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HomeMy WebLinkAbout962916RECORDATION REQUESTED BY: Wells Fargo Bank, National Association Jackson West BBG 50 Buffalo Way MAC C7832 -020 Jackson, WY 83001 WHEN RECORDED MAIL TO: Wells Fargo Bank, National Association BBSG Boise Loan Ops LDI P.O. Box 34656 San Antonio, TX 78265 1( 09 t 2 9 5 MODIFICATION OF MORTGAGE 200142477429600485 00887 RECEIVED 1/26/2012 at 10:04 AM RECEIVING 962916 BOOK: 779 PAGE: 887 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY THIS MODIFICATION OF MORTGAGE dated October 4, 2011, is made and executed between Thomas Vincent Pierce and Cheryl Profit Pierce, also shown of record as Vince Pierce and Cheryl Pierce, husband and wife, whose address is 403 Tulsa Ave, La Barge, WY 83123. (referred to below as "Grantor and Wells Fargo Bank, National Association, whose address is 50 Buffalo Way, MAC C7832 -020, Jackson, WY 83001 (referred to below as "Lender MORTGAGE. Lender and Grantor have entered into a Mortgage dated July 25, 2008 (the "Mortgage which has been recorded in Lincoln County, State of Wyoming, as follows: Recorded on August 01, 2008, as Instrument (Serial) No. 940976. in Book (Reel) 701, at Page (Image) 361, of the Official Records of Lincoln County, Wyoming, as may have been modified from time to time "Mortgage REAL PROPERTY DESCRIPTION_ The Mortgage covers the following described real property located in Lincoln County, State of Wyoming: Lot 7 and 8 in Block 9 of Alleman Second Addition to the Town of LaBarge, Lincoln County, Wyoming as described on the official plat filed on November 29, 1989 as instrument No. 711017 of the records fo the Lincoln County Clerk. The Real Property or its address is commonly known as 584 S Main Street, La Barge, WY 83123. The Real Property tax identification number is 26120643822700. MODIFICATION. Lender and Grantor hereby modify the Mortgage as follows: The Mortgage is hereby modified by amending and restating the vesting of ownership of the real property described in the Mortgage to be Thomas Vincent Pierce and Cheryl Profit Pierce, also shown of record as Vince Pierce and Cheryl Pierce, husband and wife, as if orginaliy described therein. The Mortgage is hereby modified to include within the indebtedness and obligations secured by the Mortgage, the payment to Mortgagee of all indebtedness and performance of all obligations evidenced by and arising under that promissory note, loan or credit agreement, confirmation letter and disclosure, or other evidence of debt, dated as of October 04, 2011, evidencing indebtedness of Moondance Diner, LLC, Cheryl Profit Pierce, and Thomas Vincent Pierce to Mortgagee in the principal amount of $219,596.66 with a final maturity date of September 30, 2012 (which represents the refinancing of that certain promissory note, loan or credit agreement, confirmation letter and disclosure, or other evidence of debt, dated as of June 08, 2010, and secured by the Mortgage), together with interest thereon, and any such indebtedness or other obligations incurred under or in connection with the credit accommodation evidenced, even if not specifically referenced therein.. CONTINUING VALIDITY. Except as expressly modified above, the terms of the original Mortgage shall remain unchanged and in full force and effect and are legally valid, binding, and enforceable in accordance with their respective terms. Consent by Lender to this Modification does not waive Lender's right to require strict performance of the Mortgage as changed above nor obligate Lender to make any future modifications. Nothing in this Modification shall constitute a satisfaction of the promissory note or other credit agreement secured by the Mortgage (the "Note It is the intention of Lender to retain as liable all parties to the Mortgage and all parties, makers and endorsers to the Note, including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, shall not be released by virtue of this Modification. If any person who signed the original Mortgage does not sign this Modification, then all persons signing below acknowledge that this Modification is given conditionally, based on the representation to Lender that the non signing person consents to the changes and provisions of this Modification or otherwise will not be released by it. This waiver applies not only to any initial extension or modification, but also to all such subsequent actions. FACSIMILE AND COUNTERPART. This document may be signed in any number of separate copies, each of which shall be effective as an original, but all of which taken together shall constitute a single document. An electronic transmission or other facsimile of this document or any related document shall be deemed an original and shall be admissible as evidence of the document and the signer's execution. ARBITRATION AGREEMENT. Arbitration Binding Arbitration. Lender and each party to this agreement hereby agree, upon demand by any party, to submit any Dispute to binding arbitration in accordance with the terms of this Arbitration Program. Arbitration may be demanded MODIFICATION OF MORTGAGE Loan No: 1389411544 (Continued) Page 2 before the institution of a judicial proceeding, or during a judicial proceeding, but not more than 60 days after service of a complaint, third party complaint, cross claim, or any answer thereto, or any amendment to any of such pleadings. A "Dispute" shall include any dispute, claim or controversy of any kind, whether in contract or in tort, Iogal or equitable, now existing or hereafter arising, relating in any way to any aspect of this agreement, or any related agreement incorporating this Arbitration Program (the "Documents or any renewal, extension, modification or refinancing of any indebtedness or obligation relating thereto, including without limitation, their negotiation, execution, collateralization, administration, repayment, modification, extension. substitution, formation, inducement, enforcement, default or termination. DISPUTES SUBMITTED TO ARBITRATION ARE NOT RESOLVED IN COURT BY A JUDGE OR JURY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARBITRATED PURSUANT TO THIS ARBITRATION PROGRAM. A. Gcammina l es. Any arbitration proceecting will (i) be governed by the Federal Arbitration Act (Title 9 of the United States Cade), notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (ii) be conducted by the American Arbitration Association "AAA or such other administrator as the parties shalt mutually agree upon, in accordance with the AAA's commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of domed interest, arbitration fees and costs, in which case the arbitration shall be conducted in accordance with the AAA's optional procedures for large, complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes am referred to herein, as applicable, as the "Rules If there is any inconsistency between the terms hereof and the Rules. the temps and procedures set forth herein shall control. Arbitration proceedngs hereunder shall be conducted at a location mutually agreeable to the parties, or if they cannot agree, then at a location selected by the AAA in the state of the applicable substantive law primarily governing the Note. Any party who fails or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any Dispute. Nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12 U.S.C. Section 91 or any similar applicable state law. B. No Waiver of Provisional Remedies. Self -Help and Foreclosure The arbitration requirement does not limit the right of any party to (i) foreclose against real or personal properly collateral; (ii) exercise self -help remedies relating to collateral or proceeds of collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such as replevin. injunctive relief, attachment or the appointment of a receiver, before during or after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or obligation of any party to submit any Dispute to arbitration or reference hereunder. including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii) of this paragraph. 0. Arbitrator Qualifications and Powers Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any Dispute in which the amount in controversy exceeds $5.000,000.00 shall be decided by majority vote of a panel of three arbitrators; provided however. that all three arbitrators must actively participate in all hearings and deliberations. Every arbitrator must be a neutral practicing attorney or a retired member of the state or federal judiciary, in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the Dispute. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator's discretion) any pre- hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all Disputes in accordance with the applicable substantive law and may grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees. to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the applicable state rules of civil procedure, or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff. to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. D Discovery. In any arbitration proceeding discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited to matters directly relevant to the Dispute being arbitrated and must be completed no later than 20 days before the hearing date. Any requests for an extension of the discovery periods, or any discovery disputes. will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party's presentation and that no alternative means for obtaining information is available. E. Class Proceedings and Consolidations No party hereto shall be entitled to join or consolidate disputes by or against non parties in any arbitration, or to include in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a private attorney general capacity. As used herein. "non- parties" shall mean all persons and entities except Lender and the parly(ies) executing this agreement or any related Document. F. Miscellaneous, To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to conclude any arbitration proceeding within 180 days of the filing of the Dispute with the AAA. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by a party required in the ordinary course of its business or by applicable law or regulation. It more than one agreement for arbitration by or between the parties potentially applies to a Dispute, the arbitration provision most directly related to the documents between the parties or the subject matter of the Dispute shall control. This arbitration provision shall survive the repayment of the Note and the termination, amendment or expiration of any of the Documents or any relationship between the parties G. State pecific Provisions. If Delaware or Pennsylvania law governs the Dispute the following provision is included: Confession of Judgment. Notwithstanding anything herein to the contrary, the arbitration requirement does not limit or preclude the right of Lender to confess judgment pursuant to a warrant of attomey provision set forth in the Note or Related Documents. No party shall have the right to demand binding arbitration of any claim. dispute or controversy seeking to (i) strike -oft or open a judgment obtained by confession pursuant to a warrant of attorney contained in the Note or Related Documents, or (ii) challenge the waiver of a right to prior notice and a hearing before judgment is entered, or after judgment is entered. but before execution upon the judgment. Any claims, disputes or controversies challenging the confession of judgment shall be commenced and prosecuted in accordance with the procedures set forth, and in the forum specified by the applicable state rules of civil procedure or other applicable law. If Maryland _Mizoram the Disgute, the following provision is included: Confession of Judgment. Notwithstanding anything herein to the contrary, the arbitration requirement does not limit or preclude the right of Lender to confess judgment, and no party shall have the right to demand binding arbitration of any claim, dispute or controversy seeking to open El judgment obtained by confession Nothing herein, including the arbitration requirement, shall limit the right of any party to foreclose judicially 00888 MODIFICATION OF MORTGAGE Loan No: 1389411544 (Continued) Page 3 or non judicially against any real or personal property collateral, or exercise judicial or non judicial power of sale rights. No provision regarding submission to a jurisdiction and /or venue in any court or the waiver of any right to trial by jury is intended or shall be construed to be in derogation of the provisions for arbitration of any dispute. Any claim or counterclaim or defense raised in connection with Lender's exercise of any rights set forth in the Note or Related Documents shall be subject to the arbitration requirement. If South Carolina taw governs the Dispute the following provision is included: WAIVER OF JURY TRIAL NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES' AGREEMENT TO ARBITRATE ANY DISPUTE AS SET FORTH IN THIS MORTGAGE, TO THE EXTENT ANY DISPUTE IS NOT SUBMITTED TO ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, MORTGAGOR AND MORTGAGEE WAIVE TRIAL BY JURY IN RESPECT OF ANY SUCH DISPUTE AND ANY ACTION ON SUCH DISPIrFE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY MORTGAGOR AND MORTGAGEE, AND MORTGAGOR AND MORTGAGEE HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL. INDUCEMENT FOR THE PARTIES ENTERING INTO THE LOAN DOCUMENTS. MORTGAGOR AND MORTGAGEE ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL MORTGAGOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS MORTGAGE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL If Virginia law governs the Dispute the following provision is included: Confession of Judgment The arbitration requirement does not limit or preclude the right of Lender to confess judgment pursuant to a warrant of attorney provision set forth in the Note or Related Documents. No party shall have the right to demand binding arbitration of any claim, dispute or controversy seeking to (1) strike -off or open a judgment obtained by confession pursuant to a warrant of attorney contained in the Note or Related Documents, (ii) challenge the waiver of a right to prior notice and a hearing before judgment is entered, or after judgment is entered, but before execution upon the judgment. Any claims, disputes or controversies challenging the confession of judgment shall be commenced and prosecuted in accordance with the procedures set forth, and rn the forum specified by the applicable state rules of civil procedure or other applicable law I-L Real Property Collateral. If Califomia law governs the Dispute, the following provisions are included: Real Property Collateral; Judicial Reference. Notwithstanding anything herein to the contrary, no Dispute shall be submitted to arbitration if the Dispute concems indebtedness secured directly or indirectly. in whole or in part, by any real property unless (i) the holder of the mortgage lien or security interest specifically elects in writing to proceed with the arbitration, or (11) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of California, thereby agreeing that all indebtedness and obligations of the parties, and all mortgages liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If any such Dispute is not submitted to arbitration, the Dispute shall be referred to a referee in accordance with California Code of Civil Procedure Section 638 et seq., and this general reference agreement is intended to be specifically enforceable in accordance with said Section 638. A referee with the qualifications required herein for arbitrators shall be selected pursuant to the AAA's selection procedures. Judgment upon the decision rendered by a referee shall be entered in the court in which such proceeding was commenced in accordance with Califomia Code of Civil Procedure Sections 644 and 645. Small Claims Court. Any party may require that a Dispute be resolved in Small Claims Court if the Dispute and related claims are fully within that court's jurisdiction. If Connecticut law governs the Dispute the following provision is included: Real Properly Collateral. Notwithstanding anything herein to the contrary. no dispute shall be submitted to arbitration if the dispute concems indebtedness secured directly or indirectly. in whole or in part, by any real properly located in Connecticut unless (i) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of Sections 49 1 and 49 14 et seq. of the Connecticut General Statutes, thereby agreeing that all indebtedness and obligations of the parties, and all mortgages, liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If Idahn law governs the Dispute the following provision is included: Real Property Collateral. Notwithstanding anything herein to the contrary, no Dispute shall be submitted to arbitration if the Dispute concerns indebtedness secured directly or indirectly, in whole or in part, by any real properly unless (i) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of Idaho, thereby agreeing that all indebtedness and obligations of the parties, and all mortgages, liens and security interests securing such indebtedness and obligations, shall remain Cully valid and enforceable. If Montana law aovems the Dispute, the following provision is included: Real Property Collateral. Notwithstanding anything herein to the contrary, no Dispute shall be submitted to arbitration if the Dispute concerns indebtedness secured directly or indirectly, in whole or in part, by any real property unless (i) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of Montana, thereby agreeing that all indebtedness and obligations of the parties, and all mortgages, liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If Nevada law governs the Disoute, the following provision is included: Real Property Collateral. Notwithstanding anything herein to the contrary. no Dispute shall be submitted to arbitration it the Dispute concerns indebtedness secured directly or indirectly, in whole or in part, by any real property unless (i) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of Nevada. thereby agreeing that all indebtedness and obligations of the parties, and all mortgages, liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If South Dakota law governs the Dispute the following provision is included: Real Property Collateral. Notwithstanding anything herein to the contrary, no Dispute shall be submitted to arbitration if the Dispute concerns indebtedness secured directly or indirectly, in whole or in part, by any real property unless (1) the holder of the mortgage. lien or security interest 00889 MODIFICATION OF MORTGAGE Loan No: 1389411544 (Continued) Page 4 specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of South Dakota. thereby agreeing that all indebtedness and obligations of the parties, and all mortgages, liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If Utah law govems the Dispute the following provision is included: Real Property Collateral; Judicial Reference. Notwithstanding anything herein to the contrary. no Dispute shall be submitted to arbitration if the Dispute concerns indebtedness secured directly or indirectly. in whole or in part. by any real property unless (1) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration. or (a) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of Utah, thereby agreeing that all indebtedness and obligations of the parties. and all mortgages. liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If any such Dispute is not submitted to arbitration. the Dispute shall be referred to a master in accordance with Utah Rule of Civil Procedure 53, and this general reference agreement is intended to be specifically enforceable. A master with the qualifications required herein for arbitrators shall be selected pursuant to the AAA's selection procedures. Judgment upon the decision rendered by a master shall he entered in the court in which such proceeding was commenced in accordance with Utah Rule of Civil Procedure 53(0). If Virginia law govems the Diknute the following provision is included: Real Property Collateral; Judicial Reference. Notwithstanding anything herein to the contrary, no Dispute shall be submitted to arbitration if the Dispute ,xincems indebtedness secured directly or indirectly, in whole or in part, by any real property unless (i) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of any single action rule, thereby agreeing that all indebtedness and obligations of the parties, and all mortgages. liens and security interests securing such indebtedness and obligations, shall rennin fully valid and enforceable. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MODIFICATION OF MORTGAGE AND GRANTOR AGREES TO ITS TERMS. THIS MODIFICATION OF MORTGAGE IS DATED OCTOBER 4, 2011. GRANTOR: Thomas Vincent 1.4'144 i ric v PR Thomas Vincent fierce' �!J„ Vi n���'� P(,�,Arce LENDER: ELLS FARGO BANK, NATIONAL SSOCIATION X Authorized Signer Cheryl Profit Pi e INDIVIDUAL ACKNOWLEDGMENT State of County of 7 This instrument was acknowledged before me on (date) by Thomas V' My commission expires: 00890 Loan No: 1389411544 State of County of This instrument was acknowledged before me on (date) by Cheryl Profit Force: State of County of ()F This instrument was acknowledged before me on L (date) by ,etts JO ANNA G. MARTINEZ Notary Public, State of Texas L- My Commission Expires I SOW0-10 November 30, 2015 MODIFICATION OF MORTGAGE (Continued) Page 5 INDIVIDUAL ACKNOWLEDGMENT (No ia Signature' My commission expires: LENDER ACKNOWLEDGMENT (Notarial,Si My commission expires: (-u...1 i-L fi.10 LASER PRO Lending, Ver, S.57.00.004 Copr. Harland Financial Solutions, Inc. 1997, 2011 All Rights Reserved. WY XALPROD\CFRLPL \G201.FC TR-140301 PR-689 00891