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  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
  • HOUSING GROUP FUND 401K PENSION PLAN vs FAVELA, MARTYBreach of Contract/Warranty: Unlimited  document preview
						
                                

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DOMINIC V. SIGNOROTTI, SBN 267712 Electronically Filed dominic@mckennabrink.com 9/22/2020 10:28 PM TANNER D. BRINK, SBN 244791 Superior Court of California tanner@mckennabrink.com County of Stanislaus RYAN W. LOCKHART, SBN 271457 ryan@mckennabrink.com Clerk of the Court MCKENNA | BRINK | SIGNOROTTI LLP By: J oshua Teixeira, Deputy 1981 N. Broadway, Ste. 255 $435 PAID Walnut Creek, California 94596 Telephone: 925 433-5448 Facsimile: 844 230-2856 Attorneys for Plaintiff HOUSING GROUP FUND 401K PENSION PLAN. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF STANISLAUS 10 11 HOUSING GROUP FUND 401K PENSION Case No, CV-20-004100 z< 20 12 PLAN, G Ee COMPLAINT FOR: 28 ce £6 13 Plaintiff, 25 (1) BREACH OF CONTRACT cs Ez 14 Vv, az (2) MONEY LENT 15 MARTY FAVELA, LAURA M. FAVELA, and DOES 1-25, inclusive, (3) MONEY HAD AND RECEIVED 16 Defendants. (4) DECLARATORY RELIEF 17 18 COMES NOW, Plaintiff HOUSING GROUP FUND 401K PENSION PLAN(“Plaintiff’), 19 and alleges against Defendants MARTY FAVELA, LAURA M. FAVELA (“Defendants”) and 20 DOES 1-25, inclusive as follows: 21 GENERAL ALLEGATIONS 22 1 Plaintiff is a limited liability company duly organized and existing under and by 23 virtue of the laws of the State of California with its principal place of business in Orange County, 24 California. Pursuant to Civil Code Section 1788.58, Plaintiff may be a “debt buyer”. 25 2. Plaintiff is informed and believes, and based thereon alleges, that Defendants 26 MARTY FAVELA and LAURA M. FAVELA are individuals who own and live at 3401 Claremont 27 Ave., Modesto, Stanislaus County, California. 28 This case nas been assigned to Judge Sandhu, Sonny S -1- 2epSPt 2 for all purposes Including Trial COMPLAINT 3 Plaintiff is ignorant of the true names and capacities of DOES 1-25 and therefore sues these Defendants by such fictitious names. Plaintiff will amend this Complaint to allege the Does’ true names and capacities when the same are ascertained. Plaintiffis informed and believes, and based thereon alleges, that Defendants, and each of them, are responsible in some manner for the acts and/or omissions alleged herein and that Plaintiff's damages alleged herein were directly and proximately caused by Defendants, and each of them. 4 Venue is proper in this County as Defendants currently reside in Stanislaus County. SPECIFIC ALLEGATIONS 5 Plaintiff is informed and believes, and based thereon alleges, that Defendants are 10 the former owners of 1904 Bridgewood Way, Modesto, CA 95335 (the “Property”). 11 6 Plaintiff is informed and believes, and based thereon alleges, that on or about z< 20 12 October 3, 2006, Defendants opened a home equity line of credit in the maximum amount of G Ee 28 ce £6 13 $114,000.00 with National City Bank (the “HELOC” or “Loan”). The Loan was memorialized by 25 cs Ez 14 an Equity Reserve Agreement (the “Note”), a true and correct copy of which is attached hereto as az 15 Exhibit “A”. The Loan was secured by a Deed of Trust recorded in the Official Records of 16 Stanislaus County as Document No. 2006-0152884 on October 17, 2006 (the “Deed of Trust”). A 17 true and correct copy of the Deed of Trust is attached hereto as Exhibit “B”. These agreements 18 are attached in compliance with Civil Code section 1788.58. Pursuant to Civil Code Section 19 1788.58, the nature of the underlying debt is a home equity line of credit and this was a consumer 20 transaction. 21 7 Plaintiff is informed and believes, and based thereon alleges, that at the time the 22 Loan was made there was a senior lien secured against the Property, by way ofa Deed of Trust, in 23 favor of National City Mortgage, in the amount of $305,000 (the “Senior Loan”) and recorded in 24 Stanislaus County as Document No. 2005-0134242 (the “Senior DOT”). 25 8 Plaintiff is informed and believes, and based thereon alleges, that National City 26 Mortgage foreclosed under the Senior DOT and Federal Home Loan Mortgage Corporation took 27 title to the Property via a Trustee’s Deed Upon Sale recorded in the Official Records of Stanislaus 28 County as Document No. 2010-0044821 on May 21, 2010. Asa result of the foreclosure, the Deed -2- COMPLAINT of Trust was a “sold out junior.” The payment obligations owed under the HELOC, as memorialized by the Note, were not paid. 9. Plaintiff is informed and believes, and based thereon alleges, that the Note and Deed of Trust were not accelerated at the time of the foreclosure sale under the Senior DOT. Rather, the Note was accelerated (and all sums declared due by Plaintiff) on August 24, 2020. A true and correct copy of the Acceleration letter is attached hereto as Exhibit “C”. 10. Plaintiff is informed and believes, and based thereon alleges, that the Note was assigned by National City Bank to PNC Bank N.A. by reason of merger; then from PNC Bank N.A. to South Coast Credit Services, LLC; then from South Coast Credit Services to RCS Recovery 10 Services, LLC, and then from RCS Recovery Services LLC to Plaintiff. True and correct copies 11 of available Allonges are attached hereto as Exhibit “D”. As a result, Plaintiff has the right to all z< 20 12 obligations owed under the Note. Plaintiff is the sole owner of the debt. Plaintiff is informed and G Ee 28 ce £6 13 believes National City Bank originated the subject note, and that PNC Bank was a successor by 25 cs Ez 14 merger, and was the charge off creditor. Plaintiff is informed and believes that the address for az 15 South Coast Credit Services, LLC is 17 Longshore, Irvine, CA 92660. Plaintiff is informed and 16 believes that the corporate headquarters of PNC Bank are located at 222 Delaware Avenue, 17 Wilmington, Delaware 19899. Plaintiffis informed and believes that the address for RCS Recovery 18 Services, LLC is 600 Fairway Drive, #108, Deerfield, FL 33441. 19 lL. Plaintiff is informed and believes, and based thereon alleges, that Defendants failed 20 to make the payment that became due on or about November 1, 2009 or any payment thereafter. 21 Following the transfer of title to the Property as a result of the foreclosure of the Senior DOT and 22 the acceleration of the Note as alleged above, Defendants failed to pay the accelerated balance. 23 There is now due, payable and delinquent on the Note, the amount of $154,700. 24 12. Plaintiff is informed and believes, and based thereon alleges, that the total 25 outstanding balance owed by Defendants under the Note, as of September 24, 2020, is $154,700, 26 an amount which includes accrued interest and fees. Plaintiff is informed and believes that the debt 27 charge off as of April 30, 2010 calculated as 6 months after Defendants’ last payment was 28 $114,360.80. Defendants’ last payment date is believed to have been October 31, 2009. Interest -3- COMPLAINT and late fees are calculated at a daily rate of $9.26 per day, plus a late fee of $40. Unpaid balance at the time of last payment was $112,694. Additionally, Plaintiff has incurred attorney’s fees and costs. Except where otherwise excused by Defendants’ conduct, Plaintiff has performed, and is informed and believes that its predecessors in interest have performed, all conditions and promises required to be performed on its part by the terms of the Note and Deed of Trust including all conditions precedent to its right to enforce Defendants’ duty of performance. In this regard, Plaintiff has complied with all of its obligations under California Civil Code § 1788.52 to the extent applicable. FIRST CAUSE OF ACTION (Breach of Contract) 10 (Against All Defendants) 11 13. Plaintiff realleges and incorporates as though fully set forth herein Paragraphs 1 9 ° z< 20 12 through 12, inclusive, of this Complaint. G Ee 28 ce £6 13 14. Plaintiffs predecessor and Defendants entered into a contract, whereby Plaintiff's 25 cs Ez 14 predecessor lent Defendants money. This contract was memorialized by the Note. az 15 15. Plaintiff is informed and believes, and based thereon alleges, that Plaintiff 16 completed all of its obligations under the Note. 17 16. Plaintiff is informed and believes, and based thereon alleges, that the Note is an 18 enforceable written contract that exists between Plaintiff and Defendants. 19 17. Plaintiff is informed and believes, and based thereon alleges, that Defendants 20 materially breached the Note by failing to pay the amounts owed thereunder. 21 18. Plaintiff is informed and believes, and based thereon alleges, that as a result of 22 Defendants’ breach of the Note, Plaintiff has been damaged in an amount not less than $154,700 23 as of September 24, 2020. 24 SECOND CAUSE OF ACTION (Money Lent) 25 (Against All Defendants) 26 19. Plaintiff realleges and incorporates as though fully set forth herein Paragraphs 1 27 through 18, inclusive, of this Complaint. 28 20. Defendants and Does 1-25 became indebted to Plaintiff in the principal amount of -4- COMPLAINT $112,694, representing money lent by Plaintiff's predecessor in interest to Defendants and Does 1- 25. 21. This sum has not been paid although demand therefore has been made, and there is now due and owing, and unpaid, the sum of $154,700 including interest and late charges, plus attorney’s fees and costs to be determined. Interest continues to run and accrue at the legal rate. THIRD CAUSE OF ACTION (Money Had and Received) (Against All Defendants) 22. Plaintiff realleges and incorporates as though fully set forth herein Paragraphs 1 through 21, inclusive, of this Complaint. 10 23. As of September 24, 2020, there is due, owing and payable to Plaintiff from 11 Defendants and Does 1-25, the principal sum of $112,694, plus interest at the legal rate, for money 9 ° z< 20 12 had and received by Defendants and Does 1-25 for their use and benefit. G Ee 28 ce £6 13 24. No part of this sum has been paid, and it is now due and owing. 25 cs Ez 14 FOURTH CAUSE OF ACTION az (Declaratory Relief) 15 (Against All Defendants) 16 25. Plaintiff realleges and incorporates as though fully set forth herein Paragraphs 1 17 through 24, inclusive, of this Complaint. 18 26. Defendants are in monetary default under the terms of the Note, as set forth in detail 19 above. 20 27. As a result of Defendants’ default, Plaintiff has been damaged in the amount of 21 $154,700, comprised of principal of $112,694, plus interest in the amount of $36,846 and late fees 22 in the amount of $5,160, due under the Note, exclusive of attorney’s fees incurred to date, and in a 23 final amount to be determined at the time of trial on this matter, including remaining monthly 24 payments, interest, late charges, and attorney’s fees incurred in collecting on the Note. Plaintiff 25 contends that, to the extent not already barred by the statute of limitations, it is entitled to collect 26 interest during the period that the Loan was charged off. In the alternative, Plaintiff contends that 27 it is entitled to recover pre-judgment interest at the contractual rate on the principal amount pursuant 28 to Civil Code §3289 through the date of the judgment, subject to any applicable statute of -5- COMPLAINT limitations. 28. Plaintiff is informed and believes and thereon alleges that the Defendants dispute the foregoing contentions, and as such, an actual controversy has arisen and now exists between Plaintiff and Defendants’ concerning their respective rights and duties under the Note, including as to the proper amount of interest and principal owed. A judicial declaration is thus necessary and appropriate at this time under the circumstances in order that Plaintiff and the Defendants may ascertain their rights and duties in the Note and the interest liability under the Note. 29. Plaintiff desires a judicial determination of the parties’ respective rights and duties, and a declaration that Defendants and Does 1-25 are in monetary default under the terms of the 10 Note, as well as a determination of the proper amount of their principal and interest liability under 11 the Note. 9 ° z< 12 PRAYER FOR RELIEF 20 G Ee 28 ce £6 13 WHEREFORE, Plaintiff prays for judgment against Defendant and DOES 1-25 on each 25 cs Ez 14 cause of action hereinabove alleged as follows: az 15 First Cause of Action — Breach of Contract 1 For Judgment in favor of Plaintiff in the amount of $154,700, comprised of 16 principal of $112,694, and pre-judgment interest at the contract rate plus late fees or, if the Court 17 determines that Plaintiff is entitled to collect interest and late fees fora longer period of time 18 and during the charge off period, another amount to be determined, all due under the Note. 19 2. For post judgment interest at the legal rate. 20 3 For attorneys’ fees incurred in prosecuting this action and other costs and fees 21 incurred in collecting the amounts due under the Note, all in an amount to be proven at the time 22 of trial. 23 Second Cause of Action — Money Lent 24 For Judgment in favor of Plaintiff in the amount of $154,700. 25 For interest at the legal rate from November 1, 2009. 26 Third Cause of Action — Money Had and Received 27 For Judgment in favor of Plaintiff in the amount of $112,694: 28 -6- COMPLAINT For interest at the legal rate from November 1, 2009. Fourth Cause of Action — Declaratory Relief For a judicial declaration that Defendants are in breach under the terms of the Note. 9. For a judicial declaration that Plaintiff has been damaged in the principal amount of $112,694. 10. For a judicial declaration that Plaintiff is entitled to recover pre-judgment interest even during a charge off period on the principal amount pursuant to Civil Code § 3289, subject to any applicable statute of limitations. 10 lL. For a judicial declaration as to whether Plaintiff if is entitled to recover pre- 11 judgment interest, late charges and other amounts payable under the Note. 9 ° z< 20 12 12. For a judicial declaration that Plaintiff is entitled to recover post-judgment interest G Ee 28 ce £6 13 at the legal rate or at a rate specified under the Note, and in a final amount to be determined at the 25 cs Ez 14 az time of trial. 15 All Causes of Action 16 13. For costs of the suit. 17 14. For such relief as the Court may deem proper. 18 15. For interest at the legal rate from the time of judgment. 19 20 Dated: September 22, 2020 MCKENNA | BRINK | SIGNOROTTI LLP = 21 /, Ul aS 22 By Dominic V. Signorotti 23 Tanner D. Brink Attorneys for Plaintiff HOUSING GROUP FUND 24 401K PENSION PLAN 25 4820-8034-8108, v. 1 26 27 28 -7- COMPLAINT EXHIBIT "A" FORM OF LOST NOTE AFFIDAVIT The undersigned, being duly sworn, does hereby state under oath that: @) The undersigned is the Assistant Vice President (title) of PNC N.A., successor by merger to National City Bank (the “Seller”). Gi) Seller is the lawful owner of amounts payable under the following described note or credit agreement (the “Note”): Date: 10/3/2006 Loan No.:44896 18289004377 PNC ID #: 1001 Borrower(s): MARTY FAVELA and LAURA FAVELA Original Principal Amount or Credit Limit: $ 114000.00 (ii) Seller is the lawful owner of the Note. Gv) The original Note was not located after a thorough and diligent search. (v) Attached hereto is a true and correct copy of the Note, endorsed, on an allonge, “Pay to the order of. without recourse”. (vi) This Affidavit is intended to be relied on by EXECUTED THIS 28th day of May, 2013. Signed: L. dou 1, \Lowo. Eileen M. Kovach, Assistant Vice President ACKNOWLEDGMENT STATE OF OHIO ) Ss: COUNTY OF CUYAHOGA ) The foregoing instrument was acknowledged before me this 28th day of May, 2013, by Eileen M. Kovach, Assistant Vice President of PNC Bank, National Association, a national banking association, on behalf of PNC Bank, National Association. Ne lic My Commission Expires: bale Kelly Vrzic, Notary Public ee: See Residence - Cuyahoga State Wide Jurisdiction, Ohio = My Commission Expires 11/27/2017 are | Rony Date: EQUITY RESERVE™ AGREEMENT 10/03/2006 ATIONAL HOME EQUITY (Not to be Used for Lines Secured by a Texas Homestead) Account No. 0004897498 "You, the undersigned, are opening an Equity Reserve Line of Credit (Line) with National City Bank (Bank) and agree that the following material terms and conditions will apply to your Line. Line of Credit. Your Line is an open-end line of credit which you may use to obtain cash advances (Advances) from time to time for a period of 10 years (9 years 10 months in Connecticut) (Draw Period). If you conti ¢ to meet Bank’s then current credit and collateral value criteria, at Bank’s discretion, Bank will either extend the Draw Period for one or more additional Draw Periods or Bank may refinance your Line on the terms then being offered by Bank for Equity Reserve Lines of Credit. If your Draw Period is not renewed or the Line refinanced, you may repay any outstanding balances during the Repayment Period as provided in the Payment section below. The initial amount of your Line is $ 114,000.00 (Credit Line). You have the option anytime during the Draw Period of this Agreement to create Fixed Rate Locks of all or part of your Line at a fixed rate and for a fixed payment. The Fixed Rate Lock (FRL) balance includes the FRL advance fee. Any amount you repay on the Line and/or on an FRL will be again available to you on the Line until the end of the Draw Period. Bank may reduce the amount of your Credit Line under certain conditions described in this Agreement. Advances. You may obtain Advances under your Line by issuing Equity Reserve checks and special FRL checks (each a Check) supplied by Bank, by contacting Customer Service or by way of any other Bank approved plan, Bank will charge your Checks directly against your Line. You may make arrangements for an Advance on your Line to pay off any FRL at any time by contacting Customer Service at the address or phone number on your statement. You should notify Bank when you need more Checks. The minimum FRL Advance that you can receive using an FRL Check is $5,000. FRL Check Advances will automatically have a 20-year Repayment Term. You may contact Customer Service after a FRL Check posts to your Line to change the Repayment Term to one of the other available terms listed in the Fixed Rate Lock Advances section below, however, FRL Advances changed to another Repayment Term will be subject to finance charges at the annual percentage rate in effect the day the new ERL Repayment Term is applied by Customer Service. FRL Advances for terms other than 20 years may also be obtained by contacting Customer Service instead of by Check. FRL Checks for less than $5,000 will be posted as a Line Advance. You should also notify Bank immediately if your Checks are lost or stolen, (Please see the "Stop Payment Orders” section of this Agreement). Your statement will list Checks that have been paid, but the actual paid Checks will not be returned to you. ‘You may request copies of paid Checks from the Bank, and a copying fee may be charged. Bank will issue you a Card or Cards for use with the Line except in Connecticut, New York and Texas and in other states where such access is limited. ‘The word Card can mean one or more credit cards or Automated Teller Machine (ATM) cards. You authorize Bank to issue you a Card for use with the Line. You may purchase goods or services from merchants who honor the Card. You may obtain Advances from Bank or any other financial institution that honors the Card. You may also obtain Advances by using a Personal Identification Number (PIN) for telephone banking or on-line banking Advances. Bank will charge all Advances to your Line. If you allow someone else to use your Card or PIN and you want to stop such use, you must let Bank know in writing. You must notify Bank immediately if your Cards or PIN are lost or stolen, or you believe that some person may be using your Card(s) or PIN without permission, You will not use your Line after notifying Bank of loss, theft or unauthorized use of your Card(s) or PIN. You will not be held liable for any unauthorized use of the Card or PIN after you have notified Bank of the loss or theft by phone at 1-800-533-6596 or in writing at National City Card Services, P.O. Box 4092, Kalamazoo, Michigan 49003. (Otherwise you may be tiable, but not for more than $50.) Bank may terminate the use of your Card, PIN or Checks if you lose your Card, PIN or Checks two times or more in a twelve-month period. Bank may also terminate the use of your Card or PIN if your new balance exceeds your Credit Line by 2% or if you are over limit for more than one billing cycle. Bank will have no obligation to honor any Advance by any means if the resulting new balance of your Line would exceed your Credit Line; or after the Draw Period ends; or in the event of termination or suspension of your Credit Line under the conditions described in this Agreement, and upon Bank's request you will return Checks and/or Cards. Your Line may not be used for Internet lottery, betting or gambling transactions or for any illegal transactions. Charges from foreign merchants and financial institutions may be made in a foreign currency. Bank will bill you in U.S. Dollars based on the exchange rate on the day Bank settles the transaction, plus any special currency exchange charges. In the case of VISA Accounts: the exchange rate applied to each such transaction js a rate selected by Visa from a range of rates available in wholesale currency markets for the applicable central processing date, which rate may vary from the rate Visa itself receives, or the government-mandated rate in effect for the applicable central processing date. In addition, Bank will charge a foreign transaction fee of 1% of the converted amount. Because of the special charges and possible differences in exchange rates between the time Bank settles and the time you initiated the transaction, the total charge for a foreign transaction may be greater than the cash advance or purchase at the time it was made. Finance Charge for Line and Fixed Rate Lock Advances and During the Repayment Period. a) Line Advances: Bank figures the finance charge on your Line by applying the periodic rate to the "average daily balance” of your Line. To get the "average daily balance”, Bank takes the beginning balance of the Line each day, adds any new Advances including if applicable, the broker and processing fees, and other debits, and subtracts any payments or credits and unpaid periodic finance charges. ‘This gives the daily balance. ‘Then, Bank adds up all the daily balances for the billing cycle and divides the total by the number of days in the billing cycle, This gives the "average daily balance". Advances are subject to finance charges from the date of transaction to the date payment is posted to the Line. The periodic rate of finance charge and the annual percentage rate are subject to change, based on the value of an index. The index in effect for each billing cycle shall be the "Prime Rate" of interest appearing in the Money Rates Table of The Wall Street Journal published on the first day of your Billing Cycle (or, if not published on that date, the last edition published prior to that date), rounded upward, if necessary, to the nearest .01% (Line Index). The ANNUAL PERCENTAGE RATE is the Line Index plus 0.000 %(Line Margin). The FINANCE CHARGE for each billing cycle shall be computed at the annual percentage rate divided by 12. As of 10/03/2006 , the current periodic rate of FINANCE CHARGE is 0.688 % pet month, which corresponds to an ANNUAL PERCENTAGE RATE of 8.250% ‘The annual percentage rate and the periodic rate of finance charge may increase if the Line Index increases. In the event of an increase, the finance charge will increase and the minimum payment amount may increase, If the minimum payment amount is either 1.5% of the new balance or the total finance charges, an increase or decrease in the annual percentage rate will result in a corresponding increase or decrease in the minimum payment amount, b) Fixed Rate Lock Advances: Bank figures the finance charge on each FRL by applying the periodic rate to the “average daily balance” of the FRL. To get the “average daily balance”, Bank takes the beginning balance of the FRL each day and subtracts any payments or credits and unpaid periodic finance charges. This gives the daily balance. Then, Bank adds up all the daily balances for the billing cycle and divides the total by the number of days in the billing cycle. This gives the “average daily balance”. Each FRL is subject to finance charges from the date of the transaction until paid in full. ‘The periodic rate of finance charge and the annual percentage fate are determined and fixed on the business day the transaction posts to your Line. The index shall be the highest daily rate for 3 year Treasury notes with constant maturities from the 1* business day through the 11” last business day of the calendar month preceding the month in which the transaction posts to your Line, rounded, if necessary, to the nearest 0.125% ened can be found in the Federal Reserve Statistical Release H. 15 at www. federalreserve.gov/releases/h15. ce Ze Sr this to be Correct {3 7ON GROUP NHEERAI (06/13/2005) UM ni ll A ERA-MULTFNHV2_1 The ANNUAL PERCENTAGE Ré is the FRL Index plus a margin (FRL Margin). The ANCE CHARGE for cach billing cycle shall be computed at the annual percentage 10/03/2006 jivided by 12. As of » che FRL Margin, the current periodic rate of FINANCE CHARGE per month and corresponding ANNUAL PERCENTAGE RATE for each FRL Repayment Term are listed in the table below: FRU Repayment Term RL Margin Monthly Periodic Rate of FINANCE CHARGE ANNUAL PERCENTAGE RATE S-year FRL: 2.750 0.625 7.500 60 monthly payments 10-year FRL: 120 monthly payments 3.000 0.646 7.750 15-year FRL: 0.667 8.000 3.250 180 monthly payments 20-year FRL: 240 monthly payments 3.750 0.708 8.500 (automatic term for FRL checks you write) 7-year “Interest Only” FRL: 83 monthly payments of one penny plus finance charges on the FRL balance 3.000 0.646 7.750 (including the FRL Advance Fee), followed by a balloon payment of the remaining balance in the 84 month. © Both Line and Fixed Rate Lock Advances: In no event shall the periodic rate of FINANCE CHARGE be more than 1.50% per month of less than 0.25% per month and in no event shall the ANNUAL PERCENTAGE RATE be more than 18.00% or less than 3.00%. The annual percentage rate includes only interest and not other costs. Your monthly statement will disclose the applicable annual percentage rate for the billing cycle. @ Repayment Period: Any amount outstanding other than FRL’s will be converted to a Fixed Rate Lock balance on the last business day of your Draw Period and will be subject to finance charges for a Fixed Rate Lock based on a 240 month Repayment Term for balances of $10,000 or more or a 120 month Repayment Term for balances of less than $10,000 as stated in subsections (b) and (c) above. ‘The index value is the highest FRL Index from the 1" business day through the 11 last business day of the calendar month preceding the month in which the Draw Period ends, rounded, if necessary, as provided in subsection (b) above. Other Finance Charges. A Broker fee FINANCE CHARGE of$ 0.00 A Discount Fee FINANCE CHARGE of $ 0.00 (0.000 % of Credit Line) A Processing Fee FINANCE CHARGE of $ 0.00 An FRL Advance Fee FINANCE C! GE of $50 for each Fixed Rate Lock used. Other Charges. In addition to finance charges, the following other charges will apply: . An annual fee of $50 reflected on the monthly statement for the first billing cycle of each year of your Draw Period beginning with the 13” billing cycle, whether or not you obtain Advances under your Line, This fee is not refundable. A late payment fee of the greater of 10% of the unpaid minimum payment or $40, if Bank does not receive your minimum payment at the address shown on your statement within 10 days of the Due Date. Bank may charge an additional late payment fee for each billing cycle that your Line is past due. An overlimit fee of $25 whenever you go over your Credit Line. Bank may charge an additional $25 for each billing cycle that you remain over your Credit Line, A returned payment fee of $30 if you make a payment on your Line which is returned to Bank unpaid because of insufficient funds, a closed account, stop payment, or any other reason. A returned check fee of $30 if you write a Check that Bank dishonors under the "Advances" section of this Agreement. A stop payment fee of $30 for the service of stopping payment on a Check and a $30 service fee for renewal of each stop payment order. AA foreign transaction fee of 1% of the transaction amount. This fee is not applicable to transactions in the United States. An early termination fee of $ 350.00 if you close your Line within the first 36 months A document request fee of $6 per copy for service of providing copies. Bank will not charge you for documents Bank is required by law to give you at no charge. Any real estate related closing fees due at the closing of your Line as reflected on the HUD1 settlement statement provided to you by the closing agent which is hereby incorporated and made part of this Agreement by this reference. Bank does not lose any of its other rights under this Agreement whether or not it charges late payment or overlimit fees. You also agree that Bank may also charge you a fee, not otherwise enumerated herein, for services that Bank performs for you that you have requested. The application of any fee shall not cure the default which initiated the fee. Security Interests. Your Line will be secured by a mortgage (Mortgage) on your dwelling (Dwelling). If the Dwelling is your primary or secondary residence, you represent and warrant to Bank that at all times during the term of this Agreement your Dwelling, or a minimum of one unit of your multi- unit Dwelling, shall be occupied by you and shall not be used as rental property, Bank agrees to waive any security interest in the Dwelling to the extent it secures Advances which may be in excess of your Credit Line. You name Bank as loss payee and beneficiary. of the proceeds of, and assign to Bank any unearned premiums of, all insurance connected with your Line. You must not adversely affect Bank's interest in the Dwelling by any action or inaction. You must keep the Dwelling in good condition, promptly pay all mortgages and other liens against the Dwelling, and promptly pay all taxes and assessments on the Dwelling. You must not sell or transfer title to the Dwelling without Bank's permission, or use the Dwelling for any illegal purpose. Property Insurance. You must keep the Dwelling fully insured against loss or damage on terms that are acceptable to Bank to the extent permitted by Jaw. You must carry flood insurance if required by federal law. You may obtain property insurance or furnish existing property insurance from anyone that is acceptable to Bank provided the insurer is authorized to do business in the state or jurisdiction where the Dwelling is located or is an eligible surplus lines carrier. You agree to furnish Bank with written evidence of such insurance, with Bank named as loss payee and proof of payment of insurance premiums. If you fail to do so, Bank may buy insurance to protect Bank's interest and add the premium cost to the unpaid balance of your Line, subject to the same finance charges as Advances against your Line. You assign to Bank the proceeds from any such insurance policies up to the unpaid balance of your Line, Bank may apply such proceeds, including any return of unearned premiums and payments for claims under such policies, to reduce the unpaid balance of your Line. You irrevocably authorize Bank as your agent and on your behalfto negotiate, settle and release any claim under your insurance and to submit insurance claims for you and to receive and sign your name to any checks or drafts or related papers obtained from insurance companies. ‘Tax Deductibility. You should consult a tax advisor regarding the deductibility of interest and charges on your Line. Statements. Bank agrees to mail or deliver to you a monthly statement for each billing cycle at the end of which there is a balance which is a debit or credit balance of more than $1 or on which a finance charge has been imposed. The balance is the sum of all outstanding Advance(s), fees, payments, other credits, other charges and debits, and finance charge(s). 7/22/2006 NHEERA2 (Rev. 06/13/2005) UMA UM ERA-MULTFNHV2_2 . Payments. Your payments will be due mor ‘You may pay the entire unpaid balance of your Line: your FRL(s) at any time. You are required to pay a minimum payment by the Due Dat wn on your statement equal to the sum of the Line M m Payment and the FRL Minimum Payment for each FRL in use, . . a) Line Minimum Payment: The Line Minimum Payment will equal the periodic finance charges that accrued on the outstanding ‘Line balance during the preceding billing cycle as shown on each monthly statement (Interest Only Minimum Payment). b) The FRL Minimum Payment is: For all FRL’s except the 7 year “Interest Only” FRL, the minimum payment is a fixed payment amount that is sufficient to pay off the FRL including the FRL Advance Fee, at the fixed rate applicable to that FRL calculated based on the number of monthly payments for the applicable FRL Repayment Term as described in the section of this Agreement called “Fixed Rate Lock Advances.” Ifyou choose the 7-year “Interest Only” FRL option, the minimum payment is 83 payments of one penny ($.01) plus the finance charges that accrued on the outstanding FRL balance which balance includes the FRL Advance Fee, at the fixed rate applicable to that FRL (as described in the section of this Agreement called “Fixed Rate Lock Advances”) during the preceding billing cycle as shown on each monthly statement followed by one payment of the outstanding balance. Any amount still owing at the end of the billing cycle prior to the billing cycle containing the final payment will be added to the final mini 1m payment due. Additional payments on any FRL may be made at any time but you will continue to be obligated to make the fixed payment for the FRL as long as any amount is still owing on the FRL, ‘The amount of any reduction in principal from a payment on an FRL will become available to you on your Line once it is posted, until the end of the Draw Period. If your Draw Period is not renewed then access to the Line will not be available during the Repayment Period. ©) Repayment Period: The Minimum Payment may not fully repay the principal that is outstanding by the end of the Draw Period. If your Draw Period is not renewed for an additional term, during the Repayment Period you may continue to make scheduled payments on any FRL balances outstanding at the end of the Draw Period until they are paid in full, Additionally, any amount outstanding other than an FRL will be converted to a Fixed Rate Lock without an FRL Advance fee on the last business day of your Draw Period and will be subject to then current finance charges for an FRL of equal Repayment Term as described in the section of this Agreement called “Fixed Rate Lock Advances." The total amount will be required to be repaid in two hundred forty (240) equal monthly payments for balances of $10,000 or more; or one hundred twenty (120) equal monthly payments for balances of less than $10,000. Any amount still owing after two hundred thirty nine (239) billing cycles or after one hundred nineteen (119) billing cycles respectively, will be added to the final minimum payment due. Payments will be applied in the following order: First, to each FRL on a first in-first out basis for all unpaid periodic finance charges and then to the FRL’s principal balance in an amount necessary to amortize the FRL within its amortization schedule, then to all unpaid periodic finance charges on the Line, then to all Other Charges, then to the Line, For introductory and promotional offer balances, payments to the Line are applied on the basis of the lowest rate balance first to highest rate balance last. If there are no balances on the Line, overpayments are applied as a prepayment to the FRL(s) on a first in-first out basis, If there are no balances on any FRL or on the Line, overpayments are credited to the Line and returned upon request. In order to make additional partial prepayments to an FRL or to prepay an FRL in full without paying off your Line, you must contact Customer Service to make arrangements to do so. Stop Payment Orders. We agree to honor a stop payment order against a Check when received from you within a reasonable time prior to payment. A stop payment order becomes effective after we have actually received the order and had a reasonable time to process it, and the order will remain in effect for thirteen months, Our acceptance ofa stop payment order does not mean that the Check has not yet been paid, and we shall have no liability resulting from the payment of a Check before your stop payment order becomes effective. A stop payment order may be renewed for successive periods equal to its original period of effectiveness if we receive a renewal notice prior to the order becoming ineffective. A stop payment order against a Check must accurately describe it as to date, number, amount, and payee, and must correctly recite your name and the Account number. You agree that it is current industry standard to process stop payment orders by means of computer technology. Accordingly, your failure to provide the exact identification of Account number and Check number in order to identify the Check to be stopped will result in the Check being paid if presented, and we will not be liable for such payment, Errors in your name or the Account number, or inaccuracies in the description of the number, amount, issue date or payee on your written stop payment order shall relieve us from any liability for any mistaken payment or wrongful dishonor. Any ertors on our written acknowledgment to you of a stop payment order must be reported by you in writing to our Customer Service Department within 10 calendar days of the written acknowledgment date. We shall not be liable for any mistaken payment or wrongful dishonor occurring after the 10-day period, unless errors or inaccuracies are so reported to us within the 10-day period, Before we will release a stop payment order, our Customer Service Department may require the receipt ofa written request, signed by you, requesting the withdrawal of the order. In the event we recredit the Account for a paid Check, then you hereby assign to us all rights against third parties. You or any joint account holder may order a stop payment, You agree that we will not be obligated to reimburse you immediately upon notice of alleged wrongful payment; that it is your obligation to prove the fact and amount of damage suffered; and that in no case will we be liable for more than your actual damage. We shall not be liable for any damages unless we have failed to act in good faith and exercise ordinary care. You agree to indemnify us and hold us harmless from any and all expenses incurred or damages suffered by us in honoring a stop payment order. To place a stop payment order, write to National City, Equity Reserve Stop Payment Department, 4661 E. Main Street, Columbus, Ohio 43251-0928. ‘Termination of Line. Bank can terminate your Line and require you to pay the entire outstanding balance in one paym