Deed of Trust - Template Form to Create Word & PDF Pro · US-law
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DEED OF TRUST
State of ________
THIS DEED OF TRUST (this "Deed of Trust" or "Trust") is dated ________, and is made by and among:
________ (the "Borrower"),
of
________
- AND -
________ (the "Lender" or "Beneficiary"),
of
________
- AND -
________ (the "Trustee"),
of
________
The Borrower, the Lender, and the Trustee are each a "Party" and collectively the "Parties."
WITNESSETH:
THAT FOR AND IN CONSIDERATION OF the loan made to the Borrower by the Lender in the principal sum of $________ (________) (the "Principal Amount"), as evidenced by that certain Secured Promissory Note of even date herewith (the "Note"), the receipt and sufficiency of which the Borrower hereby acknowledges, and to secure the indebtedness evidenced by the Note and the performance of the covenants and agreements set forth herein, the Borrower hereby IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, AND ASSIGNS to the TRUSTEE, IN TRUST, WITH POWER OF SALE, for the benefit of the Lender, the following described real property (the "Property") located in the County of ________, State of ________, with a street address of:
________
and bearing the following Assessor's Parcel Number (APN), if any:
________
and more particularly described as follows:
________
TOGETHER WITH all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water rights and stock, and fixtures now or hereafter a part of the Property. All replacements and additions shall also be covered by this Trust. All of the foregoing is referred to in this Trust as the "Property."
BORROWER COVENANTS that the Borrower is lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property, and that the Property is unencumbered (including mortgages, deeds of trust, leases, servitudes, easements, and all other relevant third-party interests in the Property), except for encumbrances of record. The Borrower further warrants and will defend generally the title to the Property against all claims and demands, subject only to encumbrances of record.
To protect the security of this Deed of Trust, the Parties hereby agree as follows:
I. PAYMENT.
1. The Borrower, for value received, promises to pay to the Lender the Principal Amount, together with accrued interest and any applicable fees, on the terms set forth in this Trust and the Note, or in any amendment, extension, modification, or renewal thereof, together with any additional amounts secured by this Trust on the terms elsewhere provided for such debts and liabilities.
2. The Borrower agrees to pay the Principal Amount with interest before and after maturity and before and after default at the rate of ________% per annum (the "Interest Rate"). The Interest Rate shall be calculated from the date this Trust begins on ________ (the "Adjustment Date") and shall accrue until the whole of the Principal Amount is paid. The Borrower acknowledges that the Interest Rate shall not exceed the maximum rate permitted under Applicable Law, and that any amount collected in excess thereof shall be deemed a partial prepayment of the Principal Amount.
3. The Principal Amount shall be repaid on the following terms:
a. A payment in the amount of $________ (________) shall be surrendered to the Lender annually on ________ of each year.
b. The Borrower shall continue to make payments according to this schedule until ________ (the "Due Date"), at which time the Borrower shall be required to pay a balloon payment of $________ (________), which shall constitute the remaining balance of the Principal Amount and all accrued and unpaid interest then due.
c. THE BORROWER UNDERSTANDS THAT THE PAYMENT OF THE ABOVE INSTALLMENT PAYMENTS MAY NOT FULLY AMORTIZE THE PRINCIPAL BALANCE OF THE NOTE, AND THEREFORE, A BALLOON PAYMENT MAY BE DUE ON THE DUE DATE.
d. Any unpaid Principal Amount remaining after the Due Date shall accrue interest at a rate of ________% per annum until paid in full, provided that such rate shall not exceed the maximum rate permitted under Applicable Law.
e. All payments shall be applied first to the payment of accrued interest, and any remainder shall be applied to the payment of the Principal Amount.
f. If any payment is not received by the Lender within ________ days after the date it is due, the Borrower shall pay a late charge in the amount of $________, to the extent permitted under Applicable Law.
II. FUNDS FOR ESCROW ITEMS.
4. The Borrower shall pay to the Lender, on the day payments are due under this Trust, until the Principal Amount is paid in full, a sum (the "Funds") to provide for payment of: (a) any taxes, assessments, or other items which can attain priority over this Trust as a lien or encumbrance on the Property; (b) lease payments or ground rents on the Property, if any; and (c) premiums for any and all insurance, including Mortgage Insurance, required by the Lender. These items are referred to as "Escrow Items."
6. The Lender shall collect and hold the Funds in accordance with the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq., and its implementing regulation, Regulation X, 12 C.F.R. Part 1024 (collectively, "RESPA"), to the extent applicable. The Lender shall estimate the amount of Funds due in accordance with Applicable Law. If there is a surplus of Funds held in escrow, as defined under RESPA, the Lender shall account to the Borrower for the excess in accordance with RESPA. If there is a shortage or deficiency of Funds held in escrow, as defined under RESPA, the Lender shall notify the Borrower in writing, and the Borrower shall pay to the Lender the amount necessary to make up the shortage or deficiency.
7. Upon payment in full of all sums secured by this Trust, the Lender shall promptly refund to the Borrower any Funds held by the Lender.
III. OBLIGATION TO PAY.
8. The Borrower agrees to pay all moneys payable pursuant to this Trust and all additional amounts secured by this Trust without abatement, set-off, or counterclaim.
9. Should the Borrower make any claim against the Lender, whether initially or by way of abatement, set-off, or counterclaim, the Borrower agrees that any such claim shall not reduce or postpone the Borrower's obligation to make all payments as provided by this Trust.
IV. PREPAYMENT.
10. When not in default, the Borrower may prepay, without penalty, all or any portion of the Principal Amount and any accrued interest earlier than it is due.
11. Partial prepayment shall not postpone the due date of any subsequent payment or change the payment amount, unless the Lender otherwise agrees in writing.
12. Prepayments shall be applied first to any accrued interest calculated at the Interest Rate, and second to the Principal Amount.
V. ADDITIONAL CHARGES AND ENCUMBRANCES.
13. The Borrower shall pay all taxes, assessments, charges, fines, and all other impositions attributable to the Property, and all trusts, liens, and other encumbrances on the Property.
14. To the extent that these items are Escrow Items, the Borrower shall pay them in the manner provided in the Section titled "FUNDS FOR ESCROW ITEMS."
VI. RELEASE AND RECONVEYANCE.
15. Upon payment of all sums secured by this Trust, including the Principal Amount and any accrued interest, the Lender shall request the Trustee to reconvey the Property and shall surrender this Trust and the Note evidencing the debt secured by this Trust to the Borrower.
16. The Trustee shall reconvey the Property, without warranty, to the person or persons legally entitled thereto. Such person or persons shall pay any recordation cost.
17. The Lender may charge such person or persons a fee for reconveying the Property, but only if the fee is paid to a third party, such as the Trustee, for services rendered and the charging of the fee is permitted under Applicable Law.
VII. TRANSFER OF THE PROPERTY.
18. The Borrower shall not sell, transfer, assign, convey, or otherwise dispose of all or any part of the Property or any interest in the Property, without the Lender's prior written consent. If all or any part of the Property or any interest in the Property is sold or transferred without the Lender's prior written consent, the Lender may, at its option, require immediate payment in full of all sums secured by this Trust. The Trustee shall not sell, transfer, assign, or otherwise dispose of all or part of the Property except in accordance with the Power of Sale and Remedies provisions of this Trust.
VIII. PROPERTY INSURANCE.
19. The Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage," and any other hazards, including but not limited to earthquakes and floods, for which the Lender requires insurance. The insurance carrier providing the insurance shall be chosen by the Borrower; however, the Lender shall have the right to disapprove the Borrower's choice, which right shall not be exercised unreasonably.
20. If the Borrower fails to maintain any of the coverage described above, then the Lender may obtain insurance coverage, at the Lender's discretion and the Borrower's expense. The Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of the insurance that the Borrower could have obtained. Any amounts paid by the Lender shall become additional debt of the Borrower secured by this Trust, shall bear interest at the Interest Rate from the date of payment, and shall be payable, with such interest, upon notice from the Lender to the Borrower requesting payment.
21. All insurance policies must include a standard mortgagee and/or trust clause and shall name the Lender as mortgagee and/or as an additional loss payee, stating that any loss is payable to the Lender. The Borrower further agrees to generally assign rights to insurance proceeds to the Lender up to the amount of the outstanding loan balance. At the request of the Lender, the Borrower shall provide the Lender a copy of the insurance policy and all receipts of paid premiums and renewal notices.
22. In the event of loss, the Borrower must give prompt notice to the insurance carrier and to the Lender. Unless the Lender and Borrower otherwise agree in writing, any insurance proceeds shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible. If the restoration or repair is not economically feasible, the insurance proceeds shall be applied to the sums secured by this Trust, whether or not then due, with the excess, if any, paid to the Borrower.
IX. OCCUPANCY AND MAINTENANCE OF THE PROPERTY.
23. The Borrower shall maintain the Property in good condition and repair and shall not allow the Property to deteriorate or commit waste on the Property. Whether or not the Borrower is residing in the Property, the Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition.
24. The Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or condemnation proceeds are paid in connection with damage to, or the taking of, the Property, the Borrower shall be responsible for repairing or restoring the Property only if the Lender has released proceeds for such purposes.
25. The Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, the Lender may inspect the interior of the improvements on the Property. The Lender shall give the Borrower notice at the time of or prior to such an inspection specifying the reasonable cause for the inspection.
26. The Borrower shall not allow any change in the use of the Property or any change in the zoning classification of the Property unless the Lender has agreed in writing to the change.
27. The Borrower shall comply with all laws, ordinances, regulations, and requirements of any governmental body applicable to the Property.
X. CONDEMNATION.
28. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to the Lender.
a. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Trust, whether or not then due, with the excess, if any, paid to the Borrower.
b. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is equal to or greater than the amount of the sums secured by this Trust immediately before the taking, the sums secured by this Trust shall be reduced by the amount of the proceeds multiplied by the applicable fraction, unless the Borrower and Lender otherwise agree in writing.
c. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is less than the amount of the sums secured immediately before the taking, the proceeds shall be applied to the sums secured by this Trust whether or not the sums are then due, unless the Borrower and Lender otherwise agree in writing.
d. If the Property is abandoned by the Borrower, or if, after notice by the Lender to the Borrower that the condemnor offers to make an award or settle a claim for damages, the Borrower fails to respond to the Lender within thirty (30) days after the date the notice is given, the Lender is authorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured by this Trust, whether or not then due.
e. Unless the Lender and Borrower otherwise agree in writing, any application of proceeds to the Principal Amount shall not extend or postpone the due date of the payments referred to in this Trust or change the amount of such payments.
f. The Borrower shall give the Lender prompt notice of any action or proceeding relating to any condemnation or other taking of the Property, whether direct or indirect.
g. The Borrower shall not settle any claim for damages in connection with a condemnation or taking of the Property without the prior written consent of the Lender.
XI. ACCELERATION.
29. If at any time the Borrower should be in default under this Trust, the Lender shall give notice to the Borrower. The notice must specify: (a) the default; (b) the action required to cure the default (if curable); (c) a date, not less than thirty (30) days from the date the notice is given to the Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Trust and sale of the Property.
30. If the default is not cured on or before the date specified in the notice, the Lender at its option may require immediate payment in full of all sums, including the Principal Amount, interest, and all other amounts secured by this Trust. If the default is cured, the Trust shall be reinstated. If the default is not cured, the Lender may invoke the power of sale and any other remedies permitted by Applicable Law.
31. The Lender shall at all times retain the right to require immediate payment in full in the event of default. Any forbearance on the part of the Lender upon default, including but not limited to acceptance of late payment, acceptance of payment from third parties, or acceptance of payments less than the amount due, shall not constitute a waiver of the Lender's right to enforce acceleration upon default.
XII. PROTECTION OF LENDER'S INTEREST.
32. If at any time the Borrower fails to perform the covenants and agreements under this Trust, or if there is a legal proceeding that significantly affects the Lender's interest in the Property, or if the Borrower has abandoned the Property, then the Lender may do and pay for whatever is reasonable or appropriate to protect the Lender's interest in the Property and/or rights under this Trust, including but not limited to:
(a) Paying any sums secured by a lien which has priority over this Trust;
(b) Appearing in court;
(c) Paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Trust; and
(d) Paying reasonable costs to repair and maintain the Property.
33. The Lender shall at all times retain the right to take action under this Section. However, the Lender is not required to do so and is under no duty or obligation to do so. It is agreed that the Lender shall not incur any liability for not taking any or all actions to perform such tasks. Furthermore, any amounts paid by the Lender shall become additional debt of the Borrower secured by this Trust and shall bear interest at the Interest Rate from the date of disbursement.
XIII. POWER OF SALE.
34. If at any time the Borrower is in default under this Trust, the Lender shall have the right and authority, subject to the notice and cure provisions of this Trust and to Applicable Law, to foreclose and force the sale of the Property through the power of sale herein granted, without judicial proceeding, or, at the Lender's election, by judicial foreclosure.
35. Any delay in the exercise of this right shall not constitute a waiver of the right to exercise it at a later date should the Borrower remain in default or subsequently default again in the future.
XIV. REMEDIES.
36. The Lender shall have the right to invoke all remedies permitted under Applicable Law, whether or not such remedies are expressly granted in this Trust, including but not limited to any foreclosure proceedings.
37. If the Lender invokes the power of sale, the Trustee shall execute a written notice of the occurrence of an event of default and of the Lender's election to cause the Property to be sold. The Lender or Trustee shall mail or deliver copies of the notice to the Borrower and any guarantor and shall also give public notice of sale in the manner and for the period required by Applicable Law.
38. After the time required by Applicable Law, the Trustee shall sell the Property at a public auction to the highest bidder at the time and place and under the terms designated by the Trustee in the notice of sale.
39. The Trustee may postpone sale of the Property by public announcement at the time and place of any previously scheduled sale.
40. The Lender or its designee may purchase the Property at any sale. Upon any sale, the Trustee shall deliver to the purchaser a Trustee's deed conveying the Property without any covenant or warranty, express or implied. The proceeds of the sale shall be applied in the following order: (a) to all expenses of the sale, including but not limited to reasonable Trustee's and attorneys' fees; (b) to all sums secured by this Trust; and (c) any excess to the person or persons legally entitled to it.
XV. MISCELLANEOUS.
41. No modification of this Trust shall be valid unless in writing and signed by the Parties to be charged.
42. This Trust shall be governed in all respects by the laws of the State of ________ and any applicable federal law ("Applicable Law"). The Borrower consents to jurisdiction under the state and federal courts within the State of ________. The Borrower agrees that this choice of law, venue, and jurisdiction provision is mandatory and not permissive in nature. All rights and obligations under this Trust are subject to any requirements and limitations of Applicable Law.
43. The provisions contained in this Trust are additional and supplemental, to the extent permitted by law, to the provisions set out in the Applicable Law as they relate to deeds of trust.
44. If the Borrower is more than one person or legal entity, each Borrower who signs this Trust shall be jointly and severally bound to comply with all the obligations and liabilities of the other Borrower(s).
45. Headings in this Trust are for convenience only and shall not be construed to limit or otherwise affect the terms of this Trust.
46. In the event any provision of this Trust is held to be invalid, illegal, or unenforceable for any reason, the Parties agree that such provision shall be deemed struck and the remainder of the Trust shall be enforced as if the struck provision were never included in the Trust.
47. The Lender may, at its option, from time to time appoint a successor Trustee by an instrument executed and acknowledged by the Lender and recorded in the office of the Recorder of the county in which the Property is located. The instrument shall contain the name of the original Lender, Trustee, and Borrower, the book and page where this Trust is recorded, and the name and address of the successor Trustee. Without conveyance of the Property, the successor Trustee shall succeed to all the title, powers, and duties of the Trustee.
48. The Note or a partial interest in the Note, together with this Trust, may be sold or transferred one or more times without prior notice to the Borrower. Upon any such transfer, the rights of the Lender under this Trust shall inure to the benefit of the transferee, and this Trust shall continue to secure the Note in the hands of any holder thereof.
IN WITNESS WHEREOF, this Trust has been executed by the Borrower in the manner prescribed by law as of ________ as stated above. The Borrower is bound by this Trust as follows:
_________________________
________, Borrower
Date: ________
BORROWER ACKNOWLEDGMENT
State of ________
County of ________
On ________ before me, ________, a Notary Public, personally appeared ________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________ (notary seal)
Notary Public
My Commission Expires: ________
This instrument was prepared by: ________
After recording, return to: ________
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