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Abifaker, Manuel S & Leila & Sarah; 2001-08-28;
NOTICE TO BORROWER: Rancho Carrillo THIS NOTE IS NOT ASSUMABLE SECOND L!!:l.N PROMISSORY NOTE Secured by Deed of Trust THIS IS TO CERTIFY THAT THIS DOCUMENT · . . $ 60,000. 00 IS A TRUE AND EXACT COPY OF THE ORIGIN~arlsbad, Caltfomm BY ~:PANY AUGUST l!s,200l_ FOR VALUE RECEIVED, the undersigned MANUEL S. A_BIFAKER, ·LEILA ABIFAKER AND SABAH ABIFAKER (the "Borrower") promises to pay to the City of Carlsbad, a municipal corporation (the "City"), or order, at the Housing and Redevelopment Department, 2965 · Roosevelt Street, Suite B, Carlsbad, California 92008; or such other place as the City may designate in writing, the principal sum of$ SIXTY THOUSAND AND 3 plus Contingent Interest calculated pursuant to Section 4below. I. Purpose ofLoan. Borrower is purchasing the Residence located at 6175 PASEO CAMAS --------in the City of Carlsbad. This Note evidences a loan made by the Seller of the Residence (the "Seller") to the Borrower, utilizing subsidy funds provided by the City and the Seller, and ~~~igned by the Seller to the City (the "City/Seller Loan"). The City/Seller Loan is in the amount .determined by the City to be necessary for the Borrower to afford to purchase the . Residence making a reasonable downpayment and using conventional first mortgage financing for the balance of the purchase price not financed by the City/Seller Loan. The Seller made the · City/Seller Loan to the Borrower and assigned the City/Seller Loan to the City in fulfillment of certain inclusionary housing obligations pursuant to City Ordinance No. NS-232 and an Affordable Housing Agreement between the Seller and the City dated March 25, 1998 and recorded as Document No. 1998-0162920 in the Official Records of San Diego County, and the First Amended and Restated Affordable Housing Agreement Imposing Restrictions on Real Property dated December 14, 1998, and the Second Amended and Restated Affordable Housing Agreement Imposing Restrictions on Real Property dated July 9,1999. 2. Definitions. The tenns set forth in this Section shall have the following meanings iri this Note. . · · a. "Appreciation Amount" shall mean the amount calculated by subtracting the total original purchase price of the Residence paid by the Borrower, which was )NE HUNDRED AND SEVENTY FIVE AND ** Dollars($ **'9. from one of the following amounts, as applicable: (i) in the eyent of a sale of the Residence, the amount received by the Borrower as the ·sale price of the Residence, as certified by the Borrower pursuant to Section 13 below; or (ii) in the event of a prepayment of this Note, a Transfer other than sale of the Residence, or in the event of a default, the Fair Market Value of the Residence; or (iii) in the event a creditor acquires title * NO / 100 DOLLARS **NO 100 *~* 175,000.00 ·~ ': ! ' to the Residence through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the amount paid for the Residence at a creditor's sale of the Residence. b. "Contingent Interest" shall mean the percentage of the Appreciation Amount set out in Section 4. c. "Fair Market Value" shall be determined by a real estate appraisal made by an independent residential appraiser designated by the City. If possible, the appraisal shall be based upon the sales prices of comparable properties sold in the market area during the preceding three-month period. The cost of the appraisal shall be paid by the Borrower. Nothing in this subparagraph shall preclude the Borrower and the City from establishing the Fair Market Value ofthe Residence by mutual agreement in lieu of an appraisal. · d. "First Mortgage" shall mean the proffiissory note and deed of trust evidencing and securing the first mortgage loan for the Residence. e. "Residence" shall mean the housing unit and land encumbered by the deed of trust executed in connection with this Note. · £ "Transfer" shall mean any sale, assignment ortransfer, voluntary or involuntary, of any interest in the Residence, including, but not limited to, a fee simple interest, a joint tenancy interest,. tenancy in common interest, a life estate, a leasehold interest, or an interest evidenced by a land contract by which possession of the Residence is transferred and the Borrower retains title. Any Transfer without satisfaction of the provisions of this Note is . prohibited. ~~11transfer: (i) to an existing spouse who is also an obligor under the Note; (ii) by a Borrower to •a spouse where the spouse becomes the co-owner of the Residence; (iii) between . spouses as part of a marriage dissolution proceedi'lg; (iv) to an existing spouse or child of the . Borrower by devise or inheritance foUowing the death of the Borrower; (v) by the Borrower into an inter vivos trust in which the Borrower is the beneficiary; or (vi) by deed of trust or imposition of a lien subordinate to the Deed of Trust, shall not be considered a Transfer for t~e purposes of this Note; provided, however, that the Borrower shall continue to occupy the Residence as his or her principal place of residence and the Borrower shall provide written notice of such transfer to the City pursuant to Section 14 below. · 3. Security. This Note is secured by a second deed oftrust dated the same date as this Note (the "Deed ofTrust"). 4. The Borrower shall pay contingent interest equal to 34 • 29% percent L::::_41 ("Contingent Interest Percentage Amount") [seller to insert appropriate percentage which shall in no event exceed (50%)] of the Appreciation Amount (the "Contingent Interest"). No interest other than Contingent Interest shall tie due hereunder. The Contingent Interest shall be paid to the City at the time set forth in Section 7(a) below, unless forgiven by the City pursuant to Section 7(b) below. Borrower acknowledges that the Contingent Interest Percentage Amount is equal to the City/Seller Loan principal amount as a percentage of the total purchase price of the Residence paid by the Borrower at the time of purchase, multiplied by seventy-five one hundredths (.75). Borrower acknowledges that this calculation of the 2 percentage of the Appreciation Amount due to the City as Contingent Interestincludes a twenty- five percent (25%) discount to Borrower to account for any capital improvements Borrower may make to the Residence. 5. Term. The Term of this Note shall mean the period commencing on the date of this Note and expiring on the date thirty (30) years thereafter. 6. Owner-Occupancy Required: Representations Regarding Income. a. The Borrower is required to occupy the Residence as his or her principal place of residence, and failure by the Borrov.:er to comply with this requirement shall be a default under this Note. The Borrower shall be considered as occupying the Residence if the Borrower is living in the Residence for at least ten (10) months out of each calendar year. The Borrower shall provide an annual written certification to the City that the Borrower is occupying the Residence as his or her principal place of residence. The Borrower shall not lease the Residence to another party. Any lease of the Residence shall be a default under this Note. b. Borrower hereby certifies that all income information previously submitted to the Seller and/or the City is true and correct. Misrepresentation by Borrower of income information provided to the Seller and/or the City shall be a default under this Note. 7. Repayment. a. The total amount ofthe principal and any Contingent Interest owed under this Note shall immediately become due and payable (i) in the event of a default by the Borrower un~rrr this Note, the Deed of Trust, or the First Mortgage, (ii) on the date Transfer is made whether voluntarily, involuntarily, or by operation oflaw and whether by deed, contract of . sale, gift, devise, bequest or otherwise, (iii) in the event Borrower ceases to occupy the Residence as his or her principal place of residence; or (iv) at the end of the Term of this Note as described above in Section 5. Failure to declare such amounts due shall not constitute a waiver on.the part of the City to declare them due in the event of a subsequent Transfer. · b. In the event, upon expiration of the Term, (i) no Transfer has occurred, (ii) Borrower has repaid all principal pursuant to subsection (a) above, ·(iii) Borrower continues to owner-occupy the Residence, and (iv) Borrower is not in default hereunder or under the Deed of Trust, the City shall forgive repayment of all Contingent Interest due hereunder. 8. Late Payment Fees. If any payment due hereunder is not paid within five (5) days froin the date it is due, Borrower shall pay a reasonable late or collection charge equal to five percent (5%) of the amount so unpaid. The City and Borrower agree that the actual damages and costs sustained by the City due to the failure to make timely payments would be extremely difficult to measure and that the charges specified in this paragraph represent a reasonable estimate by Borrower and the City of a fair average compensation for such damages and costs. Such charges shall be paid by Borrower without prejudice to the right of the City to collect any other amounts provided to be paid under this Note or the Deed of Trust or, with respect to late payments, to declare a default. 3 9. Prepayments. The Borrower may prepay all or part of the balance due under this Note including principal and Contingent Interest. In the event the entire amount of principal due under this Note is prepaid, all Contingent Interest, calculated as of the date of · prepayment, shall also be due at the time of prepayment. 10. No Assumption ofNo.te. The Borrower acknowledges that this Note is given in connection with the purchase of property (the "Residence") as part of a program ofthe City to assist in the purchase of homes by lower income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon Transfer. 11. Maintenance: Taxes; Insurance. Borrower shall maintain the Residence in good repair and in a neat, clean and orderly condition. Borrower shall promptly pay all property taxes due on the Residence prior to any delinquency and shall comply with the insurance requirements set forth in the Deed of Trust. 12. Refinance ofFirst Mortgage Loan. The outstanding principal and int~rest on this Note shall not be due upon prepayment and refinance of the First Mortgage, and the Deed of Trust shall be subordinated to the refinanced loan, provided that (i) such refinancing is approved by the City, (ii) the amount refmanced does not exceed the outstanding principal balance ofthe First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii) the refinance does not result in higher monthly payments on the First Mortgage Loan than were due prior to the refinance. 13. Certification ofPurchasePrice on Transfer. Upon any sale ofthe Residence, t~Borrower shall submit to the City at least fifteen (15) days prior to the close of escrow, a copy ofthe sales contract and a written declaration, under penalty of perjury, from the . Borrower and the proposed purchaser in a form acceptable to the City stating the gross sales price of the Residence. The certification shall also provide that the proposed purchaser or any other party has not paid and will not pay to the Borrowet; and the Borrower has not received and will not receive from the proposed purchaser or any other party, money or other consideration, including personal property, in addition to what is set forth in the sales contract. 14. Notice to City ofTran·sfers. Borrower shall provid.e the City with written notice of any Transfer of the Residence or of any interest in the Residence (including, but not limited to, encumbrance of the Residence with a junior deed of trust or transfer of the Residence to a spouse or trust). Borrower shall provide this notice to the City no later than fifteen (15) days before the Transfer occurs, except where the Transfer is by devise or inheritance after death of the Borrower in which event notice shall be provided within thirty (30) d·ays of the. date. of Transfer. 15. · Default. a. The Borrower shall be in default under this Note if he or she is in ·default under the First Mortgage following the expiration ofFirst Mortgage cure periods, or if, after the notice and cure period provided by the City to the Borrower pursuant to the notice and cure provisions of the Deed of Trust, the Borrower (i) fails to pay any money when due under this 4 '' .!' Note; (ii) breaches any representation or covenant made in t"his Note in any material respect; or (iii) breaches any provision of the Deed ·of Trust. b. Upon the Borrower's breach of any covenant or agreement of the Borrower in this Note or the Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by the Deed of Trust, the City, prior to acceleration, will send, in the manner set forth in Section 20 notice to the Borrower specifying: (1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a date, not less than thirty (30) days from the date the notice is effective, by which such breach, if curable, is to be cured and ( 4) if the breach is curable, that failure to cure such breach on or before the date specified in the notice may result in acceleration ofthe sums secured by the Deed of Trust and foreclosure by the City. The notice will also inform the Borrower of the Borrower's right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of the Borrower to acceleration and sale. 16. Acceleration. _Upon the occurrence of a default under this Note, the Deed ofTrust, or the First Mortgage, the City shall have the right to declare the full amount of the principal along with any Contingent Interest under this Note immediately due and payable. Any · failure by the City to pursue its legal and equitable remedies upon default shall not constitute a waiver of the City's right to declare a default and exercise all of its rights under this Note and the Deed of Trust. Nor shall acceptance by the City of any payment provided fo.r herein constitute a waiver of the City's right to require prompt payment of any remaining princip'al and interest owed. 17. No Offset. The Borrower hereby waives any rights of offset it now has or may later ha~~,jflgainst the City, its successors and assigns, and agrees to make the payments called for in this Note in accordance with the terms of this Note. 18. Waiver; Attorney Fees and Costs. The Borrower and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, dishonor and non-payment of this Note, and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any_ and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorney fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys' fees in such actio.n. . 19. No Waiver by the City. No waiver of any breach, default or failure of condition under the terms of this Note shall be implied from any failure ofthe"City to take action with respect to such breach, default or failure or from any previous waiver of any similar or unrelated breach, default or failure. 20. Notices. All notices required in this Note shall be sent by certified mail, return receipt requested, or express delivery service with a delivery receipt, or personally 5 delivered with a delivery receipt obtained and shall be deemed to be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable as follows: To the Borrower: 'At the address of the Residence. Tolhe City: City of Carlsbad Housing and Redevelopment Department Attention: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 The parties may subsequently change addresses by providing written notice of the change in address to the other. parties in accordance with this Section 20. 21. Joint and Several Obligations. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns. 22. Nonliability for Negligence; Loss, or Damage. Borrower acknowledges, understands1 ~,rd agrees that the relationship between Borrower and the City is solely that of borrower and 1lender, and that the City does not undertake or assume any responsibility for or . duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the Residence or any other matter. The City owes no duty of care to protect Borrower against negligent, faulty. inadequate or defective building or construction or any condition of the Residence and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns shall ever claim, have or assert any right or action against the City for any loss, damage or other matter arising out of or resulting from any condition of the Residence and will hold the City harmless from any liability, loss or damage for these things. 23. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees that the City may incur as a direct or indirect consequence of: a. the making of the loan to Borrower; b. Borrower's failure to perform any obligations as and when required by the Note or the Deed of Trust; or c. the failure at any time of any of Borrower's representations to the Seller or the City to be true and correct. 6 ., .. ,(: 24. Termination ofRestrictions. Any legal restrictions on conveyance of the Residence (as defined in 24 CFR 203.41 (a)(3)(u)) included in this Note shall tenninate upon transfer of the Residence by foreclosure, deed in lieu of foreclosure, or assignment to the Secretary of the United States Department of Housing and Urban Development. .25, Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State of California. 26. Assignment by City. The City may assign its right to receive the proceeds under this Note to any person and upon notice to the Borrower by the City all payments shall be made to the assignee. 27. Invalid Provisions. If any one or more of the provisions contained in this Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Note, and this Note shall be construed as if such invalid, illegal or unenforceable'provision had never been contained in this Note. · 28. Entire Agreement. This Note (along with the Deed of Trust) sets forth the entire understanding and agreement of the City and the Borrower and any amendment, alteration . or interpretation of this Note must be in writing signed by both the City and the Borrower. Borr~- !i1#ifPd' 5c /)bt/Ot.f<e_r (Print Name) (Print Name) B~. 7 .. \, ., ____ _ ~"ittv.J..tt •BIFAKER RE~ORDING REQUESTED BY ~ 'RST AMERICAN TITLE RECORDING REQUESTED BY AND WHEN RECORDED MAlL TO: City of Carlsbad City Clerk's Office 1200 Carlsbad VillageDrive Carlsbad, CA 92008 Attention; City Clerk No fee for recording pursuant to Government Code Section 27383. DOC U 2001-0638932 SEP 06. 2001 2:43 PM (ffiCI(( RE(DI)S 10132 SAM DIEOO ro.taY REcrm:R'S £FFICE GlmJN J. 9UTH, roJITV REilRDER FEES: 0.00 ~v: 2 11!1111111111 II I 1111 2001·0638932 (Space above for Recorder's Use) ~ ~ c--1!:: '6"b'1 ?JotJ "'~ or J._ ¥ 6'0'1 tx:{l-C: NOTE TO BORROWER: THIS DEED OF TRUST CONTAINS PROVISIONS PROIDBITING ASSUMPTIONS s:ECO~D LIEN DEED OF TRUST AND SECURITY AGREEMENT TillS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as o£ AND this 28THday of AUGUST 2001, among MANUEL':i:ABIPAKER, LEILA ABIFAKE ("Borrower") as trustor, and FIRST AMERICAN ("Trustee"), and the City of G~rlsbad, a municipal corporation (the "City"), as beneficiary. I' The Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust,· with power of sale, the property located in the City of Carlsbad, State of California, described in the attached Exhibit "A" (the"Property")_ 6175 PASEO CAMAS, CARLSBAD, CA. 92009 TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust; and TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be attached to said building or buildings in any marmer; and all of the foregoing, together with the Property, is herein referred to as the "Security"; 1 '· '· ~ " ,(: To have and to hold the Security together with acq~ittances to the Trustee, its successors and assigns forever; · TO SECURE to the City the repayment of the sums evidenced by a promissory note executed by the Borrower to the City dated AUGUST 28, , 2001, in the amount of SIXTY THOUSAND AND NO /100 . Dollars($ 60 • 000 • uy (the "Note"); . TO SECURE to the City the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security ofthis Deed ofTrust; and the performance of the covenants and agreements of the Borrower herein contained; and TO SECURE the performance of any obligations of Borrower in any other agreements with respect to the financing of the Property or the Security the failure of which would adversely affect Beneficiary, whether or not Beneficiary is a party to such agreements. BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS: 1. Borrower's Estate. That the Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the Security is encumbered only by that deed of trust executed by the Borrower in connection with a loan made to the Borrower byNATIONAL CITY or its successors and assigns (the "First Lender"), dated **** 2001, executed by the Borrower in favor ofFirst Lender, and recorded in the County of San Diego on **** 2001, and assigned Recorder's Serial No. (the "First Lender Deed of Trust"), securing a promissory note executed by the Borrower in favor of the First Lender ("First Lender Note"), to assist in the purchase ofOe Property. The Borrower agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the City's interest in the Security. (As used in this Deed of Trust, the term "First Lender" shall include aU successors and assigns ofthe First Lender.) 2. Repayment of Loan. The Borrower will promptly repay, when due, the principal and interest required by the Note. The Note. contains the following provisions concerning repayment of the loan under certain conditions: . No Assumption ofNote. The Borrower acknowledges that this Note is given in connection with the purchase of property (the "Residence") as part of a program of the City to assist in the purchase of homes by lower income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon a Transfer as defined in the Note. 3. First Lender Loan. The Borrower will observe and perform all of the covenants and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender 'loan documents. 4. Owner-Occupancy Required. The Borrower shall occupy the Property as his or her principal place of residence. The Borrower shall be considered as occupying the Property if **~*RECORDED CONCURRENTLY · 2 the Borrower is living in the unit for at l~ast ten (I 0) months out of each calendar year. The Borrower shall provide an annual written certification to the City that the Borrower is occupying the Property as his or her principal place of residence. 5. Charges; Liens. The Borrower will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority senior to this Deed of . Trust, by the Borrower making any payment, when due, directly to the payee thereof. The Borrower will promptly furnish to the City all notices of amounts due under this paragraph, and in the event the Borrower makes paymen~ directly, the Borrower will promptly discharge any lien which has priority senior to this Deed of Trust; provided, that the Borrower will not be required to discharge the lien .of the First Lender Deed of Trust or any other lien described in this paragraph so long as· the Borrower will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. The Borrower will keep the Security insured by a standard fire and extended coverage insurance policy in at least an amount equal to the replacement cost of the Security, but in no event less than the amount necessary to prevent the Borrower from becoming a co-insurer under the terms G>fthe policy. · The insurance carrier providing this insurance shall be licensed to do business in the State of California and be chosen by the Borrower subject to approval by the City; provided, that such . approval will not be withheld if the insurer is also approved by the First Lender, the Federal Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of Housing a~di!Urban Development, the United States Department ofVeterans Affairs, or successors 'thereto. All insurance policies and renewals thereof will be in a form acceptable to the City and will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of the First Lender Note and the City as their interests may appear and in a form acceptable to the City. The City shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and the Borrower shall promptly furnish to the City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt notice to the insurance carrier and the City or its designated agent. The City, or its designated agent, may make proof ofloss if not made promptly by the Borrower. The City shall receive thirty days advance notice of cancellation of any in_surance policies required under this section. Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject to the rights of the First Lender, will be applied to restoration or repair of the. Security damaged, provided such restoration or repair is economically feasible and the Security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security ·of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the date notice is '' ,. 3 mailed by either of them to the Borrower that the insurance. carrier offers to settle a claim for. insurance benefits, the City, or its designated agent, is authorized, subject to the rights of the First Lender, to collect and apply the insurance proceeds at the City's option either to restoration or repair of the Security or to repay the Note and all sums secured by this Deed of Trust. If the Security is acquired by the City, all right, title and interest of the Borrower in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender. 7. Preservation and Maintenance of Security. The Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection ofthe City's Security. If the Borrower fails to perfoim the covenants and agreements contained in this Deed of Trust, the First Lender Note, the First Lender Deed of Trust, or if any action or proceeding is commenced which materially· ~ffects the City's interest in the Security, including, but not limited to, default under the First Lender Deed of Trust, the First Lender Note or any other deed of trust encumbering the Property, eminent domain, insolvency, . . code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the City, at the City's option, upon notice to the Borrower, may make such appearances, disburse such sums and take such action as it determines necessary to protect the City's interest, including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security to make repairs. Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will become an \Mebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and City agree iri writing to other terms of payment, such amount will be payable upon notice from the · City to the Borrower requesting payment thereof, ·and will bear interest from the date of · disbursement at the lesser of(l) ten percent (10%.)per annum or (2) the highest interest rate permissible under applicable law. Nothing contained in this paragraph will require the City to incur any expense or take any action hereunder. · 9. Inspection. The City may make or cause to be made reasonable entries upon and inspections of the Security; provided that the City will give the Borrower reasonable notice of inspection. 10. Forbearance by the City Not a Waiver. Any forbearance by the City in exercising any right. or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment oftaxes or other liens or charges by the City will not be a waiver of the City's right to accelerate the maturity ofthe indebtedness secured by this Deed of Trust. II. Remedies Cumulative. All remedies provided in this Deed ofTrust are distinct and 'cumulative to any other right or remedy under this Deed of Trust or any other document, or- afforded by law or equity, and may be exercised concurrently, independently or successively. 4 12. Successors and Assigns Bound. The cove~~nts and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the City and the Borrower subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements ofthe Borrower shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, all notices required in this Deed of Trust shall be sent by certified mail, return receipt requested or express delivery service with a delivery receipt, or personaUy delivered with a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable as follows: · lh I I To the Owner: At the address of the Borrower. To the City: City of Carlsbad Housing and Redevelopment Department Attn: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. 15. Controlling Law. This Deed of Trust shall be construed in accordance with and be governed by the laws ofthe State of California. 16. Invalid Provisions. If any one or more of the provisions contained in this Deed of Trust or the Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions, and this Deed of Trust and the Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Deed of Trust or the Note. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default: Remedies. Upon the Borrower's breach of any covenant or agreement of ·the Borrower in this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to acceleration, will send, in the manner set forth in Section 14 of this Deed of Trust, notice to the Borrower specifying: (1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a date, n"ot less than thirty '·' '.' 5 (30) days from the date the notice is effective as set forth in. Section 14 of this Deed of Trust, by which such breach, if curable, is to be cured; and (4) ifthe breach is curable, that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale ofthe Security. Notice shall be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused or the date the notice was returned as undeliverable. The notice will also infonn the Borrower of the Borrower's right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of the Borrower to acceleration and sale. If the breach is not curable or is not cured on or before the date specified in the notice, the City, at the City's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard· to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do aryy acts which it deems necessary or desirable to preserve the value or marketability of the Security, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate . any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the City shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence ofany uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any ofthe covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et gm., as amended from time to time; or (e) exercise all other rights and remedies prd~ided herein, in the instruments by which the Borrower acquires title to any Security, or in any ottler document or agreement now or hereafter evidencing, creating or securing all or ·any portion of the obligations secured hereby, or provided by law . .. The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees. 19. Acceleration. Upon the occurrence of a default under the Note, this Deed of Trust, the First Lender Note, or the First Lender Deed of Trust, the City shall have the right to declare the full amount of the principal along with any interest under the Note immediately due and payable. Any failure by the City to pursue its legal and equitable remedies upon default shall not constitute a waiver of the City's right to declare a default and exercise all of its rights under the Note and this Deed of Trust. Nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining principal and interest owed. 20. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed ofTrust if: (a) the Borrower pays City all sums, if any, which would be then due under this Deed of Trust as if acceleration under the Note 6 '·' i has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the Borrower contained in this Deed ofTrust; (c) the Borrower pays aH reasonable expenses incurred by City and the Trustee in enforcing the covenants and '!-greements of the Borrower contained in this Deed ofTrust, and in enforcing the City's and the Trustee's remedies, including, but not limited to, reasonable attorney's. fees; and (d) the Borrower takes such action as City may reasonably require to assure that the lien of this Deed ofTrust, City's interest in the Security and the Borrower's obligation to pay the sums secured by this Deed ofTrust shall continue unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 21. Reconveyance. Upon payment or forgiveness of all sums secured by this Deed of Trust, the City will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Tn:1stee. The City, at the City's option, may from time to time remove the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Subordination to First Mortgage. Notwithstanding any other provision hereof, the provisions of this Deed ofTrust shall be subordinate to the lien of the First Lender Deed of Trust and shall not impair the rights of the First Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default under the First Lender .~)reed of Trust by the Borrower. Such remedies under the First Lender Deed of Trust include' the right offoreclosure or acceptance of a deed or assignment in lieu offoreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or upon assignment of the First Lender Deed of Trust to the Secretary of the United States Department of Housing and Urban Development (the "Secretary"), this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure, or if the Fi~st Lender's Deed of Trust is assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition of title, or assignment to the Secretary provided that (i) the City has been given written notice of default under such First Lender Deed of Trust and (ii) the City shall not have cured or commenced to cure the default within such 30-day period and given its firm commitment to complete the cure in the form and substance acceptable to the First Lender. Borrower agrees to record any necessary documents to effect such termination, if applicable. 7 •,. 24. Attorney's Fees. If any action or proceeding is brought to enforce this Deed of Trust or any provision of this Deed ofTrust or the Note, the prevailing party shall be entitled to its attorney's fees and the cost of such action or proceeding. IN WITNESS WHEREOF, the Borrower has executed this Deed of Trust as of the date first written above. ~ Barr~ (Print Name) · ~· 8 ;. ' .f. STATE OF CALIFORNIA ) . )ss COUNTY OF SAN DIEGO ) On ~f.v-~ , 2001, beJ;?treme, R~4< {1;k , personally appeared Ji,....c( 0Li..tcu,Lr.(& ALr&lw,,.l r.~l~~piv;oRall)• klfowR to li~(or proved to me on the basis of . satisfactory e~idence) to be the person(s) whose name(s) is/~ubscribed to the within instrument and acknowledged to me that h.elshe/~xecuted the same in his/her/t~uthorized capacity(ies), and that by his/her/tlidPsignature(s) on the instrument the person(s) or the entity upon behalfofwhich the person(s) acted, executed the instrument. STATE OF CALIFORNJA ) )ss COUNTY OF SAN DIEGO ) )-<> t'\ * e A '"fl 6 A <>,e <><>o A. 0 RYAN FISK =t CJ COMM. # 1309244 ::.. ~ • NOT AR'fP~BliC..CALIFORNIA G) ,;. SAN DIEGO COUNTY 0 .l..c .., .., v ~~MM. EXP. JUNE 16, 20~ --<::;<>vvv On 2001, before me, personally appeared 1 ~ ~ , personally known to me (or proved to me on the basis of satisfactory' evidence) to be the petson(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. . B1,tll N\fOIH3W\f lSI:II.-f Af- Q3.LS3 n03t:l ~NlCHOO 3t:l qs~oR~~~~GMJESTED BY HAST AMERICAN TITLE AND WHEN RECORDED MAIL TO: NAME r CITY OF CARLSBAD l STREET CITY CLERKS OFFICE ADDRESS 1200 CARLSBAD, CA 92008- CITY STATE ZIP L 2839 J 10141 DOC # 2001-0638933 •j ·~~~ ·; ' SEP 06. 2001 2:43 PM (fflCIIl r£llRDS • DIEGO auffi' REllmR'S fffiCE f.6.FI J. 9Ullh llltfl'l REaRIER F££8: 0.00 111111111111111 -----------------_._ __ THIS 2901-0638g33 SPACE FOR RECUHuc:n J v~~ ~· ·- TITLE ORDER NO: S?J7307-r 507307LS REQUEST FOR NOTICE ESCROW NO: 507307LS UNDER SECTION 2924b CIVIL CODE In ilccoruance with Section 2924b, Civil Code. request is hereby made lhal a copy of any Nolie~:~ D~JU!t and a copy of any Notice of Sale: under the Deed of Trust recorded as Instrument No.Ct~ ~u/~ on , _in book . pogc 1 Official Records of SAN DIEGO · County, California, describing land therein as: SEE EXHIBIT "A" Ex~culcd by Trustor: SARAH ABIFAKER , MANUEL S. ABIFAKER & LEILA ABIFAKER named Truslce is: FIRST AMERICAN TITLE COMPANY, A CALIFORNIA CORPORATION Beneficiary is: CITY OF CARLSBAD be mailed to CITY OF CARLSBAD, CITY CLERKS OFFICE ~~ 1200 CARLSBAD VILLAGE DRIVE, CARLSBAD, CA 92008-2839 Number and Street City and State STATE OF CALIFORNIA COUNTY OF SAN DIEGO On 08/30/2001 before me Debbie Jean Holsman personally appeared Scott 1F. Fifer personally known to me (or proved to me on the basis of satisfactory evidence) to be the person{s) whose name(s) is/~re subscribed to the within instrument. and acknowledged to me that 1 he/she/they executed the same in his/her/their authori:zed 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 instrumeht. in which and (Tnis area for official notary seall FPSJ00-('11 t2.'~] r' WFCASTDR·S 05110/IM This Institl111ent prepared by: RONALD E. MEHARG wli'en recorded, return to Current Trustor(s): SABAHABIFAKER 6175 P ASEAO CAMAS CARLSBAD, CA 92009 770-753-4373 ~~ ii~iiiiDIIRI * 6 8 5 - 2 7 7 3 8 4 6 * Secondary Reference #: 20050213 (R048) Property Address: 6175 PASEAOCAMAS CARLSBAD, CA 92009 l80IO DOC # u 2006-0060845 lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll\11111~) I ' JAN 24,2005 4:48PM OFfiCIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COUNTY RECORDER FEES: 16.00 WAYS: 2 PAGES: 1 DA: 1 IID\1111111 n1~ 1111111111 Dl\11111 om 0111 nm Bill nm Bill nm B\1111 ,. .... . .... _ • .J • " .. ~ \.. "' , ..• ~ ''" .... 1 r 1~ '-.-:/,f1 , Ff ,I ·· ... :. ; ~ .•. / TlnE36S gHCCRDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 Vvhen Recorded Mail To: City of Carlsbad City Clerk's Otlice 1200 Carlsbad Vilhtgc Drive Curlsbad, CA 92008 ''i'i£7.-ISOCtbi I DOC# 2015-0330871 llmlllllllllllllllllllllillllllllllllllllllrlllll 11!111111111111111 Jun 25, 2015 08:00AM OFF!CIAL RECORDS E~•est J. Dronenbur9. Jr., SAN DIEGO COUNTY RECORDER FEES: $~0.00 PCOR: N/A PAGES: 3 SUBSTITUTION OF TRUSTEE AND FULL RECONVEYANCE WHEREAS, MANUEL S. AND LEILA ABIFAKER was the original Twstor, FIRST AMERICAN was the original Trustee, and CITY OF CARLSBAD was the original beneficiary under that certain Deed of Trust dated AUGUST 28, 2001 and recorded on SEPTEMBER 06. 2001 as Document No. 2001-0638932 of Official Records of SAN DIEGO County, Califomia, describing land therein as: 6175 PASEO CAMAS. CARlSBAD. CA 92009, or more fully described on the attached page marked ''Exhibit A''; and WHEREAS, the undersigned Beneficiary desires to substitute itself as the new Trustee under said deed oftrust in place of FIRST AMERICAN. NOW THEREFORE, the uoder$igned hereby substitutes itself as Trustee under said Deed of Trust and does hereby RECONVEY, without warranty, to the person or persons legally entitled thereto, the estate now held by it thereunder. CITY OF CARLSSAO Dated: ~ ll \ \ ) "\ By: Kathryn B. Dodson, Assistant City Manager (Proper Nctorietl Acknowledgement of Signature Must Be Attached) CA l/29i20l4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1111-q vz -;g?i A notary pulllic or other officer co~npleting this certificate ve~ifias only lhe idenlit)• of the individual who signed the , document to which this certificate is attached, and not the tmthfulness, eccuracy, or validity of that document. _ _j State of California County of ."Xla __ Q;_~----··· ... -- On ..:!..lM..J;< 1 0'91 ~ ... ·-befora me, ,I o ±\c.< a 7fl...;i Al:> ~ 1 APfary ... !J...bl;s,._, Date Here Insert Name and Title of the Officer personally appeared l<a+h£¥>:< .. B ... D.~I.l;!!!6.;~.0:=.:._..-.:!...._ ___________ _ Namejafof Sign~ who proved to me on the basis of satisfactory evidence to be the person}sr whose name!.'i) isl,a.:e subscribed to the wnhin instrument and acknowledged to me that ..Retshe/.tRey executed the same in j;li8iher/,tllelf authorized capacity~ and that by .llielher/tpeir signaturE){el on the ir~strument the persol}(s}, or the entity upo11 behalf of which the persofil8)' acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of 1he State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature.~,:l--ta..r\P t?f;;JO Signature of NotaT; ifC Place Notary Seal Above ------------~-----------oPTIONAL------------------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. !)escrfpllon ttachP.d Document Title or Type of Do t: ______ ... Documentj)ai!if.--.:_ ____ _ Number of Pages; ... ner(s) Oiher Than Named Abovv~e;:.:~:...._ __ _ Capacity(ies} Claimed by Signer(:; Signer's Name: ............... -·-·----.:::::,....,_ _ __.,.. U Corporate Officer -Tille{s): ____ --=>"L:..:. n Partner -ri Umited !J General ::J Individual :J Attorney in F _j Trustee cJ Guard! Conservator -:• Otl'ler:. ·---~.L.------- Signer Is Represen · ner- n lndivr []Trustee [J Other: Signer Is Representing: ~:::..._,------- ©201 alional NolaJY Association· www.NationaiNotary.org ·1·800-US NOTARY (1·800·876-6827) ,., EXHIBIT A Legal Description The land hereinafter referred to is siiuated in the City of Carlsbad. County of San Diego. State of CA. and is described as follows: A Condominium comprise(! of: Parcel1: An undivided fractional inter<!>st as tenant in common in and to· the building envelope in which the Living Unit described in Parcel2 below is located equal to the reciprocal of the rrumber of Living Units within that building envelope; being a portion of Lot 1 of City of Carlsbad Tract 98·15 Rancho Carrillo Village "B ... according to Map thereof No. 14002. filed with the County Recorder of San Diego County. California on July 18. 2000 Excepting therefrom each Living Unit located wH11in such building envelope. as shown on the Condominium Plan desCiibed in Parcel2 below. · Parce12: Living Unil No. 12, as shown upon the Condominium Plan recorded Octobers. 2000 as tnslrument No. 2000-0534956 and re-recorded February 16. :2001 as Instrument No. 2001·0092231, both Official Recot"ds of San Diego County. California (the '"Condominium Plan") Parcel3: Non-exclusive appurtenant easements in and to the Association Property now or hereafter owned by the Association as set fortll in the Declaration, "Association Property" is defined in the Declaration; "Association" is defined below. Parcel4: A non·exclvsive easement for vehicular and pedestrian access, ingress and egress and driveway purposes and for the use of private storm drains, over. under, along. across and through that portion of Lot 207 of Carlsbad Tract 97·02 Rancho Carrillo Villages "A-D" in the City of Carlsbad. County of San Diego, State of California, according ro Map thereof No. 13582. filed in the Office of the County Recorder of San Diego County, California on June 10. 1998, described on Exhibit ·-r· agitated to this Exhibit '"A'". . .. ParcelS: The exclusive right to use any Exch;sive Use Area shown on the Condominium Plan as being appurtenant to the Living Unit described in Parcel 2 above. Parcel6: A Class Membership in Senano at Rancho Carrillo Association, a California Nonprofit Mutual Benefit Corporation ('"Association"). APN: 221-870-01-12 Created: 06/1612015 762-1S001071