mortgage in favor of the Mortgage Electronic Registration Systems, Inc., as nominee for Bank of Jackson Hole, its assigns and successors, whose underwriter was the Grantee, originally encumbering the property covered by said Mortgage, which is described as follows: LOT FIFTEEN (15) MEADOW RIDGE ESTATES, LINCOLN COUNTY, WYOMING ACCORDING TO THAT PLAT FILED APRIL 28, 2004 IN THE OFFICE OF THE LINCOLN COUNTY CLERK AS PLAT NO. 237 -A. with an address of 100 Meadow Ridge Road, Alpine, WY 83128 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 February 12, 2009 in the original principal amount of $398,000.00 which was executed and delivered by Grantors to Mortgage Electronic Registration Systems, Inc., as nominee for Bank of Jackson Hole, its assigns and successors, 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 February 19, 2009, at Reception No. 945421 in Book 715 at Page 747. 3. Said mortgage was assigned to BAC Home Loan Servicing, L.P. fka Countrywide Home Loan Servicing, L.P., its successors and assigns by that certain Corporate Assignment of Real Estate Mortgage dated April 12, 2011 and recorded in the records of the County Clerk and ex- officio Register of Deeds in and for Washakie County, State of Wyoming, on April 26, 2011, at Reception 959078 in Book 765 at Page 920. 4. 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 March 31, 2011, 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 $394,636.00 (the "Indebtedness 5. Grantors acknowledge that the Indebtedness of $394,636.00, 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 DILPkg RECEIVED 8/10/2011 at 3:44 PM RECEIVING 960495 BOOK: 770 PAGE: 773 JEANN` NER LINCOLN COUNTY CLERK, KEMMERER, WY DIL Package Fabian 11 -05040 Page 1 of 3 000774 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, Grantors have, 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. 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. 7. 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. 8. 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. 9. 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 February 12, 2009. 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. 10. 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 DILPkg DIL Package Fabian 11 -05040 Page 2 of 3 000775 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 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. 11. 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. 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 SS. COUNTY OF -eq The foregoing instrument was acknowledged before Fabian and Melonie Blair- Fabian this r)(p` day of RNEANE MUMM Notary Public Teton County Wyoming 1 My Commission Expires 4-2i» /4 My Commission Expires: OVA DILPkg GRANTORS: John A. Fabian and Melonie Fabian By: Jo A. Fabian By: 4 oi.' Melonie Blair- Fabian ACKNOWLEDGMENT Witness my hand and official seal. Notary Public fiitantia,1 &wir Title (and Rank) Blair- me John A. 2011 DIL Package Fabian 11 -05040 Page 3 of 3