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HomeMy WebLinkAbout90497231319 (ol) /' Loan No.: 40500133 MIN Number: RECEIVED 12/2/2004 at 1:38 PM RECEIVING # 904972 BOOK: 573 PAGE: 802 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY [Space Above This Lille For Recording l)ata] WYOMING HOME EQUITY LINE OF CREI)IT 51ORTGAGE (Securing Future Ath'anccs) THIS MORTGAGE is made on NOVEMBER 29, 21}1}4. The ~nortgagor is JONATHAN D. MERRYMAN, A SINGLE MAN and LISA R. KENNEDY, A SIN¢;I~E WOMAN. This Mortgage is given to CHERRY CREEK MORTGA(;I,~ ('O., INC., whose address is 7600 E. ORCHARD RD., SUITE 250-N, GREENWOOD VILLAGI,~', t'¢)I.ORADO 80111 ("Lender"). In this Mortgage, the terms "you," "your" and "yours" refer to thc m(~rtgagor(s). The terms "we," "us" and "our" refer to the Lender. "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's succcss~rs and assigns. MERS is the mortgagee under this Security Instrument. MERS is organized and existin~ under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 485t)1-2026, tel. (888) 679-MERS. Pursuant to a Home Equity Line of Credit Agreement dated the same date as this Mortgage ("Agreement"), you may incur maxi~num unpaid loan indebtedness (exclusive of interest thereon)in amounts fluctuating from time to time up to the maximum principal stun outstanding at any time of FORTY-ONE THOUSAND TWO HUNDRED FIFTY AND tl0/ll)()tlts Dollars (U.S. $41,250.00). The Agreement provides for a final scheduled installment due and payable not later than on NOVEMBER 29, 2014. You agree that this Mortgage shall continue to secure all sums l~w or hereafter advanced under the terms of the Agreement including, without limitation, such sums that are advanced by us whether or not at the time the sums are advanced there-is' any principal sum outqa,~ding under the Agreement. The parties hereto intend that this Mortgage shall secure unpaid balances, and all other amounts due to us hereunder and under the Agreement. This Mortgage secures to us: (a) the repayment of thc debt evidenced by the Agreement, with interest, and all refinancings, renewals, extensions and modificatitms of the Agreement; (b) the payment of all other sums, with interest, advanced under this Mortgage to protect the security of this'Mortgage; and (c) the performance of your covenants and agreements trader tl~is Mortgage and the Agreement. For this purpose and in consideration of the debt, you do hereby m~r~gagc, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, with power of sale, the following described property located in I.INCOLN County, Wyoming: I/,,,','t,we,' ,nidals (~/ ~ HC# 38886 - WY (12/03) -1- / - ' ~ WFGMD L,', 08,33 LOT 65, RIVERVIEW MEADOWS SECOND ADDITION TO TIlE TOWN OF ALPINE, LINCOLN COUNTY, WYOMING WITHIN THE SE 1/4 OF Si~;( 'TION 30, T37N, Rll8W, ACCORDING TO THAT PLAT FILED FEBRUARY 11 1994 I'L:VI' NO. 264-D, INSTRUMENT NO. 778568. ' ' This Real Estate Mortgage is second and subject ONLY to a First Real Estate Mortgage recording concurrently herewith in favor of Cherry Creek Mortgage Co. Inc., dated November 29, 2004, in the original amount of $220,000.00. ' which has the address of 704 PALISADES LANE ALPINE , Wyoming 83128 ("Property Address"); TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Mortgage. All of the foregoing is rt:fcrrcd lo ill this Mortgage as the "Property." Borrower understands and agrees that MERS holds only legal title m the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or ct~stt,n, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take am actio, required of Lender including, but not limited to, releasing and canceling this Security Instrument. YOU COVENANT that you are lawfully seized of the est;~tc hereby conveyed and have the right to mortgage, grant and convey the Property and that the Properly is ,ncncumbered, except for encumbrances of record You warrant and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. ' YOU AND WE covenant and agree as follows: 1. Payment of Principal, Interest and Other Charges. Y.u shall pay when due the principal of and interest owing under the Agreement and all other charges due hereunder alld due under the Agreement. 2. Application of Payments. Unless applicable law providc*s otherwise, all payments received by us under the Agreement and Section 1 shall be applied by us as provided in thc Agreement. 3. Prior Mortgages; Charges; Liens. You shall perform all .l' your obligations under any mortgage, deed of trust or other security instruments with a lien which has l)rlm-~iy over this Mortghge, including your covenants to make payments when due. You shall pay all taxes, assessmcms, charges, fines and impositions attributable to the Property which may attain priority over this Mortgage, and leasehold payments or ground rents, if any. Upon our request, you shall promptly furnish to us all notices of amounts to be paid under this paragraph and receipts evidencing any such payments you make directly You shall promptly discharge any lien (other than a lien disclosed to us tn your application or in any li~Ic report we obtained) which has priority over this Mortgage. We specifically reserve to ourself and our successors and assigns thc m~ilateral right to require, upon notice, that you pay to us on the day monthly payments are due an amount equal to one-twelfth (1/12) of the yearly taxes, and assessments (including condominium and planned unit development assessments, if any) which may attain priority over this Mortgage and ground rents on the Propet-ty, il' any, plus one-twelfth (1/12) of yearly premium installments for hazard and mortgage insurance, all as wc rcasmmbly estimate initially and from time to time, as allowed by and in accordance with applicable law. HC# 38886 - WY (12/03) -2- WFGMD 4. Hazard Insurance. You shall keep the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including II()ods or flooding, for which we require insurance. This insurance shall be maintained in the amounts and for the periods that we require. You may choose any insurer reasonably acceptable to us. Insurance policies and renewals shall be acceptable to us and shall include a standard mortgagee clause. If we reqUire, you shall promptly give us all receipts of paid premiums and renewal notices. If you fail to maintain coverage a~ ~'cquired in this section, you authorize us to obtain such coverage as we in our sole discretion determine appropriate t() protect our interest in the Property in accordance with the provisions in Section 6. You understand ami agree that any coverage we purchase may cover only our interest in the Property and may not cover your mtcrc~ m the Property or any personal property therein. You also understand and agree that the premium for any such insurance may be higher than the premium you would pay for such insurance. You shall promptl3 notify the insurer and us of any loss. We may make proof of loss if you do not promptly do so. We may also, at our option and on your behalf, adjust and compromise any claims under the insurance, give releases or acquittances to the insurance company in connection with th~: settlement of any claim and collect and receive insurance proceeds. You appoint us as your attorne3-iwfact to do all of the foregoing, which appointment you understand and agree is irrevocable, coupled with an interest with full power of substitution and shall not be affected by your subsequent disability or incompetence. Insurance proceeds shall be applied to restore or repair thc Property damaged, if restoration or repair is economically feasible and our security would not be lessened. Olhcrwise, insurance proceeds shall be applied to sums secured by this Mortgage, whether or not then due, with 'anx excess paid to you. If you abandon the Property, or do not answer within 30 days our notice to you that the insurer has offered to settle a claim, then we may collect and use the proceeds to repair or restore the Property or to pay sums secured by this Mortgage, whether or not then due. The 30-day period will begin when no, icc ts given. Any application of proceeds to principal shall not require us to extend or postpone the due dale of monthly payments or change the amount of monthly payments If we acquire the Property at a forced sale tbllowing your default, your right to any insurance proceeds resulting from damage to the Property prior t~ thc acquisition shall pass to us to the extent of the sums secured by this Mortgage immediately prior to the acqmsition. You shall not permit any condition to exist on the Property which wt~uld, in any way, invalidate the insurance coverage on the Property. 5. Preservation, Maintenance and Protection of the I','operty; Borrower's Loan Application; Leaseholds. You shall not destroy, damage or substantially chance the Property, allow the Property to deteriorate, or commit waste. You shall be in default if any I'orl'citm'e action or proceeding, whether civil or criminal, is begun that in our good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Mortgage or our security imcrest You may cure such a default, as provided in Section 17, by causing the action or proceeding to be dismissed with a ruling that, in our good faith determination, precludes forfeiture of your interest in the Propcrt) or other material impairment of the lien created by this Mortgage or our security interest. You shall al~o be in default if you, during the loan application process, gave materially false or inaccurate information or statements to us (or failed to provide us with any material information) in connection with the loan evidenced by the Agreement, including, but not limited to, representations concerning your occupancy of the Property as a principal residence. If this Mortgage is on a leasehold, you shall comply with the lease. If you acquire fee title to the Property, the leasehold and fee title shall not merge unless we agree to the me,'gcr in writing. HC# 38886 - WY (12/03) -3- WFGMD 6. Protection of Our Rights in the Property; Mortgage lnsurm~ee. If you fail to perform the covenants and agreements contained in'this Mortgage, or there is a legal proceeding that may significantly affect our rights in the Property (such as a proceeding in bankrul)lcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then we may do, and pay for, anything necessary to protect the Property's value and our rights in the Property. Our actions may include paying imy sums secured.by a lien which has priority over this Mortgage or any advance under the Agreement or this Mortgage, appearing in court, paying reasonable attorney's fees, paying any stuns which you are required t~ pay under this Mortgage and entering on the Property to make repairs. We do not have to take any action ~v~ m'c permitted to take under this paragraph. Any amounts we pay under this paragraph shall become additional debts you owe us and shall be secured by this Mortgage. These amounts shall bear interest from the disbursement date at the rate established under the Agreement and shall be payable, with interest, upon our requc~z. If we required mortgage insurance as a condition of making the loan secured by this Mortgage, you shall pay the premiums for such insurance until such time as the requirement for the insurance terminates. 7. Inspection. We may enter and inspect the Property a~ any reasonable time and upon reasonable notice. 8. Condemnation. The proceeds of any award for dmnaecs, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or lt~r conveyance in lieu of condemnation, are hereby assigned and shall be paid to us. If the Property is abanthmcd, or if, alter notice by us to you that the condemnor offers to make an award or settle a claim for damages, you fail to respond to us within 30 days after the date the notice is given, we are authorized to collect and apply the proceeds, at our option, either to restoration or repair of the Property or to the sums secured by this M a'tgage, whether or not then due. Unless we and you otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments payable under the Agreement and Section 1 or change the amount of such payments. 9. You Are Not Released; Forbearance by Us Not a X'~a'~er. Extension of time for payment or modification of amortization of the sums secured by this Mortgage granted by us to any of your successors in interest shall not operate to release your liability or the liability of yom' successors in interest. We shall not be required to commence proceedings against any successor in intc,'cst, refuse to extend time for payment or otherwise modify amortization of the sums secured by this Mortgage by reason of any demand made by you or your successors in interest. Our forbearance in exercising any rieht or remedy shall not waive or preclude the exercise of any right or remedY. 10. Successors and Assigns Bound; Joint and Several I.iability; Co-signers. The covenants and agreements of this Mortgage shall bind and benefit your successors and permitted assigns. Your covenants and agreements shall be joint and several. Anyone who co-signs this Mortgage but does not execute the Agreement: (a) is co-signing this Mortgage only to mortgage, grant and convc~' such person's interest in the Property; (b) is not personally obligated to pay the Agreement, but is obhealcd to pay all other sums secured by this Mortgage; and (c) agrees that we and anyone else who signs~his Mortgage may agree to extend, modify, forbear or make any accommodations regarding the terms of this Morteage or the Agreement without such person's consent. ~ 11. Loan Charges. If the loan secured by this Mortgage is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the pemfitted limit; an}l (b)any sums already collected from you which exceed permitted limits will be refunded to you. We may cht~osc to make this refund by reducing the principal owed under the Agreement or by making a direct payment to you. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepaymcm charge under the Agreement. HC# 38886 - WY (12/03) -4- Ilm rm~er Initials ~ WFGMD 08 6 12. Notices. Unless otherwise required by law, any notice ,~ you provided for in this Mortgage shall be delivered or mailed by first class mail to the Property Address ~r :my other address you designate by notice to us. Unless otherwise required by law, any notice to us shall bc ~lvcn by first class mail to our address stated above or any other address we designate by notice to you. Any no,cc provided for in this Mortgage shall be deemed to have been given to you or us when given as provided in this paragraph. 13. Governing Law; Severability. The interpretation and enforcement of this Mortgage shall be governed by the law of the jurisdiction in which the Property is loc:tlc~ , except as preempted by federal law. In the event that any provision or clause of this Mortgage or thc Av. rccmcnt conflicts with applicable law, such conflict shall not affect other provisions of this Mortgage or thc A,~,rccment which can be given effect without the conflicting provision. To this end the provisions of this N,h}r~?gc and the Agreement are declared to be severable. 14. Transfer of the Property. If all or any part of thc l','oper~y or any interest in it is sold or transferred without our prior written consent, we may, at our opt,m, require inmaediate payment in full of all sums secured by this Mortgage. However, this option shall not bc exercised by us if exercise is prohibited by federal law as of the date of this Mortgage. 15. Sale of Agreement; Change of Loan Servicer. Thc Agreement or a partial interest in the Agreement (together with this Mortgage) may be sold one or more times without prior notice to you. A sale may result in a change in the entity (known as the "Loan Servicer" that collects monthly payments due under the Agreement and this Mortgage. There also may be one or int~rc changes of the Loan Servicer unrelated to the sale of the Agreement. If there is a change of the Loan Servicer, you will be given written notice of the change as required by applicable law. The notice will state the name and address of the new Loan Servicer and the address to whiclx payments should be made. The notice will :dso contain any information required by applicable law. 16. Hazardous Substances. You shall not cause or poi'mil the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. You shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Envirtmmcntal Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property ~I Ihlzardous Substances in quantities that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. You shall promptly give us written notice of any investigation, claim, demand, lawsuit or other action by any govermnental or regulatory agency or private party involving thc I'l'operty and any Hazardous Substance or Environmental Law of which you have actual knowledge. If you loam or are notified by any government or regulatory authority, that any removal or other remediation of an, l lazardous Substance affecting the Property is necessary, you shall promptly take all. necessary remedial actions n accordance with Environmental Law. As used in this Mortgage, "Hazardous Substances" are those substancc~ defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kcmscnc, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, material~ containing asbestos or formaldehyde, and radioactive materials. As used in this Mortgage, "Environmental [.aw" means federal laws and laws of the jurisdiction where the Property is located that relate to health, sari:tx or environmental protection. HC# 38886 - WY (12/03) -5- Iltll ox~er Initial?/~ WFGMD 17. Acceleration; Remedies. You will be in default it' (Il any payment required by the Agreement or this Mortgage is not made when it is due; (2) we discover ~hat you have comnfitted fraud or made a material ~srepresentation in connection ~th the Agreement; m' (3) you take any action or fail to take any action that adversely affects our s~urity for the Agreement m' any rigbt we have in the Property. If a default occurs (other than under paragraph 14 horeof, uuless apl~licahle!aw provides otherwise), we ~11 give you notice specifying: (al the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to you, by ~hich the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the su~ secured by this Mortgage aud sale of the ~operty. The notice shall further inform you of the right to reinstate after acceleration and the right to bring a com-I action to assert the nonexistence of a default or any other defense you may have to acceleration and sale. If the default is not cured on or before the date specified in the notice, we, at our option, ma3 declare all of the sums secured by this Mortgage to be i~ediately due and payable ~thout further demand and may invoke the power of sale and any other remedies permitted by applicable law. We shall be emitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 17, inclmling, but not limited to, reasonable attorneys' fees as pernfitted by applicable law, but not to exceed 20% of the amount decreed for principal and inter~t (which fees shall be allowed and paid as a part ~1' Ihe decree of judgment), and costs of documentary evidence, abstracts and title reports. If we invoke the power of sale, we will give notice of inlenl Io foreclose to you and to the person in possession of the ~operty, if different, in accordance ~th applicuble law, We will give notice of the sale to you in the manner provide in paragraph 12. We ~11 publish the notice of sale, and tbe Property ~11 be sold in the manner prescribed by applicable law. We or our designee may purchase the Property at any sale. The proceeds of the sale shall be applied in the folhm lng order: (al to all expenses of the sale, including, but not limited to, reasonable attorneys' fees; (b) to all ~ums secured by this Mortgage; and (c) any excess to the person or persons legally eutitled to it. 18. Discontinuance of Enforcement. Notwithst~ding our acceleration of the sums secured by this Mortgage under the provisions of Section 17, we may, in our sole discretion and upon such conditions as we in our sole discretion determine, discontinue ~y proceedings begun to cufi,'ce the terms of this Mortgage. 19. Release. Upon your request and payment of all sums ~ccm'cd by this Mortgage, we shall release this Mortgage without charge to you. You will be responsible IBr all c~hts of recording such release. 20. Additional Charges. You agree to pay reasonable ch:u'gcs as allowed by law in co~ection with the semicing of this 1o~ including, without li~tation, the costs of {~b~aining tax searches ~d subordinations. Provided, however, that nothing contained in this section is intended to create ~d shall not be construed to create ~y duty or obligation by us to perfo~ ~y such act, or to execute or consent to ~y such tr~saction or matter, except a release of the Mortgage upon Mll repayment of all sums secured thereby. 21. Waiver. You hereby release ~d waive all rights under and by virtue of the homestead exemption laws of Wyo~ng. No waiver by us at ~y time of ~y te~, provisi~m (u' covenant contained in this Mortgage or in the note secured hereby shall be deemed to be or construed ~ a waiver of ~y other term, provision or coven~t or of the sine term, provision or coven~t at ~y other rune. 22. ~ders to this Mortgage. If one or more riders are executed by you ~d recorded together with this Mortgage, the coven~ts ~d agreements of each such rider shall bc incorporated into ~d shall amend ~d supplement the coven~ts ~d agreements of this Mortgage as if thc ridcr~ ~'~ were part of this Mortgage. ~ Condominium ~der ~ 1-4 Family Rider ~ Second Home Rider ~ Planned Unit Development Rider ~ Other(s) (specify) HC# 38886 - WY (12/03) -6- / ~ ' ~' WFGMD BY SIGNING BELOW, You accept and agree to the terms and covenants contained in this Mortgage and in any rider(s) executed by you and recorded with it. Signed, sealed and delivered in the presence of: (Seal) ',JLISA R. KI'~NNE1)Y 0 (Seal) (Seal) (Seal) (Seal) (Seal) HC# 38886 - WY (12/03) -7- WFGMD 085 State of WYOMING ) ) ss County of TETON ) The foregoing instrument was acknowledged before ~n~y JONATI lAN D. MERRYMAN, A SINGL]g MAN and LISA R. KENNEDY, A SINGLE WOMAN this t~kt~ day~ff Witness my hand and official seal. No[a ry Public My Commission expires: 1~ [ ~-" C)'v~ Clerk: Please remrn to: CHERRY CREEK MORTGAGE CO., INC. 7600 E. ORCHARD RD., SUITE 250-N GREENWOOD VILLAGE, COLORADO 80111 HC# 38886 - WY (12/03) -8- WFGMD