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HomeMy WebLinkAbout89822630363 (o~) Account No.: 9002148 ~q~qeqc 8 9 8 2 2 6 Branch No.: 398 Loan Product: 95% CLTV HELOC Piggyback ~[Tz~ RECEIVED LINCOI ~,.,i c,o, ~, M1N 1000697-'0000900214}t,5. ,,.~ t~ [~ ~ MORTGAGE THIS MORTGAGE SECURES OBLIGATORY FUTURE ADVANCES TI-HS MORTGAGE, as amended and extended (this "Mortgage") is signed to secure advances tinder a GMAC Home Equity Line of Credit'agreement (the "Agreement"); it is dated as of March 31, 2004, and is made by Bmmie C. Kovacs And James R. Mcjumkin, Wife And Husband_ who reside(s) at Po Box 10758 , Jackson, Wyoming 83002, as mortgagor(s), in favor of GMAC Mortgage Corporation, a Pelmsylvania Corporation, i00 Witmer Road, Horsha~n, PA 19044-0963 (herein "GMAC") and the Mortgage Electronic Registration Systems, Inc., P.O. Box 2026, Flint, Mi 48501-2026 ("MERS") acting solely as nominee for GMAC and GMAC's successors and assigns tinder tlfis Mortgage, as mortgagee. Throughout this Mortgage, "we", "us" and "our" refer to mortgagor(s). "GMAC" refers to GMAC Mortgage Coq~oration or its assigns. ~ltte "Account" refers to the Home Equity Line of Credit account established by GMAC under the Agreement. "Borrower" refers to each person who signs the Agreement as borrower. The Agreement and this Mortgage, taken together, are called the "Credit Documents." "Signer" refers to any person (other than GM_AC) who has signed a Credit Document. DESCRIPTION OF SECURITY By signing this Mortgage, we mortgage to MERS acting solely as a nominee for GMAC, subject to the terms of this Mortgage, (a) the real estate located at 178 Trail Drive , Alpine, County of Lincoht, State of Wyoming 83128, more fully described in Schedule A; (b) all buildings and other structures on the property; (c) all rights we may have in any road, alley, easement or license regarding the property or in any mineral, oil, gas or water which is part of the property; (d) all rents and royalties from the property; (e) all proceeds of any insurance on the propm~ty and all refunds of premiums on such insurance; (f) all proceeds of any taking (or tlu'eatened taking) of the property by any govennnental authority ("condemnation"); and (g) all fixtores on the property at any time (collectively, the "Property"). The Property includes all rights and interests which we now have or which we may acquire in the future. For example, if the security mortgaged under this Mortgage is a leasehold estate and we subsequently acquire fee title to the Property, the rights and interests granted to MERS acting solely as a nominee for GMAC by this Mortgage will include the fee title that we acquire. This Mortgage is also a Security Agreement tinder the Wyonfing Uniform Conunercial Code and we hereby grant MERS acting solely as a nominee for GMAC a security interest in rite personal property described in (d) through (f) above. SECURED .OBLIGATIONS THIS MORTGAGE SECURES OBLIGATORY FUTURE ADVANCES. We have signed this Mortgage to secure payment to GIvlAC of up to $28,800.00, plus FINANCE CItARGES and any other amounts due GMAC under the Agreement (the "Total Balance Outstanding") and to secnre perforrnance by Bon'ower under the Agreement and our perfom~ance of the covenants of this Mortgage (collectively, the "Secured Obligations".). PRIORITY OF ADVANCES The lien of this Mortgage will attach on the date this Mortgage is recorded, xvith priority over subsequently recorded nmrtgages. The indebtedness evidenced by the Credit Documents is a revolving indebtedness. The Credit Documents provide that amounts may be advanced, repaid and readvauced from time to time in accordance with the terms and provisions of the Agreement. Accordingly, the aggregate advances during the tetrn of the Credit Documents may exceed the Credit Linfit. However, the To/al Balance Outstanding Jess FINANCE CHARGES and certain special charges at any time (the "Earning Bahmce Outstanding") shall never exceed the Credit Linfit, except for advances made to protect the lien of this Mortgage. We agree that the lien and security title of this Mortgage shall not be deemed released or extinguished by operation of law or implied intent of the parties if the Total Balance Outstanding is zero as of the date of this Mortgage or is from time to time reduced to zero by payments made to GMAC. GMAC-WY ~ -~ REPRESENTATIONS AND DUTIES We promise that, except for Permitted Liens: (a) we own tile Property; (b) we have the right to mortgage the Property to. GMAC; and (c) there are no outstanding claims or charges against the Property. The term "Pemfitted Lien" means (x) any mortgage, deed to secure debt or deed of trust ("security instrument") disclosed to GMAC by any Signer in applying for the Account, to the extent that the amount 'secured by such security instrument does not exceed the amount disclosed on such application; and (y)any liens, clain~s and restrictions of record that do not individually or collectively have a material adverse in,pact upon GMAC's security, the value of the Property or the Property's current use. Each of us gives a general warranty of title to GMAC. This means that each of ns will be fiflly responsible for any losses which GMAC suffers because someone has rights in the Property other than Permitted Liens. We promise that we will defeud our ownership of the Property against any clahns of such right. We will neither take nor pemfit any action to partition, subdivide or change the condition of title to all or any part of the Property. We will not amend any Pemfitted Lien without GMAC's prior writteu consent. CERTAIN PROVISIONS OF' TIIE AGREEMENT We understand that GMAC may, under certain ckcumstances set forth iii the Agreement, cancel its obligation to make future advances and/or requh'e'repayment at ouce of the Total Balance Outstanding. Under the Agreement, F1NANCE CHARGES are based on the "prime rate" published in The Wall Street Journal or in certain circumstances the "prime rate" published in The New York Times or a similar index selected by GMAC. The rate of FINANCE CttARGES changes on a daily basis as the index or the amount outstanding under the Agreement increases or decreases. We understand that Borrower will not receive advance notice of such changes. PROMISES AND AGREEMENTS We agree with GMAC as follows: 1. TIMELY PAYMENT. Except as limited by paragraph 10 below, Bon'ower shall pay when due all sums owed GMAC under the Credit Documents. 2. APPLICATION OF PAYIVLENTS. All payments shall be applied by GMAC as set forth in the Agreement. 3. MORTGAGES AND DEEDS OF TRUST; CHARGES; LIENS. We shall make payments when due and perfom~ all our obligations nnder any mortgage, deed of trust or other security agreement on the Property. We shall pay or cause to be paid'when due all loans, taxes, assessments, charges, f'mes, impositions and rents of any kind relating to the Propmxy ("Assessmettts"). Receipts evidencing such payments shall be delivered to GMAC upon ~ts request. Except for Permitted Liens, we shall not allow any encmnbrance, charge or lien on the Property to become prior to this Mortgage. 4. HAZARD INSURANCE; CONDESINATION. (a) We shall, at our cost, keep all improvements on the Property insured against loss caused by hazards included in the term "extended coverage" or by other hazards GMAC uray reasonably specify. Hazard insurance shall be in an amount equal to the lesser of (i) the full replacement cost of the building that is part of the Property or (ii) the amount of this Mortgage plus the total amount of all Permitted Liens; but never less than the amount necessary to satisfy any coinsurance requirement contained in the insurance policy. We may choose the insurance company, subject to approval by GMAC which may not be unreasonably withheld. All insurance policies and renewals taus! be in form acceptable to GMAC and must include a standard mortgagee clause in favor of GMAC. GMAC shall have the right to hold the policies and renewals, subject to the terms of any Pemfitted Liens. If we pay the prentiums directly, we shall provide GMAC with all renewal notices and, if requested by GMAC, all receipts for premiums. If policies and renewals are held by any other person, we shall supply copies of them to GMAC ;vithin ten calendar days after they are issued. In the event of loss, we shall give prompt notice to the insurance company and GMAC. GMAC may file a proof of loss if we fail to do so promptly. (b) The proceeds of any condenmation of the Property shall be paid to GMAC, subject to any Permitted Liens. We shall give GMAC notice of any threatened condenmation and sign all documents required to can'y out this paragraph 4. No condeinnation settlement may be made without GMAC's prior written approval wlfich shall not be unreasonably withheld, r~'--y~ ~ ~/~q~ -2- (c) Subject to the terms of any Permitted Lien, GMAC may elect that the proceeds of any insurance or coudemnation (after payment of all reasonable costs, expenses and attorneys' fees paid or incurred by GMAC and us) shall be applied to pay the Secured Obligations, to repah' or reconstruct the Property, and/or pay us for our loss. In the event that such proceeds are not used enth'ely for repah' and reconstruction, we shall provide GMAC with a new appraisal or valuation of the Properly, conducted by a person or entity and in a form reasonably acceptable to GMAC, unless GMAC waives this requirement in writing.. The receipt of proceeds shall not cure or waive any default or notice of default under this Mortgage or invalidate any act done pursuant to such notice. If the Property is abandoned by us, or if we fail to respond to GMAC in writing within 30 calendar days from the date notice of a proposed insurance or condenmation settlement is given to tis, GMAC may settle the elaine, collect the proceeds aud apply them as set forth above. If the Property is acquired by GMAC, all af our right, title and interest in and to any insurance or condemnation proceeds shall become the property of GMAC to the extent of the sums secured by this Mortgage. 5. MAINTENANCE OF THE PROPERTY; LEASEHOLDS; CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. We shall: use, improve and maintain the Property in conrpliance with law; keep the Property in good repah' and pay when due all repair costs; prevent waste, impai~xnent and/or deterioration of the Property; and comply with the provisions of any lease of the Property. If the Property is pan of a condominium project or a planned unit development, we shall promptly perform all of our obligations under the governing documents of the project or development. 6. PROTECTION OF GMAC SECURITY. We shall appear m and defend any action or proceeding which may affect the security of GMAC under this Mortgage or result in a violation of paragraph 3 above. If such an action is filed, we violate this Mortgage or Borrowers violate the Agreement, then GMAC may disburse funds and do whatever it believes necessary to protect the security of this Mortgage. In doing so, GMAC shall give us notice but it need not make demand or release us from any obligation. Any amounts paid by GMAC under this paragraph 6, with FINANCE CHARGES at the variable rate in effect under the Agreement, shall be paid by us upon demand. Until paid by tis, such amounts are secured by this Mortgage. GMAC is not required to incur any expense or take airy action under this Mortgage and no action taken shall release us from any duty. 7. INSPECTION. Representatives of GMAC may inspect the Property from thne to tinre. Except in an emergency, GMAC must £u'st give notice specifying reasonable cause for the inspection. 8. FINANCE CHARGES AFTER END OF ACCOUNT AND/OR JUDGMENT. To the extent permitted by law, we agree that FINANCE CHARGES after the end of the Account and/or after a judgment is entered shall continue to accrue at the rates and in the rammer specified h~ the Agreement. 9. OUR CONTINUING DUTIES AND Gi~C'S RIGHTS; WAIVERS. No waiver of any GMAC right under the Credit Documents shall release or limit our liability, Borrower's liability, or fl~at of our successors or Borrower's successors, nor shall any waiver affect the lien or priority of this Mortgage. · GMAC shall not be requh'ed to start proceedings against any successor or modify payment terms .by reason of any demand made by us or any successor. No GMAC act or failure to act shall waive any right under this Mortgage. All waivers must be in writing and signed by GMAC; they shall apply only to the extent and with respect to the eveut specified in the writing. Obtaining insurance, or paying taxes, other liens or charges shall not be a waiver of GMAC's right to demand payment at once of the sums secured by this Mortgage in the event ora default under the Credit Documents. 10. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY; CO-SIGNERS. This Mortgage shall bind us and our respective successors and permitted assigns for the benefit of GMAC and its successors and assigns. All agreements made by us or any successor are joint and several and may be enforced against each of us or any snccessor. Any Signer who does not execute the Agreement (a) is co-signing only to encumber that person's interest in the Property and to release all homestead and/or dower rights, (b) is not personally liable under the Credit Documents, and (c) agrees that GMAC and any Signer may modify either Credit Document, without consent and without modifying the interests of the rest of us under this Mortgage. 11. NOTICES. All notices shall be in writing. Except where applicable law requires otherwise: (a) GMAC notices shall be hand delivered or mailed by first class, registered or certified mail to the address of the Property or to such other address specified by the addressee in a written notice given to GMAC. Any GMAC notice shall be considered given on the day it is deposited in the U.S. mail or is hand-delivered. (b) Our notices shall be mailed to GMAC by first class, registered or certified mail to the address for such notices specified on our most recent monthly statement under the Agreement or to snch other address specified by GMAC in a written notice given to us. Any such notice shall be considered given on the day it is received by GMAC. 12. GOVERNING LAW. This Mortgage will be governed by federal and Wyoming law. If any provision is invalid, illegal, or unenforceable, this Mortgage shall be interpreted as if such provision had never been included. 13. COPIES. We shall receive cop~es of the Credit Documents al the thne they are signed or after this Mortgage is recorded. 14. EXERCISING REMEDIES. GMAC may exercise all of the rights and remedies provided by the Credit Docmnents or law, and any of these rights and remedies may be exercised individually or jointly, once or a number of times. The parties to this document are subject to the provision for Arbitration as set forth in the Agreement which is incorporated by reference as if set forth at length herein. 15. EVENTS OF DEFAULT. (a) The events set forth in paragraph 15(b) are Events of Default if and when GMAC gives any Signer notice of default. We agree to notify GMAC promptly upon the happening of any event that would be an Event of Default under either Credit Document upon the giving of notice by GMAC. (b) After giving notice of default, GMAC may end the Account and/or demand repayment at once of the Total Balance Outstanding m any of the following events: Account; (i) There has been fraud or material misrepresentation by any Signer in colmection with the (ii) Boxxowers have failed to meet the repayment terms of the Agreement for any amount outstanding; or (iii) Any action or reaction by any Signer has adversely affected the Property or any right of GMAC in the Property; to the extent permitted by law, this will include, but not be linfited to, any Signer (or any legal representative or successor of any Signer) agreeing to sell, transfer or assign or selling, transferring or assigning any interest in the Property, without the prior written consent of GMAC. (c) Not~vithstanding any language m this Mortgage to the contrary, GMAC will not give notice of default unless permitted by applicable law and GMAC will give us any grace period, right to cure and/or reinstatement right requh'ed by applicable law. This paragraph 15 is intended to give GMAC all rights peimitted by applicable law. 16. REMEDIES. IF BORROWERS DO NOT REPAY AT ONCE THE TOTAL BALANCE OUTSTANDING W'ItEN DUE, GMAC MAY EXERCISE ANY REMEDY AVAILABLE TO IT UNDER APPLICABLE LAW, INCLUDING FORECLOSURE. 17. FORECLOSURE BY ADVERTISEMENT. We hereby grant GMAC upon an Event of Default power to sell or cause the sale of the Property by advertisement and sale at public auction or vendue and to convey the Property to the purchaser in the maturer provided by laxv. 18. APPOINTMENT OF RECEIVER. Upon an Even! of a Default or our failure to pay taxes assessed against the Property and/or insurance premiums on the Propelxy (which we agree shall constitute waste), GMAC shall be entitled to the appointment of a receiver if permitted by law. 19. SATISFACTION OF MORTGAGE. Upon payment and discharge of all snms secured by this Mortgage and ternimation of the Account, this Mortgage shall be void and GMAC shall satisfy this Mortgage, file a discharge or release and pay any recording costs. 20. REQUEST FOIl NOTICES. GMAC requests that copies of notices of default, sale and foreclosure from thc holder of any lien which has priority over this Mortgage be sent to GMAC at 100 Witmer Road, Horsham, PA 19044. 2i. EXHIBITS, SCHEDULES AND RIDERS, ETC. The terms of any Exhibit, Schedule or Rider attached to this Mortgage or executed and recorded with this Mortgage shall be treated as if fitlly set forth in this Mortgage. All of the terms of the Agreement are made part of this Mortgage. 22. TIME OF ESSENCE. Time is of the essence in this Mortgage. 23, ACTUAL KNOWLEDGE. For proposes of the Credit Documents, GMAC shall not be deemed to have actual knowledge of.any fact until it actually receives notice as set forth in paragraph 11 or until it receives written notice thereof from a source GMAC reasonably believes to be reliable The date of receipt shall be determined by reference to the "Received'i date stamped on such written notice by GMAC or its agent. 24. RELEASE. To the extent pmrnitted by law, for ourselves and our successors and assigns, we hereby release and waive all rights under and by virtue of the homestead exemption laws of the State of Wyoming. 25. EXPENSES OF LITIGATION. In any proceeding to enforce any remedy of GMAC under the Credit Documents there shall be allowed and included, to the extent permitted by law, as additional indebtedness in the judgment or decree, any court costs and reasonable expenses which may be paid or incurred by GMAC for attorneys; appraisers; documentary and expert evidence; stenographers; publication; surveys; abstracts of title; title searches; title insurance policies; Torrens certificates; and similar items which GMAC reasonably considers necessary in such proceeding or to evidence to bidders at any sale the m~e condition of the title to or value of the Property. Such expenses may be estimated to the extent they will be incurred after entty of the decree In any foreclosure by advertisement, all expenses pemfitted by statute that GMAC incurs in protecting the Property, maintaining the lien of this Mortgage and foreclosing this Mortgage shall be included in the redemption price and in the calculation of any deficiency. 26. CAPTIONS; GENDER; ETC. The headings in this Mortgage are not to be used to interpret or define its provisions. In this Mortgage, the masculine gender includes the fenfinine and/or neuter, singular numbers include the plurals, and plurals include the singular. 27. MERS. Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Mortgage, but, if necessary to comply with local law or custom MERS (as nominee for GMAC and GMAC's successors and assigns) has the right: to exercise any or all of these interests, including, but not limited to, the right to foreclose and sell the property; and to take any acnon required of Lender including but not limited to, releasing and canceling this Mortgage. (This space left blank httentionally) By signing tiffs Mortgage, we agree to all of the above. WITNESSES: By: By: Bonnie. Kovacs MORTGAGOR MORTGAGOR By: MORTGAGOR By: MORTGAGOR By: Bmmie C. Kovacs And James R. Mcjunkin MORTGAGOR By: MORTGAGOR By: MORTGAGOR STATE OF WYOMING COUNTY OF'-'"~I-~k_~ ss. On the '" day of ~ O..W CJx~-, ~)C204 , before me personally came Bonnie C. Kovacs/u~d James R. Mqjmtkin, Wife And Husband to me known to be the h~dividual(s) described h~ and who executed the foregoing insumnent, aud acknowledged that he/s~e/tbey executed the sarym. '"' N"otary Public '"'-~----_5~ ~.~ County, Wyon'fing My Comn . Expires: q-1'3' Schedule A Lot 714 Lakeview Estates, Eighth Filing, Lincoln County, Wyonfing, according to that plat filed in the office of the county clerk, August 21, 2003 as plat No. 250-F Tax ID Number: 37182930805400 Known as: 178 Trail Drive, Alpine, Wyoming 83128 This Real Estate Mortgage is second and subject ONLY to a First Real Estate Mortgage recording concurrently herewith in favor of GMAC Mortgage Corporation, dated March 31, 2004, in the original amount of $154,000.00. MORTGAGE Title No. THIS INSTRUBIENT PREPARED BY Jolm Perez GMAC Mortgage Corporation 4 Walnut Grove Drive Horsham, PA 19044 TO Recorded At Request of GMAC Mortgage Corporation RETURN BY MAIL TO: GMAC Mortgage Corporation Home Equity Funding 4 Walnut Grove Drive Horsham, PA 19044-0963 RESERVE THIS SPACE FOR USE OF RECORDiNG OFFICE