Preview
"$6535 03-23308-ME-000237 Se 1:12 am
Clerk
To: TOM M MILOWSKI Allen Superior Court 3 Date: May 02, 20% Hen County, Indiana
BB
You are in default on your mortgage.
If you remain in default for thirty (30) more days, Freedom Mortgage Corporation may initiate foreclosure on the property
located at: 4820 ANGLERS LANE FORT WAYNE IN 46808. If that happens, you could lose your home.
You are encouraged to work with a free counselor through the Indiana Foreclosure
6
Prevention Network (IFPN).
. To speak with a certified foreclosure prevention specialist, call 1-877-GET- HOPE
(1-877-438-4673) or visit www.877GETHOPE.org.
|MOUNA FORECLOSURE PREVENTION NETWORK.
. This is a FREE state program that can offer you assistance if your primary residence is being foreclosed.
IFPN counselors can confidentially review your situation and help you determine your options to avoid
foreclosure.
IFPN is not a legal service and does not provide free attorneys or legal advice.
Tf you choo: ot to contact IFPN or the foreclosure is not on your primary residence, you may still contact your loan
servicer, Freedom Mortgage Corporation, to be evaluated for foreclosure prevention options.
. You may have already received information from your loan servicer about foreclosure prevention options.
You can still be evaluated for these options even if you haven't already applied.
Contact your loan servicer to obtain the application package necessary to apply for foreclosure prevention options.
You may contact your loan servicer by calling 855-690-5900.
Do not abandon your home before understanding your rights.
Letters that threaten foreclosure do not mean that a lawsuit has been filed against you. If you get sued, read the
foreclosure lawsuit papers carefully. Lawsuits, judgments and sheriff sales are not evictions. Moving out of your home
before you are required to could affect your ability to save your home. If your lender files a foreclosure lawsuit, you
have the right to file a response and may have the right to a settlement conference (if the property is your primary
residence). If your lender obtains a foreclosure judgment, Indiana law gives you the right to appeal any finding that
your property is abandoned. In certain circumstances, you may be able to retain possession of your property
Indiana Code § 32-29-7-11 for details). You also have the right to redeem your property from sale (prevent a sheri
sale from occurring) by paying the judgment (learn how at Indiana Code §32-29-7-7).
If you believe your lender has acted against the law, contact an attorney or the Homeowner Protection
Unit of the Office of the Indiana Attorney General.
The Homeowner Protection Unit investigates deceptive practice complaints, complaints of failures by
servicers to honor national settlements, and housing counselor escalation issues.
You may contact the Homeowner Protection Unit at www.IndianaConsumer.com or at 317-232-6330 or toll
free at 1-800-382-5516.
NOTICE REQUIRED BY STATE LAW Ke. 2: TA
Mortgage foreclosure is a complex process. People may approach
you about "saving" your home. You should be careful about any
such promises. There are government agencies and nonprofit Pos
Re
bE:
organizations you may contact for helpful information about the
foreclosure process. For the name and telephone number of an
organization near you, please call the Indiana Foreclosure
Prevention Network.
{00020711 1}
Developed and prescribed by IHCDA as required by P.L.105-2009 and HEA1122 (2010) (Rev. 2015)
INTERNET REPRINT
. 2 .
Loan Number GETS
NOTE
FHA Case No.
JULY 23, 2013 FOOTHILL RANCH CALIFORNIA
[Date] [Ci {State}
4820 ANGLERS LANE, FORT WAYNE, INDIANA 46808
[Property Address}
1 PARTIES
“Borrower” means cach person signing at the end of this Note, and the person's successors and assigns.
"Lender" means LOANDEPOT.COM, LLC
and its successors and assigns.
2 BORROWER'S PROMISE TO PAY; INTEREST
In return for a loan received from Lender. Borrower promises to pay the principal sum of
ONE HUNDRED FOUR THOUSAND SIXTEEN AND 00/100
Dollars (U.S. $ 104,016.00
plus interest, to the order of Lender. Interest will be charged on unpaid principal, from the date of disbursement of
the loan proceeds by Lender, at the rateof FOUR AND 250/1000 percent
( 4.250 %) per year until the full amount of principal has been paid.
3. PROMISE TO PAY SECURED
Borrower's promise to pay is secured by a mortgage, deed of trust or similar security instrument that is dated
the same date as this Note and called the "Security Instrument. ‘The Security Instrument protects the Lender from
losses which might result if Borrower defaults under this Note.
4, MANNER OF PAYMENT
(A) Time
Borrower shall make a payment of principal and interest to Lender on the 1st. day ofeach month beginning
on SEPTEMBER 1, 201 ‘Any principal and interest remaining on the 1st day of
AUGUST, 2043 will be due on that date, which is called the "Maturity Date."
(B) Place
Payment shall be made at 26642 TOWNE CENTRE DRIVE, FOOTHILL RANCH
CALIFORNIA 92610
. or at such other place
as Lender may designate in writing by notice to Borrower.
(C) Amount
Each monthly payment of principal and interest will be in the amount of U.S. $ 511.70
This amount will be part ofa larger monthly payment required by the Security Instrument, that shall be applied to
principal, interest and other items in the order described in the Security Instrument.
(D) Allonge to this Note for Payment Adjustments
Ifan allonge providing for payment adjustments is executed by Borrower together with this Note, the covenants
of the allonge shall be incorporated into and shall amend and supplement the covenants of this Note as if the allonge
were a part of this Note.
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(Check applicable box.)
OF Growing Equity Allonge
J Graduated Payment Allonge
(1 Other [specify]:
5. BORROWER'S RIGHT TO PREPAY
Borrower has the right to pay the debt evidenced by this Note, in whole or in part, without charge or penalty,
on the first day of any month, Lender shall accept prepayment on other days provided that Borrower pays interest
on the amount prepaid for the remainder ofthe month to the extent required by Lender and permitted by regulations
of the Secretary. If Borrower makes a partial prepayment, there will be no changes in the due date or in the amount
of the monthly payment unless Lender agrees in writing to those changes.
6. BORROWER'S FAILURE TO PAY
(A) Late Charge for Overdue Payments
If Lender has not received the full monthly payment required by the Security Instrument, as described in
Paragraph 4(C) of this Note, by the end of fifteen calendar days after the payment is due, Lender may collect a late
charge in the amount of FOUR AND 000/1000 percent ( 4,000 %)
of the overdue amount of each payment.
(B) Default
If Borrower defaults by failing to pay full any monthly payment, then Lender may, except as limited by
regulations of the Secretary in the case of payment defaults, require immediate payment in full ofthe principal balance
remaining due and all accrued interest. Lender may choose not to exerci this option without waiving its rights in
the event of any subsequent default. In many circumstances, regulations issued by the Secretary will limit Lender’s
rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration
when not permitted by HUD regulations. As used in this Note, "Secretary" means the Secretary of Housing and
Urban Development or his or her designee.
(C) Payment of Costs and Expenses
If Lender has required immediate payment in full, as described above, Lender may require Borrower to pay costs
and expenses including reasonable and customary attorneys’ fees for enforcing this Note to the extent not prohibited
by applicable law. Such fees and costs shall bear interest from the date of disbursement at the same rate as the
principal of this Note.
7. WAIV!
Borrower and any other person who has obligations under this Note waive the rights of presentment and notice
of dishonor. "Presentment" means the right to require Lender to demand payment of amounts due. “Notice of
Dishonor” means the right to require Lender to give notice to other persons that amounts due have not been paid.
8. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to Borrower under this Note
will be given by delivering it or by mailing it by first class mail to Borrower at the Property Address above or at a
different address if Borrower has given Lender a notice of Borrower's different address.
Any notice that must be given to Lender under this Note will be given by delivering it or by mailing it by first
class mail to Lender at the address stated in Paragraph 4(B) or at a different address if Borrower is given a notice of
that different address.
9. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises
made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or
endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including
the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in
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this Note. Lender may enforce its rights under this Note against each person individually or against all signatories
together. Any one person signing this Note may be required to pay all of the amounts owed under this Note.
You axe not obligated to pay any money unless you sign this
contract and return it to the Seller/Lender.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Note.
(Seal) (Seal)
TOM MILOWSKI -Borrower -Borrower
(Seal) (Seal)
Borrower Borrower
(Seal) (Seal)
-Borrower -Borrower
[Sign Original Only}
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USFHA-NTE 09/25/09 Page3 of 3 Re) ccecmagie.com
———
~ F 1
Pay to the order of
i without recourse
Freedom nl ‘Corporation
Maria Galiuoci
Corporate Secretary
ALLONGE
L amber
Loan Date: JULY 3, 2013
Borrower(s): TOM M MELOWSKI
Property Address: 4820 ANGLERS LANE, FORT WAYNE, INDIANA 46808
Principal Balance: $104, 16“ 00
PAY TO THE ORDEROF Nocienstor- Moergage LLC
Without Recourse
Company Name LOANDEPOT. COM, Lic
By
L
cites
Cindy Rodriguez
Collateral Document Team Lead
WORISTATE NOTE ALLonGE
ener) es
ALLONGE
LOAN NUMBER:
BORROWER (S):
Tom M Milowski
PROPERTY ADDRESS:
4820 Anglers Lane, Fort Wayne, IN 46808
NOTE/LOAN AMOUNT: $104,016.00
NOTE/LOAN DATE: 7/23/2013
PAY TO THE ORDER OF:
Freedom Mortgage Corporation
WITHOUT RECOURSE
COMPANY NAME: NATIONSTAR MTG LLC DBA MR. COOPER
AUTHORIZED SIGNATURE: Ze Bsshes
PRINTED NAME AND TITLE OF AUTHORIZED SIGNER: Tim Burkey,
Collateral Specialist, Power of attorney NATIONSTAR MTG LLC DBA MR.
COOPER
EXHIBIT C
Lot Number 29, In Morgan Creek, Section I, As Recorded In Plat Cabinet D, Page 152 And
Document Number 20189111.
More commonly known as 4820 Anglers Ln, Fort Wayne, IN 46808-3510.
8
2013044962
RECORDED: 08/02/2013 08:31:35 AM
JOHN MCGAULEY
ALLEN COUNTY RECORDER
FORT WAYNE, IN
[AFTER RECORDING RETURN TO:
USA, LLC
LATIN: Recording Dept.
913 Elmgrove!
Rochaster,NY 14626
‘Ts EVSTRUMENT PREPARED BY:
(COM, LLC ATTN: DOCUMENT CONTROL
26642 TOMNE
FOOTHILL RANCH, CALIFORNIA 92610
Loan Number:
Go (Space Above This Line For Recarteg Datel
MORTGAGE
Eee
MERS Phone: 889-679-6377
‘THIS MORTGAGE ("Security Instrument") is on JULY 23, 013
‘The mortgagoris TOM M. MILOWSKI
Borrower")
‘This Securiyy Instrument is givento Morigage Electronic Registration Systems, Inc. (*MERS") as Mortgages. MERS.
is the nominee for Lender, as hereinafter defined, and Lender's successors and assigns. MERS is organized and
ccxisting under the laws of Delaware, ond has a mailing address of P.O. Box 2026, Flint, MI 48501-2026 and astreet
addressof 1901 E, Voorhees Stree, Suite C, Danville, IL 6183 1 te, (888) 679.MERS,
LOANDEPOT.COM, LLC ender)
is organized and existing under the laws of DELAWARE
and has an address of 26642 TOWNE CENTRE DRIVE, FOOTHILL RANCH,
CALIFORNIA 92610
Borrower owes Lender the principal sum of ONE HUNDRED FOUR THOUSAND SIXTEEN
AND 00/100 Dolls (U.S. $ 104,016.00 ‘
“This debi evidenced by Borrowers note dated the seme date as this Security Instrument ("Note"), which provides
for monthly payments, with the Full deb, if not paid earlier, due and payableon AUGUST 1, 2043
Rareeea orreanie TERS Page
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eect
‘lan Coury Reearder Docunent 2013004842
AFTER RECORDING RETURN TO:
Closing USA, LLC
ATIN: Recording Dept.
803 Elmgrove Road
Rochester, NY 14624
585-454-1730
THIS INSTRUMENT PREPARED BY:
—
‘LOANDE! COM, LLC ATIN: DOCUMENT CONTROL
26642 TOWNE CENTRE DRIVE
92610
Loan Number
MSEee 1 rm om
MORTGAGE
MERS Phone: 888-679-6377
THIS MORTGAGE ("Security Instrument”) is given on JULY 23, 2013
The mortgagor is TOM M. MILOWSKI
("Borrower").
This Security Instrument is given to Mortgage Electronic Registration Systems, Ine. ("MERS") as Mortgagee. MERS
is the nominee for Lender, as hereinafter defined, and Lender's successors and assigns. MERS is organized and
existing under the laws of Delaware, and has a mailing address of P.O. Box 2026, Flint, MI 48501-2026 and a street
address of 1901 E. Voorhees Street, Suite C, Danville, IL 61834., tel. (888) 679-MERS.
LOANDEPOT.COM, LLC ("Lender")
is organized and existing under the laws of DELAWARE
and has an address of 26642 TOWNE CENTRE DRIVE, FOOTHILL RANCH,
CALIFORNIA 92610
Borrower owes Lender the principal sum of ONE HUNDRED FOUR THOUSAND SIXTEEN
AND 00/100 Dollars (U.S. $ 104,016.00 )
This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provi
for monthly payments, with the full debt, if not paid earlier, due and payableon AUGUST 1, 2043
FHA INDIANA MOI
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This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest,
and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest,
advanced under paragraph 7 to protect the security of this Security Instrument, and (c) the performance
of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose,
Borrower does hereby mortgage. grant and convey to MERS (solely as nominee for Lender and Lender's
successors and assigns) and to the successors and assigns of MERS the following described property located in
ALLEN ‘County, Indiana:
THE FOLLOWING DESCRIBED REAL ESTATE IN ALLEN COUNTY, IN THE
STATE OF INDIANA: LOT NUMBER 29, IN MORGAN CREEK, SECTION I, AS
RECORDED IN PLAT CABINET D, PAGE 152 AND DOCUMENT NUMBER
20189111.
A.P.N.: 02-07-32-377-010.000-066
which has the address of 4820 ANGLERS LANE
st
FORT WAYNE > Indiana " 46808 ("Property Address"):
[cig] [2ip Code)
TOGETHER WITH all the improvements now or hereafter crected on the property, and all easements,
appugienances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be
covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property."
Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security
Instrument; but, if necessary to comply with law or custom, 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 any action required of Lender including, but not limited to, releasing or canceling
this Security Instrument.
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to
mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record.
Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any
encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with
limited variations by jurisdiction to constitute a uniform security instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1, Payment of Principal, Interest and Late Charge. Borrower shall pay
when due the principal of, and
interest on, the debt evidenced by the Note and late charges due under the Note.
2. Monthly Payment of Taxes, Insurance, and Other Charges. Borrower shall include in each monthly
payment, together with the principal and interestas set forth in the Note and any late charges, a sum for (a) taxes and
special assessments levied or to be levied against the Property, (b) leaschold payments or ground rents on the
Property, and (c) premiums for insurance required under paragraph 4. In any year in which the Lender must pay a
mortgage insurance premium to the Secretary of Housing and Urban Development ("Secretary"), or in any year in
which such premium would have been required if Lender still held the Security Instrument, each monthly payment
shall also include either: (i) a sum for the annual mortgage insurance premium to be paid ty Lender to the Secretary,
or (ii) amonthly charge instead of a mortgage insurance premium if this Security Instrument is held by the Secretary,
in areasonable amount to be determined by the Secretary. Except for the monthly chargeby the Secretary, these items
are called “Escrow Items" and the sums paid to Lender are called “Escrow Funds."
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Lender may, at any time, collect and hold amounts for Escrow Items in an aggregate amount not to exceed the
maximum amount that may be required for Borrower' s escrow account under the Real Estate Settlement Procedures
Act of 1974, 12 U.S.C. §2601 et seq. and implementing regulations, 24 CFR Part 3500, as they may be amended
from time to time("RESPA*), except that the cushion or reserve permitted by RESPA for unanticipated disbursements
or disbursements before the Borrower’ s payments are available in the account may not be based on amounts due for
the mortgage insurance premium,
If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA. Lender shall
account to Borrower for the excess funds as required by RESPA. If the amounts of funds held by Lender at any time
are not sufficient to pay the Escrow Items when due, Lender may notify the Borrower and require Borrower to make
up the shortage as permitted by RESPA.
The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If
Borrower tenders to Lender the full payment of all such sums, Borrower's account shall be credited with the balance
remaining for all installment items (a), (b), and (c) and any mortgage insurance premium installment that Lender has
not become obligated to pay to the Secretary, and Lender shall promptly refund any excess funds to Borrower.
Immediately prior to a foreclosure sale ofthe Property or its acquisition by Lender, Borrower's account shall be
credited with any balance remaining for all installments for items (a), (b), and (¢).
3. Application of Payments. All payments under paragraphs | and 2 shall be applied by Lender as follows:
EIRST, to the mortgage insurance premium to be paid by Lender to the Secretary or to the monthly charge by
the Secretary instead of the monthly mortgage insurance premium;
SECOND, to any taxes, special assessments, leaschold payments or ground rents, and fire, flood and other hazard
insurance premiums, as required;
THIRD, to interest due under the Note;
Fi OURTH, to amortization of the principal of the Note; and
FOURTH,
FIFTH, to late charges due under the Note.
4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property,
whether now in existence or subsequently erected, against any hazards, casualties, and contingencies, including fire,
for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that
Lender requires. Borrower shall also insure all improvements on the Property, whether now in existence or
subsequently erected, against loss by floods to the extent required by the Secretary. All insurance shall be carried with
companies approved by Lender. The insurance policies and any renewals shall be held by Lender and shall include
loss payable clauses in favor of, and in a form acceptable to, Lender.
In the event of loss, Borrower shall give Lender immediate notice by mail. Lender may make proofof loss if not
made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment
for such loss directly to Lender, instead of to Borrower and to Lender jointly. All or any part of the insurance
proceeds may be applied by Lender, at its option, either (a) to the reduction of the indebtedness under the Note and
this Security Instrument, first to any delinquent amounts applied in the order in paragraph 3, and then to prepayment
of principal, or (b) to the restoration or repair of the damaged Property. Any ap tion of the proceeds to the
principal shall not extend or postpone the due date of the monthly payments which are referredto in paragraph 2, or
change the amount ofsuch payments. Any excess insurance proceeds over an amount required to pay all outstanding
indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto.
In the event of foreclosure ofthis Security Instrument or other transfer ofttle to the Property that extinguishes
the indebtedness, all right, title and interest of Borrower in and to insurance policies in force shall pass to the
purchaser.
5. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application;
Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty
days after the execution of this Security Instrument (or within sixty days of a later sale or transfer ofthe Property)
and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of
‘occupancy, unless Lender determines that requirement will cause undue hardship for Borrower, or unless extenuating
circumstances exist which are beyond Borrower's control. Borrower shall notify Lender of any extenuating
circumstances. Borrower shall not commit waste or destroy, damage or substantially change the Property or allow
the Property to deteriorate, reasonable wear and tear excepted. Lender may inspect the Property if the Property is
FHA INDI 7 MERS
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vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such vacant
or abandoned Property. Borrower shall also be in default if Borrower, during the loan application process, gave
materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material
information) in connection with the loan evidenced by the Note, including, but not limited to, representations
concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a
leasehold, Borrower shall comply with the provisions of the lease. If Borrower acquires fee title to the Property, the
leaschold and fee title shall not be merged unless Lender agrees to the merger in writing,
6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection
with any condemnation or other taking of any part ofthe Property, or for conveyance in place of condemnation, are
hereby assigned and shall be paid to Lender to the extent of the full amount of the indebtedness that remains unpaid
under the Note and this Security Instrument. Lender shal! apply such proceeds to the reduction of the indebtedness
under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in
paragraph 3, and then to prepayment of principal. Any application ofthe proceeds to the principal shall not extend
or postpone the due date of the monthly payments. which are referred to in paragraph 2, or change the amount of such
payments. Any excess proceeds over an amount requiredto pay all outstanding indebtedness under the Note and this,
Security Instrument shall be paid to the entity legally entitled thereto.
1. Charges to Borrower and Protection of Lender's Rights in the Property. Borrower shall pay all
governmental or municipal charges, fines and impositions that arc not included in paragraph 2. Borrower shall pay
these obligations on time directly to the entity which is owed the payment, If failure to pay would adversely affect
Lender's interest in the Property, upon Lender's request Borrower shall promptly furnish to Lender receipts
evidencing these payments.
If Borrower fails to make these payments or the payments required by paragraph 2, or fails to perform any other
covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly
affect Lender's rights in the Property (such as a proceeding in bankruptcy, for condemnation or to enforce laws or
regulations), then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's
rights in the Property, including payment oftaxes, hazard insurance and other items mentioned in paragraph 2.
‘Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be
secured by this Security Instrument. These amounts shall bear interest from the date of disbursement at the Note rate,
and at the option of Lender shall be immediately due and payable.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:
(a) agrees in writing to the payment ofthe obligation secured by the lien in a manner acceptable to Lender; (b) contests
in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's
opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement
satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part ofthe
Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a
notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within
10 days of the gi ing of notice.
Fees. Lender may collect fees and charges authorized by the Secretary.
9. Grounds for Acceleration of Debt.
(a) Default. Lender may, except as limited by regulations issued by the Secretary in the case of payment
defaults, require immediate payment in full of all sums secured by this Security Instrument if:
(i) Borrower defaults by failing to pay in full any monthly payment required by this Security
Instrument prior to or on the due date ofthe next monthly payment, or
(ii) Borrower defaults by failing, for a period of thirty days, to perform any other obligations
contained in this Security Instrument.
(b) Sale Without Credit Approval. Lender shall, if permitted by applicable law (including section 341(4)
of the Garn-St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701}-3(d)) and with the prior
approval of the Secretary, require immediate payment in full of all sums secured by this Security Instrument if:
(i). All or part of the Property, or a beneficial interest in a trust owning all or part ofthe Property, is
sold or otherwise transferred (other than by devise or descent), and
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(ii) The Property is not occupied by the purchaser or grantee as his or her principal residence, or the
purchaser or grantee does so occupy the Property. but his or her credit has not been approved in
accordance with the requirements of the Secretary.
(c) No Waiver. If circumstances occur that would permit Lender to require immediate payment in full,
but Lender does not require such payments, Lender does not waive its rights with respect to subsequent events.
(d)_ Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary wi imit
Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not
paid, This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations
of the Secretary.
(©) Mortgage Not Insured. Borrower agrees that if this Security Instrument and the Note are not
determined to be eligible for insurance under the National Housing Act within 60 DAYS
from the date hereof, Lender may, at its option require immediate payment in full ofall sums secured by this
Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to
60 DAYS from the date hereof, declining to insure this Security Instrument and
the Note, all be deemed conclusive proof of such bility. Notwithstanding the foregoing, this option
may not be exercised by Lender when the unavailability of insurance is solely dueto Lender's failure to remit
a mortgage insurance premium to the Secretary.
10, Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full
because of Borrower's failure to pay an amount due under the Note or this Security Instrument. This right applies
even after foreclosure proceedings are instituted. To reinstate the Security Instrument, Borrower shall tender in a
lump sum all amounts required to bring Borrower’ s account current including, to the extent they are obligations of
Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys! fees and expenses
properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and
the obligations that it secures shall remai in effect as if Lender had not required immediate payment in full.
However, Lender is not required to permit reinstatement if (i) Lender has accepted reinstatement after the
commencementof foreclosure Proceedings within two years immediately preceding the commencement of a current
foreclosure proceeding, (ii) instatement will preclude foreclosure on different grounds in the future. or (iii)
reinstatement will adversely affect the priority of the lien created by this Security Instrument.
11, Borrower Not Released; Forbearance by Lender Not a Waiver. Extension of the time of payment or
modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in
interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successors in
interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend
time for payment or otherwise modify amortization ofthe sums secured by this Security Instrument by reason of any
demand madeby the original Borrower or Borrower's successors in interest. Any forbearanceby Lender in exercising
any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy
12, Successors and Assigns Bound; Joint and Several Liability; Co-Signers. ‘The covenants and agreements
of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the
provisions of paragraph 9(b). Borrower's covenants and agreements shall be joint and several. Any Borrower who
co-signs this Security Instrument but does not execute the Note: (a) is co-si ing this Security Instrument only to
mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b)
is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any
other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this
Security Instrument or the Note without that Borrower's consent.
13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or
by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed
to the Property Address of any other address Borrower designates by notice to Lender. Any notice to Lender shall
be given by first class mail to Lender's address stated herein or any address Lender designates by notice to Borrower.
‘Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when
given as provided in this paragraph.
14, Governing Law; Severability. This Security Instrument shall be governed by federal law and the law of
the jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument
BAMTO PHA Oroort Page
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(RSE Tere] www.docmagic.com
or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument
or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security
Instrument and the Note are declared to be severable.
15. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument.
16. Hazardous Substances. Borrower shall not causc or permit the presence, usc, disposal, storage, or release
of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything
affecting the Property that is in violation of any Environmental Law. ‘The preceding two sentences shall not apply
to the presence, use, or storage on the Property of small quantit s of Hazardous Substances that are generally
recognized to be appropriate to normal residential uses and to maintenance of the Property.
Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action
by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or
Environmental Law of which Borrower
has actual knowledge. If Borrower learns, or is notified by any governmental
or regulatory authority, that any removal or other remediation of any Hazardous Substances affecting the Property
is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law.
‘As used in this paragraph 16, "Hazardous Substances* are those substances defined as toxic or hazardous
substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic
petrolcum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde,
and radioactive materials. As used in this paragraph 16, “Environmental Law" means federal laws and laws of the
jurisdiction where the Property is located that relate to health, safety or environmental protection.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
17. Assignment of Rents. Borrower unconditionally assigns and transfers to Lender all the rents and revenues
of the Property. Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs
each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to
Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and
receive all rents and revenues ofthe Property as trustee for the benefit of Lender and Borrower. This assignment of
rents constitutes an absolute assignment and not an assignment for additional security only.
If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by Borrower as
trustee for benefit of Lender only, to be applied to the sums secured by the Security Instrument; (b) Lender shall be
entitled to collect and receive all ofthe rents of the Property; and (c) each tenant of the Property shall pay all rents
due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant.
Borrower has not executed any prior assignment ofthe rents and has not and will not perform any act that would
prevent Lender from exercising its rights under this paragraph 17.
Lender shall not be required to enter upon, take control ofor maintain the Property before or after giving notice
of breach to Borrower. However, Lender or a judicially appointed receiver may do so at any time there is a breach.
Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender. This
assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full.
18, Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may
foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses
incurred in pursuing the remedies provided in this paragraph 18, including, but not limited to, reasonable
attorneys’ fees and costs of title evidence.
If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires
immediate payment in full under paragraph 9, the Secretary may invoke the nonjudicial power ofsale provided
in the Single Family Mortgage Foreclosure Act of 1994 ("Act") (12 U.S.C. 3751 et seq.) by requesting a
foreclosure commissioner designated under the Act to commence foreelosure and to sell the Property as provided
in the Act. Nothing im the preceding sentence shall deprive the Secretary of any rights otherwise available to
a Lender under this paragraph 18 or applicable law.
19, Release. Upon payment of all sums secured by this Security Instrument, Lender shall release this Security
Instrument, Lender may charge Borrower a fee for releasing this Security Instrument, but only ifthe fee is paid to
a third party for services rendered and the charging of the fee is permitted under applicable law.
20, Waiver of Valuation and Appraisement. Borrower waives all right of valuation and appraisement.
FAA INDI
INMTGZ. FH) ie Ono? Page
6 of 9 TSE TS ae) www.docmagic.com
21. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together
with this Security Instrument, the covenants of each such rider shall be incorporated into and shall amend and
supplement the covenants and agreements of this Security Instrument as ifthe rider(s) were a part of this Security
Instrument,
[Check applicable box(es)].
( Condominium Rider (D Graduated Payment Rider] Growing Equity Rider
[X) Planned Unit Development Rider Adjustable Rate Rider (© Rehabilitation Loan Rider
(1 Non-Owner Occupaney Rider 1 Other [Specify]
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
FHA INDIANA MORTGAGE - MERS
INMTGZ.FHA 07/03/12 Page
7 of 8 RTE Te x) nesrcbomenton
YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONTRACT AND
RETURN IT TO THE SELLER/LENDER.
BY SIGNING BELOW, Borrower accepts and agrees to the terms contained in pages | through 9 of this Security
Instrument and in any rider(s) executed by Borrower and recorded with it.
(Seal) (Seal)
TOM M. niConsict ~Borrower ~Borrower
(Seal) (Seal)
“Borrower ~Borrower
(Seal) (Seal)
“Borrower ~Borrower
Witness: Witness:
MTGE P
Related Content
in Allen County
Ruling
DR DALIA NOSRATI VS MR FARHAD RASHTI ET AL
Jul 09, 2024 |
BC452244
Case Number:
BC452244
Hearing Date:
July 9, 2024
Dept:
39
TENTATIVE RULING
DEPARTMENT
39
HEARING DATE
July 9, 2024
CASE NUMBER
BC452244
MOTION
Motions to Compel Compliance with Subpoenas
MOVING
PARTY
Assignee Adam Harari
OPPOSING PARTIES
Judgment Debtor Dalia Nosrati
MOTION
In two separate motions, assignee Adam Harari (Harari) moves to compel compliance with subpoenas Harari purportedly served on Bank of America, N.A. and Wells Fargo Bank, N.A. (Deponents).
Judgment Debtor Dalia Nosrati (Nosrati) responds to the motions.
ANALYSIS
Code of Civil Procedure section 1987.1 provides, If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.
(Code Civ. Proc., § 1987.1.)
Assignee did not personally serve the motions on Deponents, as required.
(See Cal. Rules of Court, rule 3.1346 [A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record].)
Accordingly, the motions are denied.
Further, the parties have apparently agreed Deponents are to produce responsive documents subject to the protective order this court entered in its July 1, 2024 order.
As such, the motions are moot and are denied on that basis as well.
Nosrati is to notify Deponents of the withdrawal of objections to the subpoenas within 30 days.
Harari is to give notice of this order and file proof of service of same.
Ruling
NIKE USA INC VS 5860 WEST JEFFERSON LLC ET AL
Jul 12, 2024 |
BC722308
Case Number:
BC722308
Hearing Date:
July 12, 2024
Dept:
61
NIKE USA INC VS 5860 WEST JEFFERSON LLC ET AL
TENTATIVE
Plaintiff Nike USA, Inc.s Motion for New Trial is DENIED. Defendants to provide notice.
DISCUSSION
The authority of a trial court to grant a new trial is established and circumscribed by statute. Section 657 sets out seven grounds for such a motion: (1) [i]rregularity in the proceedings; (2) [m]isconduct of the jury; (3) [a]ccident or surprise; (4) [n]ewly discovered evidence; (5) [e]xcessive or inadequate damages; (6) [i]nsufficiency of the evidence; and (7) [e]rror in law. [Citation.] (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227.) When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated. (Code Civ. Proc., § 657.) Plaintiff, Cross-Defendant, and Cross-Complainant Nike USA, Inc. (Nike) moves for a new trial on three of the above grounds: irregularity in the proceedings, insufficiency of the evidence, and errors of law. Nikes argument based on procedural irregularity is based on the courts purported lack of consideration of its objections to its statement of decision. (Motion at pp. 1213.) Nike argues for insufficiency of the evidence, based on purportedly contradictory findings that neither Nike nor Defendants and Cross-Complainants 5860 West Jefferson, LLC, 5860 West Jefferson I, LLC, and Samitaur Constructs (Defendants) had prevailed on their respective claims for damages based on construction delay, and on other issues. (Motion at pp. 1320.) Nike finally argues that the statement of decision contains errors of law in the application of the burden of proof under the lease agreement, and fails to adequately set forth any declaration of the parties rights under the lease. (Motion at pp. 2025.) Defendants in opposition argue that the present motion exceeds the page limit articulated in California Rules of Court (CRC) Rule 3.1113. (Opposition at p. 9.) They further contend that the present motions memorandum, declaration, and supporting evidence were filed and served tardily. (Opposition at pp. 89.) Defendant argues that Nikes objections to the statement of decision were late, and that the court in any event had notice of Nikes objections from its earlier-filed Request for Statement of Decision. (Opposition at pp. 1011.) Defendants argue that the courts statement of decision was based on substantial evidence and contains no errors of law. (Opposition at pp. 1118.) Plaintiffs memorandum exceeds the page limits prescribed by CRC Rule 3.1113. That rule states that no opening or responding memorandum except in summary judgment motions may exceed 15 pages, excluding the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service. (CRC Rule 3.1113, subd. (d).) Excluding these last matters, Plaintiffs memorandum here extends to 21 pages. A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper. (CRC Rule 3.1113, subd. (g).) The memorandum and supporting materials are also actually late. Nikes notice of intent to move for new trial was filed on May 28, 2024. Per Code of Civil Procedure § 659a, the party seeking new trial shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion within 10 days of filing the notice [of intention to move for a new trial]. (Code Civ. Proc. § 659a.) Although Nike filed the memorandum and supporting declaration by the June 7, 2024 deadline, it did not serve them until June 8 (Evans Decl. ¶ 8), and did not file or serve the supporting evidence until June 10. These timelines are not jurisdictional in the fundamental sense (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342), and the statute provides courts the power, for good cause shown by affidavit or by written stipulation of the parties to extend the period for filing and serving materials for an additional period not to exceed 10 days. (Code Civ. Proc. § 659a.) A court may retroactively extend the deadline for filing to the full 30-day period even if the party did not seek an extension in advance. (Kabran, supra, 2 Cal.5th at p. 342.) Here, in the absence of prejudice shown by Defendants arising from the tardiness of service of the memorandum and supporting evidence, the court will exercise its discretion to assess the motion on its merits. Nike argues that the entry of judgment on the statement of decision evidenced irregularity in the proceedings, because the court entered judgment on May 14, 2024, in the erroneous belief that Nikes objections had not been timely filed, when in fact Nike had until May 16, 2024, to file such objections. Nikes argument as to the timing of the objections is persuasive. The proposed statement of decision not captioned proposed, but identified as such in its opening paragraph was filed and served on April 26, 2024. Per CRC Rule 3.1590, subd. (g), [a]ny party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment. 15 days after service of the statement of decision would have been May 11, a Saturday, rendering the deadline for filing objections Monday, May 13, 2024. Yet because the statement of decision was served by mail, the time for filing of objections was extended by five calendar days, as provided in Code of Civil Procedure § 1013, subd. (a). Thus the deadline by which to serve objections was May 16, 2024. Nikes objections were served on May 14, 2024, the same day the court entered judgment on the proposed statement of decision in the belief that no objections had been timely filed. (See 5/14/2024 Minute Order.) However, Nike has suffered no prejudice resulting from the claimed irregularity. In granting a new trial based on judicial error, [p]rejudice is required . . . and there is no discretion to grant a new trial for harmless error. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) Before Nike filed its objections to the statement of decision, it filed on May 8, 2024, a Request for Statement of Decision, taking issue with what Nike termed procedural ambiguities in the statement of decision and itemizing 87 issues, questions, and arguments for the court to consider. The court considered these issues in its order dated May 14, 2024, and found that its proposed statement of decision sufficiently addresses the evidence and legal and factual issues raised by Nike. (5/14/2024 Minute Order.) The issues raised in Nikes request for statement of decision parallel the objections it later offered, and were considered by the court. This is thus unlike the case in Raville v. Singh (1994) 25 Cal.App.4th 1127, 1130, cited by Nike, in which a different judge signed off on a statement of decision after the judge who had authored the tentative version had died. The same judge here held trial, prepared a proposed statement of decision, reviewed Nikes arguments, and entered judgment. As to insufficiency of the evidence, Nike contends that the courts decision does not support its conclusion that the premises were substantially complete on July 28, 2018. (Motion at pp. 1415.) However, the statement of decision notes that the City issued a temporary certificate of occupancy on July 28, 2018. (Statement of Decision (SOD) at p. 6.) The court noted that it was necessary to determine whether the BSC [base shell and core] or tenant improvements were completed to the extent that only punchlist items remained and whether any remaining uncompleted items adversely affected Nikes use of the property. (Ibid.) The court cited the myriad photos of the construction, and determined no items remained to be addressed which adversely affected Nikes occupancy. (Ibid.) The courts finding was supported by substantial evidence, as noted by Defendants in opposition. (Opposition at p.13.) Nike argues that this courts findings that neither Nike nor Defendants prevailed on their breach of contract claims as to who caused the delay are inherently contradictory, because one party must have caused the delay. (Motion at p. 16.) Yet this argument fails to reckon with the applicable burden of proof. The parties each bore the burden to prove their claims by a
preponderance of the evidence, i.e. to present evidence, which when weighed with contrary evidence, has more convincing force and the greater probability of truth. (City of Long Beach v. Workers' Comp. Appeals Bd. (2005) 126 Cal.App.4th 298, 314 .) But if two parties make conflicting showings of culpability for the same event, and both showings are equally persuasive, then neither has shown that theirs has the greater probability of truth, and neither has met their burden.
The courts statement of decision on the causes of the delay addresses all material disputes and is supported by substantial evidence. Although Nike argues that the court was required to make findings as to the cause of each period of delay, it presents no authority holding that such detail is required. (Motion at pp. 1618.) The applicable authority suggests otherwise: A trial court rendering a statement of decision under Code of Civil Procedure section 632 is required only to state ultimate rather than evidentiary facts. A trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence. Only where a trial court fails to make findings as to a material issue which would fairly disclose the determination by the trial court would reversible error result. Even though a court fails to make a finding on a particular matter, if the judgment is otherwise supported, the omission is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings. A failure to find on an immaterial issue is not error. [Citation.] In issuing a statement of decision, the trial court need not address each question listed in a party's request. All that is required is an explanation of the factual and legal basis for the court's decision regarding such principal controverted issues at trial as are listed in the request. (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 163.) The statement of decision meets this standard. Nike further argues that the courts finding as to the tardiness of its request to rent parking spaces under the lease was erroneous. This argument is as follows: The lease provides that Nike could exercise an option to certain parking spaces by the commencement of the eighteenth (18th) month of the Lease term following the Commencement Date. (Motion Exh. 81, Addendum ¶ 54.1.) Nike cites evidence that it provided notice of its intent to rent 123 monthly parking passes in an email dated January 23, 2020. (Motion Exh. T.) And because Nike had 18 months to request the parking until February 1, 2020, given a commencement date of July 28, 2018 Nike argues that no substantial evidence supports the courts finding that Nikes request was untimely. (Motion at pp. 1819.) The lease, however, did not give Nike until the end of the eighteenth (18th) month of the Lease term following the Commencement Date to seek the parking spaces. The lease instead set the deadline at the commencement of the eighteenth month i.e., until January 1, 2020. Nike thus did not have until February 1, 2020,to rent the parking spaces, and by this reckoning, Nikes January 23, 2020 request was untimely, and the courts reasoning stands. Nikes argument as to the breach of warranty claim is also unpersuasive, as the courts findings as to the condition of the roof was supported by substantial evidence. The court found that the
parties were aware of the susceptibility of the roof to leaks, yet requested the type of roof at issue anyway. (SOD at p. 7.) The court found no evidence of structural defects, and that the Defendants had maintained and addressed the leaks that Nike identified. (Ibid.)
Nikes arguments as to errors of law, meanwhile, are similarly unavailing. Nike argues that the court misapplied the burden of proof, because under the lease, any delay was attributed to Defendants unless proven to be caused by Nike. (Motion at pp. 2025.) Yet Nike identifies no provision of the lease attributing delayed substantial completion to Defendants by default. It identifies a provision of an attached work letter stating that the date of substantial completion shall be deemed to be . . . the date on which the Tenant Improvements would have been Substantially completed if no such a . . . Delay had occurred, provided that the delay was caused by the lessee (Nike). (Motion at pp. 2021, citing Motion Exh. 81, at pp. 6465.) This provision does not purport to create a presumption of either partys default for the cause of delay, or to affect the ordinary burden of proof applicable to a breach of contract action. Nike further identifies provisions indicating that time was of the essence, and setting a date for completion of construction, but once more, these provisions do not purport to assign a presumption of fault for the delay to Defendants. (Motion at p. 22, citing Motion Exh. 81 at p. 65.) Finally, Nike argues that the statement of decision rendered judgment in favor of Defendants on their declaratory relief cause of action, without offering the actual declaration of rights requested, or a contrary declaration to what Nike requested in its Complaint. (Motion at p. 25.) Nike relies on the case Kroff v. Kroff (1954) 127 Cal.App.2d 404, in which the court stated: A dispute existed as to the meaning of a document and the plaintiff was entitled to a judicial declaration of her rights. It was the duty of the court to set forth the meaning and effect of the clause in question. Here the court merely adjudged that plaintiff take nothing by her said cause of action, and that defendant have judgment against plaintiff. (Id. at p. 405.) The present case is distinguishable, as the court here did not merely adjudge that plaintiff take nothing and defendants prevail, but offered a statement of decision explaining the facts of the case and its reasoning. Nike sought a declaration that the property was not substantially complete as of the date of the complaint, that its obligation to pay rent had not begun, that Plaintiff was entitled to immediate correction and completion of all incomplete or defective aspects of the property, and it is entitled to free rent for a number of days determined by the court. (FAC ¶ 57.) Yet these prayers for relief were addressed by the courts determination that the property was substantially complete as of July 28, 2018. (SOD at p. 6.) The motion is therefore DENIED.
Ruling
ACE DESIGN & CONSTRUCTION INC vs MAA PALM DESERT HOSPITALITY INC
Jul 11, 2024 |
PSC1908271
ACE DESIGN & CONSTRUCTION
MAA Desert Hospitality, Inc.’s Petition to
PSC1908271 INC vs MAA PALM DESERT
Correct or Vacate Arbitration Award
HOSPITALITY INC
Tentative Ruling: No tentative ruling. A hearing will be conducted.
Ruling
SANCHEZ vs LUTHER
Jul 11, 2024 |
PSC2004313
PSC2004313 SANCHEZ vs LUTHER Motion to be Relieved as Counsel
Tentative Ruling: Grant. The Court will sign the proposed order lodged with the Court on June 17,
2024. Counsel are reminded that they are not relieved until proof of service of the Court’s signed order
upon Defendant is filed with the Court.
Ruling
AGUINA vs CRAWFORD REAL ESTATE SERVICES
Jul 10, 2024 |
MCC1901351
AGUINA VS CRAWFORD
MCC1901351 MOTION FOR SUMMARY JUDGMENT
REAL ESTATE SERVICES
AGUINA VS CRAWFORD JOINDER TO MOTION FOR SUMMARY
MCC1901351
REAL ESTATE SERVICES JUDGMENT
Tentative Ruling: Grant Defendant’s requests for judicial notice. Deny Plaintiff’s requests for
judicial notice. Grant the motion as to all five causes of action.
Deny Crawford Real Estate and Shoshone Corporation’s motion for joinder as it is untimely.
I. Late Opposition
Plaintiff’s opposition was not filed until July 2 and 3 – only four and five days before the
hearing, respectively. No memorandum of points and authorities was filed at all. Under CCP
§437c(b)(2), all opposition papers must be served on the moving party and filed with the court at
least 14 days before the date set for hearing on the motion, unless the court shortens the time for
good cause shown. Here, no good cause has been shown and the court did not shorten the time
required to file an opposition. Thus, Plaintiff’s opposition is untimely.
A court has discretion to refuse to consider papers served and filed beyond the deadline
without a prior court order finding good cause for late submission. (Bozzi v. Nordstrom, Inc. (2010)
186 Cal.App.4th 755, 765.) If the court decides to consider late-filed papers, circumstances may
require a continuance of the hearing to allow the moving party an opportunity to reply to matters
contained therein. (See Hobson v. Raychem Corp. (1999) 73 CA4th 614, 623 (dictum)
(disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 C4th
1019, 1031, fn. 6).)
The court does consider the late-filed papers as even with these documents, the motion is still
properly granted. Thus, there is no prejudice to Defendants if the court considers the documents
filed in Opposition.
The documents filed in Opposition do not provide any admissible evidence. The issues with
the requests for judicial notice are discussed in the next section. The response to the separate
statement indicates where Plaintiff disagrees with Defendants’ assertions, but there is no
evidence provided in support. Plaintiff references documents (which are not properly judicially
noticed) and makes various statements that are unsupported by a declaration or any other
evidence. As a result, no evidence is provided in support of the Opposition meaning Plaintiff has
not shown any triable issues of material fact.
II. Joinder
Defendants Crawford Real Estate and Shoshone Service Corporation filed a joinder to the
MSJ on June 20, 2024. This joinder includes a memorandum of points and authorities, a separate
statement 1, a list of exhibits, request for judicial notice, and declaration of Leonel Tapia. However,
75 days’ notice is required on a motion for summary judgment. (CCP §437c(a).) The motion and
accompanying documents were not mailed until June 5, 2024. This does not comply with the 75-
day notice requirement. Accordingly, the court does not grant the joinder.
Where the moving party notices the hearing in less than the required time, notice must begin
anew. The court cannot cure this defect by continuing the hearing for the missing number of days.
(Robinson v. Woods (2008) 168 CA4th 1258, 1268.) Deny.
III. Request for Judicial Notice
Generally, a court may take judicial notice of a recorded document, the date it was recorded
and executed, the parties to the transaction and the legally operative language as long as there
is no genuine dispute regarding the document’s authenticity. (Scott v. JP Morgan Chase Bank
(2013) 214 Cal. App. 4th 743, 755.) The court can properly take judicial notice of Defendants’
requests 1-8. The court can properly take judicial notice of Defendants’ requests 9-11 under
Evidence Code §452(d) (court records). GRANTED.
Plaintiff makes sixteen (16) requests for judicial notice. Requests 1, 10, 11, 12, 13, 14, and
15 are properly judicially noticed under Evidence Code §452(d) (court records). However, a party
requesting judicial notice of any materials under Evid. Code §§ 452 or 453 must provide the court
and each opposing party with copies of the material to be so noticed. (CRC 3.1306(c); see Evid.
Code § 453; Creed-21 v. City of San Diego (2015) 234 CA4th 488, 519-520—although ordinance
qualified for judicial notice under Evid. Code § 452, request properly denied due to insufficient
information given under Evid. Code § 453.) Plaintiff did not provide copies of any of the documents
they request the court to take judicial notice of. The remaining requests (not court records) are
not properly subject to judicial notice. The court therefore denies all of Plaintiff’s requests.
IV. First Cause of Action – Breach of Contract
“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance
or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.”
(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1031.) A
contact will be enforced if it is sufficiently definite for the court to ascertain the parties’ obligations
and to determine whether there has been a breach. (Bustamante v. Intuit Inc. (2006) 141 Cal.
App. 4th 199, 209.) To plead a cause of action based on a written contract, a plaintiff may attach
a copy of the written contract and incorporate it by reference or plead the terms verbatim or the
legal effect of the contract. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002)
29 Cal.4th 189, 198-199.)
In the Fifth Amended Complaint (FAC), plaintiff alleges he entered into a written contract with
Defendants on November 7, 2013, whereby Defendants agreed to and loaned Plaintiff $500,000
to develop the property. (¶13.) Then, in “mid 2016,” Plaintiff requested and received an extension
on the loan, as well as an additional loan to be securitized by the property in the amount of
$275,000. (¶15.) Plaintiff asserts Defendants agreed to the loan if Plaintiff met three conditions:
(1) an appraisal of the property; (2) Plaintiff obtain a dismissal of a recorded abstract of judgment
from a Family Law matter; and (3) Plaintiff acquire title insurance for the new loan. (¶16.) The
FAC alleges all of these conditions were met. (¶16.) Plaintiff alleges that Defendants “breached
their promise and commitment to give Plaintiff the additional funding and denied the loan.” (¶16.)
Defendants argue this claim fails for five distinct reasons.
First, Defendants assert it is undisputed that no lender ever spoke a word to Plaintiff, either
before or after the $500,000 loan was funded, during the foreclosure process, or after the
1
“Each moving party shall support [the] motion for summary judgment with a separate statement.” Frazee v. Seely
(2002) 95 Cal.App.4th 627, 636. Here, Crawford and Shoshone filed their own separate statement and evidence so
this was complied with.
foreclosure process. Thus, there was no agreement between Plaintiff and lenders for an additional
$275,000 loan. (SUMF No. 11.) The evidence Defendants provide in support of this material fact
is sufficient to meet Defendants’ initial burden. As noted above, Plaintiff has not provided any
admissible evidence in support of the Opposition. As a result, the motion is properly granted.
Second, Defendants assert Plaintiff did not meet the second requirement to obtain the
additional loan because he failed to obtain a dismissal or release of the abstract of judgment in
the family law case. Defendants provide evidence in support of this material fact which, again, is
not rebutted by Plaintiff.
Third, Defendants argue the alleged oral agreement to loan money is not enforceable under
the Statute of Frauds. Civil Code §1624(a)(7) states: “The following contracts are invalid, unless
they, or some note or memorandum thereof, are in writing and subscribed by the party to be
charged or by the party’s agent… A contract, promise, undertaking, or commitment to loan money
or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000),
not primarily for personal, family, or household purposes, made by a person engaged in the
business of lending or arranging for the lending of money or extending credit. For purposes of this
section, a contract, promise, undertaking, or commitment to loan money secured solely by
residential property consisting of one to four dwelling units shall be deemed to be for personal,
family, or household purposes.” The FAC notes the property was undeveloped and not residential
in nature. (¶8.) Thus, the statute of frauds applies and any alleged oral agreement to the purported
loan is unenforceable.
Fourth, Defendants argue the alleged loan for $275,000 is not specific enough to be an
enforceable agreement. Defendants note there is no allegation as to the terms of repayment,
making it too uncertain to enforce under Peterson Development Co. v. Torrey Pines Bank (1991)
233 CalApp.3d 103, 115. 2 There is no evidence before the court of any terms of repayment of the
alleged $275,000 loan, making it unenforceable.
Fifth, Defendants argue the claim is outside the applicable two-year statute of limitations for a
breach of oral contract under CCP §339(1). The FAC alleges Defendants breached their promise
to loan Plaintiff the additional $275,000 on May 3, 2017. The initial Complaint was not filed under
October 29, 2019. This is outside the statute of limitations and makes the claim improper.
For all of these reasons, the motion is granted as to the breach of contract claim.
V. Second Cause of Action – Promissory Estoppel
Promissory estoppel is a doctrine that employs equitable principles to satisfy the requirement
that consideration must be given in exchange for the promise sought to be enforced. (Kajima/Ray
Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310.)
A promissory estoppel claim requires proof of the same elements as a cause of action for breach
of contract, except for consideration. (US Ecology, Inc. v. State of California (2005) 129
Cal.App.4th 887, 903.) The elements of a promissory estoppel claim are: (1) a promise clear and
unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) reliance
must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured
by his reliance.” (Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th
1661, 1672.)
2
“’[a] loan commitment is not binding on the lender unless it contains all of the material terms of the loan, and either
the lender's obligation is unconditional or the stated conditions have been satisfied. When the commitment does not
contain all of the essential terms ... the prospective borrower cannot rely reasonably on the commitment, and the lender
is not liable for either a breach of the contract or promissory estoppel.’ (9 Miller & Starr, op. cit. supra, § 28.4, at p.
8, fn. omitted.) The material terms of a loan include the identity of the lender and borrower, the amount of the loan,
and the terms for repayment.”
This claim also fails for many of the same reasons stated above. The terms of the alleged
loan agreement are uncertain as there are no specified repayment terms. There is evidence no
lender ever communicated with Plaintiff in making this alleged loan agreement. This claim also
falls outside the two-year statute of limitations. Since the claim for breach of contract fails, the
claim for promissory estoppel also fails.
VI. Third Cause of Action – Tortious Interference with Contract
The elements of a cause of action for the intentional interference contractual relations are: (1)
a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3)
defendant’s intentional acts designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting
damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) “To establish
the claim, the plaintiff need not prove that a defendant acted with the primary purpose of disrupting
the contract, but must show the defendant's knowledge that the interference was certain or
substantially certain to occur as a result of his or her action.” (Reeves v. Hanlon (2004) 33 Cal.
4th 1140, 1148.) It is well established that corporate agents and employees acting for and on
behalf of a corporation cannot be held liable for inducing a breach of the corporation’s contract.
(Shoemaker v. Myers (1990) 52 Cal.3d 1, 24.) “The tort duty not to interfere with the contract falls
only on strangers – interlopers who have no legitimate interest in the scope or course of the
contract’s performance.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th
503, 513.)
Plaintiff alleges he entered into a valid purchase agreement with Robert S. Dickens for the
purchase of the lots on September 4, 2019, for a purchase price of $675,000. (FAC ¶46.) Plaintiff
alleges he gave actual notice of the opened escrow and purchase agreement to Defendants on
September 10, 2019. (¶47.) Plaintiff then alleges that Defendants intentionally submitted
excessive payment demands to escrow to thwart the closing of escrow and effectuate a non-
judicial foreclosure of Plaintiff’s property. (¶48.)
Defendants present evidence that escrow’s closing date was set for December 4, 2019, which
was after the scheduled Trustee’s sale on November 1, 2019. Defendants present evidence that
the lenders did not agree to accept the purchase price of $675,000 as payment of the balance
due under the loan which was in excess of $713,000. (Hermansen Decl. ¶22.) The evidence
before the court shows the lenders carried out the Trustee’s sale as planned, which was lawful.
This is evidence that Defendants’ actions were not designed to induce a breach or disruption of
the contractual relationship between Plaintiff and the alleged buyer. Defendants have met their
initial burden and Plaintiff has not presented any evidence to show a triable issue of material fact.
VII. Fourth Cause of Action – Quiet Title
A quiet title action seeks to establish an interest in real property as between adverse claimants.
(Deutsche Bank National Trust v. McGurk (2012) 206 Cal. App. 4th 201) The elements are: (1)
the plaintiff is the owner and in possession of the land; and (2) defendant claims an interest
adverse to the plaintiff. (South Shore Land Co. v. Peterson (1964) 226 Cal. App. 2d 725, 740-
741.) A quiet title complaint must be verified and must include: (a) a description of the property;
(b) the title of the plaintiff as which a determination is sought and the basis of the title; (c) the
adverse claims to the title of plaintiff against which a determination is sought; (d) the date as of
which the determination is sought; and (e) a prayer for the determination of the title of the plaintiff
against adverse claims. (Cal. Code Civ. Pro. §761.020.) Tender is generally a necessary element
for a mortgagor to maintain a cause of action to quiet title against the mortgagee. (See Fonteno
v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1372; Lueras v. BAC Home Loans
Servicing, LP (2013) 221 Cal.App.4th 49, 86-87.)
The FAC seeks a declaration that Plaintiff is the title owner of record for the property as to the
effective date of November 4, 2019. (¶53.) The FAC asserts Plaintiff is willing and able to tender
the amount owed to Defendants. (¶54.)
“The Legislature has not established a specific statute of limitations for actions to quiet title.
[Citation.] Therefore, courts refer to the underlying theory of relief to determine the applicable
period of limitations. [Citations.] An inquiry into the underlying theory requires the court to identify
the nature (i.e., the ‘gravamen’) of the cause of action. [Citation.]” (Walters v. Boosinger (2016) 2
Cal. App. 5th 421, 428.) As discussed above, the underlying theory of Plaintiff’s case (breach of
contract/promissory estoppel) violates the two-year statute of limitations for an oral agreement.
Thus, this claim also is barred by the statute of limitations.
VIII. Fifth Cause of Action – Wrongful Foreclosure
The elements of a wrongful foreclosure claim are: (1) the trustee or mortgagee caused an
illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a
mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or
mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges
the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was
excused from tendering. (Lona v.Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) A party
challenging a foreclosure must make full tender to establish his or her ability to purchase the
property. (United States Cold Storage v. Greater Western Savings & Loan (1985) 165 Cal. App.
3d 1214, 1225.) While it is not always necessary to establish tender to prevent a foreclosure, the
borrower must show that he or she tendered the full amount of indebtedness in order to set aside
a foreclosure sale that has already occurred. (Intengan v. BAC Home Loans Servicing LP (2013)
214 Cal. App. 4th 1047, 1053-1054.)
Plaintiff’s claim that the foreclosure was improper is rooted in the purported $275,000 loan
commitment. As discussed, any alleged agreement of this loan is not enforceable. Accordingly,
the unfounded allegation of breach of contract cannot be the basis for the wrongful foreclosure
claim. The evidence before the court shows the foreclosure was properly executed. (SUMF 54-
59.) There is no admissible evidence included with the Opposition, so Plaintiff has not rebutted
the presumption.
Ruling
SARAH LEWIS VS. KENNETH RUNYON ET AL
Jul 10, 2024 |
CGC23610891
Real Property/Housing Court Law and Motion Calendar for July 10, 2024 line 5. PLAINTIFF SARAH LEWIS MOTION FOR PRELIMINARY INJUNCTION is DENIED. There is no proof of service on file and motion is not supported by evidence. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
William Shaw vs Ruth Shaw
Jul 14, 2024 |
23CV02548
23CV02548
SHAW v. SHAW
(UNOPPOSED) PLAINTIFF’S MOTION TO APPOINT PARTITION REFEREE
The unopposed motion is granted. Mr. Singer will be appointed as the partition referee.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Case No. 19CV02702
RHOADS v. BECKLEY
APPLICATION FOR ORDER FOR SALE OF DWELLING/OSC FOR SALE OF
DWELLING
This application is continued as discussed below.
The original application, brought pursuant to Code of Civil Procedure sections 704.740
through 704.850, was filed on January 26, 2023. For a variety of reasons, the application was
continued and not ruled upon. When the application was filed, Mr. Beckley was without counsel
and the court noted procedural as well as notice issues with the application, resulting in
continuances. Mr. Beckley then retained counsel, Thornton Davidson, on June 29, 2023.
Mr. Davidson sought to be relieved as counsel on May 8, 2024. The declaration in
support of Mr. Davidson’s motion to be relieved noted the next court date as June 11, 2024. The
court issued a tentative ruling the day before the June 11 hearing, tentatively granting the motion
to be relieved and specifically continuing the application for sale of dwelling to allow defendant
to either retain new counsel or participate in a pro per capacity. The parties were ordered to
appear. At the June 11 hearing, attended by Mr. Davidson and plaintiff’s counsel, Mr. Eschen,
Page 1 of 2
the court granted Mr. Davidson’s motion to be relieved and set July 11, 2024 as the next hearing
date. Mr. Beckley did not attend the June 11, 2024 hearing, nor is there evidence before the court
that he was notified of the July 11, 2024 date. The order prepared by Mr. Davidson after the
hearing and served on Mr. Beckley stated that the tentative ruling became the order of the court.
While the order attached the tentative ruling, there is no mention in either the order or the
tentative ruling of the July 11, 2024 hearing date for the application. The tentative ruling
specified that the application hearing would be set at the next court date.
The court will issue an order to show cause pursuant to Code of Civil Procedure section
704.770, subdivision (a). “After the judgment creditor has filed an application for an order for
sale, the court sets a time and place for hearing and must order the judgment debtor to show
cause why an order for sale should not be made in accordance with the application. The hearing
must be set no later than 45 days after the application is filed, or such later time as the court
orders on a showing of good cause.” (2 MB Practice Guide: CA Debt Collection 17.36 (2024).)
After the OSC is set, Mr. Rhoads must serve on the judgment debtor, Mr. Beckley, a copy of the
OSC, a copy of the application, and a copy of the notice of hearing in the form required by the
Judicial Council. (See Code of Civ. Proc. § 704.770, subd. (b).)
Page 2 of 2
Ruling
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY VS RRM PROPERTIES, LTD, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.
Jul 09, 2024 |
20STCV03304
Case Number:
20STCV03304
Hearing Date:
July 9, 2024
Dept:
74
MOVING PARTY:
Defendants RRM Properties, Ltd. and Robertsons Ready Mix, Ltd.
RESPONDING PARTY:
Plaintiff Los Angeles County Metropolitan Transportation Authority
Motion for Leave to Supplement List of Expert Witnesses
The court considered the moving papers, opposition, and reply in connection with this motion.
BACKGROUND
Plaintiff Los Angeles County Metropolitan Transportation Authority filed its complaint in eminent domain against defendants RRM Properties, Ltd.; H.D. Nogle & Sons, Inc.; Helena A. Hartfield; Frank K. Lyon; Ben Shiffman; William G. Isaac; Consolidated Rock Products Co.; Calmat Co.; Roberts Ready Mix, Ltd.; and all persons known or unknown, on January 27, 2020.
Plaintiff seeks to acquire various property interests belonging to Defendants according to its power of eminent domain under the Public Utilities Code, section 130050 et seq., for the Rosencrans/Marquardt Grade Separation Project and for public transportation purposes and all uses necessary, incidental or convenient thereto. (Compl., ¶ 3 and Exh. 1 [description of property interests].)
Three defendants did not answer, and five have been dismissed. The remaining two, RRM Properties, Ltd. and Robertsons Ready Mix, Ltd. (together Defendants) answered on March 11, 2020.
Jury trial is set for August 19, 2024.
On May 23, 2024, Defendants filed the instant motion for an order granting leave to supplement its list of expert witnesses. They seek to designate Michael Orozco, P.E., a civil engineer employed by RRM, as an expert witness for examination at trial.
On June 24, 2024, Plaintiff opposed. On July 1, 2024, Defendants replied.
LEGAL STANDARD
Code of Civil Procedure section 1258.290 governs the amendment of an expert witness list post-exchange in an eminent domain proceeding. The section permits the court to grant leave for such an amendment if the court finds that such party has made a good faith effort to comply with Sections 1258.210 to 1258.260, inclusive, that he has complied with Section 1258.270, and that by the date of exchange he:
(1) Would not in the exercise of reasonable diligence have determined to call such witness or discovered or listed such opinion or data; or
(2) Failed to determine to call such witness or to discover or list such opinion or data through mistake, inadvertence, surprise, or excusable neglect.
(Code Civ. Proc., § 1258.290(a).)
In making a determination under [section 1258.290], the court shall take into account the extent to which the opposing party has relied on the list of expert witnesses and statements of valuation data and will be prejudiced if the witness is called or the testimony concerning such opinion or data is given. (
Id.
, subd. (b).)
DISCUSSION
1. Compliance with Sections 1258.210 through 1258.260
Defendants argue they made good-faith efforts to comply with Code of Civil Procedure sections 1258.210 through 1258.260 and have complied with section 1258.270. Plaintiff does not directly contest their actual compliance prior to the date of the hearing, and it is not necessary for the Court to examine their compliance to dispose of this motion. Plaintiff prevails on other grounds in particular, Defendants failure to exercise diligence, discussed below.
2. Reasonable Diligence or Mistake
The Code requires the Court to find that Defendants could not have uncovered the need for their proposed expert with due diligence, or that they failed to initially designate their expert due to mistake, inadvertence, etc. (Code Civ. Proc., § 1258.290(a)(1)-(2).)
Defendants have not shown either.
Defendants repeatedly argue they would have produced Orozco as their person most knowledgeable for deposition, but Plaintiff did not proceed with that deposition, which Defendants contend shows Defendants complied in good faith with the expert exchange statutes. (Mot., 2:25; Madueno Decl., ¶ 24.) But Defendants willingness to produce Orozco as a PMK (a fact witness) is not the same as designating him as an expert. Defendants do not explain why Plaintiff had to take Orozcos deposition in order for Defendants to identify him as an expert.
Defendants counsels declaration establishes that numerous depositions took place and, in particular, depositions of other expert witnesses from at least January 4, 2023. (Madueno Decl., ¶ 10 [I took the deposition of Metros designated fixtures and equipment appraisal expert].) Defendants do not explain why, if as they anticipate Orozco will be testifying as a fact witness, and they had considered which experts will testify, they did not further designate Orozco as an expert witness, or did not move to supplement earlier.
In short, Defendants could have uncovered the need for Orozcos designation earlier by exercising due diligence.
Defendants have also not shown mistake, inadvertence, surprise, or excusable neglect. Counsel testifies [n]either [she] nor [her] office intentionally or knowingly failed to designate Orozco as an expert. (Madueno Decl., ¶ 23.) This is not the standard. Lack of intent is not the same as excusable neglect.
The Court must make one of the findings described in section 1258.290, subdivisions (a)(1) and (2), in order to grant Defendants motion. The Court cannot do so. Defendants motion must be denied.
3. Reliance and Prejudice
a. Reliance
The statutory date for expert exchange was November 16, 2022, more than eighteen months ago. Plaintiff has spent a year and a half preparing for trial while relying on Defendants designation list. This reliance is substantial, particularly given that the case is set for trial only forty-one (41) days from the date of this ruling.
b. Prejudice
Defendants apparently intend to call Orozco at trial based on his percipient knowledge of relevant facts. But Defendants have already designated an expert James Roberts to testify to the opinions he formed based on Orozcos personal knowledge. If Orozco is also permitted to testify to the same, Defendants will be permitted to duplicate their expert testimony and bolster the credibility of a fact witness, to Plaintiffs detriment and on short notice.
CONCLUSION
Based on the foregoing, the court DENIES Defendants motion.
Plaintiff is ordered to give notice of this ruling.
Preview
"$6535 03-23308-ME-000237 Se 1:12 am Clerk To: TOM M MILOWSKI Allen Superior Court 3 Date: May 02, 20% Hen County, Indiana BB You are in default on your mortgage. If you remain in default for thirty (30) more days, Freedom Mortgage Corporation may initiate foreclosure on the property located at: 4820 ANGLERS LANE FORT WAYNE IN 46808. If that happens, you could lose your home. You are encouraged to work with a free counselor through the Indiana Foreclosure 6 Prevention Network (IFPN). . To speak with a certified foreclosure prevention specialist, call 1-877-GET- HOPE (1-877-438-4673) or visit www.877GETHOPE.org. |MOUNA FORECLOSURE PREVENTION NETWORK. . This is a FREE state program that can offer you assistance if your primary residence is being foreclosed. IFPN counselors can confidentially review your situation and help you determine your options to avoid foreclosure. IFPN is not a legal service and does not provide free attorneys or legal advice. Tf you choo: ot to contact IFPN or the foreclosure is not on your primary residence, you may still contact your loan servicer, Freedom Mortgage Corporation, to be evaluated for foreclosure prevention options. . You may have already received information from your loan servicer about foreclosure prevention options. You can still be evaluated for these options even if you haven't already applied. Contact your loan servicer to obtain the application package necessary to apply for foreclosure prevention options. You may contact your loan servicer by calling 855-690-5900. Do not abandon your home before understanding your rights. Letters that threaten foreclosure do not mean that a lawsuit has been filed against you. If you get sued, read the foreclosure lawsuit papers carefully. Lawsuits, judgments and sheriff sales are not evictions. Moving out of your home before you are required to could affect your ability to save your home. If your lender files a foreclosure lawsuit, you have the right to file a response and may have the right to a settlement conference (if the property is your primary residence). If your lender obtains a foreclosure judgment, Indiana law gives you the right to appeal any finding that your property is abandoned. In certain circumstances, you may be able to retain possession of your property Indiana Code § 32-29-7-11 for details). You also have the right to redeem your property from sale (prevent a sheri sale from occurring) by paying the judgment (learn how at Indiana Code §32-29-7-7). If you believe your lender has acted against the law, contact an attorney or the Homeowner Protection Unit of the Office of the Indiana Attorney General. The Homeowner Protection Unit investigates deceptive practice complaints, complaints of failures by servicers to honor national settlements, and housing counselor escalation issues. You may contact the Homeowner Protection Unit at www.IndianaConsumer.com or at 317-232-6330 or toll free at 1-800-382-5516. NOTICE REQUIRED BY STATE LAW Ke. 2: TA Mortgage foreclosure is a complex process. People may approach you about "saving" your home. You should be careful about any such promises. There are government agencies and nonprofit Pos Re bE: organizations you may contact for helpful information about the foreclosure process. For the name and telephone number of an organization near you, please call the Indiana Foreclosure Prevention Network. {00020711 1} Developed and prescribed by IHCDA as required by P.L.105-2009 and HEA1122 (2010) (Rev. 2015) INTERNET REPRINT . 2 . Loan Number GETS NOTE FHA Case No. JULY 23, 2013 FOOTHILL RANCH CALIFORNIA [Date] [Ci {State} 4820 ANGLERS LANE, FORT WAYNE, INDIANA 46808 [Property Address} 1 PARTIES “Borrower” means cach person signing at the end of this Note, and the person's successors and assigns. "Lender" means LOANDEPOT.COM, LLC and its successors and assigns. 2 BORROWER'S PROMISE TO PAY; INTEREST In return for a loan received from Lender. Borrower promises to pay the principal sum of ONE HUNDRED FOUR THOUSAND SIXTEEN AND 00/100 Dollars (U.S. $ 104,016.00 plus interest, to the order of Lender. Interest will be charged on unpaid principal, from the date of disbursement of the loan proceeds by Lender, at the rateof FOUR AND 250/1000 percent ( 4.250 %) per year until the full amount of principal has been paid. 3. PROMISE TO PAY SECURED Borrower's promise to pay is secured by a mortgage, deed of trust or similar security instrument that is dated the same date as this Note and called the "Security Instrument. ‘The Security Instrument protects the Lender from losses which might result if Borrower defaults under this Note. 4, MANNER OF PAYMENT (A) Time Borrower shall make a payment of principal and interest to Lender on the 1st. day ofeach month beginning on SEPTEMBER 1, 201 ‘Any principal and interest remaining on the 1st day of AUGUST, 2043 will be due on that date, which is called the "Maturity Date." (B) Place Payment shall be made at 26642 TOWNE CENTRE DRIVE, FOOTHILL RANCH CALIFORNIA 92610 . or at such other place as Lender may designate in writing by notice to Borrower. (C) Amount Each monthly payment of principal and interest will be in the amount of U.S. $ 511.70 This amount will be part ofa larger monthly payment required by the Security Instrument, that shall be applied to principal, interest and other items in the order described in the Security Instrument. (D) Allonge to this Note for Payment Adjustments Ifan allonge providing for payment adjustments is executed by Borrower together with this Note, the covenants of the allonge shall be incorporated into and shall amend and supplement the covenants of this Note as if the allonge were a part of this Note. MULTISTATE - FHA FIXED RATE NOTE USFHA.NTE 09/25/09 Page 1 of 3 [EXeYekeVeitcte) W-docmagic.com (Check applicable box.) OF Growing Equity Allonge J Graduated Payment Allonge (1 Other [specify]: 5. BORROWER'S RIGHT TO PREPAY Borrower has the right to pay the debt evidenced by this Note, in whole or in part, without charge or penalty, on the first day of any month, Lender shall accept prepayment on other days provided that Borrower pays interest on the amount prepaid for the remainder ofthe month to the extent required by Lender and permitted by regulations of the Secretary. If Borrower makes a partial prepayment, there will be no changes in the due date or in the amount of the monthly payment unless Lender agrees in writing to those changes. 6. BORROWER'S FAILURE TO PAY (A) Late Charge for Overdue Payments If Lender has not received the full monthly payment required by the Security Instrument, as described in Paragraph 4(C) of this Note, by the end of fifteen calendar days after the payment is due, Lender may collect a late charge in the amount of FOUR AND 000/1000 percent ( 4,000 %) of the overdue amount of each payment. (B) Default If Borrower defaults by failing to pay full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full ofthe principal balance remaining due and all accrued interest. Lender may choose not to exerci this option without waiving its rights in the event of any subsequent default. In many circumstances, regulations issued by the Secretary will limit Lender’s rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, "Secretary" means the Secretary of Housing and Urban Development or his or her designee. (C) Payment of Costs and Expenses If Lender has required immediate payment in full, as described above, Lender may require Borrower to pay costs and expenses including reasonable and customary attorneys’ fees for enforcing this Note to the extent not prohibited by applicable law. Such fees and costs shall bear interest from the date of disbursement at the same rate as the principal of this Note. 7. WAIV! Borrower and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require Lender to demand payment of amounts due. “Notice of Dishonor” means the right to require Lender to give notice to other persons that amounts due have not been paid. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to Borrower under this Note will be given by delivering it or by mailing it by first class mail to Borrower at the Property Address above or at a different address if Borrower has given Lender a notice of Borrower's different address. Any notice that must be given to Lender under this Note will be given by delivering it or by mailing it by first class mail to Lender at the address stated in Paragraph 4(B) or at a different address if Borrower is given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in JULTISTATE - FHA FIXED RATE NOTE, Us FHANTE 09/25/09 Page 2 of [RexeETetaye) "7 docmagic.com this Note. Lender may enforce its rights under this Note against each person individually or against all signatories together. Any one person signing this Note may be required to pay all of the amounts owed under this Note. You axe not obligated to pay any money unless you sign this contract and return it to the Seller/Lender. BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Note. (Seal) (Seal) TOM MILOWSKI -Borrower -Borrower (Seal) (Seal) Borrower Borrower (Seal) (Seal) -Borrower -Borrower [Sign Original Only} MULTISTATE - FHA FIXED RATE NOTE. USFHA-NTE 09/25/09 Page3 of 3 Re) ccecmagie.com ——— ~ F 1 Pay to the order of i without recourse Freedom nl ‘Corporation Maria Galiuoci Corporate Secretary ALLONGE L amber Loan Date: JULY 3, 2013 Borrower(s): TOM M MELOWSKI Property Address: 4820 ANGLERS LANE, FORT WAYNE, INDIANA 46808 Principal Balance: $104, 16“ 00 PAY TO THE ORDEROF Nocienstor- Moergage LLC Without Recourse Company Name LOANDEPOT. COM, Lic By L cites Cindy Rodriguez Collateral Document Team Lead WORISTATE NOTE ALLonGE ener) es ALLONGE LOAN NUMBER: BORROWER (S): Tom M Milowski PROPERTY ADDRESS: 4820 Anglers Lane, Fort Wayne, IN 46808 NOTE/LOAN AMOUNT: $104,016.00 NOTE/LOAN DATE: 7/23/2013 PAY TO THE ORDER OF: Freedom Mortgage Corporation WITHOUT RECOURSE COMPANY NAME: NATIONSTAR MTG LLC DBA MR. COOPER AUTHORIZED SIGNATURE: Ze Bsshes PRINTED NAME AND TITLE OF AUTHORIZED SIGNER: Tim Burkey, Collateral Specialist, Power of attorney NATIONSTAR MTG LLC DBA MR. COOPER EXHIBIT C Lot Number 29, In Morgan Creek, Section I, As Recorded In Plat Cabinet D, Page 152 And Document Number 20189111. More commonly known as 4820 Anglers Ln, Fort Wayne, IN 46808-3510. 8 2013044962 RECORDED: 08/02/2013 08:31:35 AM JOHN MCGAULEY ALLEN COUNTY RECORDER FORT WAYNE, IN [AFTER RECORDING RETURN TO: USA, LLC LATIN: Recording Dept. 913 Elmgrove! Rochaster,NY 14626 ‘Ts EVSTRUMENT PREPARED BY: (COM, LLC ATTN: DOCUMENT CONTROL 26642 TOMNE FOOTHILL RANCH, CALIFORNIA 92610 Loan Number: Go (Space Above This Line For Recarteg Datel MORTGAGE Eee MERS Phone: 889-679-6377 ‘THIS MORTGAGE ("Security Instrument") is on JULY 23, 013 ‘The mortgagoris TOM M. MILOWSKI Borrower") ‘This Securiyy Instrument is givento Morigage Electronic Registration Systems, Inc. (*MERS") as Mortgages. MERS. is the nominee for Lender, as hereinafter defined, and Lender's successors and assigns. MERS is organized and ccxisting under the laws of Delaware, ond has a mailing address of P.O. Box 2026, Flint, MI 48501-2026 and astreet addressof 1901 E, Voorhees Stree, Suite C, Danville, IL 6183 1 te, (888) 679.MERS, LOANDEPOT.COM, LLC ender) is organized and existing under the laws of DELAWARE and has an address of 26642 TOWNE CENTRE DRIVE, FOOTHILL RANCH, CALIFORNIA 92610 Borrower owes Lender the principal sum of ONE HUNDRED FOUR THOUSAND SIXTEEN AND 00/100 Dolls (U.S. $ 104,016.00 ‘ “This debi evidenced by Borrowers note dated the seme date as this Security Instrument ("Note"), which provides for monthly payments, with the Full deb, if not paid earlier, due and payableon AUGUST 1, 2043 Rareeea orreanie TERS Page 1 of 8 seme SSoragie coe eect ‘lan Coury Reearder Docunent 2013004842 AFTER RECORDING RETURN TO: Closing USA, LLC ATIN: Recording Dept. 803 Elmgrove Road Rochester, NY 14624 585-454-1730 THIS INSTRUMENT PREPARED BY: — ‘LOANDE! COM, LLC ATIN: DOCUMENT CONTROL 26642 TOWNE CENTRE DRIVE 92610 Loan Number MSEee 1 rm om MORTGAGE MERS Phone: 888-679-6377 THIS MORTGAGE ("Security Instrument”) is given on JULY 23, 2013 The mortgagor is TOM M. MILOWSKI ("Borrower"). This Security Instrument is given to Mortgage Electronic Registration Systems, Ine. ("MERS") as Mortgagee. MERS is the nominee for Lender, as hereinafter defined, and Lender's successors and assigns. MERS is organized and existing under the laws of Delaware, and has a mailing address of P.O. Box 2026, Flint, MI 48501-2026 and a street address of 1901 E. Voorhees Street, Suite C, Danville, IL 61834., tel. (888) 679-MERS. LOANDEPOT.COM, LLC ("Lender") is organized and existing under the laws of DELAWARE and has an address of 26642 TOWNE CENTRE DRIVE, FOOTHILL RANCH, CALIFORNIA 92610 Borrower owes Lender the principal sum of ONE HUNDRED FOUR THOUSAND SIXTEEN AND 00/100 Dollars (U.S. $ 104,016.00 ) This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provi for monthly payments, with the full debt, if not paid earlier, due and payableon AUGUST 1, 2043 FHA INDIANA MOI INMTGZ.FHA 07/03/12 Page 1 of 9 trwm.doemagie,com IN-YeEYercre] This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument, and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage. grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS the following described property located in ALLEN ‘County, Indiana: THE FOLLOWING DESCRIBED REAL ESTATE IN ALLEN COUNTY, IN THE STATE OF INDIANA: LOT NUMBER 29, IN MORGAN CREEK, SECTION I, AS RECORDED IN PLAT CABINET D, PAGE 152 AND DOCUMENT NUMBER 20189111. A.P.N.: 02-07-32-377-010.000-066 which has the address of 4820 ANGLERS LANE st FORT WAYNE > Indiana " 46808 ("Property Address"): [cig] [2ip Code) TOGETHER WITH all the improvements now or hereafter crected on the property, and all easements, appugienances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property." Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument; but, if necessary to comply with law or custom, 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 any action required of Lender including, but not limited to, releasing or canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1, Payment of Principal, Interest and Late Charge. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and late charges due under the Note. 2. Monthly Payment of Taxes, Insurance, and Other Charges. Borrower shall include in each monthly payment, together with the principal and interestas set forth in the Note and any late charges, a sum for (a) taxes and special assessments levied or to be levied against the Property, (b) leaschold payments or ground rents on the Property, and (c) premiums for insurance required under paragraph 4. In any year in which the Lender must pay a mortgage insurance premium to the Secretary of Housing and Urban Development ("Secretary"), or in any year in which such premium would have been required if Lender still held the Security Instrument, each monthly payment shall also include either: (i) a sum for the annual mortgage insurance premium to be paid ty Lender to the Secretary, or (ii) amonthly charge instead of a mortgage insurance premium if this Security Instrument is held by the Secretary, in areasonable amount to be determined by the Secretary. Except for the monthly chargeby the Secretary, these items are called “Escrow Items" and the sums paid to Lender are called “Escrow Funds." RS InTGEPHA Orta Page 2 of 9 IUYePrerteye) wwe. docmagic.com Lender may, at any time, collect and hold amounts for Escrow Items in an aggregate amount not to exceed the maximum amount that may be required for Borrower' s escrow account under the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. §2601 et seq. and implementing regulations, 24 CFR Part 3500, as they may be amended from time to time("RESPA*), except that the cushion or reserve permitted by RESPA for unanticipated disbursements or disbursements before the Borrower’ s payments are available in the account may not be based on amounts due for the mortgage insurance premium, If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA. Lender shall account to Borrower for the excess funds as required by RESPA. If the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, Lender may notify the Borrower and require Borrower to make up the shortage as permitted by RESPA. The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If Borrower tenders to Lender the full payment of all such sums, Borrower's account shall be credited with the balance remaining for all installment items (a), (b), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary, and Lender shall promptly refund any excess funds to Borrower. Immediately prior to a foreclosure sale ofthe Property or its acquisition by Lender, Borrower's account shall be credited with any balance remaining for all installments for items (a), (b), and (¢). 3. Application of Payments. All payments under paragraphs | and 2 shall be applied by Lender as follows: EIRST, to the mortgage insurance premium to be paid by Lender to the Secretary or to the monthly charge by the Secretary instead of the monthly mortgage insurance premium; SECOND, to any taxes, special assessments, leaschold payments or ground rents, and fire, flood and other hazard insurance premiums, as required; THIRD, to interest due under the Note; Fi OURTH, to amortization of the principal of the Note; and FOURTH, FIFTH, to late charges due under the Note. 4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property, whether now in existence or subsequently erected, against any hazards, casualties, and contingencies, including fire, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender requires. Borrower shall also insure all improvements on the Property, whether now in existence or subsequently erected, against loss by floods to the extent required by the Secretary. All insurance shall be carried with companies approved by Lender. The insurance policies and any renewals shall be held by Lender and shall include loss payable clauses in favor of, and in a form acceptable to, Lender. In the event of loss, Borrower shall give Lender immediate notice by mail. Lender may make proofof loss if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender, instead of to Borrower and to Lender jointly. All or any part of the insurance proceeds may be applied by Lender, at its option, either (a) to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order in paragraph 3, and then to prepayment of principal, or (b) to the restoration or repair of the damaged Property. Any ap tion of the proceeds to the principal shall not extend or postpone the due date of the monthly payments which are referredto in paragraph 2, or change the amount ofsuch payments. Any excess insurance proceeds over an amount required to pay all outstanding indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto. In the event of foreclosure ofthis Security Instrument or other transfer ofttle to the Property that extinguishes the indebtedness, all right, title and interest of Borrower in and to insurance policies in force shall pass to the purchaser. 5. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument (or within sixty days of a later sale or transfer ofthe Property) and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of ‘occupancy, unless Lender determines that requirement will cause undue hardship for Borrower, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall notify Lender of any extenuating circumstances. Borrower shall not commit waste or destroy, damage or substantially change the Property or allow the Property to deteriorate, reasonable wear and tear excepted. Lender may inspect the Property if the Property is FHA INDI 7 MERS INMTGZ.FHA 07/03/12 Page 3 of 9 www.docmagic.com (RY=teEeTes tT =v] vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such vacant or abandoned Property. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with the provisions of the lease. If Borrower acquires fee title to the Property, the leaschold and fee title shall not be merged unless Lender agrees to the merger in writing, 6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part ofthe Property, or for conveyance in place of condemnation, are hereby assigned and shall be paid to Lender to the extent of the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument. Lender shal! apply such proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in paragraph 3, and then to prepayment of principal. Any application ofthe proceeds to the principal shall not extend or postpone the due date of the monthly payments. which are referred to in paragraph 2, or change the amount of such payments. Any excess proceeds over an amount requiredto pay all outstanding indebtedness under the Note and this, Security Instrument shall be paid to the entity legally entitled thereto. 1. Charges to Borrower and Protection of Lender's Rights in the Property. Borrower shall pay all governmental or municipal charges, fines and impositions that arc not included in paragraph 2. Borrower shall pay these obligations on time directly to the entity which is owed the payment, If failure to pay would adversely affect Lender's interest in the Property, upon Lender's request Borrower shall promptly furnish to Lender receipts evidencing these payments. If Borrower fails to make these payments or the payments required by paragraph 2, or fails to perform any other covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, for condemnation or to enforce laws or regulations), then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property, including payment oftaxes, hazard insurance and other items mentioned in paragraph 2. ‘Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be secured by this Security Instrument. These amounts shall bear interest from the date of disbursement at the Note rate, and at the option of Lender shall be immediately due and payable. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment ofthe obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part ofthe Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the gi ing of notice. Fees. Lender may collect fees and charges authorized by the Secretary. 9. Grounds for Acceleration of Debt. (a) Default. Lender may, except as limited by regulations issued by the Secretary in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if: (i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date ofthe next monthly payment, or (ii) Borrower defaults by failing, for a period of thirty days, to perform any other obligations contained in this Security Instrument. (b) Sale Without Credit Approval. Lender shall, if permitted by applicable law (including section 341(4) of the Garn-St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701}-3(d)) and with the prior approval of the Secretary, require immediate payment in full of all sums secured by this Security Instrument if: (i). All or part of the Property, or a beneficial interest in a trust owning all or part ofthe Property, is sold or otherwise transferred (other than by devise or descent), and FHA RS IMTGZ.FHA 07/03/12 Page 4 of 8 i ryrn ETETs] wuw.doemagic.com (ii) The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the Property. but his or her credit has not been approved in accordance with the requirements of the Secretary. (c) No Waiver. If circumstances occur that would permit Lender to require immediate payment in full, but Lender does not require such payments, Lender does not waive its rights with respect to subsequent events. (d)_ Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary wi imit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid, This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. (©) Mortgage Not Insured. Borrower agrees that if this Security Instrument and the Note are not determined to be eligible for insurance under the National Housing Act within 60 DAYS from the date hereof, Lender may, at its option require immediate payment in full ofall sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to 60 DAYS from the date hereof, declining to insure this Security Instrument and the Note, all be deemed conclusive proof of such bility. Notwithstanding the foregoing, this option may not be exercised by Lender when the unavailability of insurance is solely dueto Lender's failure to remit a mortgage insurance premium to the Secretary. 10, Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument. This right applies even after foreclosure proceedings are instituted. To reinstate the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower’ s account current including, to the extent they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys! fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and the obligations that it secures shall remai in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if (i) Lender has accepted reinstatement after the commencementof foreclosure Proceedings within two years immediately preceding the commencement of a current foreclosure proceeding, (ii) instatement will preclude foreclosure on different grounds in the future. or (iii) reinstatement will adversely affect the priority of the lien created by this Security Instrument. 11, Borrower Not Released; Forbearance by Lender Not a Waiver. Extension of the time of payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successors in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization ofthe sums secured by this Security Instrument by reason of any demand madeby the original Borrower or Borrower's successors in interest. Any forbearanceby Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy 12, Successors and Assigns Bound; Joint and Several Liability; Co-Signers. ‘The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 9(b). Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-si ing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. 13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address of any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender designates by notice to Borrower. ‘Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 14, Governing Law; Severability. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument BAMTO PHA Oroort Page 5 of 9 Docagle Rares (RSE Tere] www.docmagic.com or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. 15. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 16. Hazardous Substances. Borrower shall not causc or permit the presence, usc, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. ‘The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantit s of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substances affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. ‘As used in this paragraph 16, "Hazardous Substances* are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petrolcum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 16, “Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 17. Assignment of Rents. Borrower unconditionally assigns and transfers to Lender all the rents and revenues of the Property. Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues ofthe Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an absolute assignment and not an assignment for additional security only. If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only, to be applied to the sums secured by the Security Instrument; (b) Lender shall be entitled to collect and receive all ofthe rents of the Property; and (c) each tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant. Borrower has not executed any prior assignment ofthe rents and has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph 17. Lender shall not be required to enter upon, take control ofor maintain the Property before or after giving notice of breach to Borrower. However, Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full. 18, Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18, including, but not limited to, reasonable attorneys’ fees and costs of title evidence. If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires immediate payment in full under paragraph 9, the Secretary may invoke the nonjudicial power ofsale provided in the Single Family Mortgage Foreclosure Act of 1994 ("Act") (12 U.S.C. 3751 et seq.) by requesting a foreclosure commissioner designated under the Act to commence foreelosure and to sell the Property as provided in the Act. Nothing im the preceding sentence shall deprive the Secretary of any rights otherwise available to a Lender under this paragraph 18 or applicable law. 19, Release. Upon payment of all sums secured by this Security Instrument, Lender shall release this Security Instrument, Lender may charge Borrower a fee for releasing this Security Instrument, but only ifthe fee is paid to a third party for services rendered and the charging of the fee is permitted under applicable law. 20, Waiver of Valuation and Appraisement. Borrower waives all right of valuation and appraisement. FAA INDI INMTGZ. FH) ie Ono? Page 6 of 9 TSE TS ae) www.docmagic.com 21. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as ifthe rider(s) were a part of this Security Instrument, [Check applicable box(es)]. ( Condominium Rider (D Graduated Payment Rider] Growing Equity Rider [X) Planned Unit Development Rider Adjustable Rate Rider (© Rehabilitation Loan Rider (1 Non-Owner Occupaney Rider 1 Other [Specify] [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] FHA INDIANA MORTGAGE - MERS INMTGZ.FHA 07/03/12 Page 7 of 8 RTE Te x) nesrcbomenton YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONTRACT AND RETURN IT TO THE SELLER/LENDER. BY SIGNING BELOW, Borrower accepts and agrees to the terms contained in pages | through 9 of this Security Instrument and in any rider(s) executed by Borrower and recorded with it. (Seal) (Seal) TOM M. niConsict ~Borrower ~Borrower (Seal) (Seal) “Borrower ~Borrower (Seal) (Seal) “Borrower ~Borrower Witness: Witness: MTGE P