Preview
Jeffrey H. Lowenthal (State Bar No. 111763)
Edward Egan Smith (State Bar No. 169792)
Matthew W. Delbridge (State Bar No. 343636)
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
235 Pine Street, 15th Floor
San Francisco, California 94104
Telephone: (415) 421-3400
Facsimile: (415) 421-2234
E-mail: jlowenthal@ steyerlaw.com
esmith@ steyerlaw.com
mdelbridge@ steyerlaw.com
Attomeys for Defendant and Cross-Complainant
United States Real Estate Corporation
Jacoby Perez (State Bar No. 315990)
10 GERACI LAW FIRM
90 Discovery
11 Irvine, CA 92618
Telephone: (949) 379-2600
12 Direct: (949) 504-4195
Email: j.perez@ geracillp.com
13
Co-counsel for Defendant and Cross-Complainant
14 United States Real Estate Corporation
15
16 SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 FOR THE COUNTY OF SANTA CRUZ
18
19 JASON NEEL, Case No. 22CV01758
20 Plaintiff,
DECLARATION OF MATTHEW MARK IN
21 Vv. SUPPORT OF UNITED STATES REAL
ESTATE CORPORATION’S OPPOSITION TO
22 SUPERIOR LOAN SERVICING, ASSET CROSS-DEFENDANT DONALD
DEFAULT MANAGEMENT, INC., SCHWARTZ’S ANTI-SLAPP SPECIAL
23 UNITED STATES REAL ESTATE MOTIONTO STRIKE
CORPORATION and DOES 1 through
24 100, inclusive, Date: April 22, 2024
Time: 8:30 am.
25 Defendants. Dept: 5
26
AND RELATED CROSS-ACTION(S). Action Filed: August 10, 2021 [Alameda Superior]
27 Trial Date: August 12, 2024
28
DECLARATION OF MATTHEW MARK IN SUPPORT OF UNITED STATES REAL ESTATE
CORPORATION’S OPPOSITION TO CROSS-DEFENDANT DONALD SCHWARTZ’S ANTI-SLAPP SPECIAL
MOTION TO STRIKE
2082627.2 - NATC JNEEL
DECLARATION OF MATTHEW MARK
I, Matthew Mark, declare as follows:
1 I am the President of United States Real Estate Corporation (““USREC”), a
defendant and cross-complainant in the above-captioned action. I know all of the facts set forth
herein of my own personal knowledge unless stated otherwise, and if called as a witness, I could
and would competently testify thereto.
2 On or about September 9, 2020, USREC funded a real property loan in the
principal amount of $439,000, to borrower Jason Neel (“Neel”), which loan is now past due and
owing, together with interest, costs and attorney’s fees (“USREC Loan’), as evidenced by a
10 Promissory Note identifying USREC as the payee and Lender in “EXHIBIT D” attached thereto,
11 a true and correct copy of which is attached hereto as Exhibit 1. USREC agreed to fund the
12 USREC Loan on the condition, among other things, that it be secured by a first position lien
13 against Neel’s real property located at 144 Palo Verde Terrace, Santa Cruz, California (“Subject
14 Property”) under a Deed of Trust given by Neel, in favor of USREC as lender and beneficiary,
15 recorded on September 9, 2020, as Document No. 2020-0035270 in the official records of Santa
16 Cruz County (“USREC Deed of Trust”), a true and correct copy of which is attached hereto as
17 Exhibit 2. I understand that EX HIBIT D from the Promissory Note was inadvertently omitted
18 from the USREC Deed of Trust when it was recorded. USREC seeks through its Cross-
19 Complaint in this action to reform the recorded version of the USREC Deed of Trust to include
20 EXHIBIT D in orderto reflect the intentions of USREC and all parties to the USREC Loan that
21 having funded the $439,000 USREC Loan, USREC is the lender and beneficiary under the
22 USREC Deed of Trust.
23 3 As reflected in the final settlement statement for the USREC Loan, a true and
24 correct copy of which is attached hereto as Exhibit 3, approximately $384,631 was disbursed
25 from the USREC Loan proceeds to satisfy in full an existing Deed of Trust in favor of lender
26 Saxe Mortgage Company (“Saxe Deed of Trust’). USREC intended the Saxe Deed of Trust be
27 satisfied through the USREC Loan funds in order to ensure that the USREC Deed of Trust would
28 2
DECLARATION OF MATTHEW MARK IN SUPPORT OF UNITED STATES REAL ESTATE
CORPORATION’S OPPOSITION TO CROSS-DEFENDANT DONALD SCHWARTZ’S ANTI-SLAPP SPECIAL
MOTION TO STRIKE
2082627.2 - NATC JNEEL
be a first position lien against the Subject Property.
4. At the time USREC funded the USREC Loan, USREC understood that the
Promissory Note and USREC Deed of Trust were executed under a power of attomey from
borrower Neel, which was recorded at the close of the USREC Loan on September 9, 2020, as
Document No. 2020-0035269 in the official records of Santa Cruz County (“POA”), a true and
correct copy of which is attached hereto as Exhibit 4. At the time USREC funded the USREC
Loan and accepted the USREC Deed of Trust as security, USREC understood that the POA was
valid and USREC in good faith relied on the authority of Neel’s attorney-in-fact under the POA,
among other things, in funding the $439,000 USREC Loan and accepting the Promissory Note
10 and USREC Deed of Trust as security for repayment.
11 5 At the time USREC funded the USREC Loan to Neel, it had no knowledge of the
12 claims Neel has alleged in this lawsuit, including the allegations that Neel is now or has at times
13 in the past been mentally incompetent, that Neel was not mentally competent when he executed
14 the POA, that the POA did not give Neel’s attorney-in-fact authority to take out the USREC Loan
15 on Neel’s behalf, that the USREC Loan was part of a scheme to defraud Neel and take his equity
16 in the Property, and that the Promissory Note and USREC Deed of Trust are invalid and
17 unenforceable. At the time USREC funded the USREC Loan, USREC also had no knowledge of
18 the claims Neel has alleged in this lawsuit challenging the validity and enforceability of the Saxe
19 Deed of Trust and the loan secured thereby, as having been allegedly procured by fraud or undue
20 influence. USREC would not have funded the USREC Loan had it had notice or knowledge of
21 these claims as now alleged by Neel in this lawsuit.
22 I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct. Executed on April 8, 2024, at Malibu, California.
24 Matto Mork
25 ~-- =. —-- —--
Matthew M
26
27
28
DECLARATION OF MATTHEW MARK IN SUPPORT OF UNITED STATES REAL ESTATE
CORPORATION’S OPPOSITION TO CROSS-DEFENDANT DONALD SCHWARTZ’S ANTI-SLAPP SPECIAL
MOTION TO STRIKE
2082627.2 - NATC JNEEL
EXHIBIT 1
PROMISSORY NOTE SECURED BY DEED OF TRUST
(This Note contains an Acceleration Clause)
PARTIALLY AMORTIZED BALLOON PAYMENT NOTE
1-4 RESIDENTIAL NON-OWNER OCCUPIED PROPERTY
BUSINESS PURPOSE LOAN
Loan Number: RMF4026164 Property Address: 144 PALO VERDE TERRACE, SANTA CRUZ,
CA
95060
Loan Amount: $439,000.00 BURLINGAME, California AUGUST 27, 2020
In instaliments as herein stated, for value received, JASON A. NEEL, A SINGLE MAN,
the undersigned Borrower(s),
promise to pay to EXHIBIT D, the Beneficiary, or order, at a place that may be
design by theate
Beneficia
dry, the sum
of; $439,000.00, FOUR HUNDRED THIRTY NINE THO! USAND DOLLARS exactly
with interest from the date of
funding on the unpaid principal at the rate of 12.99% percent per aunum,
payable in 24 partially amortizing
installments of $4,779.40 each, beginning on 11/01/2020, and continui
ng MONTHLY ON THE FIRST DAY 0:OF
EACH MONTH thereafter until maturity, 10/01/2022, at which time all sums of ‘princip
al and interest then remaining
unpaid shall be due and payable in full, Interest shall be calculated on a
360 day year and on an ordinary annuity
calciilation basis. At the option of the Beueficiary, each payment shall be cred ited
first on interest then due, then on
late charges, then on advances, then on fees and the remainder on principal; and interest shall thereup
on cease upon the
principal so credited.
Default of payment. Upon default in any payment of any in: stallment, then the balance
of this obligation shall
become due immediately at the option of the Holder hereof. Principal, interest, and
all funds due Beneficiary payable
in lawful money of the United States of America. Except where federal law is applicable, this
Note shall be construed
and. enforceable according to the laws of the State of California for all purposes
and any terms herein inconsistent
therewith are hereby modified to conform to said law at the time of signing of
these loan documents, Time is of the
essence for each and every obligation under this Note,
THE FOLLOWING PROVISIONS MAY RESULT IN THE COMPOUND
ING OF INTEREST ON. YOUR
LOAN
At the option of the Beneficiary, if any payment should be insufficient
to pay the interest then due, the balance of
interest remaining shall be add led to principal and will bear interest at the Note rate
as the principal,
At the eption of the Benefi ciary, if any principal and/or interest installments,
late charges, advances and/or
costs should be repaid du rough or by any forbearan ce, bankruptey plan ar similar
foreclosure, the total- sum of these amounts will bi ear interest a¢ repayment plan or
the Note rate from the date due or advanced
until the date repaid.
ms on
Ifthis Note is not paid when due, the Borrower(s) promise to pay, in
addition to the principal and interest due under this
Note, all costs of collection and any reasonable attorneys’ fees incurre
d by the Beneficiary thereof on account of such
collection, whether or not suit is filed hereon, Bach Borrower consents to renewal
= s, replacements, and extensions of
‘time for payment hereof before, af, or after Inaturity; consents to the acceptance of security for this Note and waives
demand, protest and any applicable statute of limitations, Ac Ss shall bear interest at the interest rate stated in the
note or the “Default” interest, whichever is higher, from date of ad
va
until date
nc paid ein full,
Payment late charge, If any installnent duc hereunder is diIclinquent
more than 10 days, the Borrower to this Note
agrees to pay a late charge on each installment of $5.00 or 10.00% of the deli
ingnent payment, whichever is larger.
All late charges are to be paid immediately on demand.
Page 1 of 3
USREC_00395
Balloan late charge, In addition, if any balloon payment is delinquent
more than TEN days, the borrower will be
charged $43,900.00 as liquidated damages,
Borrower acknowledges that its failure to make timel ly payments under this Note
will cause Lender to inour
additional expenses in servic: ing and processing the Loan and that it is extremel ly difficui
determine those additional expenses. Borrower agrees that the late charges provided t and impractical to
for in this Note represent fair
and reasonable estimates taking into account al I circumstances exi: sting
on the date of this Note, of the additional
expenses Lender will incur by reason of such late payments, The late charges are
payable in addition to, and nat in
liew of, auy default interest provided below.
Retcheek urn charge, Rorower and Benefic! lary agree that it would be difficult to determine the actual damages to the
Beneficiary or Beneficiary’s agent for the te tar, of an unpaid check provid by Borrowe
edr, It is hereby agreed that
Borrow will pay er
the sum equalto 5% of the amount returned or $25.00, whichever is greater.
the maxinium charge for an unpaid check is not to exceed the sum of $35.00. However, in any event
: This amount is in licy of any statutory
monetary penalty, if any; however, Beriefic iciary does not waive any other
rights that may be awarded under any statute,
Should Borrower have two or more retumed checks, for any reason, during the
life of the loan, Beneficiary may
demand that Borrower make payments in the form of cash, cashiers
check or money order,
Rig toht
assign. The holder of this Note shail have the rj ight to sell, assign, or otherwis
e transfer, either in part or in
its entirety, this Note, the Deed of Trnst, and other inst itruments evidencing or securing the indebtedness of this Note
to one or more investors without Borrower's consent.
Prepayment penalty, Tho principal and accrued interest on this an
lo thay be propaid in whole or in part at any time
without penalty, however, Beneficiary is guaxanteed to receive a minimum
of 6 months interest based on the original
principal balance together with any interest paid or duc in escro A
Default interest. Should Borrower default on any terms and conditions of this
loan, Berrower shall pay a default interest
rate in the amount 6.00% per annum, in addition to the current rate of 1 2.99%,
based on the principal balance and on all
ing advances andadvances to be made after defualt has oceurred, Default interest shall commenc
of the default and shal! continue until such time default has been cared or loan e as of the date
has been paid off.
Advancing Fee, For any advances made to senior encumb
rance: s and/or obligations to protect the Beneficiary’s
imterost in this Note, there will be an. advancing fee equal to three
(3%) of the amount so advanced subject with a
minimum fee of fifty dollars ($50) per advance (per | lender). Advanc
es will bear interest at the same rate that is
tharged on the principal of this Note from the date of advancemen
tto such date when all monies are paid in full in
the form of cash and/or certified funds, ALL ADV: ANI CES TO
BE REPAID AT NOTE RATE OR DEFAULT
INTEREST RATE, WHICHEVER ONE IS HIGHER, FROM
DATE OF ADVANCE UNTIL DATE FUNDS ARB
RECEIVED BY BENEFICIARY,
Oral Representations, The undersigned Borrower hi ereby states
that the Beneficiary, their representative(s) nor any
employee RUSHMYFILE, INC. has alluded. to, give en
actual details(s) or discussed other terms of ‘this loan other
‘What has been agreed to in writing. than
RABILITY; RE AGREE) MENT! . The parties intend that
Tnstrament and all other Loan Documents, : the provisions of this
including the Deed of ‘Trust securing the indebte dness, shall be legally
severable. If any term or rovision of this Instrument or any other
Loan Document t, including the Deed of Trust
scouting the indebtedness, be determined to any extent by a court of competent jurisdiction to be invalid
unenforceable, the remainder of this Instrument or of such other Loan Document, including the or
Trast, shall not be affected thereby and cach term and provision shall aforesaid Deed of
be valid and be enforceable to the fullest o:
permitted by law. This Instrament and the aforesaid Deed of Tru: st contains
to the tights granted and the obligations assumed in this instram the entice agreement among the p: partiesas
ent. This Instrument may not be amended or
modified except by a writing signed by the party against whom enforc
ement is sought.
Page
2 of 3
USREC_00396
Binding. This Note and all of the covenants, promises and agreements contained in it shall
be binding on and insure
to the benefit of the respective legal and personal representatives, devisees, heirs, snecessors, and assigns of
the
Borrower and the Beneficiary,
Acceleration clanse. This Note is secured by a First Deed of ‘Trust of even date herewith which contains the
following provision:
In the event of sale or transfer, sonveyance or alicnation of said real property, or any part
thereof, or
any interest therein, whether voluntary er involuntary (or if Borrewer is not a natural person
and a
heneficial interest in Borre weris old or transferred), Beneficiary shall have the right of accelerat
ion,
at its option, to declare the Note secured by the Deed of Trust, irrespective of
the maturity date
expressed therein, and without demand or notice, immediately due and payable. No watyer
of this right
shall be effective waless it is in writing, Consent by the Beneficiary to one such transacti
on shall not
constitute waiver of the right io require such consent to sucrecding transactions,
‘This Note is secured by a Deed, as Trustee,
Mil
ty
SON A. NEEL — Borrower
Cobh, Mga (i arfor
LE.
er = Co-Borrower {Date
(4
.
DONOT pksrnere rug sees Shee isa, this Note, with Deed of Trust securi
ng same, smelt mrnaticreiag
the Trusive for cancellation before re conveyance or Trustee’s Deed, This
loan was otiginated by RUSHMYFILE,
INC, License No. 01893519, NMLS No. 396905, a company Hoensed by
the Burea ui of Beal Estate (formerly the
Departme of nt
Real Estate),
Page3 of 3
6
USREC_00397
Exhibit D
LENDER VESTING
UNITED STATES REAL ESTATE CORPORATION
USREC_00398
EXHIBIT 2
2020-0035270 Page 1 of 17
2020-0035270 9/9/2020 1:38 PM
USA NATIONAL TITLE CO. OFFICIAL RECORDS OF Santa Cruz County
RECORDING REQUESTED BY Sean Saldavia Recorder
RECORDING FEE: $232.00
WHEN RECORDED MAIL TO COUNTY TAX: $0.00
CITY TAX: $0.00
420 ER USA NATIONAL TITLE DTRU
Electronically Recorded 17 PGS
Superior Loan Servicing
7525 Topanga Canyon Blyd RCD157
Canoga Park, CA 91303
Loan Number: RMF4026164
Property Address:
144PPALO VERDE TERRACE
SANT 060
one
APN: 002-351-13-000 391/182001751 SPACE ABOVE THIS LINE FOR RECORDERS USE
DEED OF TRUST
AND ASSIGNMENT OF RENTS
DEFINITIONS
Words used in multiple sections of document are defined below and other words are defined in Sections 3, 10, 12, 17, 19, 20 and 22.
Certain rules regarding the usage of words used in this docurnent are also provided in Section 15.
(A) “Security Instrument” means this document, which is dated AUGUST. 27
27, 2020, together with all Riders to this document.
(B} “Borrower” is JASON A. NEEL, A SINGLE MAN, Borrower is the trustor under this Security Instrument. Borrower's mailing
address is: 4366 STONY POINT ROAD, SANTA ROSA, CA 95407.
{C) “Lender” is EXHIBIT D. Lender is the beneficiary under this Security Instrument,
(D) “Trustee” is SUPERIOR LOAN SERVICING, to whom Borrower irrevocably grants, transfers and assigns property, in Trust,
with Power of Sale.
{E} “Note” means the promissory note signed by Borrower and dated AUGUST 27, 2020. The Note states that Borrower owes Lender
FOUR HUNDRED THIRTY NINE THOUSAND DOLLARS exactly (U.S. $439,000.00) plus interest.
(®) “Property” means the property that is described below under the beading “Transfer of Rights in the Property.”
(G) “Loan” means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and all
sums due under this Security Instrument, plus interest.
() “Riders” means all riders to this Security Instrument that are executed by Borrower. The following riders are to be executed by
Borrower : ssigoment of Rents and Profits; Security Agreement and Protection of Lenders’ Security Rider.
@ “Applicable Law” means all controlling applicable federal, state and local statutes, re; ilations, ordinances and administrative
rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions.
i) “Community Association Dues, Fees and Assessments” means all dues, foes, assessrnents and other charges that are imposed on
Borrower or the Property by a condominium association, homcowners association or similar organization,
{K) “Electronic Fonds Transfer” means any transfer of fands, other than a transaction originated by check, draft, or similar paper
instrument, which is initiated through an clectronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or
authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated
teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers,
Page
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2020-0035270 Page 2 of 17
wo “Escrow items” mean those items that are described in Section 3.
(M) “Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds paid by any third party (other
than insurance proceeds paid under the coverages described in Section 5 for (i) damage to, or destruction of, the Property, (ii}
condemnation or other taking of all or any part of the Property, (iii) conveyance in lien of conderanation ox (iv) misrepresentations of,
or omissions as to, the value and/or condition of the Property.
@) “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, ot default on, the Loan.
(©) “Periodic Payment” means the regularly scheduled amount due for (1} principal and interest under the Note, plus (2) any
amounts under Section 3 of this Security instrument.
®) “RESPA” means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its implementing regulation,
Regulation X (24 CBR. Part 3500), as they might be amended from time to time, or any additional or successor legislation or
regulation that governs the same subject matter, As used in this Seourity Instrument, “RESPA” refers to all requirements and
restrictions that arc imposed in regard to a “federally related mortgage loan” even if the Loan does not qualify as a “federally related
mortgage loan” under RESPA,
@ “Successor in Interest of Borrower” means any party that has taken title to the Property, whether or not that party has assumed
Borrower's obligations under the Note and/or this Security Iustcument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (a) the repayment of the Loan, and all renewals, extensions and modifications of the Note;
and (} the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose,
Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in the
County of SANTA CRUZ, which currently has the address of 144 PALO VERDE TERRACE, SANTA CRUZ, CA 95060 and fully
described as:
SEE LEGAL DESCRIPTION ATTACHED
APN # 602-351-13-006
TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, 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 COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to 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 nonuniform 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:
i. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges. Borrower shall pay when due the
principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Ni te.
Bortower shall also pay funds for Escrow items pursuant to Section 3. Paymients due under the Note and this Security Instrument shall
be made in U.S. currency. However, if any check or other instrument received by Lender as payment under the Note or this Security
Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security
Tnstrument be made in one or more of the following forms, as selected by Lender: (a) cash, (b) money order, (c) certified check, bank
check, treasurer’s check or cashier’s check, provided any such check is drawn upon an institution whose deposits are insured by a
federal agency, instrumentality, or entity or (d) Electronic Funds Transfer. Additionally, Lender can require payment due to senior
encumbrances, including insurance, in the forms listed above.
Payments are deemed received by Lender waen received at the location designated in the Note or at such other location as may be
designated by Lender in accordance with the notice provisions in Section 14. Lender may retarn any payment(s) or partial payment(s)
if the payment(s) or partial payments are insutficient to bring the Loan ourrent. Lender may accept any payment(s) or partial
Page
2 of 16
2020-0035270 Page 3 of 17
payment(s) insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to ite rights to refuse such
ayment(s) or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are
accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds.
Lender may hold such unapplied fimds until Borrower makes payment(s) to bring the Loan current. If Borrower does not do so within
a reasonable period of time, Lender shall either apply such funds er retarn them to Borrower, If not applied earlier, such funds will be
plied to any amounts under the Note owed by Borrower. Lender shall decide how to apply funds, Should a Notice of Default be of
record, finds may be applied and ihe Notice of Default shall remain valid. No offset or claim which Borrower might have now or in
the future against Lender shall relieve Borrower from making payments due under the Note and this Security Instrument or performing
the covenants and agreements secured by this Security Instrument.
2, Application of Payments or Proceeds, Except as otherwise described in this Section 2, all payments accepted and applied by
Lender shall be applied in the following order of priority: First - interest due under the Note; Second - principal due under the Note;
‘Third - amounts due under Section 3. However, should advances be made under this Deed of Trost, Lender has sole discretion as to the
distribution as to how payments shall be applied when received. Such payments shall be applied to cach Periodic Payment in the order
in which it became duc. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this
Security Instrument, and then to reduce the principal balance of the Note.
If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient amount to pay any late
charge due, the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is
outstanding, Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if, and to the extent
that, cach payment can be paid in full. To the extent that any excess exists after the payment is applied the full payment of one or more
Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall be applied first to any
‘epayment charges and then as described in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or
postpone the due date, or change the amount, of the Periodic Payments.
3. Funds for Escrow Hems. Should Lender require, borrower or his successor shall pay to Lender on the day Periodic Payments are
due under the Note, until the Note is paid in fall, a sum (the “Funds”) to provide for payment of amounts due for: (a) taxes and
assessments and other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property; (b)
leasehold payments or ground rents on the Property, if any; (c} premiums for any and all insurance required by Lender under Section 5;
and (d) Mortgage Insurance premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage
Insurance premiums in accordance with the provisions of Section 9, These items ate called “Escrow Items.” At origination or at any
time during the term of the L an, Lender may require that Community Association Dues, Fees and Assessments, if any, be escrowed
by Borrower, and such dues, fe: and assessments shall be an Escrow Item. Borrower shall promptly furnish to Lender all notices of
amounts to be paid under this Section. Borrower shali pay Lender the Funds for Escrow Items unless Lender waives Borrower’:
obligation to pay the Funds for any or all Escrow Items, Lender may waive Borrower's obligation to pay to Lender Funds for any or all
Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and
where payable, the arnounts due for any E: row Items for which payment of Funds has been waived by Lender and, if Leader requires,
shall furnish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to
make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security
Instrument. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for
an Escrow Her, Lender may exercise its rights under Section 8 and pay such amount and Borrower shall then be obligated under
Section 8 to repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice
given in accordance with Section 14 and, upon such revocation, Borrower shall pay to Lender all Funds, and in such amounts, that are
then required under this Section 3.
Lender may, at any time, collect and hold Funds in an amount (1) sufficient to permit Lender to apply the Funds at the time specified
under RESPA and (2) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of
Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow items or otherwise in accordance
with Applicable Law.
‘The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumemality, or entity (including Lender, if
Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank, Lender shall apply the Funds to pay the
Escrow ems no later than the time specified under RESPA. Lender shall not charge Borrower for holdiag and applying the Funds,
annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and
Applicable Law permits Lenderto make such a charge. Unless an agreement is made in writing or Applicable Law requites interestto
be paid on the Funds, Lender shall not be required to pay Borrower any interest or eamings on the Funds. Borrower and Lender can
agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting
of the Funds as required by RESPA.
Page
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2020-0035270 Page 4 of 17
Hf there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account te Borrower for the excess fands in
accordance with RESPA, if there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower
as required by RESPA, and Borrower shall pay to Lender the araoent necessary to make up the shortage in accordance with
RESP, but in ne more than twelve monthly payments. Upon payment in full of all saxs secured by this Security instrament,
Lender sball promptly refund to Borrower any Funds held by Lender.
4, Charges; Liens. Borrower shall perform all of Borrower's obligations under any mortgage, decd of trust or other security
Bere nt with « Hien which has priority over this Deed of Trust inclading borrower's covenants te make payments when due.
Additionally, borrower shall pay all taxes, assessments, charges, incheding garbage billin g8, fines, and impositions attributable to
the Property which can atiain priority over this Security Instrument, leaschold payments or ground reats on the Property, if apy,
and Commanity Association Chics, Pees and Assessments, if any. To the extent that these items are Escrow Rems, Borrower
shall pay them in the manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in.
vetting to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Borrower is
perfonming such agreement: (b} contests the Hen in good faith by, or defile against enforcement of the lien in, legal
proceedings which in Lender’s opinion operate to prevent the cnfircemient of the Hien while those proceedings arc pending, but
only untii such proceedings are conchided; or {c} secures from the holder of the len an agreement satisfactory i¢ Lender
subordinating the Hen to this Security Instrament. If Lender determines that any part of the Property is subject to a Lien which
oan attain priority over this Security Instrument, Lender may give Borrower a notice identillying the Hen. Within 10 days of the
date on which that notice is given (exchuding Deed of Trust liens, which noed no notice), Borrower chall satisfy the Hen or take
one or more of the actions set forth above in this Section 4.
Lender may require Borrower te pay a one-time charge for a real estate tax verification and/or reporting service used by Lender
in coonection with thie Loan,
8, Property nserance. Borrower shail keep the improvenients new oxisting or hereafter erected on the Property insured against loss
‘by fire, hazards included within the tenx “extended coverage,” and any other hazards including, but not linuted to, earthquakes and
floods, # which Lender requires insurance. This insurance shall be maintained in the amounts Gnchiding deductible levels) and for the
porlods that Londer requires. What Lender requires pursuant to the preceding sentences can change Guriag the term of the Loan. The
issutance carrier providing the insurance ¢ be chosen by Borrower subject to Lender's right to disapprove Borrower's chaice, which.
right shall net be exercised wnreasonal Lender may require Borrower to pay, in connection wiih this Loan, either: (1) a onetime
charge for flood zone determination, certification and tracking services or (2) a one-time charge for flood zone determination and
certification services and subsequent charges ouch time remappings or similar changes coour which reasonably might affect sach
determination ov certification. Borrower ehall also be responsible for the payment of any feea imaposed by the Federal Emergency
Management Agency in connection with the review of any flood zone determination resulting from an objection by Harrower.
Hf Horower fells to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option
and Borrower's expense. Lendex is ander ne obligation to purchase any particular type or amount of coverage. Therefore, such
coverage shall cover Lander, but might or might aot protect Hormower, Borrower’s equity in the Property, or the contents of the
Property, agains! any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect.
Borrower acknowtedges that the cost of the insurance coverage so obtained might significantly exceed the cost of insarance thal
Borrower could have obtained, Any amounts disbursed by Lender under this Sectio hall become additional debt of Borrower
secured by this Security instrament. These amounts shall bear interest at the Note rate from the date of disbursement and shall be
payable, with such interest, upon notice from Lender to Borrower requesting payment,
All insurance policies required by Lender and renewals of such policies shall be eubject to Leader's right to disapprove such policies,
shall inclade a standard mortgage clause, and shall name Londer as mortgagee and/or as an additional loss payee and Borrower further
agrees to generally assign rights to insurance procecds to the holder of the Note up to the amount of the catstanding Joan balance,
Lender shall have the night to hold the policios and renewal cettifivaies. if Lender requires, Borrower shall promptly give te Lender all
receipts of paid premiums and renewal notices, if Bormower obtains any form of insurance coverage, net otherwise xoquired by Lender,
for damage to, or desteuction of the Property, auch policy shall include a standard morigage clause and shall name Lander as
Taortgagee and/or as an additional iss payce and Borower farther agrees to generally assign rights io Insurance proceeds to the holder
ofthe Note up te the emount of the outstanding loan balance.
Bovower is te provide and deliver evidence of insurance to lender, which is to the satisfaction of Lender,
in the event of loss, Homower shall give peompt noticc to the insurance cartier and Lender. Lender may make proof of loss if not made
Page 4 of 16
2020-0035270 Page 5 of 17
promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying
insurance was required by Lender, shall be applicd to restoration or repair of the Property, if the restoration or repair is economically
feasible and Lender’s security is not lessened. During such repair and restoration period, Lender shall have the right to hold such
insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's
83 faction, provided that such inspection shall be undertaken promptly, Lender may disburse proceeds for the repairs and restoration
in a single payment or in a series of progress payments as the work is completed, Lintess an agreement is made in writing or Applicable
Law requires interest to be paid on such insurance proceeds, Lender shall not be reg -d to pay Borrower any interest or earnings on
such proceeds. Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds and
shall be the sole obligation of Borrower. If the restoration or repair is not economically feasible or Lender’s security would be
lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with th
Preview
Jeffrey H. Lowenthal (State Bar No. 111763) Edward Egan Smith (State Bar No. 169792) Matthew W. Delbridge (State Bar No. 343636) STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor San Francisco, California 94104 Telephone: (415) 421-3400 Facsimile: (415) 421-2234 E-mail: jlowenthal@ steyerlaw.com esmith@ steyerlaw.com mdelbridge@ steyerlaw.com Attomeys for Defendant and Cross-Complainant United States Real Estate Corporation Jacoby Perez (State Bar No. 315990) 10 GERACI LAW FIRM 90 Discovery 11 Irvine, CA 92618 Telephone: (949) 379-2600 12 Direct: (949) 504-4195 Email: j.perez@ geracillp.com 13 Co-counsel for Defendant and Cross-Complainant 14 United States Real Estate Corporation 15 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 FOR THE COUNTY OF SANTA CRUZ 18 19 JASON NEEL, Case No. 22CV01758 20 Plaintiff, DECLARATION OF MATTHEW MARK IN 21 Vv. SUPPORT OF UNITED STATES REAL ESTATE CORPORATION’S OPPOSITION TO 22 SUPERIOR LOAN SERVICING, ASSET CROSS-DEFENDANT DONALD DEFAULT MANAGEMENT, INC., SCHWARTZ’S ANTI-SLAPP SPECIAL 23 UNITED STATES REAL ESTATE MOTIONTO STRIKE CORPORATION and DOES 1 through 24 100, inclusive, Date: April 22, 2024 Time: 8:30 am. 25 Defendants. Dept: 5 26 AND RELATED CROSS-ACTION(S). Action Filed: August 10, 2021 [Alameda Superior] 27 Trial Date: August 12, 2024 28 DECLARATION OF MATTHEW MARK IN SUPPORT OF UNITED STATES REAL ESTATE CORPORATION’S OPPOSITION TO CROSS-DEFENDANT DONALD SCHWARTZ’S ANTI-SLAPP SPECIAL MOTION TO STRIKE 2082627.2 - NATC JNEEL DECLARATION OF MATTHEW MARK I, Matthew Mark, declare as follows: 1 I am the President of United States Real Estate Corporation (““USREC”), a defendant and cross-complainant in the above-captioned action. I know all of the facts set forth herein of my own personal knowledge unless stated otherwise, and if called as a witness, I could and would competently testify thereto. 2 On or about September 9, 2020, USREC funded a real property loan in the principal amount of $439,000, to borrower Jason Neel (“Neel”), which loan is now past due and owing, together with interest, costs and attorney’s fees (“USREC Loan’), as evidenced by a 10 Promissory Note identifying USREC as the payee and Lender in “EXHIBIT D” attached thereto, 11 a true and correct copy of which is attached hereto as Exhibit 1. USREC agreed to fund the 12 USREC Loan on the condition, among other things, that it be secured by a first position lien 13 against Neel’s real property located at 144 Palo Verde Terrace, Santa Cruz, California (“Subject 14 Property”) under a Deed of Trust given by Neel, in favor of USREC as lender and beneficiary, 15 recorded on September 9, 2020, as Document No. 2020-0035270 in the official records of Santa 16 Cruz County (“USREC Deed of Trust”), a true and correct copy of which is attached hereto as 17 Exhibit 2. I understand that EX HIBIT D from the Promissory Note was inadvertently omitted 18 from the USREC Deed of Trust when it was recorded. USREC seeks through its Cross- 19 Complaint in this action to reform the recorded version of the USREC Deed of Trust to include 20 EXHIBIT D in orderto reflect the intentions of USREC and all parties to the USREC Loan that 21 having funded the $439,000 USREC Loan, USREC is the lender and beneficiary under the 22 USREC Deed of Trust. 23 3 As reflected in the final settlement statement for the USREC Loan, a true and 24 correct copy of which is attached hereto as Exhibit 3, approximately $384,631 was disbursed 25 from the USREC Loan proceeds to satisfy in full an existing Deed of Trust in favor of lender 26 Saxe Mortgage Company (“Saxe Deed of Trust’). USREC intended the Saxe Deed of Trust be 27 satisfied through the USREC Loan funds in order to ensure that the USREC Deed of Trust would 28 2 DECLARATION OF MATTHEW MARK IN SUPPORT OF UNITED STATES REAL ESTATE CORPORATION’S OPPOSITION TO CROSS-DEFENDANT DONALD SCHWARTZ’S ANTI-SLAPP SPECIAL MOTION TO STRIKE 2082627.2 - NATC JNEEL be a first position lien against the Subject Property. 4. At the time USREC funded the USREC Loan, USREC understood that the Promissory Note and USREC Deed of Trust were executed under a power of attomey from borrower Neel, which was recorded at the close of the USREC Loan on September 9, 2020, as Document No. 2020-0035269 in the official records of Santa Cruz County (“POA”), a true and correct copy of which is attached hereto as Exhibit 4. At the time USREC funded the USREC Loan and accepted the USREC Deed of Trust as security, USREC understood that the POA was valid and USREC in good faith relied on the authority of Neel’s attorney-in-fact under the POA, among other things, in funding the $439,000 USREC Loan and accepting the Promissory Note 10 and USREC Deed of Trust as security for repayment. 11 5 At the time USREC funded the USREC Loan to Neel, it had no knowledge of the 12 claims Neel has alleged in this lawsuit, including the allegations that Neel is now or has at times 13 in the past been mentally incompetent, that Neel was not mentally competent when he executed 14 the POA, that the POA did not give Neel’s attorney-in-fact authority to take out the USREC Loan 15 on Neel’s behalf, that the USREC Loan was part of a scheme to defraud Neel and take his equity 16 in the Property, and that the Promissory Note and USREC Deed of Trust are invalid and 17 unenforceable. At the time USREC funded the USREC Loan, USREC also had no knowledge of 18 the claims Neel has alleged in this lawsuit challenging the validity and enforceability of the Saxe 19 Deed of Trust and the loan secured thereby, as having been allegedly procured by fraud or undue 20 influence. USREC would not have funded the USREC Loan had it had notice or knowledge of 21 these claims as now alleged by Neel in this lawsuit. 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. Executed on April 8, 2024, at Malibu, California. 24 Matto Mork 25 ~-- =. —-- —-- Matthew M 26 27 28 DECLARATION OF MATTHEW MARK IN SUPPORT OF UNITED STATES REAL ESTATE CORPORATION’S OPPOSITION TO CROSS-DEFENDANT DONALD SCHWARTZ’S ANTI-SLAPP SPECIAL MOTION TO STRIKE 2082627.2 - NATC JNEEL EXHIBIT 1 PROMISSORY NOTE SECURED BY DEED OF TRUST (This Note contains an Acceleration Clause) PARTIALLY AMORTIZED BALLOON PAYMENT NOTE 1-4 RESIDENTIAL NON-OWNER OCCUPIED PROPERTY BUSINESS PURPOSE LOAN Loan Number: RMF4026164 Property Address: 144 PALO VERDE TERRACE, SANTA CRUZ, CA 95060 Loan Amount: $439,000.00 BURLINGAME, California AUGUST 27, 2020 In instaliments as herein stated, for value received, JASON A. NEEL, A SINGLE MAN, the undersigned Borrower(s), promise to pay to EXHIBIT D, the Beneficiary, or order, at a place that may be design by theate Beneficia dry, the sum of; $439,000.00, FOUR HUNDRED THIRTY NINE THO! USAND DOLLARS exactly with interest from the date of funding on the unpaid principal at the rate of 12.99% percent per aunum, payable in 24 partially amortizing installments of $4,779.40 each, beginning on 11/01/2020, and continui ng MONTHLY ON THE FIRST DAY 0:OF EACH MONTH thereafter until maturity, 10/01/2022, at which time all sums of ‘princip al and interest then remaining unpaid shall be due and payable in full, Interest shall be calculated on a 360 day year and on an ordinary annuity calciilation basis. At the option of the Beueficiary, each payment shall be cred ited first on interest then due, then on late charges, then on advances, then on fees and the remainder on principal; and interest shall thereup on cease upon the principal so credited. Default of payment. Upon default in any payment of any in: stallment, then the balance of this obligation shall become due immediately at the option of the Holder hereof. Principal, interest, and all funds due Beneficiary payable in lawful money of the United States of America. Except where federal law is applicable, this Note shall be construed and. enforceable according to the laws of the State of California for all purposes and any terms herein inconsistent therewith are hereby modified to conform to said law at the time of signing of these loan documents, Time is of the essence for each and every obligation under this Note, THE FOLLOWING PROVISIONS MAY RESULT IN THE COMPOUND ING OF INTEREST ON. YOUR LOAN At the option of the Beneficiary, if any payment should be insufficient to pay the interest then due, the balance of interest remaining shall be add led to principal and will bear interest at the Note rate as the principal, At the eption of the Benefi ciary, if any principal and/or interest installments, late charges, advances and/or costs should be repaid du rough or by any forbearan ce, bankruptey plan ar similar foreclosure, the total- sum of these amounts will bi ear interest a¢ repayment plan or the Note rate from the date due or advanced until the date repaid. ms on Ifthis Note is not paid when due, the Borrower(s) promise to pay, in addition to the principal and interest due under this Note, all costs of collection and any reasonable attorneys’ fees incurre d by the Beneficiary thereof on account of such collection, whether or not suit is filed hereon, Bach Borrower consents to renewal = s, replacements, and extensions of ‘time for payment hereof before, af, or after Inaturity; consents to the acceptance of security for this Note and waives demand, protest and any applicable statute of limitations, Ac Ss shall bear interest at the interest rate stated in the note or the “Default” interest, whichever is higher, from date of ad va until date nc paid ein full, Payment late charge, If any installnent duc hereunder is diIclinquent more than 10 days, the Borrower to this Note agrees to pay a late charge on each installment of $5.00 or 10.00% of the deli ingnent payment, whichever is larger. All late charges are to be paid immediately on demand. Page 1 of 3 USREC_00395 Balloan late charge, In addition, if any balloon payment is delinquent more than TEN days, the borrower will be charged $43,900.00 as liquidated damages, Borrower acknowledges that its failure to make timel ly payments under this Note will cause Lender to inour additional expenses in servic: ing and processing the Loan and that it is extremel ly difficui determine those additional expenses. Borrower agrees that the late charges provided t and impractical to for in this Note represent fair and reasonable estimates taking into account al I circumstances exi: sting on the date of this Note, of the additional expenses Lender will incur by reason of such late payments, The late charges are payable in addition to, and nat in liew of, auy default interest provided below. Retcheek urn charge, Rorower and Benefic! lary agree that it would be difficult to determine the actual damages to the Beneficiary or Beneficiary’s agent for the te tar, of an unpaid check provid by Borrowe edr, It is hereby agreed that Borrow will pay er the sum equalto 5% of the amount returned or $25.00, whichever is greater. the maxinium charge for an unpaid check is not to exceed the sum of $35.00. However, in any event : This amount is in licy of any statutory monetary penalty, if any; however, Beriefic iciary does not waive any other rights that may be awarded under any statute, Should Borrower have two or more retumed checks, for any reason, during the life of the loan, Beneficiary may demand that Borrower make payments in the form of cash, cashiers check or money order, Rig toht assign. The holder of this Note shail have the rj ight to sell, assign, or otherwis e transfer, either in part or in its entirety, this Note, the Deed of Trnst, and other inst itruments evidencing or securing the indebtedness of this Note to one or more investors without Borrower's consent. Prepayment penalty, Tho principal and accrued interest on this an lo thay be propaid in whole or in part at any time without penalty, however, Beneficiary is guaxanteed to receive a minimum of 6 months interest based on the original principal balance together with any interest paid or duc in escro A Default interest. Should Borrower default on any terms and conditions of this loan, Berrower shall pay a default interest rate in the amount 6.00% per annum, in addition to the current rate of 1 2.99%, based on the principal balance and on all ing advances andadvances to be made after defualt has oceurred, Default interest shall commenc of the default and shal! continue until such time default has been cared or loan e as of the date has been paid off. Advancing Fee, For any advances made to senior encumb rance: s and/or obligations to protect the Beneficiary’s imterost in this Note, there will be an. advancing fee equal to three (3%) of the amount so advanced subject with a minimum fee of fifty dollars ($50) per advance (per | lender). Advanc es will bear interest at the same rate that is tharged on the principal of this Note from the date of advancemen tto such date when all monies are paid in full in the form of cash and/or certified funds, ALL ADV: ANI CES TO BE REPAID AT NOTE RATE OR DEFAULT INTEREST RATE, WHICHEVER ONE IS HIGHER, FROM DATE OF ADVANCE UNTIL DATE FUNDS ARB RECEIVED BY BENEFICIARY, Oral Representations, The undersigned Borrower hi ereby states that the Beneficiary, their representative(s) nor any employee RUSHMYFILE, INC. has alluded. to, give en actual details(s) or discussed other terms of ‘this loan other ‘What has been agreed to in writing. than RABILITY; RE AGREE) MENT! . The parties intend that Tnstrament and all other Loan Documents, : the provisions of this including the Deed of ‘Trust securing the indebte dness, shall be legally severable. If any term or rovision of this Instrument or any other Loan Document t, including the Deed of Trust scouting the indebtedness, be determined to any extent by a court of competent jurisdiction to be invalid unenforceable, the remainder of this Instrument or of such other Loan Document, including the or Trast, shall not be affected thereby and cach term and provision shall aforesaid Deed of be valid and be enforceable to the fullest o: permitted by law. This Instrament and the aforesaid Deed of Tru: st contains to the tights granted and the obligations assumed in this instram the entice agreement among the p: partiesas ent. This Instrument may not be amended or modified except by a writing signed by the party against whom enforc ement is sought. Page 2 of 3 USREC_00396 Binding. This Note and all of the covenants, promises and agreements contained in it shall be binding on and insure to the benefit of the respective legal and personal representatives, devisees, heirs, snecessors, and assigns of the Borrower and the Beneficiary, Acceleration clanse. This Note is secured by a First Deed of ‘Trust of even date herewith which contains the following provision: In the event of sale or transfer, sonveyance or alicnation of said real property, or any part thereof, or any interest therein, whether voluntary er involuntary (or if Borrewer is not a natural person and a heneficial interest in Borre weris old or transferred), Beneficiary shall have the right of accelerat ion, at its option, to declare the Note secured by the Deed of Trust, irrespective of the maturity date expressed therein, and without demand or notice, immediately due and payable. No watyer of this right shall be effective waless it is in writing, Consent by the Beneficiary to one such transacti on shall not constitute waiver of the right io require such consent to sucrecding transactions, ‘This Note is secured by a Deed, as Trustee, Mil ty SON A. NEEL — Borrower Cobh, Mga (i arfor LE. er = Co-Borrower {Date (4 . DONOT pksrnere rug sees Shee isa, this Note, with Deed of Trust securi ng same, smelt mrnaticreiag the Trusive for cancellation before re conveyance or Trustee’s Deed, This loan was otiginated by RUSHMYFILE, INC, License No. 01893519, NMLS No. 396905, a company Hoensed by the Burea ui of Beal Estate (formerly the Departme of nt Real Estate), Page3 of 3 6 USREC_00397 Exhibit D LENDER VESTING UNITED STATES REAL ESTATE CORPORATION USREC_00398 EXHIBIT 2 2020-0035270 Page 1 of 17 2020-0035270 9/9/2020 1:38 PM USA NATIONAL TITLE CO. OFFICIAL RECORDS OF Santa Cruz County RECORDING REQUESTED BY Sean Saldavia Recorder RECORDING FEE: $232.00 WHEN RECORDED MAIL TO COUNTY TAX: $0.00 CITY TAX: $0.00 420 ER USA NATIONAL TITLE DTRU Electronically Recorded 17 PGS Superior Loan Servicing 7525 Topanga Canyon Blyd RCD157 Canoga Park, CA 91303 Loan Number: RMF4026164 Property Address: 144PPALO VERDE TERRACE SANT 060 one APN: 002-351-13-000 391/182001751 SPACE ABOVE THIS LINE FOR RECORDERS USE DEED OF TRUST AND ASSIGNMENT OF RENTS DEFINITIONS Words used in multiple sections of document are defined below and other words are defined in Sections 3, 10, 12, 17, 19, 20 and 22. Certain rules regarding the usage of words used in this docurnent are also provided in Section 15. (A) “Security Instrument” means this document, which is dated AUGUST. 27 27, 2020, together with all Riders to this document. (B} “Borrower” is JASON A. NEEL, A SINGLE MAN, Borrower is the trustor under this Security Instrument. Borrower's mailing address is: 4366 STONY POINT ROAD, SANTA ROSA, CA 95407. {C) “Lender” is EXHIBIT D. Lender is the beneficiary under this Security Instrument, (D) “Trustee” is SUPERIOR LOAN SERVICING, to whom Borrower irrevocably grants, transfers and assigns property, in Trust, with Power of Sale. {E} “Note” means the promissory note signed by Borrower and dated AUGUST 27, 2020. The Note states that Borrower owes Lender FOUR HUNDRED THIRTY NINE THOUSAND DOLLARS exactly (U.S. $439,000.00) plus interest. (®) “Property” means the property that is described below under the beading “Transfer of Rights in the Property.” (G) “Loan” means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and all sums due under this Security Instrument, plus interest. () “Riders” means all riders to this Security Instrument that are executed by Borrower. The following riders are to be executed by Borrower : ssigoment of Rents and Profits; Security Agreement and Protection of Lenders’ Security Rider. @ “Applicable Law” means all controlling applicable federal, state and local statutes, re; ilations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions. i) “Community Association Dues, Fees and Assessments” means all dues, foes, assessrnents and other charges that are imposed on Borrower or the Property by a condominium association, homcowners association or similar organization, {K) “Electronic Fonds Transfer” means any transfer of fands, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an clectronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers, Page | of 16 2020-0035270 Page 2 of 17 wo “Escrow items” mean those items that are described in Section 3. (M) “Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described in Section 5 for (i) damage to, or destruction of, the Property, (ii} condemnation or other taking of all or any part of the Property, (iii) conveyance in lien of conderanation ox (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property. @) “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, ot default on, the Loan. (©) “Periodic Payment” means the regularly scheduled amount due for (1} principal and interest under the Note, plus (2) any amounts under Section 3 of this Security instrument. ®) “RESPA” means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its implementing regulation, Regulation X (24 CBR. Part 3500), as they might be amended from time to time, or any additional or successor legislation or regulation that governs the same subject matter, As used in this Seourity Instrument, “RESPA” refers to all requirements and restrictions that arc imposed in regard to a “federally related mortgage loan” even if the Loan does not qualify as a “federally related mortgage loan” under RESPA, @ “Successor in Interest of Borrower” means any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note and/or this Security Iustcument. TRANSFER OF RIGHTS IN THE PROPERTY This Security Instrument secures to Lender: (a) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (} the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in the County of SANTA CRUZ, which currently has the address of 144 PALO VERDE TERRACE, SANTA CRUZ, CA 95060 and fully described as: SEE LEGAL DESCRIPTION ATTACHED APN # 602-351-13-006 TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, 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 COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to 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 nonuniform 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: i. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Ni te. Bortower shall also pay funds for Escrow items pursuant to Section 3. Paymients due under the Note and this Security Instrument shall be made in U.S. currency. However, if any check or other instrument received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Tnstrument be made in one or more of the following forms, as selected by Lender: (a) cash, (b) money order, (c) certified check, bank check, treasurer’s check or cashier’s check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity or (d) Electronic Funds Transfer. Additionally, Lender can require payment due to senior encumbrances, including insurance, in the forms listed above. Payments are deemed received by Lender waen received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section 14. Lender may retarn any payment(s) or partial payment(s) if the payment(s) or partial payments are insutficient to bring the Loan ourrent. Lender may accept any payment(s) or partial Page 2 of 16 2020-0035270 Page 3 of 17 payment(s) insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to ite rights to refuse such ayment(s) or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold such unapplied fimds until Borrower makes payment(s) to bring the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds er retarn them to Borrower, If not applied earlier, such funds will be plied to any amounts under the Note owed by Borrower. Lender shall decide how to apply funds, Should a Notice of Default be of record, finds may be applied and ihe Notice of Default shall remain valid. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2, Application of Payments or Proceeds, Except as otherwise described in this Section 2, all payments accepted and applied by Lender shall be applied in the following order of priority: First - interest due under the Note; Second - principal due under the Note; ‘Third - amounts due under Section 3. However, should advances be made under this Deed of Trost, Lender has sole discretion as to the distribution as to how payments shall be applied when received. Such payments shall be applied to cach Periodic Payment in the order in which it became duc. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance of the Note. If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if, and to the extent that, cach payment can be paid in full. To the extent that any excess exists after the payment is applied the full payment of one or more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall be applied first to any ‘epayment charges and then as described in the Note. Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments. 3. Funds for Escrow Hems. Should Lender require, borrower or his successor shall pay to Lender on the day Periodic Payments are due under the Note, until the Note is paid in fall, a sum (the “Funds”) to provide for payment of amounts due for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c} premiums for any and all insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the provisions of Section 9, These items ate called “Escrow Items.” At origination or at any time during the term of the L an, Lender may require that Community Association Dues, Fees and Assessments, if any, be escrowed by Borrower, and such dues, fe: and assessments shall be an Escrow Item. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this Section. Borrower shali pay Lender the Funds for Escrow Items unless Lender waives Borrower’: obligation to pay the Funds for any or all Escrow Items, Lender may waive Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the arnounts due for any E: row Items for which payment of Funds has been waived by Lender and, if Leader requires, shall furnish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Her, Lender may exercise its rights under Section 8 and pay such amount and Borrower shall then be obligated under Section 8 to repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given in accordance with Section 14 and, upon such revocation, Borrower shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. Lender may, at any time, collect and hold Funds in an amount (1) sufficient to permit Lender to apply the Funds at the time specified under RESPA and (2) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow items or otherwise in accordance with Applicable Law. ‘The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumemality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank, Lender shall apply the Funds to pay the Escrow ems no later than the time specified under RESPA. Lender shall not charge Borrower for holdiag and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law permits Lenderto make such a charge. Unless an agreement is made in writing or Applicable Law requites interestto be paid on the Funds, Lender shall not be required to pay Borrower any interest or eamings on the Funds. Borrower and Lender can agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds as required by RESPA. Page 3 of 16 2020-0035270 Page 4 of 17 Hf there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account te Borrower for the excess fands in accordance with RESPA, if there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the araoent necessary to make up the shortage in accordance with RESP, but in ne more than twelve monthly payments. Upon payment in full of all saxs secured by this Security instrament, Lender sball promptly refund to Borrower any Funds held by Lender. 4, Charges; Liens. Borrower shall perform all of Borrower's obligations under any mortgage, decd of trust or other security Bere nt with « Hien which has priority over this Deed of Trust inclading borrower's covenants te make payments when due. Additionally, borrower shall pay all taxes, assessments, charges, incheding garbage billin g8, fines, and impositions attributable to the Property which can atiain priority over this Security Instrument, leaschold payments or ground reats on the Property, if apy, and Commanity Association Chics, Pees and Assessments, if any. To the extent that these items are Escrow Rems, Borrower shall pay them in the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in. vetting to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Borrower is perfonming such agreement: (b} contests the Hen in good faith by, or defile against enforcement of the lien in, legal proceedings which in Lender’s opinion operate to prevent the cnfircemient of the Hien while those proceedings arc pending, but only untii such proceedings are conchided; or {c} secures from the holder of the len an agreement satisfactory i¢ Lender subordinating the Hen to this Security Instrament. If Lender determines that any part of the Property is subject to a Lien which oan attain priority over this Security Instrument, Lender may give Borrower a notice identillying the Hen. Within 10 days of the date on which that notice is given (exchuding Deed of Trust liens, which noed no notice), Borrower chall satisfy the Hen or take one or more of the actions set forth above in this Section 4. Lender may require Borrower te pay a one-time charge for a real estate tax verification and/or reporting service used by Lender in coonection with thie Loan, 8, Property nserance. Borrower shail keep the improvenients new oxisting or hereafter erected on the Property insured against loss ‘by fire, hazards included within the tenx “extended coverage,” and any other hazards including, but not linuted to, earthquakes and floods, # which Lender requires insurance. This insurance shall be maintained in the amounts Gnchiding deductible levels) and for the porlods that Londer requires. What Lender requires pursuant to the preceding sentences can change Guriag the term of the Loan. The issutance carrier providing the insurance ¢ be chosen by Borrower subject to Lender's right to disapprove Borrower's chaice, which. right shall net be exercised wnreasonal Lender may require Borrower to pay, in connection wiih this Loan, either: (1) a onetime charge for flood zone determination, certification and tracking services or (2) a one-time charge for flood zone determination and certification services and subsequent charges ouch time remappings or similar changes coour which reasonably might affect sach determination ov certification. Borrower ehall also be responsible for the payment of any feea imaposed by the Federal Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection by Harrower. Hf Horower fells to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option and Borrower's expense. Lendex is ander ne obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lander, but might or might aot protect Hormower, Borrower’s equity in the Property, or the contents of the Property, agains! any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowtedges that the cost of the insurance coverage so obtained might significantly exceed the cost of insarance thal Borrower could have obtained, Any amounts disbursed by Lender under this Sectio hall become additional debt of Borrower secured by this Security instrament. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment, All insurance policies required by Lender and renewals of such policies shall be eubject to Leader's right to disapprove such policies, shall inclade a standard mortgage clause, and shall name Londer as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to insurance procecds to the holder of the Note up to the amount of the catstanding Joan balance, Lender shall have the night to hold the policios and renewal cettifivaies. if Lender requires, Borrower shall promptly give te Lender all receipts of paid premiums and renewal notices, if Bormower obtains any form of insurance coverage, net otherwise xoquired by Lender, for damage to, or desteuction of the Property, auch policy shall include a standard morigage clause and shall name Lander as Taortgagee and/or as an additional iss payce and Borower farther agrees to generally assign rights io Insurance proceeds to the holder ofthe Note up te the emount of the outstanding loan balance. Bovower is te provide and deliver evidence of insurance to lender, which is to the satisfaction of Lender, in the event of loss, Homower shall give peompt noticc to the insurance cartier and Lender. Lender may make proof of loss if not made Page 4 of 16 2020-0035270 Page 5 of 17 promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applicd to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's 83 faction, provided that such inspection shall be undertaken promptly, Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed, Lintess an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be reg -d to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with th