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IN THE CIRCUJT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT OF FLORIDA IN AND FOR
LEE COUNTY
NERAL JURISDICTION DIVISION
CASE NO.
SUNTRUST BANK, 09 —-CA—057524
Plaintiff, Judge: Winesett, Sherra g x n
S of
vs. COMPLAINT 5 5S
PATRICK J. MCCARTHY; UNKNOWN Xn SA
SPOUSE OF PATRICK J. MCCARTHY; 3g
UNKNOWN TENANT #1; UNKNOWN 2 3n
TENANT #2, = Se
Defendants. > @ AZ
2 @ Ss
Plaintiff, SUNTRUST BANK, sues Defendants named in the caption hereof and alleges:
COUNT!
FORECLOSURE OF MORTGAGE
This is an action to foreclose a mortgage on real property in Lee County, Florida.
2. On September 25, 2006, PATRICK J. MCCARTHY, executed and delivered a
promissory note and a mortgage securing payment of same to MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. (MERS") ACTING SOLELY AS A NOMINEE FOR
SUNTRUST MORTGAGE, INC., which mortgage was recorded on October 4, 2006 in Official
Records Instrument #2006000380296 of the Public Records of Lee County, Florida, and which
mortgaged the property described therein, then owned by and in possession of said mortgagor,
1.
copies of said mortgage being attached hereto.
Plaintiff owns and holds said note and mortgage
Said property is now owned by Defendant, PATRICK J. MCCARTHY.
3.
There has been a default under the note and mortgage held by Plaintiff in that the
4.
5.
payment due November 1, 2008, and all subsequent payments have not been made.
6. Plaintiff declares the full amount due under said note and mortgage to be now due.
There is now due, owing and unpaid to Plaintiff herein FIVE HUNDRED FIFTY-
7.
EIGHT THOUSAND ONE HUNDRED SIXTEEN AND 27/100 ($558,116.27) in principal of said
note and mortgage, interest as provided therein from October 1, 2008 and title search expense for
ascertaining necessary parties to this suit.
8. The mortgage being foreclosed is a purchase money mortgage and is superior to
the prior recorded interests of those defendants named herein. Schilling v. Bank of Sulphur
Springs, 147 So. 218 (Fla. 1933); Sarmiento v. Stockton, Whatley, Davin & Co., 399 So. 2d 1057
Our file 65739 | 0145601134-FRF | jri | N:\docs\fel\Comp-2ct.doc | Page 1 of 14(Fla. 3d DCA 1981).
9. Plaintiff has obligated itself to pay the undersigned attorney a reasonable fee for
his services herein. Both the note and the mortgage provide for an award of attorney's fees
incurred by Plaintiff for enforcement thereof in the event of a default by the borrower.
10. All conditions precedent to the filing of this action have been performed or have
occurred.
11. Unknown tenant #1 may claim an interest in the property being foreclosed by
virtue of his or her occupancy of the property. Any such interest is subordinate and inferior to
the lien of the mortgage being foreclosed herein.
12. Unknown tenant #2 may claim an interest in the property being foreclosed by
virtue of his or her occupancy of the property. Any such interest is subordinate and inferior to
the lien of the mortgage being foreclosed herein.
13. As spouse of the property owner, Unknown Spouse of PATRICK J. MCCARTHY
may claim an interest in the property being foreclosed. Any such interest is subordinate and
inferior to the lien of the mortgage being foreclosed herein.
WHEREFORE, Plaintiff demands judgment foreclosing the mortgage and such other
relief as is just and proper in the premises, including the entry of a deficiency judgment, if
appropriate.
COUNT II
REESTABLISHMENT OF PROMISSORY NOTE
14. This is an action to reestablish a Promissory Note pursuant to Section 71.011 and
673.3091, Florida Statutes.
15. On September 25, 2006 at Lee County, Florida, a Promissory Note and Mortgage
were executed and delivered by PATRICK J. MCCARTHY, in favor of MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS") ACTING SOLELY AS A NOMINEE
FOR SUNTRUST MORTGAGE, INC. in the principal amount of $568,000.00.
16. The subject Promissory Note has been lost or destroyed and is not in the custody
or control of the Plaintiff who is the owner and holder of the subject Note and Mortgage and its
whereabouts cannot be determined. Plaintiff neither has any knowledge as to when the subject
Promissory Note was lost or destroyed, nor as to the manner of loss or destruction.
17. Plaintiff knows of no parties other than those named in this Complaint who are
interested for or against reestablishment of the subject Note.
18. Plaintiff or its predecessor(s) was in possession of the Promissory Note and was
entitled to enforce it when the loss of possession occurred.
19. The loss of possession was not the result of a transfer or a lawful seizure.
Plaintiff cannot reasonably obtain possession of the instrument because the instrument was
Our file 65739 | 0145601134-FRF | jri | N:\docs\fcl\Comp-2ct.doc | Page 2 of 14destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an
unknown person or a person that cannot be found or is not amenable to service of process.
WHEREFORE, Plaintiff prays this Court reestablish said lost instrument so that the copy
filed herein will have the effect of the original document. Plaintiff further prays that the Court will
grant such other relief as may be just and equitable in the circumstances.
Ben-Ezra & Katz, P.A.
Attorneys for Plaintiff
2901 Stirling Road, Suite 300
Fort Lauderdale, Florida 33312
Ey We
Qo Salina Boytchev
Fla. Bar No. 47008
CURTIS C. TURNER, Jr.
FL BAR NO. 0051646
Notice Required by the Fair Debt Collection Practices Act
Unless you dispute the validity of this debt or any portion thereof within 30 days after
receipt of this notice, the debt will be assumed to be valid. If you notify this office within the 30
day period that the debt or any portion thereof is disputed, we will obtain verification of the debt
and a copy of the verification will be mailed to you. (We will suspend our collection efforts until we
have provided this information to you.) Upon your written request within the 30 day period we will
provide you with the name and address of the original creditor, if different from the current
creditor.
This is an attempt to collect a debt and any information obtained will be used for
that purpose.
Our file 65739 | 0145601134-FRF | jri | N:\docs\fcWComp-2ct.doc | Page 3 of 14
aoaINSTR # 2006000380296, Doc Type MTG, Pages 15, Recorded 10/04/2006 at 09:07 AM,
Charlie Green, Lee County Clerk of Circuit Court, Mtg Doc: $1988.00 Int. Tax
$1136.00 Rec. Fee $129.00 Deputy Clerk BPERRY
we Prepared by or under the supervision of:
“ ‘ {Name of Natural Person]
{Street Address}
{(City, State Zip Code}
After recording please return to:
SUNTRUST MORTGAGE, INC.
[Company Name]
RVW 5093
{Name of Natural Person]
1001 SEMMES AVENUE
[Street Address}
RICHMOND, VIRGINIA 23224
(City, State Zip Code]
[Space Above This Line For Recording Data]
MORTGAGE
Loan No.: 0145601134
MIN: 100010401456011341
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 11,
13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16.
(A) “Security Instrument” means this document, which is dated September 25, 2006, together with all Riders
to this document.
() = “Borrower” is PATRICK J MCCARTHY, UNMARRIED Borrower is the mortgagor under this
Security Instrument.
© “MERS?” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting
solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security
Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone
number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.
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@) “Lender” is SUNTRUST MORTGAGE, INC.. Lender is a corporation organized and existing under
the laws of THE COMMONWEALTH OF VIRGINIA. Lender’s address is 901 SEMMES AVENUE,
RICHMOND, VA 23224.
() “Note” means the promissory note signed by Borrower and dated September 25, 2006. The Note states
that Borrower owes Lender Five Hundred Sixty Eight Thousand and 00/100ths Dollars (U.S. $568,000.00) plus
interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later
than October 1, 2036.
(F) “Property” means the property that is described below under the heading “Transfer of Rights in the
Property.”
© “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.
(B) “Riders” means all Riders to this Security Instrument that are executed by Borrower. The following
Riders are to be executed by Borrower [check box as applicable]:
O Adjustable Rate Rider Condominium Rider O Second Home Rider
O) Balloon Rider © Planned Unit Development Rider [ Biweekly Payment Rider
O 1-4 Family Rider C1 Revocable Trust Rider
O Other(s) (specify)
“Applicable Law” means all controlling applicable federal, state and local statutes, regulations, ordinances
and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable
judicial opinions.
WO “Community Association Dues, Fees, and Assessments” means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners association or
similar organization.
(K) “Electronic Funds Transfer” means any transfer of funds, other than a transaction originated by check,
draft, or similar paper instrument, which is initiated through an electronic 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.
qd) “Escrow Items” means those items that are described in Section 3.
™) “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; (ji) condemnation or other taking of all or any part of the Property; (iii) conveyance
in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property.
(N) “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, or default on, the
Loan.
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(0) “Periodic Payment” means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument.
(P) “RESPA” means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its
implementing regulation, Regulation X (24 C.F.R. 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 Security
Instrument, “RESPA” refers to all requirements and restrictions that are imposed in regard to a “federally related
mortgage loan” even if the Loan does not qualify as a “federally related mortgage loan” under RESPA.
(Q _— “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 Instrument.
COUNTY of LEE
{Type of Recording Jurisdiction}, [Name of Recording Jurisdiction}
which has a legal description of:
SEE ATTACHED SCHEDULE A
which currently has the address of 3041 SHELL MOUND BLVD
(Street)
FORT MYERS BEACH, Florida 33931 (“Property Address”):
{City} [Zip Code}
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 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
and canceling this Security Instrument.
BORROWER COVENANTS that Borrower is lawfully seized 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, 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 Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3.
Payments 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 Instrument be
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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.
Payments are deemed received by Lender when 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 15. Lender may
return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current,
Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any
rights hereunder or prejudice to its rights to refuse such payment 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
funds until Borrower makes payment to bring the Loan current. If Borrower does not do so within a reasonable
period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds
will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. 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: (a) interest due under the Note;
(b) principal due under the Note; (c) amounts due under Section 3, Such payments shall be applied to each Periodic
Payment in the order in which it became due. 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, each payment can be paid in full. To the extent that
any excess exists after the payment is applied to 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 prepayment 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 Items. Borrower shall pay to Lender on the day Periodic Payments are due under
the Note, until the Note is paid in full, 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 10. These items are called “Escrow Items.” At origination or at any time during the term of the Loan,
Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower,
and such dues, fees and assessments shall be an Escrow Item, Borrower shall promptly furnish to Lender all notices
of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender
waives Borrower's 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 amounts due for any Escrow
Items for which payment of Funds has been waived by Lender and, if Lender 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, as the phrase “covenant and agreement” is used in Section 9. If Borrower is obligated to
pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Item,
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Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be obligated under
Section 9 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 15 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 (a) sufficient to permit Lender to apply the
Funds at the time specified under RESPA, and (b) 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, instrumentality, 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 Items no later than the time specified under RESPA. Lender
shall not charge Borrower for holding 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 Lender to make
such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Funds,
Lender shall not be required to pay Borrower any interest or earnings 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,
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower for
the excess funds 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 amount
necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there is
a deficiency of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA,
and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA, but in
no more than 12 monthly payments.
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to
Borrower any Funds held by Lender,
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instrument, leasehold payments or ground
rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that
these items are Escrow Items, 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 writing to the payment of the obligation secured by the lien in a manner acceptable to
Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends
against enforcement of the lien in, legal proceedings which in Lender’s opinion operate to prevent the enforcement
of the lien while those proceedings are pending, but only until such proceedings are concluded; 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 of the Property is subject to a lien which can attain priority over this Security
Instrument, Lender may give Borrower a notice identifying the lien, Within 10 days of the date on which that notice
is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting
service used by Lender in connection with this Loan.
5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the
Property insured against loss by fire, hazards included within the term “extended coverage,” and any other hazards
including, but not limited to, earthquakes and floods, for which Lender requires insurance, This insurance shall be
maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender
requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier
providing the insurance shall be chosen by Borrower subject to Lender’s right to disapprove Borrower’s choice,
which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this Loan,
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either: (a) a one-time charge for flood zone determination, certification and tracking services; or (b) a one-time
charge for flood zone determination and certification services and subsequent charges each time remappings or
similar changes occur which reasonably might affect such determination or certification, Borrower shall also be
responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with
the review of any flood zone determination resulting from an objection by Borrower.
If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage,
at Lender’s option and Borrower’s expense. Lender is under no obligation to purchase any particular type or amount
of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower’s
equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater
or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so
obtained might significantly exceed the cost of insurance that Borrower could have obtained, Any amounts
disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security
Instrument. 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 subject to Lender’s right to
disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as an
additional loss payee. Lender shall have the right to hold the policies and renewal certificates. If Lender requires,
Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. If Borrower obtains any
form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Property, such
policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional loss
payee.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may
make proof of loss if not made 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 applied 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 Tight 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 satisfaction,
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. Unless an agreement is
made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be
required 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 the excess, if any,
paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section 2.
If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim and
related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance carrier has
offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin when the
notice is given. In either event, or if Lender acquires the Property under Section 22 or otherwise, Borrower hereby
assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount not to exceed the amounts unpaid
under the Note or this Security Instrument, and (b) any other of Borrower’s rights (other than the right to any refund
of uneamed premiums paid by Borrower) under all insurance policies covering the Property, insofar as such rights
are applicable to the coverage of the Property. Lender may use the insurance proceeds either to repair or restore the
Property or to pay amounts unpaid under the Note or this Security Instrument, whether or not then due.
6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower’s principal residence
within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as
Borrower’s principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in
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writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are
beyond Borrower’s control.
7. Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not
destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property, Whether
or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the Property
from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that
tepair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid
further deterioration or damage. If insurance or condemnation proceeds are paid in connection with damage to, or
the taking of, the Property, Borrower shall be responsible for repairing or restoring the Property only if Lender has
released proceeds for such purposes. 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. If the insurance or condemnation proceeds
are not sufficient to repair or restore the Property, Borrower is not relieved of Borrower's obligation for the
completion of such repair or restoration.
Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable
cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at
the time of or prior to such an interior inspection specifying such reasonable cause.
8. Borrower’s Loan Application. Borrower shall be in default if, during the Loan application process,
Borrower or any persons or entities acting at the direction of Borrower or with Borrower’s knowledge or consent
gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide Lender
with material information) in connection with the Loan. Material representations include, but are not limited to,
representations concerning Borrower’s occupancy of the Property as Borrower’s principal residence.
9. Protection of Lender’s Interest in the Property and Rights Under this Security Instrument. If
(a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there is a legal
proceeding that might significantly affect Lender’s interest in the Property and/or rights under this Security
Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has
abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s
interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of
the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to:
(a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in court; and
(c) paying reasonable attorneys’ fees to protect its interest in the Property and/or rights under this Security
Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not
limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water
from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off.
Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or
obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this
Section 9.
Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured
by this Security Instrument. 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.
Tf this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If
Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the
merger in writing.
10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan,
Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If, for any reason, the
Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that previously
provided such insurance and Borrower was required to miake separately designated payments toward the premiums
for Mortgage Insurance, Borrower shall pay the premiums required to obtain coverage substantially equivalent to the
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Mortgage Insurance previously in effect, at a cost substantially equivalent to the cost to Borrower of the Mortgage
Insurance previously in effect, from an alternate mortgage insurer selected by Lender. If substantially equivalent
Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lender the amount of the separately
designated payments that were due when the insurance coverage ceased to be in effect. Lender will accept, use and
retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance. Such loss reserve shall be
non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and Lender shall not be required to
pay Borrower any interest or earnings on such loss reserve. Lender can no longer require loss reserve payments if
Mortgage Insurance coverage (in the amount and for the period that Lender requires) provided by an insurer selected
by Lender again becomes available, is obtained, and Lender requires separately designated payments toward the
premiums for Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan and
Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance,
Borrower shall pay the premiums required to maintain Mortgage Insurance in effect, or to provide a non-refundable
Joss reserve, until Lender’s requirement for Mortgage Insurance ends in accordance with any written agreement
between Borrower and Lender providing for such termination or until termination is required by Applicable Law.
Nothing in this Section 10 affects Borrower’s obligation to pay interest at the rate provided in the Note.
Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for certain losses it may
incur if Borrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage Insurance.
Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may enter
into agreements with other parties that share or modify their risk, or reduce losses. These agreements are on terms
and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to these agreements.
These agreements may require the mortgage insurer to make payments using any source of funds that the mortgage
insurer may have available (which may include funds obtained from Mortgage Insurance premiums).
As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any other
entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that derive from (or
might be characterized as) a portion of Borrower’s payments for Mortgage Insurance, in exchange for sharing or
modifying the mortgage insurer’s risk, or reducing losses. If such agreement provides that an affiliate of Lender
takes a share of the insurer’s risk in exchange for a share of the premiums paid to the insurer, the arrangement is
often termed “captive reinsurance.” Further:
(a) Any such agreements will not affect the amounts that Borrower has agreed to pay for Mortgage
Insurance, or any other terms of the Loan, Such agreements will not increase the amount Borrower will owe
for Mortgage Insurance, and they will not entitle Borrower to any refund.
(b) Any such agreements will not affect the rights Borrower has — if any - with respect to the
Mortgage Insurance under the Homeowners Protection Act of 1998 or any other law. These rights may
include the right to receive certain disclosures, to request and obtain cancellation of the Mortgage Insurance,
to have the Mortgage Insurance terminated automatically, and/or to receive a refund of any Mortgage
Insurance premiums that were unearned at the time of such cancellation or termination.
11, Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby
assigned to and shall be paid to Lender.
If the Property is damaged, such Miscellaneous Proceeds shall be applied 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 Miscellaneous Proceeds until Lender has had
an opportunity to inspect such Property to ensure the work has been completed to Lender’s satisfaction, provided
that such inspection shall be undertaken promptly. Lender may pay for the repairs and restoration in a single
disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in writing
or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be required to pay
Borrower any interest or earnings on such Miscellaneous Proceeds. If the restoration or repair is not economically
feasible or Lender’s security would be lessened, the Miscellaneous Proceeds shall be applied to the sums secured by
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this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such Miscellaneous
Proceeds shall be applied in the order provided for in Section 2.
In the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous Proceeds shall
be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to
Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of
the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the amount
of the sums secured by this Security Instrument immediately before the partial taking, destruction, or loss in value,
unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument shall be
reduced by the amount of the Miscellaneous Proceeds multiplied by the following fraction: (a) the total amount of
the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) the fair market
value of the Property immediately before the partial taking, destruction, or loss in value. Any balance shall be paid
to Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of
the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the sums
secured immediately before the partial taking, destruction, or loss in value, unless Borrower and Lender otherwise
agree in writing, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument
whether or not the sums are then due.
If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the Opposing Party
(as defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to respond to
Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the Miscellaneous
Proceeds either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or
not then due. “Opposing Party” means the third party that owes Borrower Miscellaneous Proceeds or the party
against whom Borrower has a right of action in regard to Miscellaneous Proceeds.
Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in
Lender’s judgment, could result in forfeiture of the Property or other material impairment of Lender’s interest in the
Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has
occurred, reinstate as provided in Section 19, by causing the action or proceeding to be dismissed with a ruling that,
in Lender’s judgment, precludes forfeiture of the Property or other material impairment of Lender’s interest in the
Property or rights under this Security Instrument, The proceeds of any award or claim for damages that are
attributable to the impairment of Lender’s interest in the Property are hereby assigned and shall be paid to Lender.
All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in
the order provided for in Section 2.
12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment
or modification of amortization of the sums secured by this Security Instrument granted by Lender to Borrower or
any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in
Interest of Borrower. Lender shall not be required to commence proceedings against any Successor in Interest of
Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this
Security Instrument by reason of any demand made by the original Borrower or any Successors in Interest of
Borrower, Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender's
acceptance of payments from third persons, entities or Successors in Interest of Borrower or in amounts less than the
amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.
13, Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants and
agrees that Borrower’s obligations and liability shall be joint and several. However, any Borrower who co-signs this
Security Instrument but does not execute the Note (a “co-signer”): (a) is co-signing this Security Instrument only to
mortgage, grant and convey the co-signer’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
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other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this
Security Instrument or the Note without the co-signer’s consent.
Subject to the provisions of Section 18, any Successor in Interest of Borrower who assumes Borrower’s
obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower’s
rights and benefits under this Security Instrument. Borrower shall not be released from Borrower’s obligations and
liability under this Security Instrument unless Lender agrees to such release in writing. The covenants and
agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and
assigns of Lender.
14. Loan Charges. Lender may charge Borrower fees for services performed in connection with
Borrower's default, for the purpose of protecting Lender’s interest in the Property and rights under this Security
Instrument, including, but not limited to, attorneys’ fees, property inspection and valuation fees. In regard to any
other fees, the absence of express authority in this Security Instrument to charge a specific fee to Borrower shall not
be construed as a prohibition on the charging of such fee. Lender may not charge fees that are expressly prohibited
by this Security Instrument or by Applicable Law.
If the Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted so that
the interest or other loan charges collected or to be collected in connection with the Loan exceed the permitted
limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted
limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to
Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a
direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment
without any prepayment charge (whether or not a prepayment charge is provided for under the Note). Borrower's
acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right of action
Borrower might have arising out of such overcharge.
15, Notices, All notices given by Borrower or Lender in connection with this Security Instrument must be
in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given
to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other
means, Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly
requires otherwise. The notice address shall be the Property Address unless Borrower has designated a substitute
notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of address. If
Lender specifies a procedure for reporting Borrower's change of address, then Borrower shall only report a change
of address through that specified procedure. There may be only one designated notice address under this Security
Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing it by first class mail
to Lender’s address stated herein unless Lender has designated, another address by notice to Borrower. Any notice in
connection with thi