Long Form Security Land Contract - Part 2 IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, [14-point boldface type if printed or in capital letters if typed] and you may have the legal right to bring your account in good standing by paying all of your past due payments plus permitted costs and expense within the time permitted by law for reinstatement of your account, which is normally five business day prior to the date set for the sale of your property. No sale date may be set until three months from the date this notice of default may be recorded (which date of recordation appears on this notice).
That amount is __________________________ as of _____________________________ (Date), and will increase until your account becomes current.
While your property is in foreclosure, you still must pay other obligations (such as insurance and taxes) required by your contract. If you fail to make future payments on the contract, pay taxes on the property, provide insurance on the property, or pay other obligations as required in the contract, the Vendor may insist that you do so in order to reinstate your account in good standing. In addition, the Vendor may require as a condition to reinstatement that you provide reliable written evidence that you paid all senior liens, property taxes, and hazard insurance premiums.
Upon written request, the Vendor will give you a written itemization of the entire amount you must pay. You may not have to pay the entire unpaid portion of the account, even though full payment was demanded, but you must pay all amounts in default at the time payment is made. However, you and your Vendor may mutually agree in writing prior to the time the Notice of Sale is posted (which may not be earlier than the end of the three month period stated above), to, among other things, ( 1) provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule for payments in order to cure your default; or both (1) and (2).
Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your Vendor permits a longer period, you have only the legal right to stop the sale of your property by paying the entire amount demanded by your Vendor.
To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact:
_____________________________________________________________________(Name of Vendor) ______________________________________________________________________(Mailing address)
__________________________________________________________________________ (Telephone)
If you have any questions, you should contact a lawyer.
Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale, provided that the sale is concluded prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. [14-point boldface type if printed or in capital letters if typed]."
Unless otherwise specified, the notice, if printed, shall appear in at least 12-point boldface type.
(ii) Any failure to comply with the provisions of this paragraph (d) shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.
(e)Costs and expenses which may be charged pursuant to Civil Code sections 2924 to 2941, inclusive, shall be limited to the costs incurred for recording, mailing, publishing, and posting notices required by sections 2924 to 2924i, inclusive, and a fee for a Trustee's Sale Guarantee.
(f) Trustee's or attorney's fees which may be charged pursuant to paragraph (c) above, or until the Notice of Sale is deposited in the mail to the Vendee, are hereby authorized to be in an amount which does not exceed two hundred forty dollars ($240) with respect to any portion of the unpaid principal sum secured which is fifty thousand dollars ($50,000) or less, plus one-half of 1 percent of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-eighth of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). Any charge for Trustee's or attorney's fees authorized by this paragraph shall be conclusively presumed to be lawful and valid where the charge does not exceed the amounts authorized herein.
(g) Reinstatement of a monetary default under the contract may be made at any time within the period commencing with the date of recordation of the Notice of Default until five business days prior to the date of sale set forth in the initial recorded Notice of Sale.
In the event the sale does not take place on the date set forth in the initial recorded Notice of Sale or a subsequent recorded Notice of Sale is required to be given, the right of reinstatement shall be revived as of the date of recordation of the subsequent Notice of Sale, and shall continue from that date until five business days prior to the date of sale set forth in the subsequently recorded Notice of Sale.
In the event the date of sale is postponed on the date of sale set forth in either an initial or any subsequent Notice of Sale, or is postponed on the date declared for sale at an immediately preceding postponement of sale, and, the postponement is for a period which exceeds five business days from the date set forth in the Notice of Sale, or declared at the time of postponement, then the right of reinstatement is revived as of the date of postponement and shall continue from that date until five business days prior to the date of sale declared at the time of the postponement.
Nothing contained herein shall give rise to a right of reinstatement during the period of five business days prior to the date of sale, whether the date of sale is noticed in a Notice of Sale or declared at a postponement of sale.
Pursuant to the terms of this paragraph (g), no Vendor, Trustee, or their agents or successors shall be liable in any manner to a Vendee, their agents or successors for the failure to allow a reinstatement of the obligation secured by the Contract during the period of five business days prior to the sale of the security property, and no such right of reinstatement during this period is created by this paragraph. Any right of reinstatement created by this paragraph (g) terminated five business days prior to the date of sale set forth in the initial Notice of Sale, and is revived only as prescribed herein and only as of the date set forth herein.
As used in this paragraph, the term "business day" has the same meaning as specified in Civil Code section 9.
(h) (i) Commencing with the date that the Notice of Sale is deposited in the mail, as provided in Civil Code section 2924b, and until the property is sold pursuant to the power of sale contained in the Contract, the Vendor, Trustee, or his or her agent or successor in interest, may demand and receive from the Vendee, or his or her agent or successor in interest, or any beneficiary under a subordinate deed of trust, or any other person having a subordinate lien or encumbrance of record those reasonable costs and expenses, to the extent allowed by Civil Code section 2924c(c), which are actually incurred in enforcing the terms of the obligation and Trustee's or attorney's fees which are hereby authorized to be in an amount which does not exceed three hundred fifty dollars ($350) with respect to any portion of the unpaid principal sum secured which is fifty thousand dollars ($50,000) or less, plus 1 percent of any portion of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-half of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). Any charge for Trustee's or attorney's fees authorized by this paragraph shall be conclusively presumed to be lawful and valid where that charge does not exceed the amounts authorized herein. Any charge for Trustee's or attorney's fees made pursuant to the provisions of this paragraph shall be in lieu of and not in addition to those charges authorized by Civil Code section 2924c(d).
(ii) Upon the sale of the property pursuant to the power of sale, the Trustee, or his or her agent or successor in interest, may demand and receive from the Vendor, or his or her agent or successor in interest, or may deduct from the proceeds of the sale, those reasonable costs and expenses, to the extent allowed by Civil Code section 2924(c) (d) which are actually incurred in enforcing the terms of the obligation and Trustee's or attorney's fees which are hereby authorized to be in an amount which does not exceed three hundred fifty dollars ($350) or one percent of the unpaid principal sum secured, whichever is greater. Any charge for Trustee's or attorney's fees authorized by this paragraph (h) shall be conclusively presumed to be lawful and valid where that charge does not exceed the amount authorized herein. Any charges for Trustee's or attorney's fees made pursuant to the provisions of this subdivision shall be in lieu of and not in addition to those charges authorized by Civil Code sections 2924d(a) and 2924c(d).
(iii) The Trustee may pay or offer to pay a fee to an agent or subagent of the Trustee for work performed by the agent or subagent in discharging the Trustee's obligations under the terms of the Contract. Any payment of a fee by the Trustee to an agent or subagent of the Trustee for work performed by the agent or subagent in discharging the Trustee's obligations under the terms of the Contract shall be conclusively presumed to be lawful and valid if the fee, when combined with other fees of the Trustee, does not exceed in the aggregate the Trustee's fee authorized by Civil Code sections 2924c(d), 2924d(a) or 2924d(b).
(iv) Before any sale of the property can be made under the power of sale contained in the Contract, or any resale resulting from a rescission for a failure of consideration pursuant to Civil Code section 2924h(c), notice of sale thereof shall be given by posting a written notice of the time of sale and of the street address and specific place at the street address where the sale will be held, and describing the property to be sold, at least 20 days before the date of sale in one public place in the city where the property is to be sold, if the property is to be sold in a city, or, if not, then in one public place in the judicial district in which the property is to be sold, and publishing a copy once a week for the same period, in a newspaper of general circulation published in the city in which the property or some part thereof is situated, if any part thereof is situated in a city, if not, then in a newspaper of general circulation published in the judicial district in which the property or some part thereof is situated, or in case no newspaper at of general circulation is published in the city or judicial district or county, as the case may be, in a newspaper of general circulation published in the county in this state that (A) is contiguous to the county in which the property or some part thereof is situated and (B) has, by comparison with all similarly contiguous counties, the highest population based upon total county population as determined by the most recent federal decennial census published by the Bureau of the Census. A copy of the Notice of Sale shall also be posted in a conspicuous place on the property to be sold at least 20 days before the date of sale, where possible and where not restricted for any reason. If the property is a single-family residence, the posting shall be on a door of the residence, but, if not possible or restricted, then the notice shall be posted in a conspicuous place on the property; however, if access is denied because a common entrance to the property is restricted by a guard gate or similar impediment, the property may be posted at that guard gate or similar impediment to any development community. Additionally, the Notice of Sale shall conform to the minimum requirements of California Government Code section 6043 and be recorded with the county recorder of the county in which the property or some part thereof is situated at least 14 days prior to the date of sale. The Notice of Sale shall contain the name, street address, and telephone number of the Trustee or other person conducting the sale, and the name of the original Vendee. In addition to any other description of the property, the notice shall describe the property by giving its street address, if any, or other common designation, if any, and a county assessor's parcel number; but if the property has no street address or other common designation, the notice shall contain a legal description of the property, the name and address of the Vendor at whose request the sale is to be conducted, and a statement that directions may be obtained pursuant to a written request submitted to the Vendor within 10 days from the first publication of the notice. Directions shall be deemed reasonably sufficient to locate the properly if information as to the location of the property is given by reference to the direction and approximate distance from the nearest crossroads, frontage road, or access road. If a legal description or a county assessor's parcel number and either a street address or another common designation of the property is given, the validity of the notice and the validity of the sale shall not be affected by the fact that the street address, other common designation, name and address of the beneficiary, or the directions obtained therefrom are erroneous or that the street address, other common designation, name and address of the Vendor, or directions obtained therefrom are omitted. The term "newspaper of general circulation," as used in this paragraph has the same meaning as defined in Government Code section 6000.
The Notice of Sale shall contain a statement of the total amount of the unpaid balance of the obligation secured by the property to be sold and reasonably estimated costs, expenses, advances at the time of the initial publication of the Notice of Sale, and, if republished pursuant to a cancellation of a cash equivalent pursuant to Civil Code section 2924h(d), a reference of that fact; provided, that the Trustee shall incur no liability for any good faith error in stating the proper amount. An inaccurate statement of this amount shall not affect the validity of any sale to a bona fide purchaser for value, nor shall the failure to post the Notice of Sale on a door as provided in this paragraph (i) affect the validity of any sale to a bona fide purchaser for value.
(j)(i) All sales of property under the power of sale contained in the Contract shall be held in the county where the property or some part thereof is situated, and shall be made at auction, to the highest bidder, between the hours of 9 a.m. and 5 p.m. on any business day, Monday through Friday.
The sale shall commence at the time and location specified in the Notice of Sale. Any postponement shall be announced at the time and location specified in the Notice of Sale for commencement of the sale or pursuant to Civil Code section 2924g(c)(1).
If the sale of more than one parcel of real property has been scheduled for the same time and location by the Trustee, (1) any postponement of any of the sales shall be announced at the time published in the Notice of Sale, (2) the first sale shall commence at the time published in the Notice of Sale or immediately after the announcement of any postponement, and (3) each subsequent sale shall take place as soon as possible after the preceding sale has been completed.
(ii) When the property consists of several known lots or parcels they shall be sold separately upon request of the Vendee if present at the sale or any lien creditors with liens junior to Vendor. When a portion of the property is claimed by a third person, who requires it to be sold separately, the portion subject to the claim may be thus sold. The Vendor may, if present at the sale, direct the order in which property shall be sold, when the property consists of several known lots or parcels which may be sold to advantage separately, and the Trustee shall follow that direction. After sufficient property has been sold to satisfy the obligation, no more can be sold.
If the property under power of sale is in two or more counties, the public auction sale of all of the property under the power of sale may take place in any one of the counties where the property or a portion thereof is located.
(iii)(A) There may be a postponement of the sale proceedings at any time prior to the completion of the sale at the discretion of the Trustee, or upon instruction by the Vendor to the Trustee that the sale proceedings be postponed.
There may be a maximum of three postponements of the sale proceedings pursuant to this paragraph. In the event that the sale proceedings are postponed three times, the scheduling of any further sale proceedings shall be proceeded by the giving of a new Notice of Sale in the manner prescribed by Civil Code section 2924f.
(B) The Trustee shall postpone the sale upon the order of any court of competent jurisdiction, or where stayed by operation of the law or by the mutual agreement, whether oral or in writing, of the Vendee and the Vendor. Any postponement pursuant to this paragraph shall not be a postponement for purposes of determining the maximum number of postponements permitted pursuant to paragraph (iii)(A) above, nor shall a postponement resulting from the prohibition upon a sale within seven days from the expiration of an injunction, restraining order, or stay as provided in Civil Code section 2924g(d) be deemed a postponement for purposes of this paragraph. In addition, one postponement by the Trustee based upon a reasonable belief that a petition for bankruptcy has been filed shall not be a postponement for purposes of determining the maximum number of postponements permitted pursuant to paragraph (iii)(A).
(iv) The notice of each postponement and the reason therefor shall be given by public declaration by the Trustee at the time and place last appointed for sale. A public declaration of postponement shall also set forth the new date, time, and place of sale and the place of sale shall be the same place as originally fixed by the Trustee for the sale. No other notice of postponement need be given. However, the sale shall be conducted no sooner than seven days after the earlier of (1) dismissal of the action or (2) expiration or termination of the injunction, restraining order, or stay (which required postponement of the sale), whether by entry of an order by a court of competent jurisdiction, operation of law, or otherwise, unless the injunction, restraining order, or subsequent order expressly directs the conduct of the sale within that seven-day period. If the sale had been scheduled to occur, but this paragraph precludes its conduct during that seven-day period, a new notice of postponement shall be given if the sale had been scheduled to occur during that seven-day period. The Trustee shall maintain records of each postponement and the reason therefor.
(k)(i) Each and every bid made by a bidder at a Trustee's sale under a power of sale contained in the Contract shall be deemed to be an irrevocable offer by that bidder to purchase the property being sold by the Trustee under the power of sale for the amount of the bid. Any second or subsequent bid by the same bidder or any other bidder for a higher amount shall be a cancellation of the prior bid.
(ii) At the Trustee's sale, the Trustee shall have the right (1) to require every bidder to show evidence of the bidder's ability to deposit with the Trustee the full amount of his or her final bid in cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the Notice of Sale as acceptable to the Trustee prior to, and as a condition to the recognizing of the bid, and to conditionally accept and hold these amounts for the duration of the sale, and (2) to require the last and highest bidder to deposit, if not deposited previously, the full amount of the bidder's final bid in cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the Notice of Sale as acceptable to the Trustee, immediately prior to the completion of the sale, the completion of the sale being so announced by the fall of the hammer or in other customary manner. The present Vendor of the Contract under foreclosure shall have the right to offset his or her bid(s) only to the extent of the total amount due the Vendor including the Trustee's fees and expenses.
(iii) In the event the Trustee accepts a check drawn by a credit union or a savings and loan association pursuant to paragraph (ii) above or a cash equivalent designated in the Notice of Sale, the Trustee may withhold the issuance of the Trustee's Deed to the successful bidder submitting the check drawn by a state or federal credit union or savings and loan association or the cash equivalent until funds become available to the payee or endorsee as a matter of right.
For the purposes of this paragraph (k), the Trustee's sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the Trustee's Deed is recorded within 15 calendar days of the sale. However, the sale is subject to an automatic rescission for a failure of consideration in the event the funds are not "available for withdrawal" as defined in section 12413.1 of the Insurance Code. The Trustee shall send a Notice of Rescission for a failure of consideration to the last and highest bidder submitting the check or alternative instrument, if the address of the last and highest bidder is known to the Trustee. If a sale results in an automatic right of rescission for failure of consideration pursuant to this paragraph, the interest of any lienholder shall be reinstated in the same priority as if the previous sale had
not occurred.
(iv) If the Trustee has not required the last and highest bidder to deposit the cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state or a cash equivalent which has been designated in the Notice of Sale as acceptable to the Trustee in the manner set forth in paragraph (ii) above, the Trustee shall complete the sale. If the last and highest bidder fails to deliver to the Trustee, when demanded, the amount of his or her final bid in cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the Notice of Sale as acceptable to the Trustee, that bidder shall be liable to the Trustee for all damages which the Trustee may sustain by the refusal to deliver to the Trustee the amount of the final bid, including any court costs and reasonable attorney's fees.
If the last and highest bidder willfully fails to deliver to the Trustee the amount of his or her final bid in cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the Notice of Sale as acceptable to the Trustee, or if the last and highest bidder cancels an instrument submitted to the Trustee as a cash equivalent, that bidder shall be guilty of a misdemeanor punishable by a fine of not more than two thousand five hundred dollars ($2,500).
In the event the last and highest bidder cancels an instrument submitted to the Trustee as a cash equivalent, the Trustee shall provide a new Notice of Sale in the manner set forth in Civil Code section 2924f and shall be entitled to recover the costs of the new Notice of Sale as provided in Civil Code section 2924c.
(v) Any postponement or discontinuance of the sale proceedings shall be a cancellation of the last bid.
(vi) Any person, including the Vendor, Trustee and Vendee may purchase at such sale.
(vii) Trustee shall deliver to such purchaser its Trustee's Deed conveying the real property so sold but without any covenant or warranty, expressed or implied. The recitals in such Deed of any matters or facts shall be conclusive proof of the truthfulness thereof.
12. SUBSTITUTION OF TRUSTEES
Vendor, or any successor in ownership of any indebtedness secured hereby, may from time to time, by written instrument, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Vendor and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor trustee or trustees, who shall, without conveyance from the predecessor Trustee, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Vendee, Trustee and Vendor, hereunder, the book and page or Document No. where this Security Land Contract is recorded and the name and address of the new Trustee.
13. BINDING EFFECT
This Contract binds the parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns, and may be executed in duplicate.
14. CONSTRUCTION
All words used in this Contract including the words "Vendor" and "Vendee" shall be construed to include the plural as well as the singular number, and words used herewith in the present tense shall include the future as well as the present, and words used in the masculine gender shall include the feminine and neuter gender.
15. ATTORNEY'S FEES
If any party to this Contract or any assignee of any party hereunder shall bring an action in any court of competent jurisdiction to enforce any covenant of the Contract, including any action to collect any payment required hereunder, or to quiet his or her title against the other party to this Contract, it is hereby mutually agreed that the prevailing party shall be entitled to reasonable attorney's fees and all costs and expenses in connection with said action, which sums shall be included in any judgment or decree entered in such action in favor of the prevailing party.
IN WITNESS WHEREOF, the parties have hereunto executed this Contract as of the date first above written.
NOTE: THE PARTIES HERETO ARE CAUTIONED THAT BY COMPLETING AND EXECUTING THIS AGREEMENT, LEGAL RIGHTS AND DUTIES ARE CREATED. THEY ARE ADVISED TO SEEK INDEPENDENT LEGAL COUNSEL AS TO ALL MATTERS CONTAINED IN THIS DOCUMENT.
Vendnor(s) Vendee(s)
_______________________________ ______________________________
_______________________________ ______________________________
STATE OF CALIFORNIA )
COUNTY OF _________________ )
On ________________before me, ___________________________________________,a notary public in and for said County and State, personally appeared _________________________________________________________________ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s), acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________________________
(Signature of Notary Public)
STATE OF CALIFORNIA )
COUNTY OF _________________ )
On ________________before me, ___________________________________________,a notary public in and for said County and State, personally appeared _________________________________________________________________ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s), acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________________________
(Signature of Notary Public) This document and accompanying materials are designed to provide authoritative information in regard to the subject matter covered in it. It is for illustration purposes only and presented with the understanding that the author and publisher are not engaged in rendering legal, accounting or other professional opinions. If legal advice or other expert assistance is required, the services of a competent professional should be sought. |
