March 25, 2013
Re: Deed in Lieu of Foreclosure
Subject Property Address: XXXXXX
Dear XXXXX P. Saufl:
Please note that Kondaur Capital Corporation (“Kondaur”) is the servicer, on behalf of the holder of the
promissory note (“Noteholder”), of that certain loan evidenced by a Five Hundred Forty Thousand Dollar
and No Cent ($540,000.00) Note (the “Note”) dated March 29, 2007 from you (XXXXX, the
“Borrower”) to Sanderson State Bank, secured by a Mortgage of even date and amount therewith,
recorded on April 03, 2007, as File Number XXXXXXXXXXX in Liber 12402 on Page 1905, in the public
records of Orange County, New York, and assigned to Noteholder, which encumbers the real property
commonly known as XXXXXX
This letter will confirm that, if you, (i.e. XXXXXX, the Borrower) execute the enclosed (1) Deed in
Lieu of Foreclosure, (2) Estoppel Affidavit, (3) Deed in Lieu of Foreclosure Agreement AND (4) Release,
by no later than April 5, 2013, Kondaur will accept such documents (provided they are properly
notarized, as applicable, and ALL conditions within each agreement or document have been satisfied,
including evidence that title is clear) as payment in full for all amounts due and owing under the Note and
will not seek any further payments whatsoever from you (i.e., James P. Saufl, the Borrower).
If you have any questions or comments, please feel free to contact me directly.
Legal_DIL Agreement _HAVANA 052711
I/We, XXXXXX, hereby release and discharge KONDAUR CAPITAL CORPORATION
(“Kondaur”), its predecessors, successors, designees, affiliates (including, but not limited to, any and all
Matawin Ventures L.L.C.’s, including, but not limited to, Matawin Ventures II, L.L.C, and any and all
Matawin Ventures Trusts, including, but not limited to, Matawin Ventures Trust Series 2012-3), officers,
employees, agents and assignees (collectively, “Releasees”) from any and all claims, damages or actions
which I/we ever had, now have or hereafter may acquire arising directly or indirectly out of or in any way
connected with that certain loan (the “Loan”) evidenced by a Five Hundred Forty Thousand Dollar and
No Cent ($540,000.00) Note (the “Note”) from James P. Saufl to Sanderson State Bank, dated March 29,
2007, secured by a Mortgage of even date and amount therewith, recorded on April 03, 2007, as File
Number XXXXXXXXXXX in Liber 12402 on Page 1905, of the public records of Orange County, New York,
and encumbering the real property commonly known asXXXXX New Windsor, NY 12553 (the
“Subject Property”), including, without limitation, any and all claims, damages, litigation (including any
statutory or contractual right to claim attorneys’ fees therein) or other actions which I/we ever had, now
have or hereafter may acquire arising directly or indirectly out of or in any way connected with the Note,
Mortgage/Deed of Trust, Releasees’ acquisition and/or servicing of the Loan, including, without
limitation, the execution of (1) the Deed in Lieu of Foreclosure, (2) the Estoppel Affidavit and (3) the
Deed in Lieu of Foreclosure Agreement (collectively, the “DIL Documents”) with respect to the Subject
Property and/or the Loan.
This release (the “Release”) is given as consideration for Releasees’ agreement to accept less than the
outstanding balance due and payable under the Note and acceptance of the DIL Documents. I/we
understand and agree that this Release is in full accord, satisfaction and discharge of any claims I/we may
have in any way related to, or arising out of, the Loan and that this Release is not an admission of fault,
liability, culpability or wrongdoing of any kind on the part of Releasees, arising out of or related to the
As further consideration and inducement for Releasees acceptance of less than the outstanding balance
due and payable under the Note, I/we (a) fully assign all contractual and tortious rights and claims that
I/we may have with respect to the origination and/or servicing of the Loan to Releasees, (b) will cooperate
with Releasees in its prosecution of any such rights and claims and (c) understand and agree that this
Release shall apply to all unknown and unanticipated claims or demands that I/we may have resulting
from, or based upon, or in any way connected with the Loan, as well as all known claims or demands that
I/we may have, and I/we hereby expressly waive the benefits of Section 1542 of the California Civil Code
which reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in
his or her favor at the time of executing the release, which if known by him or her must have
materially affected his settlement with the debtor.”
IN WITNESS WHEREOF, I/we have executed this Release this day of , 2013.
City and State where executed City and State where executed
Forwarding Address: Forwarding Address:
DEED IN LIEU OF FORECLOSURE AGREEMENT
THIS DEED IN LIEU OF FORECLOSURE AGREEMENT (this “Agreement”) is
entered into and is effective as of March 25, 2013, by and between XXXXXXX owner-ofrecord
of XXXXXX (“Borrower”), and Kondaur Capital
Corporation (“Kondaur”), a Delaware corporation, as the servicer, on behalf of the holder of the
promissory note (the “Noteholder”) related to the loan described hereinbelow. Kondaur’s
principal place of business is XXXXXXXXX
A. Borrower owns fee simple title to the real property located at XXXXXXX and legally described in
Schedule A attached hereto and made a part of this
Agreement (the “Subject Property”).
B. Kondaur is the servicer, on behalf of the Noteholder, of that certain loan
evidenced by a promissory note dated March 29, 2007, in the original principal amount of Five
Hundred Forty Thousand Dollars and No/100 ($540,000.00) made by Borrower to the original
lender, Sanderson State Bank (the “Promissory Note”). The Promissory Note is secured by that
certain Mortgage of even date and amount therewith, recorded on April 03, 2007, as File Number
20070035001 in Liber 12402 on Page 1905, of the public records of Orange County, New York,
and encumbering the Subject Property.
C. Borrower has failed to pay certain payments due and payable under the
Promissory Note, which has an outstanding unpaid principal balance of $509,547.17 (“UPB”).
The UPB and other amounts due and unpaid, are, in the aggregate, referred to as the borrower’s
default (“Borrower’s Default”).
D. In order to avoid foreclosure by Kondaur and further financial hardship, Borrower
has requested that the parties resolve Borrower’s Default by providing for the transfer and
conveyance of the Subject Property to Noteholder, in lieu of foreclosure, in consideration of a
full cancellation of all debts, obligations, costs and charges secured by the Promissory Note and
Mortgage (the “Deed in Lieu of Foreclosure”).
E. Kondaur wishes to accept the conveyance of the Subject Property under this
Agreement to avoid the necessity of litigation, foreclosure, and the delays associated with
Borrower’s statutory redemption rights, if any, with respect to the Subject Property.
NOW, THEREFORE, for and in consideration of the foregoing premises, and for good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower and Kondaur agree as follows:
Conveyance of Property. Subject to the terms, provisions, conditions, covenants, and
agreements contained in this Agreement, Borrower agrees to sell, grant, transfer, assign, and
convey to Noteholder and Kondaur, on behalf of Noteholder, agrees to purchase from
Borrower absolutely and free of any right of redemption or other right or interest of Borrower
or anyone claiming by, through, or under Borrower, the following: good, valid, indefeasible,
and marketable fee simple title to the Subject Property, including all buildings, fixtures, and
other improvements situated on or within the Subject Property, and all of Borrower’s right,
title, and interest in and to all easements, rights, tenements, and appurtenances thereunto
belonging or appertaining to the Subject Property and all of Borrower’s right, title, and
interest in and to any and all streets, alleys, or public-ways adjacent thereto, before or after
vacation thereof by the Borrower.
Title Policy Commitment. As a condition to Kondaur’s obligation to accept the Deed in
Lieu of Foreclosure, a title order shall be opened by Kondaur with a title company of
Kondaur’s choice for the purpose of the issuance of a binder or commitment to issue a title
policy to Kondaur in connection with the Deed In Lieu of Foreclosure (the “Title Policy
a. Kondaur’s obligation to close the transactions contemplated hereby and acceptance of
the Deed in Lieu of Foreclosure shall be conditioned on the issuance of the Title
b. As an additional condition to Kondaur’s obligation to close the transactions
contemplated hereby, any preliminary report issued by the title company must show
title to the Subject Property to be vested in Borrower, in fee simple, and subject only
i. Said Mortgage currently serviced by Kondaur; and
ii. Other items, if any, that Kondaur shall agree to in writing (the “Permitted
Exceptions” as set forth in Schedule B attached hereto).
c. Kondaur’s obligation to close this transaction and accept the Deed in Lieu of
Foreclosure shall be further conditioned on Kondaur’s acceptance, in its sole and
absolute discretion, of said Title Policy Commitment.
Title Policy. In the alternative to Section 2 above, at Kondaur’s choice, Kondaur must be
able to obtain an ALTA policy of title insurance or equivalent acceptable to Kondaur (the
“Title Policy”). The Title Policy shall show fee simple title to the Subject Property vested in
Noteholder as of the Closing Date (the Closing Date is the date upon which Kondaur records
the Deed in Lieu of Foreclosure). The Title Policy shall be in the amount of the indebtedness
evidenced by the Promissory Note that is outstanding on the Closing Date (or a lesser amount
that Kondaur shall accept), shall contain the full extended coverage insurance over all general
exceptions set forth in the Title Policy and shall delete any so-called creditors’ right
exclusions or exceptions. As an additional condition to Kondaur’s obligation to close,
Kondaur shall receive the following endorsements to the Title Policy (that shall be dated as
of the Closing Date):
a. A date-down endorsement showing fee simple title in Noteholder as applicable, and
insuring the Mortgage as a first priority encumbrance on the Subject Property, subject
only to the Permitted Exceptions; and
b. At Kondaur’s option, a non-merger endorsement acceptable to Kondaur (collectively,
the “Loan Policy Endorsements”).
Kondaur’s obligation to close this transaction and accept the Deed in Lieu of Foreclosure
shall be further conditioned on Kondaur’s acceptance, in its sole and absolute discretion, of
said Title Policy.
Further, Kondaur may delay, in its sole and absolute discretion, the recordation of the Deed
in Lieu of Foreclosure.
Release of Kondaur. Borrower shall deliver to Kondaur a fully executed release of Kondaur
and its respective affiliates, successors and assigns and other parties designated by Kondaur
Cash Incentive for Vacating Subject Property. Additionally, in consideration for vacating
the Subject Property as described below, and upon satisfaction of the terms and conditions
set forth herein, Kondaur will pay Borrower by check Ten Thousand Dollars and No Cents
($10,000.00) ("Cash Incentive"), payable upon Kondaur’s confirmation that the Borrower:
(a) vacates the Subject Property by April 15, 2013; (b) ensures that ALL occupants of the
Subject Property have vacated it; (c) empties the Subject Property of his/her and any other
occupant’s possessions; (d) delivers all keys to the Subject Property to Kondaur; (e) leaves
the Subject Property in empty, undamaged, broom-clean condition with all appliances and
fixtures intact; AND (f) the Deed in Lieu of Foreclosure is recorded and all terms and
conditions referenced herein have been satisfied.
Borrower Cooperation. Borrower shall cooperate with Kondaur as applicable, to permit
Kondaur to obtain the necessary Title Policy Commitment or Title Policy and the Loan
Closing. To complete the conveyance transactions contemplated herein, Borrower agrees to
execute and deposit with Kondaur, or if requested, with the title company of Kondaur’s
choice, the following documents, which have been delivered by Kondaur to Borrower:
a. the Deed in Lieu of Foreclosure;
b. the Estoppel Affidavit – Exhibit A to the Deed in Lieu of Foreclosure;
c. this Agreement; and
d. the Release Agreement.
Upon timely satisfaction of all terms, conditions and covenants contained herein, including,
but not limited to, recordation of the Deed in Lieu of Foreclosure and the sale by Kondaur of
the Subject Property to a third party, Kondaur shall cancel the Promissory Note and record an
appropriate release of said Mortgage.
Non-merger. A merger of title to the Subject Property is not intended by the parties hereto
and if, after the Closing Date, (a) Noteholder’s title to the Subject Property is challenged in
any manner, (b) the title to the Subject Property is subject to more than the liens agreed to by
Kondaur as specified herein, (c) the Title Policy Commitment or Title Policy referred to
hereinabove are found to contain errors or omissions, (d) a lawsuit affects or relates to the
Subject Property, or (e) any of Borrower’s representations in any of the documents executed
by Borrower related to this transaction (including, but not limited to this Agreement, the
Deed in Lieu of Foreclosure, and the Estoppel Affidavit) are found to be inaccurate, Kondaur
may, in its sole discretion, rather than accepting the Deed in Lieu of Foreclosure, reject it at
any time prior to recordation. Notwithstanding the foregoing, Kondaur also may, in its sole
discretion, and in the event that any of the foregoing (a) through (e), hereinabove, have
occurred, accept such title and either retain it, or deliver to Borrower a Quitclaim Deed
reconveying to Borrower all interest in the Subject Property which was conveyed by said
Deed In Lieu of Foreclosure, which Quitclaim Deed shall be immediately recorded by
Kondaur; with respect to the rejection of the Deed in Lieu of Foreclosure, or the acceptance
of the Deed in Lieu of Foreclosure followed by the delivery of a Quitclaim Deed, this
Agreement shall thereafter be treated as if this Agreement had never been entered into and
Kondaur, thereafter shall continue to have all rights it had under its Mortgage prior to the
execution of this Agreement. To effect this provision, it is agreed by the parties hereto that
Kondaur, shall have no obligation to reconvey the Subject Property or release the lien of the
Mortgage whichever is applicable, until such time as Kondaur is able to sell the Subject
Property to a third party, and the provisions of California Civil Code §2941 and related
provisions with respect to reconveyances, and any similar state law with the similar import,
Attorney’s Fees. In the event that any party hereto shall commence a legal proceeding
against any other party hereto to enforce the terms hereof, or to declare rights hereunder, the
prevailing party in any such proceeding shall be entitled to recover said party’s costs of suit,
including reasonable attorney’s fees, as may be fixed by the applicable court.
Entire Agreement. This Agreement and the schedules attached hereto constitute the
entire agreement between the parties hereto pertaining to the subject matter hereof and, upon
execution by all parties, supersedes all prior or contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the parties in
connection with the subject matter hereof, except as specifically set forth herein. No
supplements, modifications, waivers, or terminations of this Agreement shall be binding
unless executed in writing by the parties to be bound thereby.
No Waiver. A waiver of any provision of this Agreement shall not constitute or be
deemed to constitute a waiver of any other provision herein (whether or not similar), nor
shall such waiver constitute a continuing waiver, unless otherwise expressly provided.
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