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HomeMy WebLinkAbout904278 RECEIVED Li["Jt.,,¢l._~' COUNTY CLERK AccountNo.:9393539***~ 0 ~ 2 7 8 Branch No.: 398 Loan Product: 95% CLTV HELOC Piggyback M~ 1000697282 MORTGAGE THIS MORTGAGE SECURES OBLIGATORV THIS MORTGAGE, as amended and extended (this "Mortgage'') is signed to secure advances under a GMAC Home Equity Line of Credit agreement (the "Agreement"); it is dated as of October 29, 2004, and is made by Christopher Klinghagen And Janna Klinghagen, Husband And Wife who reside(s) at 504 Snake River Drive #A-2, Alpine, Wyoming 83128, as mortgagor(s), in favor of GM~C Mortgage Corporation, a Pennsylvania Corporation, 100 Witmer Road, Horsham, 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 under this Mortgage, as mortgagee. Throughout this Mortgage, "we", "us" and "our" refer to mortgagor(s)i "GMAC" refers to GMAC Mortgage Corporation or its assigns. The "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, laken together, are called the "Credit Documents: .... Signer" refers to any person (other than GMAC) 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 504 Snake River Drive #A-2, Alpine, County of Lincoln, 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 property and all refunds of premiums on such insurance; (f) all proceeds of any taking (or threatened taking) of the property by any governmental authority ("condemnation"); and (g) all f'rxtures 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 fliat we acquire. This Mortgage is also a Security Agreement under the Wyoming Uniform Commercial Code and wc hereby grant MERS acting solely as a nominee for GMAC a security interest in the personal property described in (d) through (0 above. SECURED OBLIGATIONS THIS MORTGAGE SECURES OBLIGATORY FUTURE ADVANCES. We have signed this Mortgage to secure payment to GMAC of up to $28~5QQ,.00, plus FINANCE CHARGES and any other amounts duc GMAC under the Agreement (the "Total Balance Outstanding'') and to secure performance by Borrower under the Agreement and our pcrfmmance of the covenants of this Mortgage (collectively, the "Secured Obligations''). PRIORITY OF ADVANCES ' The lien of this Mortgage will attach on thc date this Mortgage is recorded, with priority over subsequently recorded mortgages. The indebtedness evidenced by the Credit Documents is a revolving indebtedness. The Credit Documents provide that amounts may be advanced, repaid and readvanced from time to time in accordance with the terms and provisions of the Agreement. Accordingly, the aggregate advances during the term of the Credit Documents may exceed the Credit Limit. ttowever, the Total Balance Outstanding less FINANCE CHARGES and certain special charges at any time (the "F. arning Balance Outstanding") shall never exceed the Credit Limit, 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 prom/se that, except for Permitted Liens: (a) we own lh~ I'rt,perty; (b) we have the right to mortgage the Property to GMAC; and (c) there are no outstanding clai~,- ~l charges against the Property. The term "Pemaitted Lien" means (x) any mortgage, deed to secure debt or dccd of trust ("security instrument'') disclosed to GMAC by any Signer in applying for the Account, to the cx~c~ t that the amount secured by such security instrument does not exceed the amount disclosed on such applic a~tm: and (y) any liens, claims and restrictions of record that do not individually or collectively have a matcl'i,~ 'adverse impact upon GMAC's security, the value of the Pr°Pen-y or the Property's current use. Each of us gives a general warranty of title to GMAC. This mc; ns that each of us will be fully responsible for any losses which GMAC suffers because someone has rights i~ thc Property other than Permitted Liens. We promise that we will defend our ownership of the Property again,I :my claims of such right. We will neither take nor permit any action to partition, sul,d~vidc or change the condition of title to all or any part of the Property. We will not amend any Permitted Lien ,, ith¢mt GMAC's prior written consent. CERTAIN PROVISIONS OF THE AGREEMENT We understand that GMAC may, under certain circumst:mccs set forth in the Agreement, cancel its obligation to make future advances and/or require repayment at t,mx. of the Total Balance Outstanding. Under the Agreement, FINANCE CHARGES are based olq thc "prime rate" published in The Wall Street Journal or in certain circumstances the "prime rate" publishc{ m I'he New York Times or a similar index selected by GMAC. The rate of FINANCE CHARGES chan~c, ,,n a daily basis as the index or the amount outstanding under the Agreement increases or decreases. \\k umlcrstand 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 sums owed GM~C under the Credit Documents. I Iq below, Borrower shall pay when due all 2. APPLICATION OF PAYMENTS. All payments shall I,c applied by GMAC as set forth in the Agreement. 3. MORTGAGES AND DEEDS OF TRUST; CHARG ES; I ' ~ · .I ENS. We shall make payments when due and perform all our obligations under any mortgage, deed of tnt st ~r ~lher security agreement on the Property. We shall pay or cause to be paid when due all loans, taxes, assessments, charges, fines, impositions and rents of any kind relating to the Property ("Assessments"). l,'cccipls evidencing such payments shall be delivered to GMAC upon its request. Except for Permitted Licn~ x~c shall not allow any encumbrance, charge or lien on the Property to become prior to this Mortgage. 4. HAZARD INSURANCE; CONDEMNATION. (a) We shall, at our cost, keep all improvements ,m the Property insured against loss caused by hazards included in the term "extended coverage" or by other ha/zuds GMAC may reasonably specify. Hazard insurance shall be in an amount equal to the lesser of (i) the tiff ~ placement cost of the building that is part of the Property or (ii) the amount of this Mortgage plus the total am,,unt o f all Permitted Liens; but never less than the amount necessary to satisfy any coinsurance requirement conl~tim'd in the h~surance policy. We may choose the insurance company, subject to approval by GMAC which may not be unreasonably withheld. All insurance policies and renewals must be in titan acceptable to GMAC and must include a standard mortgagee clause in favor of GMAC. GMAC shall have thc right to hold the policies and renewals, subject to the terms of any Permitted Liens. If we pay the premmms d irecfly, we shall provide GMAC with all renewal notices and, if requested by GMAC, all receipts for premmms. I f policies and renewals are held by any other person, we shall supply copies of them to GMAC within ten c:dcndar days after they are issued. In the event of loss, we shall give prompt notice to the insm':t ncc company and GMAC. GMAC may file a proof of loss if we fail to do so promptly. (b) The proceeds of any condemnation of the Property shall be paid to GMAC, subject to any Permitted Liens. We shall give GMAC notice of any threatened ,'~ }~dcm nation and sign all documents required to carry out this paragraph 4. No condemnation settlement n~%' be made without GMAC's prior written approval which shall not be unreasonably withheld. -2- 9 (c) Subject to the terms of any Permitted Lien, ~i:xlAC may elect that the proceeds of any insurance or condemnation (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, tt~ repair or reconstruct the Property, and/or pay us for our loss. In the event that such proceeds are not used cnlircly for repair and reconstruction, we shall provide GMAC with a new appraisal or valuation of the Property, c,mducted 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 x, l,)rtgage or invalidate any act done pursuant to such notice. If the Property is abandoned by us, or if we fail to respond t,) ti,MAC in writing within 30 calendar days from the date notice of a proposed insurance or condemnation scldcmcnt is given to us, GMAC may settle the claim, collect the proceeds and apply them as set forth above. If the Property is acquired by GMAC, all of our right, tide and interest in and to any insurance or condemnation proceeds shall become the property of GMAC t,~ thc extent of the sums secured by this Mortgage. 5. MAINTENANCE OF THE PROPERTY; LEASEII(}I,I)S; CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. We shall: use, improve and maintain tl~c Property in compliance with law; keep the Property in good repair and pay when due all repair costs; prcx tnt waste, inapairment and/or deterioration of the Property; and comply With the provisions of any lease of thc P~t,pcrty. If the Property is part of a condominium project or a planned unit development, we shall promptly perform all of our obligations under the goveming documents of the projcc~ ~r dcvelopmen't. 6. PROTECTION OF GMAC SECURITY. We shall apl)car in and defend any action or proceeding which may affect the security of GMAC under this Mortgage m ~csult in a violation of paragraph 3 above. 'If such an action is filed, we violate this Mortgage or Borrowers vi,d~lc thc Agreement, then GMAC may disburse funds and do whatever it believes necessary to protect the securily ~)t~ this Mortgage. In doing so, GMAC shall give us notice but it need not make demand or release us from any ,,hi igation. 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. [ h~til paid by us, such amounts are secured by this Mortgage. GMAC is not required to incur any expense ot take any action under this Mortgage and no action taken shall release us from any duty. 7. INSPECTION. Representatives of GMAC may inspect thc Property from time to time. Except in an emergency, GMAC must first give notice specifying reasonable c:msc fi~r the inspection. 8. FINANCE CHARGES AFTER END OF ACCOUNT AND/OR JUDGMENT. To the extent permitted by law, we agree that FINANCE CHARGES after thc cml of the Account and/or after a judgment is entered shall continue to accrue at the rates and in the manner spec ificd in the Agreement. 9. OUR CONTINUING DUTIES AND GMAC'S RIGII'I'h; WAIVERS. No waiver of any GMAC right under the Credit Documents shall release or limit out' liability, Bon'ower's liability, or that of our successors or Borrower's successors, nor shall any waiver affect thc lien or priority of this Mortgage. GMAC shall not be required to start proceedings against any successor {~r 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 dtis Mortgage. All waivers must be in writing and signed by GMAC; they shall apply only to the extent and wilh ~cspcct to the event specified in the writing. Obtaining insurance, or paying taxes, other liens or charges shall ~,~t be a waiver of GMAC's right to demand payment at once of the sums secured by this Mortgage in the evcm ~1' a default under the Credit Documents. 10. SUCCESSORS AND ASSIGNS; JOINT AND SEV[,:R.,M, LIABILITY; CO-SIGNERS. This Mortgage shall bind us and our respective successors and permim'd assigns for the benefit of GMAC and its successors and assigns. All agreements made by us or any succcs~t,] are joint and several and may be enforced against each of us or any successor. Any Signer who does not execute the Agreement (a) is co-s~gning only to encumber that person's interest in the Property and to release all homestead and/or dower rights, d0 is not personally liable under the Credit Documents, and (c) agrees that GMAC and any Signer may mtMif3 either Credit Document, without consent and without modifying the interests of the rest of us under this M,~tgage. -3- 0530 11. NOTICES. All notices shall be in writing. Except whe,'c ',tpplical~le law requires otherwise: (a) GMAC notices shall be hand delivered or mailed by firsl c{,,~s, 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 thc / I.S. mail or is hand-delivered. (b) Our notices shall be mailed to GMAC by tn:st class, regi,lcrcd m' certified mail to the address for such notices specified on our most recent monthly statement under thc \grcement or to such other address specified by GMAC in a written notice given to us. Any such notice shall l,c considered given on the day it is received by GMAC. 12. GOVERNING LAW. This Mortgage will be govc, t~cd hy federal and Wyoming law. If any provision is invalid, illegal, or unenforceable, this Mortgage shall bc inlcrpreted as if such provision had never been included. 13. COPIES. We shall receive copies of the Credit Documcm~ at the time they are signed or after this Mortgage is recorded. 14. EXERCISING REMEDIES. GMAC may exercise all {~l' the rights and remedies provided by the Credit Documents or law, and any of these rights and remedies m%' hc exercised individually or jointly, once or a number of times. The parties to this document are subject to thc p,'m'ision 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 l)cf~mlt if and when GMAC gives any Signer notice of default. We agree to notify GMAC promptly upon the h~q~pc n lng o f any event that would be an Event of Default under either Credit Document upon the giving of notice %, GMAC. (b) After giving notice of default, GMAC may end the Acc,hint ancVor demand repayment at once of the Total Balance Outstanding in any of the following events: (i) There has been fraud or material misreprescm,,Iitm by any Signer in connection with the Account; (ii) Borrowers have failed to meet the repaymcm lc,ms of the Agreement for any amount outstanding; or (iii) Any action or inaction by any Signer has mlx c, scly affected the Property or any right of GMAC in the Property; to the extent permitted by law, this will it~cltMc, but not be limited to, any Signer (or any legal representative or successor of any Signer) agreeing to sell, I~ansfer or assign or selling, transferring or assigning any interest in the Property, without the prior written co~scul of GMAC. (c) Notwithstanding any language in this Mortgage to the c~,,,tt ~,'y, GMAC will not give notice of default unless permitted by applicable law and GMAC will give us any g,',~cc pe,'iod, right to cure and/or reinstatement n[ght required by applicable law. This paragraph 15 is inten,lcd to give GMAC all rights permitted by applicable law. 16. REMEDIES. IF BORROWERS DO NOT REPAh AT ONCE THE TOTAL BALANCE OUTSTANDING WHEN DUE, GM_AC MAY EXERCISE ,\NY REMEDY AVAILABLE TO IT UNDER APPLICABLE LAW, INCLUDING FORECLOSURE. 17. FORECLOSURE BY ADVERTISEMENT. We he,thy grant GMAC upon an Event of Default power to sell or cause the sale of the Property by advertisement ;md sale at public auction or vendue and to convey the Property to the purchaser in the manner provided by law. 18. APPOINTMENT OF RECEIVER. Upon an Event ol' ;~ I~cthult or our failure to pay taxes assessed against the Property and/or insurance premiums on the Propc~b (x~hich we agree shall constitute waste), GMAC shall be entitled to the appointment of a receiver ifpem~ilk, d by law. 19. SATISFACTION OF MORTGAGE. Upon payment zt,ld discharge of all sums secured by this Mortgage and termination of the Account, this Mortgage shall bc void and GMAC shall satisfy this Mortgage, file a discharge or release and pay any recording costs. 20. REQUEST FOR NOTICES. GMAC requests that copies ol' notices of default, sale and foreclosure from the holder of any lien which has priority over this Mortg:tgc be sent to GMAC at 100 Witmer Road, Horsham, PA 19044. -4- 0904Z?S 0531 21. EXIZIBITS, SCHEDULES AND RIDERS, ETC. Thc terms of any Exhibit, Schedule or Rider attached to this Mortgage or executed and recorded with this M(m?:~t~c shall be treated as if fully set forth in this Mortgage. All of the terms of the Agreement are made part of th is'.% 1} ~rtgage. 22. TIM]{ OF ESSENCE. Time is of the .~ssence in this 23. ACTUAL KNOWLEDGE. For purposes of the Credit I)~cmncnts, GMAC shall not be deemed to have actual knowledge of any fact until it actually receives notice :~s sci tbrth in paragraph 11 or until it receives written notice thereof from a source GMAC reasonably believes t,, be reliable. The date of receipt shall be determined by reference to the "Received" date stamped on such xx i ilion notice by GMAC or its agent. 24. RELEASE. To the extent permitted by law, for ourselvc, ,md our successors and assigns, we hereby release and waive all fights under and by virtue of the homestead c.xcmption laws of the State of Wyoming. 25. EXPENSES OF LITIGATION. In any proceeding to en I; }t cc 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 simiktt ilcms wlfich GMAC reasonably considers necessary in such proceeding or to evidence to bidders at any sale linc h'uc condition of the title to or value of the Property. Such expenses may be estimated to the extent they will Hc incurred after entry of the decree. In any foreclosure by advertisement, all expenses permitted by statute th;~l ~;N'IAC incurs in protecting the Property, maintaining the lien of this Mortgage and foreclosing this .Mortg~<,c shall be iucluded in the redemption price and in the calculation of any deficiency. 26. CAPTIONS; GENDER; ETC. The headings in this M ~. ~c are not to be used to interpret or de£me its provisions. In this Mortgage, the masculine gender includes 1},~. t~,ninine and/or neuter, singular numbers include the plurals, and plurals include the singular. 27. MERS. Borrower understands and agrees that MERS h{~lds only legal title to the interests granted by Borrower in this Mortgage, but, if necessary to comply with I,~cal law or custom MERS (as nominee for GMAC and GMAC's successors and assigns) has the right: to exc~ c,~sc any or all of these interests, including, but not limited to, the right to foreclose and sell the property; :md to take any action required of Lender including but not limited to, releasing and canceling this Mortgage . (This. spaceleflblankinte, ttio,,al(19 0532 By signing this Mortgage, we agree to all of the above. W T SS :S: By: C~,sto~e/\\ Khnghagen ~ - MORTGAG~ By: By: MORTGAG( ~R By: MORTGAG()R By: MOR;FGAG( By: MORTGAG( )R By: MORTGAG( )R STATE OF WYOMING COUNTY OF 'l'e,~-r,'~ ss. On theM day of OGT, , 2005" heft,re me personally came Christopher Klinghagen And Janna Klinghagen, Husband And Wife to me knmx n tt~ be the individual(s) described in and who executed the foregoing instrument, and acknowledged that he/she 'lhcy executed the same. Notitt 5 I)ublic My Comm. Expires: County, Wyoming -,-0533 MORTGAGE Title No. THIS INS'I'RI ~51ENT PREPARED BY Melinda ('h.mdlcr GMAC N lt,'tgagc Corporation 4 Walnut ( ;rt~vc Drive Horsham. 1'.\ 19044 TO Recorded .\1 Request of GMAC M.rtt3age Corporation RETURN IW MAlL TO: GMAC M.t ig;Igc Corporation Home ECltm5 Funding 4 Walnut ~ ;rove I)rive Horsham, 1'.\ 19044-0963 RESERVE THIS SPACE FOR USE OF R I, ( { )1~ 1) lNG OFFICE Lot A-2 of River View Townhomes West Addition to the Town ,~i' Alpine, Lincoln County, Wyoming as described on the official Plat No. 877578 filed Noven~l,cr 27, 2001 as Instrument No. 877578 of the records of the Lincoln County Clerk. Tax 1D Number: 1237183040013900 Known as: 504 Snake River Drive #A-2, Alpine, Wyoming 83128 09042TS O535 Account No. 9393539 PLANNED UNIT DEVELOP51E N T RIDER THIS PLANNED UNIT DEVELOPMENT RIDER ~s illade as of October 29, 2004; it is part of and amends and supplements the Mortgage, Deed o1' Trust or Deed to Secure Debt (the "Security Instrument') of even date herewith from the undersigned to GMAC Mortgage Corporation ("GMAC'). All terms defined in the Security Instrument shall have the same meanirg when used in this Rider. The Property is a parcel of land and a dwelling, which, together with similar parcels and dwellings and certain common areas and facilities or "common clements", all as described in The Declaration of Riverview West Townhomes the ("Declaration" t. forms a planned unit development known as Riverview West Townhomes (the "PUD'). ADDITIONAL AGREEMENTS. In addition to the ;~grcements in the Security Instrument, we agree with GMAC as follows: 1. PUD OBLIGATIONS. We shall perform all of our obligations under applicable law and the: (i) Declaration; (ii) articles of incorporation, trust instrument o~ any equivalent document required to establish the Homeowners Association or equivalent entity managing the common elements of the PUD (the "Owners Association'); and (iii) bylaws, if any, or other rules or regulations of the Owners Association. Without limiting the generality of the foregoing, we shall pay when due all assessments imposed by the Owners Association. 2. HAZARD INSURANCE. Any hazard insurance ln'oceeds payable to us in lieu of restoration or repair of the common elements of the PUD arc herdV assigned to GMAC and shall be applied as set forth in the Security Instrument. 3. CONDEMNATION. Our entire interest in the proceeds of any condemnation of all or any part of the common elements of the PUD is hereby asslg~ctl lo GgIAC. Such proceeds shall be applied as set forth in the Security Instrument. 4. GMAC's PRIOR CONSENT. Absent GMAC's prior written consent, we shall not consent to: (a) The abandonment or termination of the PUD; Co) Any amendment to the documents described in 1 above, including but not limited to, any amendment which would change thc percentage interests of the unit owners in the common elements of the PUD; (c) Any decision by the Owners Association to termimte professional management and assume self-management of the PUl); or (d) The transfer, release, encumbrance, partition or subdivision of all or any part of the PUD's common elements, except for casements for utilities an d the like. 5. REMEDIES. WE GRANT AN IRREVOCABLE POWER OF ATTORNEY TO GMAC TO VOTE IN ITS DISCRETION ON ANY MArI'TER THAT MAY COME BEFORE THE MEMBERS OF THE OWNERS ASSOCIATION. GMAC SHALL HAVE THE RIGHT TO EXERCISE THIS POWER OF ATTORNEY ONLY AFTER IT DECLARES A DEFAULT BY US UNDER Tile SECURITY INSTRUMENT OR THIS RIDER. HOWEVER, IT MAY DECLINE TO EXI,;RCISE THIS POWER. IN WITNESS WHEREOF, we have executed this PI Jl) Rider. Chri'sto~her W. Klirigl~ MORTGAGOR ORTGAGOR Cd 3 MORTGAGOR MORTGAGOR MORTGAGOR MORTGAGOR MORTGAGOR