HomeMy WebLinkAbout886707 RECEIVED
LIt'lCOLl'.~ COUNTY CLERK
"'-' :.-- ,",'.?
This Mortgage, is made the 2,¢'~-~'day of November, 2002, by and'betWeen'
Russell and Kelli Russell, hereinafter referred to as the "Mortgagor", and Mary Jane
McCann, hereinafter referred to as "Mortgagee".
The Mortgagor, for and id:; consideration of the loan amount of One Hundred
Fity Thousand Dol.!ars ($150,000.00) 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 forever, the following described real property situate in the County of
Lincoln, State of Wyoming:
Lot 7 of Misty. Meadow Estates Subdivision within the El/2 of Section 22,
T36N, Rll9W, 6th P.M., as said subdivision is laid down and platted in ,
the office of the Lincoln County Clerk, Lincoln County, Wyoming.
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
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 lawful 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
Thousand
even date
Mortgagor
covenants
pays, or causes to be paid, to the Mortgages the sum of One Hundred Fifty
Dollars ($150,000.00) according to the conditions of a Promissory Note of
herewith, which' Promissory Note was :executed and delivered by the
to the Mortgagee, which sum or sums of money the Mortgagor hereby
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 ti~e of payment of any part of the indebtedness
secured hereby.
2. Prepayments. 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 joint tenant, Mortgagee may, at M0rtgagee'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 an.~ .Asses~.m..ents. Mortgagor shall pay all taxes and
assessments levied or assessed against said property.
5. ..M..aintenance 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
2
situated.
6.' Insurance.. As collateral and further security for the payment of
the indebtedness hereby.: secured, Mortgagor 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 insurattce. All insurance shall be carried in responsible
insurance companies licensed in Wyoming and the policies and renewals thereof
shall have attached thereto by rider or otherwise loss payable clauses in favor of the
Mortgagee. A copy of said policy or any renewal documents pertaining thereto shall
be supplied to the Mortgagee within 30 days after the date of execution of this
mortgage and thereafter within 10 days of any renewal of or amendment to such
policy. The insurance proceeds, or any part thereof, may, at the option of the
Mortgagor, 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 for'egoing, insurance shall not be required as long as
there are no improvements on the property.
7. Mortgagee Authorized t.o Make Payments. If Mortgagor defaults in
the payment of the taxes, assessments or other lawful charges, including any.
construction loan payments or fails to keep the improvements on said premises
insured as herein provided,, the Mortgagee may, without notice or demand, pay the
same, and if the Mortgagor fails to keep said property in good repair, the Mortgagee
may make such repairs as may be necessary to protect the property, all at the expense
of the Mortgagor. The Mortgagor covenants and agrees that all such sums of money
so expended, togethe~ with'all costs of enforcement or foreclosure, and a reasonable
attorney ,fee, shall be added to the debt hereby secured, and agrees t° repay the same
and all expenses so incurred by the Mortgagee, with interest thereon from the 'date
of payment at the same rate as provided in the note hereby secured, until repaid,
and the same shall be a lien on all of said property and be secured by this Mortgage.
8. Default. If the Mortgagor defaults in the payment of the
indebtedness hereby secured, for a period of thir!y (30) days after Written notice, or
fails to keep the improvements on said premises insured as herein provided, or in
case of breach of any covenant or agreement herein contained, the whole of the then
indebtedness secured hereby, both principal
sums payable pursuant to the provisions
and interest, together with all other
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 t~e same in the event of any subsequent defaultl
The Mortgagee may enforce the Provisions of, or foreclos.e., this Mortgage by any
appropriate suit, action or proceed ng 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. 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.
9. 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.
10. 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
4
entitled to a Receiver for said property and all rents, issues and profits thereof, after
any such default, including the time covered by foreclosure 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 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 shali~.;be applied by such Receiver according to law and
th~ orders and directions of the cc~hrt.
11. Inspection. Mortgagee may make or cause tO be made
reasonable entries upon and inspections of the property, provided that Mortgagee
shall give Mortgagor notice prior to any such inspection 'specifying reasonable cause
therefor related to Mortgagee's interest in the property.
12. ._Condemnatio.n The proceeds of any award or claim for damages,.
direct or consequential, in connection with any condemnation or other taking of the
property, or part hereof, or for conveyance in lieu of condemnation, are hereby
ass, igned and shall be paid to Mortgagee. In the event of a total taking of the
property, the proceeds shall be applied to the sums secured by this Mortgage with the
excess, if any, paid to Mortgagor. In the event of a partial taking of the property,
unless Mortgagor and Mortgagee otherwise agree in writing, there shall be applied
to the sums secured by this Mortgage such proportion of the proceeds as is equal to
that proportion Which the amount of the sums secured by this Mortgage
immediately prior to the d,ate of taking bears to the fair market value of the property
immediately prior to the date of taking, with the balance of the proceeds paid to
Mortgagor. If the property is abandoned by Mortgagor, or if, after notice by
Mortgagee to Mortgagor that the condemnor offers to make an award or settle a
claim for damages, Mortgagor fails to respond to Mortgagee within 30 days after the
date such notice is mailed, Mortgagee is authorized to collect and apply the proceeds,
at MOrtgagee's option, either to restoration or repair of the property or to reduce the
sums secured by this Mortgage. Unless Mortgagee and Mortgagor otherwise agree in
writing, any such application of proceeds to principal shall not extend or postpone
the due date of the installments referred to above or change the amount of such~
installments.
13. Stgtement. That the. Mortgagee, within ten (10) days upon
5
request in person or within thirty (30) days upon request by mail, will furnish a
written statement duly acknowledged of the amount due on this Mortgage and
whether any offsets or defenses exist' against the mortgage debt.
14. Notices. All notices, demands or other writing in this
Mortgage provided to be given, made or sent by ei~ther 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 re~urn 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 del, ivery service, on the first business daY delivery is attempted
or upon receipt, whichever, is sooner. The parties mailing addresses are as follows:
Mortgagor: 74150 Setting Sun Trail P.O. Box 5016
Palm Desert, CA 92260 Etna, WY 83118
(Kelli Russell) (Al Russell)
Mortgagee:35487 Summerland Avenue
Palm DeSert, CA 92211
16. Headings. The headings used in this Mortgage are for .convenience
only and are not to be used in its construction.
17. Binding Ef.f~ct and Construction. The covenants herein contained
shall bind, and the benefits and advantages shall inure to, the respective heirs,
'devisees, legatees, executors, administrators, successors and assigns 0f the parties
hereto. Whenever used the singular number shall include the plural, the plural the
singular, and the use of any gender shall include all genders. The term "note"
inclUdes all notes herein described if mbre than one. The terms. "foreclosures" and
"foreclose" as used herein, shall include the right of foreclosure by any. suit, action
or proceeding at law of 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.
18. 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.
19. Waiver of H. omestead.. Mortgagor hereby relinquishes and
w~ives all rights under and by virtue of the homestead exemption laws of the State
of Wyoming.
810
IN wITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed
these presents the day and year first above written.
A1 Russell
Kelli Russell
STATE OF WYOMING )
) SS.
COUNTY OF TETON )
Th'e foregoing instrument was acknowledged before me this Z ~,v<~day of
,tS~L-"'w-~,~,~'~ ,2002 by A1 Russell.
WITNESS my hand and official seal.
Notary Public
My Commission Expires: ,~?
STATE OF CALIFORNIA )
) SS.
COUNTY OF RIVERSIDE )
).
The foregoing instrument was acknowledged before me this __
November, 2002 by Kelli Russell.
WITNESS my hand and official seal.
day of
Notary Public
My Commission EXpires: __
7
811
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
co n, o,
Data,
personally appeared
SS.
personally known ~o me
proved to ms on. the bssis of satisfactoU
evide~
~,ll~ NOTARYPUBLIO-CAUFORNIA '"~
· ~7%%t~J~4~l~/ RIVER_SID.E COUNTY m
~ ' ~ My Corem, expire. Apdl 9, 200~ I~
subscribed to tffe within instrunlent and
acknowledged to me tha ~t,h~l~hey. executed
the same in ~befl" authorized
capaclty([j~', and that by ~bef~'
signature~'on the instrument the perso~-~, or
the entity upon behalf of which the pei~son, J~
acted, executed the Instrument.
WITNESS my hand and offici,a~.~eal. '~
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another documenL
Description of Attached Document
'Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Number of Pages:
Capacity(les) Claimed by Signer
Signer's Name:
[] Individual
[] Corporate Officer -- Title(s):
[] Partner--I-1 Limited [] General
[] Attorney-in-Fact
[] Trustee
[] Guardian or Conservator
[] Other: '~
Signer Is Representing:'
Top of thumb here
999 National Nota~/Associallon * 9350 De Solo Ave., RO. Box 2402 * Chatswodh, CA 91313-2402 · www.netkmalnot a,~/.ofg Prod. No. 5907Reorder: Ca#~TolI-Free 1-800-876-6827