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HomeMy WebLinkAbout899918App# 8oo~. When recorded return to: USAA FEDERAL SAVINGS BANK HOME EQUITY LOAN SERVICING 10750 McDERMOTT FREEWAY SAN ANTONIO, TX 78288-0558 899918 RECEIVED LIb]OOLb,! COUt', TY .CLERK State of Wyo]rdng SI)ace Above This Line For Recording Data OPEN-END MORTGAGE (With Future Advance Clause) DATE AND PARTIES. The date of this Mortgage (Security Instrument) is .............. .M...ay..2..1.:..2.0..0..4 ....... and the parties, their addresses and tax identification numbers, if required, are as tbllows: MORTGAGOR: GaryA. Bybeeand FrancesJ. Bybee, husband and wife; whose address is PO BOX 789, AFTON, WY 83110 [] If checked, refer to the attached Addendum incorporated hereiu, for additional Mortgagors, their signatures and acknowledgments. LENDER: USAA FEDERAL SAVINGS BANK("USAA FSB") 10750 McDERMOTT FREEWAY SAN ANTONIO, TX 78288-0558. CONVEYANCE. For good and val'uabh: consideration, the receipt and sufficiency of which is acknowledged, and to secure the Secured Debt (defined below) an~ Mortgagor's performance under this Security Instrument, Mortgagor grants, bargains, conveys, mortgages and warrants to Lender, with power of sale, the tbllowing described property: See Exhibit A, which is attached to this Mortgage and made a part of this Mortgage as if fully set forth herein. The Real Property tax identification number is 32183031526300. The property is located in ' Lincoln (County) 282 E 5TH AVE AFTON Wyoming . 83110 (Address) (City) (Z1P Code) Together with all rights, easements,.:appunenances, royalties, mineral rights, oil and gas rights, all water and riparian rights, ditches, and water stock and all exishng and future improvements, structures, fixtures, and replacements that may now, Or at any time in the future, be part of the,veal estate described above (all referred to as "Property"). MAXIMUM OBLIGATION LIMIT. The total principal amount secured by this Security Instrument at any one time shall not exceed $ .6..7.,.0..0..0...0..0. ....................................... This linfitation of mnount does not include interest and other fees and charges validly made pursuant to this Security Instrumeht. Also, this limitation does not apply to advances made under the terms of this Security Instrument to protect Lender's security and to perform any of the covenants contained in this Security Instrument. ' ' SECURED DEBT AND FUTURE. ADVANCES. The term "Secured Debt" is defined as follows: A. Debt incurred under the terms of all promissory note(s), contract(s), guaranty(ies) or other evidence of debt described below and all their extensions, renewals, modifications or substitutions. (You must specifically identify the debt(s) secured and you should include the final maturity date of sttch debt (s).) That Line of Credit Agreement dated 05/21/2004 having a Credit Limit of 867,000.00 executed by [Borrower(s):] GARY A. BYBEE, FRANCES J:. BYBEE to USAA FSB as Lender and having a Maturity Date of 512212024. WYOMING - HOME EQUITY LINE OF CREDIT 'MORTGAGE {NOT FOR FNMA. FHLMC, FHA OR VA USE) © 1994 Bankers Systems, Inc., SI Clouc MN Form USA, AHEM'I-G-WY 7l I 1/2002 (page 1 of 51 B. All future advances from Leno'er to Mortgagor. If more than one person signs this Security Instrument, each Mortgagor agrees that this Security Instrmnent will secure all future advances that are given to or incurred by any one or more .Mortgagor, or any one or more Mortgagor and others. All future advances are secured by this Security Instrument even though all or part may not yet be advanced. All future advances are secured as if made on the date of this Security Instrument. Nothing in .this Security Instrument shall constitute a conmfitment to make additional or future loans or advances in any amount. Any such commitment must be agreed to in a separate writing. C. All additional sums advanced~ an41 expenses incurred by Lender for insuring, preserving or otherwise protecting the Property and its value and an2i! other sums advanced and expenses incurred by Lender under the terms of this Security Instrument. ~ . MORTGAGE COVENANTS. Mortgagor agrees that the covenants in this section are material obligations under the SecUred Debt and this Security Instrument. I}' Mprtgagor breaci~es any covenant in this section, Lender may refuse to make additional extensions of credit and reduce the credit limit. By not exercising either remedy on Mortgagor's breach, Lender does not waive Lender's right to later consider the evema breach if it happens again. Payments, Mortgagor agrees that alli payments under the Secured Debt will be paid when due and in accordance with the terms of the Secured Debt and this Security Instrument. Prior Security Interests. With regard t'o any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encu,mbrance on the Property, Mortgagor agrees to make all payments when due and to Perfom~ or comply with all covenantS. Mortgagor also agrees not to allow any modification or extension of, nor to request any future advances under any note or ag:'ee~ent secured by the lien document without Lender's prior written approval. Claims Against Title. Mortgagor w:ll PaY all taxes, assessments, liens, encumbrances, lease payments, ground rents, utilities, and other charges relating to the Property when due. Lender may require Mortgagor to provide to Lender copies of all notices that such amounts are due and the j receipts evidencing Mortgagor's payment. Mortgagor will defend title to the Property against any claims that'would impai[ the lien of this Security Instrument. Mortgagor agrees to assign to Lender, as requested by Lender, any rights, claims or defenses Mortgagor may have against parties who supply labor or materials to maintain or improve the Property. Property Condition, Alterations and Inspection. Mortgagor will keep the Property in good condition and make all repairs that are reasonably necessary. Mortgagqr shall not comnfit or allow any waste, impairment, or deterioration of the Property. Mortgagor agrees that the nature cf tl~e occupancy and use will not substantially change without Lender's prior written consent. Mortgagor will not permit ::my Change in any license, restrictive covenant or easement without Lender's prior written consent. Mortgagor will notify Len4er Of all demands, proceedings, claims and actions against Mortgagor, and ol' any loss or damage to the Property. Lender or Lender's agents may, at Lender's option, enter the Property at any reasonable time for the purpose of inspecting the Property. Lender shall give Mortgagor .notice at the time of or bet'ore an inspection specifying a reasonable purpose for the inspection. Any inspection of the Property shall be entirely for Lender's benefit and Mortgagor will in no way rely on Lender's insPection. ,.' Authority to Perform. If Mortgagor fails to perform any duty or any of the covenants contained in this Security Instrument, · Lender may, without notice, perforra or cause them to be pertbrmed. Mortgagor appoints Lender as attorney in fact to sign Mortgagor's nan~e or pay any mnount necessary for performance. Lender's right to perforln for Mortgagor shall not create an obligation to perform, and Lender's'failure to perform will not preclude Lender from exercising any of Lender's other rights under the law or this Security Instrnment. Leaseholds; Condominiums; Planned Unit Developments. Mortgagor agrees to comply with the provisions of any lease if this Security Instrument is on a le,~sehold. If the Property includes a Unit in a condominium or is part of a planned unit development ("PUD"), Mortgagor agrees to 'the following: (i) The Property includes not only the property described above, but also an undivided interest in ceri:ain common elements and facilities of the condominium or PUD, and any interest of the Mortgagor in the homeowners' association or other equivalent entity owning or managing the common areas and facilities and the uses, benefits and proceeds of that interest; (ii) Mortgagor will perform all of Mortgagor's duties Under the covenants, by-laws, or regulations of the condominium or PUD; (iii) Mortgagor will take such actions as are reasonable to ensure that any homeowners' association or equivalent entity maintains a public liability insurance policy and a "master" or "blanket" policy on the Property providing insurance:coverage against loss by fire, hazards included within the term "extended coverage," and any other hazards, including but r:.ot limited to, earthquakes and floods, from which Lender requires insurance that is acceptable in form, amount, and extent of coverage to Lender. Condemnation. Mortgagor will give Lender prompt notice of any pending or threatened action, by private or public entities to purchase or t'ake any or all of the PropertY through condemnation, eminent domain, or any other means. Mortgagor authorizes Lender to intervene in Mortgagor's name in any of the above described actions or claims. Mortgagor assigns to Lender the proceeds of any award or Claim for damages connected with a condemnation or other taking of all or any part of the Property. Such proceeds shall be considered payments and will be applied as provided in this Security Instrument. This assigmnent of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. Insurance. Mortgagor shall keep P::operty insured against loss by fire, flood, theft and other hazards and risks reasonably associated with the Property due to its type and location. This insurance shall be maintained in the amounts and for the periods that Lender requires. What :Lender requires pursuant to the preceding two sentences can change during the ter~n of the Secured Debt. The insurance carrier providing the insurance shall be chosen by lVlortgagor subject to Lender's approval, which shall not be unreasonably withheld. If Mc~rtgagor fails to maintain the coverage described above, Lender may, at Lender's option, obtain coverage to protect Lender's tights in the Property according to the terms of this Security Instrument. All insurance policies and renewals shall be acceptable to Lender and shall include a standard "mortgage clause" and; where applicable, "loss payee clause." Mortgagor shall irmnediately notify Lender of cancellation or termination of the insurance. Lender shall have the right to hold tlae policies and renewals If Lender requires, Mortgagor shall immediately give to Lender all receipts of paid. premiums and renewal notices. Upon loss, Mortgagor shall give'immediate notice to the insurance carrier and Lender. Lender may make proof of 10ss if not made immediately by Mortgagor. 994 Bankers Systems, lac., St. Clou'd, MN Form USAAHEMTG-WY 7/11/2002 (page 2 o! §) Unless otherwise agreed in writing, :~11 insurance proceeds shall be applied to the restoration or repair of the Property or to the Secured Debt, whether or not then,du6, at Lender's option. Any application of proceeds to principal shall not extend or postpone the due date of the schedaled payment nor change the amount of any payment. Any excess will be paid to the Mortgagor. If the Property is acquit-ed ~by Lender, Mortgager's right to ,'my insurance policies and proceeds resulting from damage to the Property before the acquisition shall pass to Lender to the extent of the Secured Debt immediately before the acquisition. Financial Reports and Additional Dodumentsl Mortgagor will provide to Lender upon request, any financial statement or information Lender may deem reasonab!y necessary. Mortgagor agrees to sign, deliver, and file any additional documents or certifications that Lender may consider necessary to perfect, continue, and preserve Mortgager's obligations under this Security Instrument and Lender's lien status on the Property. 6. ASSIGNMENT OF LEASES AND RENTS. Mortgagor irrevocably grants, bargains, conveys, mortgages and warrants to Lender, as additional security all the' right, title and interest in and to any and all existing or future leases, subleases, and other written or verbal agreements for the use and occupancy of any portion of the Property, including any extensions, renewals, modifications or substitutions of such agreements (all referred to as "Leases") and rents, issues and profits (all referred to as "Rents"). Mortgagor will promptly ?rnvide Lender with true and correct copies of all existing and future Leases. Mortgagor may collect, receive, enjoy and uge t~e Rents so long as Mortgagor is not in default under the terms of this Security Instrnlnent. ' Mortgagor agrees that this assignment is immediately effective between the parties to this Security Instrument. Mortgagor agrees that this assignment is effectNe as to third parties when kender or Trustee takes affirmative action prescribed by law, and that this assigmnent will remain in effect during any redemption period until the Secured Debt is satisfied. Mortgagor agrees that Lender or Trustee may take actual possession of the Property without the necessity of conunencing legal action and that actual possession is deemed to occur, when Lender, or its agent, notifies Mortgagor of default and demands that any tenant pay all future Rents directly to Let:der. On receiving notice of default, Mortgagor will endorse and deliver to Lender any payment of Rents in Mortgager's pcssession and will receive any Rents in trust tbr Lender and will not commingle the Rents with any other funds. Any amounts collected will be applied as provided in this Security Instrument. Mortgagor warrants that no default exists under the Leases er afiy applicable landlord/tenant law. Mortgagor also agrees to maintain and require any tenant to comply with the terms of ttte L~ases and applicable law. 7. DUE ON SALE. Lender may, at' its option, declare the entire balance of the Secured Debt to be immediately due and payable upon the creation of, or contract for; the:creation of, a transfer or sale of the Property. This right is subject to the restrictions imposed by federal law (12 C.F.R. 591)! as applicable. 8. DEFAULT. Mortgagor will be in defaul~t if any of the following occur: Fraud. Any Consumer Borrower en;!Nges in fraud or material misrepresentation in connection with the Secured Debt that is an open end home equity plan. Payments. Any Consumer Borrower on any Secured Debt that is an open end home equity plan fails to make a payment when due. : ' Property. Any action or inaction bY the Borrower or Mortgagor occurs that adversely affects the Property or Lender's rights in the Property. This includes, but is not limited to, the following: (a) Mortgagor fails to maintain required insurance on the Property; (b) Mortgagor transfers ~he Property; (c) Mortgagor conunits waste or otherwise destructively uses or fails to maintain the Property such that the action or inaction adversely affects Lender's security; (d) Mortgagor fails to pay taxes on the Property 'or otherwise fails to ac~: and thereby causes a lien to be filed against the Property that is senior to the lien of this Security Instrument; (e) a sole Mortgagor dies; (t) if more than one Mortgagor, any Mortgagor dies and Lender's security is adversely affected; (g) the Property is taken through eminent domain; (h) a judgment is filed against Mortgagor and subjects Mortgagor and the Property to action 'that adversely affects Lender's interest; or (i) a prior lienholder forecloses on the Property and as a result, Lender's interest .is adversely affected. Executive Officers. Any Borrower is ah executive officer of Lender or an affiliate and such Borrower becomes indebted to Lender Or another lender in an aggre.gatelanmunt greater than the amount permitted under federal laws and regulations. 9. REMEDIES ON DEFAULT. In aqditi0n to any other remedy available under the terms of this Security Instrument, Lender may accelerate the Secured Debt andyforeclose this Security Instrument in a mamler provided by law if Mortgagor is in default. In some instances, federal and stale'law will require Lender to provide Mortgagor with notice of the right to cure, or other notices and may establish time schedules :for foreclosure actions. At the option of the Lender, ali o:;: any part of the agreed fees and charges, accrued interest and principal shall become inunediately due and payable, after giving notice if required by law, upon the occurrence of a default or anytime thereafter. Lender shall be entitled, without lim: tatign, to invoke the power of sale and any other remedies permitted by applicable laW. The acceptance by Lender of any f:um in payment or partial payment on the Secured Debt after the balance is due or is accelerated or after foreclosure proceedings are filed shall not constitute a waiver of Lender's right to require complete cure of any existing default. By not exercL, ing ,any remedy on Mortgager's default, Lender does not waive Lender's right to later consider the event a default '~ '~ h ~ hapl-,ens hgain. 10. EXPENSES; ADVANCES ON COVENANTs; ATTORNEYS, FEES; COLLECTION COSTS. If Mortgagor breaches any covenant in this Security Instrumem, Mortgagor agrees to pay all expenses Lender incurs in performing such covenants or protecting its security interest in the Property. Such expenses include, but are not limited to, fees incurred for inspectin, g, preserving, or otherwise protecting ti:~e Property and Lender's security interest. These expenses are payable on demand and will bear interest from the date of payment until paid in full at the highest rate of interest in effect as provided in the terms of the Secured Debt. Mortgagor agrees tc pay all costs and expenses incurred by Lender in collecting, enforcing or protecting Lender's rights and remedies unde~ thi? Security Instrument. This anmunt may include, butts not limited to, reasonable attorneys' tees, court costs, and other legal expenses. This mnount does not include attorneys' fees for a salaried employee of the Lender. To the extent permitted by the United States Bankruptcy Code, Mortgagor agrees to pay the reasonable attorneys' fees Lender incurs to collect the Secvred Debt as awarded by any court exercising jurisdiction under the Bankruptcy Code. This Security Instrument shall remain in effec~ until released. Mortgagor agrees to pay for any recordation costs of such release. ©1994 Bankers Systems, Inc., Si. Clot~d, MN Fo~'m USAAHEMTG-WY 7/11/2002 {page 3 o! 5) 11. ENVIRONMENTAL LAWS AND~ii~AZARI)OUS SUBSTANCES. As used in this section, (1) Environmental Law means, without limitation, the ComprehensiW~e Environmental Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), and all other federal, stat,'~ and local laws, regulations, ordinances, court orders, attorney general opini°ns or interpretive letters concerning the public health, safety, welfare, enviroument or a hazardous substance; and (2) HazardOus Substance means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has characteristics which render the substance dangerous or '.~)otentially dangerous to the public health, safety, welfare or environment. The term includes, without limitation, any s~!bstances defined as "hazardous material," "toxic substances," "hazardous waste" or "hazardous substance" under any'En~)rormental Law. Mortgagor represents, Warrants and agree~s that: A. Except as previously disclosed and acknowledged in writing to Lender, no Hazardous Substance is or will be located, stored or released on or in the ProPerty. This restriction does not apply to small quantities of Hazardous Substances that are generally recognized to be appropriate for the normal use and maintenance of the Property. B. Except as previously disclosed' andi acknowledged in writing to Lender, Mortgagor and every tenant have been, are, and shall remain in full compliance i~'ith any applicable Envirmm~ental Law. C. Mortgagor shall ilnmediately notify Lender if a release or threatened release of a Hazardous Substance occurs on, under or about the Property or there is a violation of any Environmental Law concerning the Property. In such an event, Mortgagor shall take all necess~ry' .remedial action in accordance with m~y Environmental Law. D. Mortgagor shall irmnediately notify Lender in writing as soon as Mortgagor has reason to believe there is any pending or threatened investigation, claim, or proceeding relating to the release or threatened release of any Hazardous Substance or the violation of any Environmental Law. 12. ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate agreement, Mortgagor will not be required to pay to Lender funds for taxes:and insurance in escrow. 13. JOINT AND INDIVIDUAL LIABIMT:Y;' CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. All duties under this Security Instrument are joint and individnal. If Mortgagor signs this Security Instrument but does not sign an evidence of debt, Mortgagor does so only to mortgage Mortgager's interest in the Property to secure payment of the Secured Debt and Mortgagor does not agree to be perstmal[y liable on the Secured Debt. If this Security Instrument secures a guaranty between Lender and Mortgagor, Mortgagor agrees to waive any rights that may prevent Lender from bringing any action or claim against Mortgagor or any party inilebted under the obligation. These rights may include, but are not limited to, any anti-deficiency or one-action laWs. The daties and benefits of this Security Instrument shall bind and benefit the successors and assigns of Mortgagor and Lender. 14. SEVERABH~ITY; INTERPRETATION. This Security Instrument is complete and fully integrated. This Security Instrument may not be amended or modified by.ora! agreement. Any section in this Security Instrument, attachments, or any agreement related to the Secured Debt that corflicts with applicable law will not be effective, unless that law expressly or impliedly pernfits the variations by written ag::'eement. If any section of this Security Instrument cammt be enforced hccording to its terms, that section will be severed and will not affect the enforceability of the remainder of this Security Instrument. Whenever used, the singular shall include the pl'~ral and the plural the singular. The captions and headings of the sections of this Security Instrument are for convenience only ~nd are not to be used to interpret or define the terms of this Security Instrument. Time is of the essence in this Security Instrument.' 15. NOTICE. Unless otherwise required, by law, any notice shall be given by delivering it or by mailing it by first class mail to the appropriate party's address on page 1. of this Security Instrument, or to any other address designated in writing. Notice to one mortgagor will be deemed to be r:otice to all mortgagors. 16. WAIVERS. Except to the extent proihibked by law, Mortgagor waives any right regarding the marshalling of liens and assets and all homestead exemption rights re!atihg tothe Property. 17. LINE OF CREDIT. The Secured Debt 'includes a revolving line of credit. Although the Secured Debt may be reduced to a zero balance, this Security Instrument Wili remain in effect until released. 18. APPLICABLE LAW. This Security Insirument will be governed by applicable federal law and the law of the state of Texas without regard to its rules relating to'~the~conflicts of laws, except for matters regarding the perfection and enforcement of the lien on real property, which will be governed by the law of the state where the Property is located. 19. RIDERS. The covenants and agreernenis of each of the riders described below are incorporated into and supplement and amend the terms of this Security Instrament: 20. [] ADDITIONAL TERMS. -'~- ©1994 Bankers Systems inc., SI. Clouti, MN Form USAAHEMTG-WY 7/11/2002 (page 4 o/5) · 785 SIGNATURES: By signing below, Mmtgagor agrees to the temps and covenants contained in this Security Instrument and in any attachments. Mortgagor also acknowledges receipt of a copy of this Security Instrument on the date stated on page 1. ()~gnamre) o~n ~ ,~. r~ 1 t~y~ /)/ (Date) (Date) (Signature) (Date) (Signature) (Date) (Individual) ACKNOWLEDGMENT: ., ' STATE OF ..W.Y..0.MlbJ.G ............................. COUNTY OF ]~t ~t c:.o ]-,q- ~ This instrument was acknowledged before me ihis Y' ¥ ..... ~t~, ;~""~J ................ ~'~;3 ~.' by .G..A..fl..Y...A....B..Y..B..E.a. ........................................... My connnission expires:(Seal) [[[].'.~.~f ~i~][]]]]]i[]]]][]]]]]:::]]: . BEVERLY ~:)HNSON- NOTARY PUBLIC g i County of O S~o ol Lincoln Wyc~ming I,,~y Commission Exu res Liarch 59, 2(;05 (Individual) dF STATE .,v~/.Y..Q..rFII.NO ............................. COUNTY OF ...L.i,...~..Cp..[...-C1.. ...... This instrument was acknowledged before me this ..... ~.g. ........ day of ............ by .F..~..A.N..C..E..S..4'..B..Y..B..E.E. .......... , ................................ My commission expires: ' ii 5~~i ~~.'.'~]I ................... .., ,-...~.~ . BEVERLY JOHNSON- NOTARY PUBLIC ~ kl ~oIa,-y ~Uic) .... iCounty of "~ State ol Lincoln ~J!~,~ W~mi~ Uy Commission Exl:~res March 20, 2005 (Individual) STATE OF ..W.YD. MIN..G .............................. COUNTY OF .................................................. } ss. This instrument was acknowledged before me this . day of ................................................... by .............................., ...... ....................................................................................................... My commission expires: (Seal) (Notary Public) (Individual) STATE OF ..W.Y.0.M. IN..~ .......................... COUNTY OF ................................................. } ss. This instrument was acknowledged before me this .................... day of ........ ' ....................................... bY ............................................................................................................................................ My commission expires: (Seal) (Notary Public) ©1994 Bankers Systems, Inc., St. Cio Jd, MN Fo~'m USAAHEMTG-WY 7/11/2002 [page 5 of 5) EXHIBIT "A" LEGAL DESCRIPTION The following described trac't of land in Lincoln County, State of Wyoming: Beginning at a point which is fiv6~ rods and four feet west of the northeast corner of Lot numbered 1 of Block numbered 27 in the Town of Afton, Lincoln County, Wyoming, and running thence West 4 rods 12 i/2 feet, thence South 8 rods, thence East 4 rods 12 1/2 feet, thence North 8 rods to the point of beginning. *** Derivation - grantor and grantee names only as shown on recorded *** Being the same parcel :onveyed to Gary A. Bybee and Frances J. Bybee from F & G Jewelry Corporation by vi~"tue'of a Deed date 6/29/1994 recorded 6/30/1994 in Deed Book 353, Page 423 in County of LINCOLN ***