RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
SPACE ABOVE THIS
LINE FOR RECORDER'S USE
LONG
FORM SECURITY (INSTALLMENT) LAND CONTRACT WITH POWER OF SALE
AND REQUEST FOR NOTICE OF DEFAULT
(PRIOR
LOAN PAYMENTS NOT INCLUDED)
THIS AGREEMENT, made and entered into this day of
between
herein called VENDOR, and
herein called
VENDEE, and
STEWART TITLE OF CALIFORNIA, INC., a California corporation,
herein called TRUSTEE.
The signature of Vendor and Vendee of this
contract shall also constitute their signature of the
REQUEST
FOR NOTICE OF DEFAULT
In accordance with
California Civil Code section 2924(b), request is hereby made by the
undersigned Vendor and Vendee that: (1) a copy of any Notice of Default and a
copy of any Notice of Sale under Deed of Trust recorded
________________________________, in Book ________ Page __________________,
Document No. ______________________ Official Records of ________________________ County, California, as affecting the herein
described property, executed by
_____________________________
___________________________________________________________________________________
as Trustor, in which
________________________________________________________________________
is named as Beneficiary, and _______________________________________________________as
Trustee, be mailed to Vendor and Vendee at address immediately below; and (2) a
copy of any Notice of Default and a copy of any Notice of Sale under Deed of
Trust recorded _________________________ in Book ________, Page _________,
Document No. __________________, Official Records of__________________County, California, as affecting
the herein described property, executed by _______________________________
as Trustor, in which
____________________________________________________________ is named as
Beneficiary, and
____________________________________________________________________Trustee, be
mailed to Vendor and Vendee at address below.
Vendee
Vendor
Address
Address
To secure the obligations of Vendee herein,
Vendor and Vendee hereby grant, transfer and assign to Trustee, in trust, with
power of sale, their right, title and interest in the real property situated in
the County of ___________________________________________________, State of
California, and
described as follows:
Reserving unto Vendor the power to convey title
to the Vendee or the Vendee's successors or assigns upon the performance of
Vendee's obligation under this agreement.
Any recorded deed executed and acknowledged by the Vendor or his or her
successors, to the Vendee or his or her successors of the real property
described herein, or any portion thereof, shall be deemed executed pursuant to
this power, which deed shall be free and clear of, and terminate, the right,
title interest and the powers of the Trustee.
Reserving unto Vendee the right of possession
subject, however, to the power of sale herein granted to the Trustee.
WITNESSETH:
WHEREAS, Vendor has agreed to sell, and Vendee
has agreed to buy said real property upon the terms and conditions set forth herein,
and
WHEREAS,
Vendee agrees, that if Vendor elects to enforce the Vendor's security
interest in the real property by exercising the power of sale, as herein
provided, such sale shall discharge and terminate any and all rights of the
Vendee arising out of this agreement, whether in the form of restitution,
redemption or otherwise.
NOW, THEREFORE, VENDOR AND VENDEE DO HEREBY
AGREE AS FOLLOWS:
Vendor agrees to sell and Vendee agrees to buy
that real property described above for the total purchase price of
$_______________________________, payable as follows:
1. Payment of purchase
price (Loan payment extra).
A. Vendee shall pay to
Vendor forthwith the sum of $ __________________________ as a down payment.
B. Vendee promises to pay according to the
terms thereof, the installments and such impound account requirements of the
holders of the note(s) secured by the deed(s) of trust referred to in the
Request for Notice set forth on page 1 of this Contract, and Vendor represents
that the aggregate principal balance of such note(s) does not exceed $
______________________________.
C. Vendee promises to
pay to Vendor, or order, at_______________________________ the sum of
$ ___________________________ with interest
thereon at the rate of _______% per
annum, commencing ________________________________, principal and interest
payable
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
This agreement with require _____________ years
and __________ months to complete payment in accordance with its terms.
2. TITLE INSURANCE
Upon recordation of
this security land contract, STEWART TITLE OF CALIFORNIA, INC., shall issue a
joint protection policy of title insurance (lender's - owner's) insuring the
Vendor's (lendor’s) and Vendee's (owner's) interest herein.
3. POSSESSION
(a) Vendor
grants to Vendee the possession of said real property, for the term of this
agreement, or until the earlier termination of this agreement.
(b) Vendor hereby reserves the right, power and
authority to collect the rents, issues and profits of said real property. However, Vendor assigns to Vendee the right,
prior to any default by Vendee in payment of any indebtedness secured hereby,
or in performance of any agreement hereunder, to collect and retain such rents,
issues and profits as they become due and payable. Upon any such default, Vendor may at any time
without notice, either in person, by agent, or by a receiver to be appointed by
a court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or
any part thereof, in his or her own name, sue for or otherwise collect such
rents, issues and profits, including those past due and unpaid, and apply the
same, less costs and expenses of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured hereby, and in such order as
Vendor may determine. The entering upon
and taking possession of said property, the collection of such rents, issues
and profits and the application thereof, as aforesaid, shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant
to such notice.
4.
RISK OF LOSS
(a) Vendee assumes all hazards of damage to or
destruction of any improvements now or hereafter placed upon said real property
and of taking of such real property or any part thereof for public use, and
agrees that no such damage, destruction or taking shall constitute a failure of
consideration under this contract.
(b) Any
award of damages from any taking for public use, or from any damage to said
real properly or any part thereof is assigned to Vendor with the right to apply
or release such monies in the same manner and effect as provided for
disposition of proceeds of fire insurance.
(c) Vendee
does hereby indemnify Vendor and Trustee against any and all claims by third
parties for personal injury or property damage, and agrees to provide public
liability insurance on the premises in an amount not less than $
_______________________ naming Vendor as an additional insured.
5. TO PROTECT VENDOR'S SECURITY INTEREST,
VENDEE AGREES:
(a) To
keep said property in good condition and repair, preserve thereon the
buildings, complete construction begun, restore damage or destruction, and pay
the cost thereof; to commit or permit no waste, no violation of laws or
covenants or conditions relating to use, alterations or improvements; to
cultivate, irrigate, fertilize, fumigate, prune, and do all other acts which
the character and use of said property and the estate or interest in said
property secured by this agreement may require to preserve this security.
(b) To
provide, maintain and deliver to Vendor fire insurance satisfactory to and with
loss payable to Vendor. The amount
collected under any fire or other insurance policy may be applied by Vendor
upon any indebtedness secured hereby and in such order as Vendor may determine,
or Vendor may release all or any part thereof to Vendee. Such application or release shall not cure or
waive any default or notice of default
hereunder or invalidate any act done pursuant to
such notice.
(c) To appear in and defend any action or
proceeding purporting to affect the security hereof, or the rights or powers of
Vendor or Trustee, and to pay all costs and expenses, including cost of
evidence of title and attorney's fees in a reasonable sum, in any such action
or proceedings in which Vendor or Trustee may appear.
(d) To
pay, at least ten days before delinquent, all taxes and assessments affecting
said property, including assessments on appurtenant water stock when due, as
well as all encumbrances, charges and liens, with interest, on said property or
any part thereof, which appear to be prior or superior hereto, except as agreed
to be paid by Vendor, all costs, fees and expenses of this agreement.
Should Vendee fail to make any payment, or to do
any act as herein provided, then Vendor, but without obligation to do so and
without notice to or demand upon Vendee and without releasing Vendee from any
obligation hereof, may make or do the same in such manner and to such extent as
Vendor may deem necessary to protect the security hereof. Vendor is authorized to enter upon said
property for such purposes; appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Vendor or
Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien
which in the judgment of either appears to be prior or superior hereto; and, in
exercising any such powers, pay necessary expenses, employ counsel and pay his
or her reasonable fees.
(e) To
pay immediately and without demand all sums so expended by Vendor, with
interest from date of expenditure, at ten percent per annum.
6. VENDOR AGREES:
(a) Upon
the performance in full by the Vendee, to execute and have acknowledged a Grant
Deed, in recordable form, of the real property described in this agreement,
vesting the fee title in Vendee, or the Vendee's successors or assigns, subject
only to the liens to be paid by the Vendee and such other encumbrances
accepted, made by or suffered by the Vendee, and to deliver such deed as
directed by the Vendee, or his or her successors or assigns.
(b) To
pay Vendee any transfer tax required by law.
(c) During
the existence of this contract, and upon the written demand of the Vendee or
his or her authorized agent made at any time before or within two months after
the recording of a notice of default under this contract, or thirty days prior
to the entry of a judgment for the enforcement of this contract, and upon the
payment not to exceed sixty dollars ($60.00) therefor, to cause to have
prepared and delivered to the person demanding it within twenty-one (21) days
of the receipt of the demand, a written statement materially setting forth the
information required to be supplied by a mortgage or beneficiary by California
Civil Code section 2943.
(d)
To keep current all payments due the
underlying Deed(s) of Trust.
7.
DEFAULT AND ACCELERATION
Time is of the essence in the payments agreed to
be paid Vendor, and the performance of the agreements made for the protection
of the Vendor's security, and should Vendee fail to make such payment or tender
such performance when due, such failure shall constitute a default. Upon the
occurrence of any such default, Vendor may declare all sums secured unto Vendor
by this agreement immediately due and payable.
8. ELECTION TO SELL
Upon the election by Vendor to proceed by
Trustee's Sale, Vendor may elect to declare all sums immediately due and
payable by delivering to the Trustee a written declaration of default and
demand for sale; Vendor's copy of this agreement; and all documents evidencing
expenditures by Vendor, secured by this agreement.
9. NOTICE OF DEFAULT
Vendor shall further deliver to Trustee a
written Notice of Default and Election to Sell, which notice shall identify the
contract by stating the names of the Vendor and Vendee, and the date of
recording, and the recording reference and shall contain a description of the
real property. Such notice shall also contain
a statement that a breach of the obligations secured by such agreement has
occurred, and shall set forth the nature of such breach and the election by the
Vendor to sell or cause such property to be sold to satisfy the obligations
secured by this agreement. If the
default is curable under the provisions for reinstatement, set forth in this
agreement, such Notice of Default shall further contain a statement
substantially in the form set forth in California Civil Code section
2924c(b)(1).
10.
POWER OF SALE
The only power the Trustee has under this
agreement is to exercise the power of sale in the event of a default by the
Vendee. The Trustee shall have no power
to convey Vendor's interest to Vendee upon fulfillment of Vendee's obligations
hereunder.
11.
PROCEDURE FOR SALE
(a) Trustee
shall cause to be filed for record in the office of the Recorder of each county
wherein the real property, or some part or parcel thereof, is situated an
executed copy of the Notice of Default.
(b) Any
person desiring a copy of any Notice of Default and of any Notice of Sale under
this contract may, at any time subsequent to recordation of this contract and
prior to recordation of Notice of Default thereunder, cause to be filed for
record in the office of the recorder of any county in which any part or parcel
of the real property is situated, a duly acknowledged request for a copy of the
Notice of Default and of Sale. This
request shall be signed and acknowledged by the person making the request,
specifying the name and address of the person to whom the notice is to be
mailed, shall identify the contract by stating the names of the parties
thereto, the date of recordation thereof, and the book and page where the
contract is recorded or the recorder's number, and shall be in substantially
the form set forth in California Civil Code section 2924b(a).
The Vendor, Trustee,
or other person authorized to record the Notice of Default shall do each of the
following:
(i) Within
10 business days following recordation of the Notice of Default, deposit or
cause to be deposited in the United States mail an envelope, sent by registered
or certified mail with postage prepaid, containing a copy of the notice with
the recording date shown thereon, addressed to each person including Vendee, whose
name and address are set forth in a duly recorded request therefor, directed to
the address designated in the request and to each person including Vendee at
his or her last known address if different than the address specified in the
contract.
(ii) At least 20 days before the date of sale,
deposit or cause to be deposited in the United States mail an envelope, sent by
registered or certified mail with postage prepaid, containing a copy of the
notice of the time and place of sale, addressed to each person whose name and
address are set forth in a duly recorded request therefor, directed to the
address designated in the request and to Vendee at his or her last known
address if different than the address specified in the contract.
(iii) As
used in paragraphs (i) and (ii) above, the "last known address" of
the Vendee means the last business or residence address actually known by the
Vendor, Trustee, or other person authorized to record the Notice of
Default. The Vendor shall inform the
Trustee of the Vendee's last address actually known by the Vendor. However, the Trustee shall incur no liability
for failing to send any notice to the last address unless the Trustee has
actual knowledge of it.
The Vendor, Trustee,
or other person authorized to record the Notice of Default shall also do the
following:
(i) Within one month following recordation of the Notice of
Default, deposit or cause to be deposited in the United States mail an
envelope, sent by registered or certified mail with postage prepaid, containing
a copy of the notice with the recording date shown thereon, addressed to each
person set forth in paragraph (ii) below, provided that the estate or interest
of any person entitled to receive notice under this subdivision is acquired by
an instrument sufficient to impart constructive notice of the estate or
interest in the land or portion thereof which is subject to the contract, and
provided the instrument is recorded in the office of the county recorder so as
to impart that constructive notice prior to the recording date of the Notice of
Default and provided the instrument as so recorded sets to forth a mailing
address which the county recorder shall use, as instructed within the
instrument, for the return of the instrument after recording, and which address
shall be the address used for the purposes of mailing notices under this
paragraph.
(ii) The persons to whom notice shall be
mailed under paragraph (i) above are:
(A) The
successor in interest, as of the recording date of the Notice of Default, of
the estate or interest or any portion thereof of the Vendee.
(B) The
beneficiary or mortgagee of any deed of trust or mortgage recorded subsequent
to the contract, or recorded prior to or concurrently with the contract but
subject to a recorded agreement or a recorded statement of subordination to the
contract.
(C) The assignee of any interest of the
beneficiary or mortgagee described in subparagraph (B), as of the recording
date of the Notice of Default.
(D) The
vendee of any contract of sale, or the lessee of any lease, of the estate or
interest being foreclosed which is recorded subsequent to the contract, or
recorded prior to or concurrently with the contract but subject to a recorded
agreement or statement of subordination to the contract,
(E) The successor in interest to the vendee or
lessee described in subparagraph (D), as of the recording date of the Notice of
Default.
(F) The
Office of the Controller, Sacramento, California, where, as of the recording
date of the Notice of Default, a "Notice of Lien for Postponed Property
Taxes" has been recorded against the real property to which the Notice of
Default applies.
(iii) At
least 20 days before the date of sale, deposit or cause to be deposited in the
United States mail, an envelope, sent by registered or certified mail with
postage prepaid, containing a copy of the notice of the time and place of sale
addressed to each person to whom a copy of the Notice of Default is to be
mailed as provided in paragraphs (i) and (ii) above, and addressed to the
office of any state taxing agency, Sacramento, California, which has recorded a
notice of tax lien prior to the recording date of the Notice of Default against
the real property to which the Notice of default applies.
(iv) The
mailing of notices in the manner set forth in paragraph (i) above shall not
impose upon any licensed attorney, agent, or employee of any person entitled to
received notices as herein set forth any duty to communicate the notice to the
entitled person from the fact that the mailing address used by the county
recorder is the address of the attorney, agent, or employee.
(v) Any
person required to mail a copy of a Notice of Default or Notice of Sale to the
Vendor pursuant to this paragraph (b) by registered or certified mail shall
simultaneously cause to be deposited in the United States mail, with postage
prepaid and mailed by first-class mail, an envelope containing an additional
copy of the required notice addressed to the Vendee at the same address to
which the notice is sent by registered or certified mail pursuant to paragraph
(b). The person shall execute and retain
an affidavit identifying the notice mailed, showing the name and residence or
business address of that person, that he or she is over the age of 18 years,
the date of deposit in the mail, the name and address of the Vendee to whom
sent, and that the envelope was sealed and deposited in the mail with postage
fully prepaid. In the absence of fraud,
the affidavit required by this subdivision shall establish a conclusive
presumption of mailing.
(c)(i) Whenever all or a portion of the
principal sum of any obligation secured by this contract has, prior to the
maturity date fixed in that obligation, become due or been declared due by
reason of default in payment of interest or of any installment of principal, or
by reason of failure of Vendee to pay in accordance with the terms of that
obligation or of the contract, taxes, assessments, premiums for insurance, or
advances made by Vendor in
accordance with the terms of that obligation or
of the contract, the Vendee or his or her successor in interest in the
mortgaged or trust property or any part thereof, or any beneficiary under a
subordinate deed of trust or any other person having a subordinate lien or
encumbrance of record thereon, at any time within the period specified in Civil
Code section 2924(c)(e), if the power of sale herein is to be exercised, may
pay to the Vendor or their successors in interest respectively, the entire
amount due, at the time payment is tendered, with respect to (A) all amounts of
principal, interest, taxes, assessments, insurance premiums, or advances
actually known by the vendor to be, and that are, in default and shown in the
Notice of Default, under the terms of the contract and the obligation secured
thereby, (B) all amounts in default on recurring obligations not shown in the
Notice of Default, and (C) all reasonable costs and expenses, subject to
paragraph (e) below, which are actually incurred in enforcing the terms of the
obligation or contract, and Trustee's or attorney's fees, subject to paragraph
(f) below, other than the portion of principal as would not then be due had no
default occurred, and thereby cure the default theretofore existing, and
thereupon, all proceedings theretofore had or instituted shall be dismissed or
discontinued and the obligation and contract shall be reinstated and shall be
and remain in force and effect, the same as if the acceleration had not
occurred. For the purposes of this
paragraph, the term "recurring obligation" means all amounts of
principal and interest on the loan, or rents, subject to the contract in
default due after the Notice of Default is recorded; all amounts of principal
and interest or rents advanced on senior liens or leaseholds which are advanced
after the recordation of the Notice of Default; and payments of taxes,
assessments, and hazard insurance advanced after recordation of the Notice of
Default. Where the Vendor has made no
advances on defaults which would constitute recurring obligations, the Vendor
may require
the Vendee to provide reliable written evidence
that the amounts have been paid prior to reinstatement.
(ii) It
the Vendee or other person authorized to cure the default pursuant to this
paragraph (c) does cure the default, the Vendor or the agent for the Vendor
shall, within 21 days following the reinstatement, execute and deliver to the
Trustee a Notice of Rescission which rescinds the Vendor's declaration of
default and demand for sale and advises Trustee of the date of reinstatement. The Trustee shall cause the Notice of
Rescission to be recorded within 30 days of receipt of the Notice of Rescission
and of all allowable fees and costs.
No charge, except for
the recording fee, shall be made against the Vendee for the execution and
recordation of the notice which rescinds the declaration of default and demand
for sale.
(d)(i) The notice, of any default described in
paragraph (c) above recorded pursuant to Civil Code section 2924, and mailed to
any person pursuant to Civil Code section 2924b, shall begin with the following
statement, printed or typed thereon: " IMPORTANT NOTICE [14-point boldface
type if printed or in capital letters if typed].
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.
State
of California
County
of ________________________________________
On
__________________before me, (here insert name and title of the officer),
personally appeared __________________, who 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.
I
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS
my hand and official seal.
Signature
____________________________________________ (Seal)
State
of California
County
of ________________________________________
On
__________________before me, (here insert name and title of the officer),
personally appeared __________________, who 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.
I
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS
my hand and official seal.
Signature
____________________________________________ (Seal)