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My husband loaned my brother and myself money to pay a second

Customer Question
mortage that was on property...
My husband loaned my brother and myself money to pay a second mortage that was on property that we inherited. Can he put a lein on the property so that he can be assured that if the property is sold he will get him money back? This is in the state of New York, the money was loaned 2009
Submitted: 5 years ago.Category: Legal
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Answered in 4 minutes by:
7/6/2012
Lawyer: Richard, Attorney replied 5 years ago
Richard
Richard, Attorney
Category: Legal
Satisfied Customers: 55,796
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Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good afternoon. If he did not get a lien at the time of the loan, he cannot do so now without your consent. You can give him a lien by signing a deed of trust if you choose. But, without your consent, the loan would have to be in default, and he would have to sue you and get a judgment against you due to such default in order to have the right to place a lien on the property without your consent.



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Thanks for allowing me
to be of service to you. Please be aware that the information provided here is
not legal advice. Rather it is simply general information. All states have intricacies in their laws
and any information given is simply information only and specifically is not
intended to be, nor does it constitute, legal advice. This communication does
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Ask Your Own Legal Question
Customer reply replied 5 years ago
I certainly can give him my concent to do that what do I do to give him a deed of trust
Lawyer: Richard, Attorney replied 5 years ago
You would sign a Deed of Trust or Mortgage document which would need to then be witnessed, notarized, and then recorded in the real property records of the city/county in which the property is located. I can provide you a form for the Mortgage if you'd like. Just let me know.
Ask Your Own Legal Question
Customer reply replied 5 years ago
Yes that would be great. Would I have to have my brother sign this also there is a problem brewing and I think he is going back on his word to repay him.
Lawyer: Richard, Attorney replied 5 years ago

Only the borrower need sign the Mortgage document. I have provided a form below:





Return to:



_______________________



_______________________





MORTGAGE OF REAL
ESTATE







State of ___________ )



)



County of
___________ )







THIS
MORTGAGE is dated _______________.





THE
"MORTGAGOR" referred to in this Mortgage is ______(insert
name)_______________, _______(insert address)______.





THE
"MORTGAGEE" is _____(insert name and address)______.





THE
"NOTE" is a note from Mortgagor to Mortgagee in the amount of $_________
dated __________. The Note and any
documents renewing, extending or modifying it and any notes evidencing future
advances are all referred to as the "Note" and are considered to be
part of this Mortgage. The original
stated maturity date of the Note is ___________, and together with any and all
other indebtedness now owing or which may hereafter be owing by Mortgagor to
Mortgagee, however incurred (all of which present and future indebtedness are
collectively referred to herein as the "Secured Indebtedness").





THIS MORTGAGE is
given to secure to Mortgagee the repayment of the following amounts, with
interest: (a) the indebtedness evidenced
by the Note; (b) any Future Advances made under paragraph 2.10 below and such
other indebtedness secured by this instrument and referred to as Secured
Indebtedness, (c) Expenditures by Mortgagee under paragraphs 1.02, 1.03 & 1.05 below; and (d) attorneys' fees, court costs and other amounts
which may be due under the Note and this Mortgage.





In consideration
of the above indebtedness and for other valuable consideration which Mortgagor
acknowledges receiving, Mortgagor does hereby mortgage, grant and convey to
Mortgagee, its successors and assigns:





(a)
All
that tract or parcel of land (the Land )lying and being in ___________ County, ___________
and being more particularly described on Exhibit "A" attached hereto
and incorporated herein by reference; and













(b)
All buildings, structures and
other improvements of every kind and nature whatsoever now or hereafter
situated on the Land; and all machinery, equipment, fixtures, appliances and
building, construction, development and landscaping supplies and materials now
or hereafter placed on or in the Land; and all of the things addressed in this
paragraph (b), whether generally or specifically, shall be deemed to be
fixtures and accessions to the freehold and a part of the Land as between the
parties hereto and all persons claiming, by, through or under either of them;
and





(c) All and singular the easements,
rights-of-way, strips and gores of land, streets, ways, alleys, passages, sewer
rights, waters, water courses, water rights and powers, estates, rights,
titles, interests, minerals, royalties, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way now or hereafter
belonging, relating or appertaining to the Land or the improvements now or
hereafter located thereon, or any part thereof, whether now owned or hereafter
acquired by Mortgagor, and the reversion or reversions, remainder and
remainders, rents, issues and profits thereof; and all right to receive excess
payments in any tax sale of the Land and the improvements now or hereafter
located thereon, or any part thereof; and all the estate, right, title,
interest, claim and demand whatsoever of Mortgagor of, in and to the same
(collectively hereinafter referred to as the "Property"; and all of
the same being deemed part of the Property and included in any reference thereto);
and





(d) Any and all rents which are now due
or may hereafter become due by reason of the renting, leasing and bailment of
the Land or the improvements now or hereafter located thereon, or any part
thereof; and





(e) Any and all awards or payments, including
interest thereon, and the right to receive the same, as a result of (i) the
exercise of the right of eminent domain, (ii) the alteration of the grade of
any street, or (iii) any other injury to the taking of, or decrease in the
value of, the Land or the improvements now or hereafter located thereon;





TO HAVE AND TO
HOLD all and singular the Property unto Mortgagee and the successors and
assigns of Mortgagee forever.





MORTGAGOR
covenants that Mortgagor is lawfully seized of the Property in fee simple
absolute, that Mortgagor has good right and is lawfully authorized to sell,
convey or encumber the same, and that the Property is free and clear of all
encumbrances except as expressly provided herein. Mortgagor further covenants to warrant and
forever defend all and singular the Property unto Mortgagee and the successors
or assigns of Mortgagee from and against Mortgagor and all persons whomsoever
lawfully claiming the same or any part thereof.





PROVIDED ALWAYS,
nevertheless, and it is the true intent and meaning of Mortgagor and Mortgagee,
that if Mortgagor pays or causes to be paid to Mortgagee that debt secured
hereby, the estate hereby granted shall cease, determine and be utterly null
and void; otherwise said estate shall remain in full force and effect.





IT IS AGREED
that Mortgagor shall be entitled to hold and enjoy the Property until a Default
as herein defined has occurred.







Mortgagor
covenants and agrees as follows:





Article
I





1.01. Payment of Secured Indebtedness. Mortgagor shall pay to Mortgagee the Secured
Indebtedness as in the Note and this Mortgage as and when the same becomes due
and payable.













1.02. Payment of Taxes, Etc. Mortgagor shall pay, when due and payable,
(a) all taxes, assessments, general or special, and other charges levied on, or
assessed, placed or made against the Premises, this Mortgage, the Note or the
Secured Indebtedness or any interest of the Mortgagee in the Premises or the
obligations secured hereby and (b) premiums on policies of fire and other
hazard insurance covering the Premises, as required in Section 1.03
herein. If Mortgagor fails to promptly
make any such payment, then Mortgagee may, at its option, make such payment,
without notice, and the amount so advanced shall become part of the Secured
Indebtedness and shall bear interest from the date advanced at the rate of
interest from time to time in effect in the Note for principal. If, in the opinion of Mortgagee, any state,
federal, municipal or other governmental law, order, rule or regulation
prohibits Mortgagor from paying any such tax, assessment or other charge or
would penalize Mortgagee if Mortgagor were to make such payment, or if, in the
opinion of Mortgagee, the making of such payment might result in the imposition
of interest beyond the maximum amount permitted by applicable law, then the
Secured Indebtedness shall, at the option of Mortgagee, become immediately due
and payable.





1.03. Insurance. (a)
Mortgagor shall keep improvements (if any) on the Premises insured for the
benefit of Mortgagee against loss or damage by fire, lightning, windstorm,
hail, collapse, explosion, malicious mischief, riot, riot attending a strike,
civil commotion, aircraft, vehicles and smoke and such other hazards as
Mortgagee may from time to time require, all in amounts approved by Mortgagee
at least equal to 100% of full insurable value.
All insurance herein provided for shall be in form and with companies
approved by Mortgagee; and, regardless of the types or amounts of insurance
required and approved by Mortgagee, Mortgagor shall assign and deliver to
Mortgagee, as collateral and further security for the payment of the Secured
Indebtedness, all policies of insurance which insure against any loss or damage
to the Premises, with loss payable to Mortgagee, without contribution. If
Mortgagee, by reason of such insurance, receives any money for loss or damage,
such amount shall, at the option of Mortgagee, either be disbursed for the
repair and restoration of the Premises in accordance with and subject to the
conditions for disbursement that Mortgagee would customarily impose as a
prudent lender in a construction or development loan, or retained by Mortgagee
and applied toward payment of the Secured Indebtedness. Mortgagee shall in no event be obligated to
see to the proper application of any amount paid over to Mortgagor.





(b) Not less than ten (10) days prior to
the expiration date of each policy of insurance required of Mortgagor pursuant
to this 1.03, Mortgagor shall deliver to Mortgagee a renewal policy or policies
marked "premium paid" or accompanied by other evidence of payment
satisfactory to Mortgagee.





(c) In the event of a foreclosure of this
Mortgage, the purchaser of the Premises shall succeed to all the rights of
Mortgagor in and to all policies of insurance required by this 1.03 and all
policies of insurance assigned or delivered to Mortgagee.













1.04. Condemnation. Notwithstanding any taking of, injury to, or
decrease in the value of, any portion of the Premises by or as the result of
eminent domain, the alteration of the grade of any street, or any other public
or quasi-public action, Mortgagor shall continue to pay principal and interest
on the Secured Indebtedness, and any reduction in the Secured Indebtedness
resulting from the application by Mortgagee of any award or payment for such
taking, alteration, injury or decrease in value of the Premises shall be deemed
to take effect only on the date of such receipt. Any such award or payment may, at the option
of Mortgagee, be retained and applied by Mortgagee toward payment of the
Secured Indebtedness, or be paid over, wholly or in part, to Mortgagor for the
purpose of altering, restoring or rebuilding any part of the Premises which may
have been altered, damaged or destroyed as a result of any such taking,
alteration of grade, or other injury to the Premises, or for any other purpose
or object satisfactory to Mortgagee, but Mortgagee shall not be obligated to
see to the application of any amount paid over to Mortgagor. If, prior to the receipt by Mortgagee of such
award or payment, the Premises shall have been sold on foreclosure of this
Mortgage, Mortgagee shall have the right to receive said award or payment to
the extent of any deficiency found to be due upon such sale, whether or not a
deficiency judgment on this Mortgage shall have been sought or recovered or
denied, together with legal interest thereon and the costs (including fifteen
percent (15%) of the principal and interest as attorney's fees) incurred by
Mortgagee in the obtaining and collection of such award or payment.





1.05. Care of Premises. Mortgagor shall maintain the Premises in good
condition and repair, shall not commit or suffer any waste to the Premises, and
shall comply with, or cause to be complied with, all restrictive covenants,
statutes, ordinances and requirements of any governmental authority relating to
the Premises and the use thereof or any part thereof. Mortgagor shall
promptly repair, restore, replace or rebuild any part of the Premises, now or
hereafter encumbered by this Mortgage, which may be affected by any proceeding
of the character referred to in 1.04 herein. No part of the Premises,
including, but not limited to, any building, structure, parking lot, driveway,
landscape scheme, timber or other ground improvement, equipment or other
property, now or hereafter conveyed as security by or pursuant to this
Mortgage, shall be removed, demolished or materially altered without the prior
written consent of Mortgagee. Mortgagor shall complete, within a
reasonable time, and pay for any building, structure or other improvement at
any time in the process of construction on the property herein conveyed.
Mortgagee and any persons authorized by Mortgagee shall have the right to enter
and inspect the Premises at all reasonable times and access thereto shall be
permitted for that purpose.













1.06. Security
Agreement
. This Mortgage shall also
constitute a security agreement within the meaning of the Uniform Commercial
Code of the State of ___________ (the "Code") with respect to all the
following: (i) all fixtures and
personal property included (whether generally or specifically) in the
definition of "Premises" set forth hereinabove and now or hereafter
acquired by Mortgagor, and all replacements, substitutions and additions
thereto (the "Fixtures and Personalty"); (ii) all plans,
specifications, drawings, surveys, contracts (including contracts with general
contractors and architects) and subcontracts related to the improvement and
development of the Premises (the "Improvement Documents"); and
(iii) all proceeds (including cash proceeds and proceeds of proceeds) of
all of the foregoing (all such Fixtures and Personalty, Improvement Documents
and proceeds are collectively referred to herein as the
"Collateral"). Mortgagor
hereby grants to Mortgagee a security interest in and to the Collateral and
every component thereof, and does hereby transfer and assign to Mortgagee all
of Mortgagor's right, title and interest in and to the Collateral and every
component thereof, to secure the payment of the Secured Indebtedness as and
when the same becomes due and payable.
With respect to the Fixtures and Personalty, while an Event of Default
is subsisting, Mortgagee shall also have the right (i) to proceed against
the Fixtures and Personalty in accordance with Mortgagee's rights and remedies
with respect to the real property, in which event the provisions of the Code
shall not govern the default and Mortgagee's remedies, or (ii) to proceed
against the Fixtures and Personalty separately from the real property. When proceeding against any of the Collateral
under the provisions of the Code, ten (10) days' notice of Mortgagee's
determination to proceed against such Collateral shall be deemed reasonable
notice. The reasonable expenses of
retaking, holding, preparing for sale and selling the Collateral shall be
deemed to include (without limitation) attorneys' fees equal to fifteen percent
(15%) of the unpaid principal and interest.





1.07. Further Assurances. Mortgagor shall execute and deliver (and pay
the costs of preparation and recording thereof) to Mortgagee and to any
subsequent holder from time to time, upon demand, any further instrument or
instruments, including, but not limited to, Mortgages, security agreements,
financing statements, assignments and renewal and substitution notes, so as to
reaffirm, to correct and to perfect the evidence of the obligation hereby
secured and the lien of Mortgagee to all or any part conveyed, later
substituted for, or acquired subsequent to the date of this Mortgage and
extensions or modifications thereof.
Mortgagor, upon request, made either personally or by mail, shall
certify by a writing, duly acknowledged, to Mortgagee or to any proposed
assignee of this Mortgage, the amount of principal and interest then owing on
the Secured Indebtedness and whether or not any offsets or defenses exist
against the Secured Indebtedness, within six (6) days in case the request is
made personally, or within ten (10) days after the mailing of such request in
case the request is made by mail.





1.08. Expenses. Upon demand Mortgagor shall pay, or reimburse
Mortgagee for the payment of, all attorneys' fees, costs and expenses incurred
by Mortgagee in any suit, action, legal proceeding or dispute of any kind in
which Mortgagee is made a party or appears as party plaintiff or defendant,
affecting the Secured Indebtedness, this Mortgage or the rights and interest
created herein, or the Premises, including without limitation, any condemnation
action involving the Premises or any action to protect the security hereof; and
any such amounts paid by Mortgagee shall be added to the indebtedness secured
by this Mortgage.





1.09. Subrogation. Mortgagee shall be subrogated to the claims
and liens of all parties whose claims or liens are discharged or paid with the
proceeds of the Secured Indebtedness or otherwise discharged or paid by
Mortgagee. Mortgagor waives all rights
of subrogation until all obligations secured hereby have been paid in full.













1.10. Transfer of the Premises. Mortgagor shall not sell, transfer, lease,
let, mortgage, pledge, encumber, create a security interest in, or otherwise
hypothecate all or any part of the Premises without Mortgagor's prior written
consent. Mortgagee may, in its sole
discretion, consent to any such sale or transfer, but such consent shall not be
deemed to constitute a novation. Should
Mortgagee consent to such sale or transfer, it will be deemed to have waived
its right to declare an Event of Default for a breach of this 1.10 only if, prior to the
consummation of such sale or transfer: (a) Mortgagee determines that the
credit of the purchaser or transferee is satisfactory; (b) the purchaser
or transferee agrees to pay interest on the amount owed to Mortgagee under the
Note and under this Mortgage at such rate as Mortgagee may then require;
(c) the purchaser or transferee executes an assumption agreement
acceptable to Mortgagee that obligates the purchaser or transferee to keep all
the promises and agreements made in the Note and this Mortgage whether
according to their original terms or as amended pursuant to the assumption
agreement; and (d) the purchaser or transferee pays the transfer fee then
required by Mortgagee. The foregoing provisions will apply to each and
every sale and transfer whether or not the Mortgagee has consented to any
previous sale or transfer.





1.11. Limit of Validity. If from any circumstance whatsoever the
fulfillment of any provision of this Mortgage or the Note, at the time that the
performance of such provision is due, involves transcending the limit of
validity presently prescribed by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then ipso facto the obligation to be
fulfilled shall be reduced to the limit of such validity, so that in no event
shall any exaction be possible under this Mortgage or the Note that is in
excess of the applicable limit of such validity, but such obligation shall be
fulfilled to the limit of such validity.
The provisions of this 1.11 shall
control every other provision of this Mortgage and the Note.





1.12. Hazardous Materials. Mortgagor warrants and represents to
Mortgagee that, to the best of Mortgagor's knowledge, no portion of the
Premises has been used for the storage or dumping of, or has become
contaminated with, any hazardous materials as contemplated in any federal,
state or local law, ordinance or regulation from time to time in effect.
Mortgagor covenants and agrees: (i) not to cause or permit the Premises to
be used for the storage or dumping of any such hazardous materials; and
(ii) promptly to remove and clean up any such hazardous materials that may
now or hereafter be discovered on the Premises, at Mortgagor's sole cost and
expense.





Article
II





2.01. Events of Default. Each of the following events shall constitute
an "Event of Default" under this Mortgage:





(a) should
Mortgagor fail to pay the Secured Indebtedness or any part thereof when due;













(b) should
any warranty or representation of Mortgagor herein contained, or contained in
any instrument, transfer, certificate, statement, conveyance, assignment or
loan agreement given with respect to the Secured Indebtedness, prove untrue or
misleading in any material respect;





(c) should
the Premises be subject to actual or threatened waste, or any part thereof be
removed, demolished or materially altered so that the value of the Premises be
diminished except as provided for in 1.04;





(d) should
any federal tax lien or claim of lien for labor or material be filed of record
against Mortgagor or against the Premises and not be removed by payment or bond
within thirty (30) days from date of recording;





(e) should
a third party assert the priority of a lien, security interest, or Mortgage
over that of this Mortgage in any legal proceeding;





(f) should
Mortgagor or any guarantor of the loan secured by this Mortgage (Mortgagor and
the guarantors are referred to in this
2.01 collectively as the "Obligors" and individually as an
"Obligor") make any assignment for the benefit of creditors; or
should a receiver, liquidator or trustee of any of the Obligors or of any of an
Obligor's properties be appointed; or should any petition for the bankruptcy,
reorganization or arrangement of an Obligor, pursuant to the Federal Bankruptcy
Code or any similar federal or state statute, be filed and not dismissed within
ninety (90) days; or should an Obligor be adjudicated as bankrupt or insolvent;
or should an Obligor in any proceeding admit insolvency or an inability to pay
debts as they fall due; or should an Obligor, if a corporation, be liquidated
or dissolved or its articles of incorporation expire or be revoked, or if a
partnership or business association, be dissolved or partitioned, or if an
individual, die, or if a trust, be terminated or expire;





(g) Should
Mortgagor fail to keep, observe, perform, carry out and execute in every
particular the covenants, agreements, obligations and conditions set out in, or
should a breach, default event of default or failure of condition or
performance (however denominated), occur under, this Mortgage or the Note
between Mortgagor and Mortgagee, or any other document or instrument securing
or given with respect to the Secured Indebtedness (this Mortgage, the Note and
all such other documents and instruments are collectively referred to herein as
the "Loan Documents");





(h) should
any event occur under any instrument, Mortgage or agreement, given or made by
an Obligor to or with any third party which would authorize the acceleration of
any debt to any such third party, the acceleration of which would materially
affect such Obligor's ability to pay when due any amounts owed to Mortgagee;





(i) should
Mortgagee at any time in good faith deem itself insecure in the timely
repayment of the Secured Indebtedness or in the sufficiency of the security and
collateral therefore;





(j) should
there occur any sale, transfer, leasing, or encumbering of all or any portion
of the Premises without the prior written consent of Mortgagee, which consent
may be withheld or delayed in the reasonable discretion of Mortgagee;













(k) should
there occur any change in the legal or equitable ownership of a controlling
interest in Mortgagor or in the legal or equitable ownership of the Premises,
if in Mortgagee's sole judgment such change materially and adversely affects
the ability of Mortgagor to perform its obligations under the Loan Documents;
or





(l) should
Mortgagor default in the performance of its obligations of payment or
performance under any other present or future loan made by Mortgagee to
Mortgagor.





2.02. Enforcement, etc. If an Event of Default occurs and is
subsisting, Mortgagee may do any one or more of the following:





(a) enter
upon and take possession of the Premises, with or without the appointment of a
receiver or an application therefore, employ a managing agent of the Premises
and let the same, either in its own name, or in the name of Mortgagor, and
receive the rents, incomes, issues and profits of the Premises and apply the
same, after payment of all necessary charges and expenses, on account of the
Secured Indebtedness; and Mortgagor will transfer and assign to Mortgagee, in
form satisfactory to Mortgagee, Mortgagor's interest as lessor in any lease now
or hereafter affecting the whole or any part of the Premises;






(b) pay any sums in any form
or manner deemed expedient by Mortgagee to protect the security of this
instrument or to cure any Event of Default other than payment of interest or
principal on the Secured Indebtedness; make any payment hereby authorized to be
made according to any bill, statement or estimate furnished or procured from
the appropriate public officer or the party claiming payment without inquiry
into the accuracy or validity thereof, and the receipt of any such public
officer or party in the hands of Mortgagee shall be conclusive evidence of the
validity and amount of items so paid, in which event the amounts so paid, with
interest thereon from the date of such payment at the default rate of interest
specified in the Note shall be added to and become a part of the Secured
Indebtedness and be immediately due and payable to Mortgagee; and Mortgagee
shall be subrogated to any encumbrance, lien, claim or demand, and to all the
rights and securities for the payment thereof, paid or discharged with the
principal sum secured hereby or by Mortgagee under the provisions hereof, and
any such subrogation rights shall be additional and cumulative security to this
instrument;






(c) without notice to
Mortgagor, declare all sums secured by this Mortgage immediately due and
payable and may commence proceedings to collect such sums, foreclose this
Mortgage and sell the Property. At the
foreclosure Mortgagee shall be entitled to bid and to purchase the Property and
shall be entitled to apply the debt secured hereby or any portion thereof, in
payment for the Property. The remedies
provided to Mortgagee in this paragraph shall be in addition to and not in lieu
of any other rights and remedies provided in this Mortgage or by law, all of
which rights and remedies may be exercised by Mortgagee independently,
simultaneously or consecutively in any order without being deemed to have
waived any right or remedy previously or not yet exercised;





(d)
foreclose upon the mortgaged
premises and ask for a deficiency judgment pursuant to the applicable state law
governing deficiencies and Mortgagor understands and agrees that a deficiency
judgment, if pursued by Mortgagee shall be determined by the highest price bid
at the judicial sale of the property;





(e) pursue such
other rights and remedies as may be available at law or in equity or under the
Uniform Commercial Code.













2.03. Receiver. Mortgagee, in any action to foreclose this
Mortgage, or upon any Event of Default, shall be at liberty to apply for the
appointment of a receiver of the rents and profits or of the Premises or both
without notice, and shall be entitled to the appointment of such a receiver as
a matter of right, without consideration of the value of the Premises as
security for the amounts due the Mortgagee, or the solvency of any person or
corporation liable for the payment of such amounts.





2.04. Sale
in Parcels
. In case of any sale
under this Mortgage pursuant to any order in any judicial proceedings or
otherwise, at the election of Mortgagee the Premises or any part thereof may be
sold in one parcel and as an entirety, or in such parcels, manner or order as
Mortgagee in its sole discretion may elect, and one or more exercises of the
powers herein granted shall not extinguish or exhaust the power unless the
entire Premises are sold or the Secured Indebtedness paid in full.





2.05. Waiver of Homestead. Mortgagor hereby waives and renounces all
right of homestead exemption in the Premises provided by the Constitution or
Laws of the United States,
the State of ___________, or any other State in the United States.





2.06. Mortgagee's Right to Sue. Mortgagee shall have the right from time to
time to sue for any sums, whether interest, principal or any installment of
either or both, taxes, penalties, or any other sums required to be paid under
the terms of this Mortgage, as the same become due, without regard to whether
all of the Secured Indebtedness shall be due on demand, and without prejudice
to the right of Mortgagee thereafter to enforce any appropriate remedy against
Mortgagor, including an action of foreclosure, or any other action, for a default
or defaults by Mortgagor existing at the time such earlier action was
commenced.





2.07. No Obligation to Marshal Assets. In realizing upon the security and collateral
for the Secured Indebtedness during the subsistence of an Event of Default,
Mortgagee shall have no obligation whatsoever to marshal assets, or to realize
upon all of such security and collateral; rather, Mortgagee shall have the
right to realize upon all or any part of such collateral from time to time as
Mortgagee deems appropriate.





2.08. Rights Cumulative. The rights of Mortgagee, granted and arising
under the clauses and covenants contained in this Mortgage and the other Loan
Documents, shall be separate, distinct and cumulative of other powers and
rights herein granted and all other rights which Mortgagee may have at law or
in equity, and none of them shall be in exclusion of the others; and all of
them are cumulative to the remedies for collection of indebtedness, enforcement
of rights under Mortgages, and preservation of security as provided at law.
No act of Mortgagee shall be construed as an election to proceed under
any one provision herein or under the Note or any of the other Loan Documents
to the exclusion of any other provision, or an election of remedies to the bar
of any other remedy allowed at law or in equity, anything herein or otherwise
to the contrary notwithstanding.





2.09. Discontinuance of Proceedings. If Mortgagee commences the enforcement of any
right, power or remedy, whether afforded under this Mortgage or otherwise, and
including without limitation foreclosure or entry upon the Premises, and such
enforcement is then discontinued or abandoned for any reason, or is determined
adversely to Mortgagee, then and in every such case Mortgagor and Mortgagee
shall be restored to their former positions and rights hereunder, without
waiver of any Event of Default and without novation, and all rights, powers and
remedies of Mortgagee shall continue as if no such enforcement had been
commenced.















2.10. Future Advances. This Mortgage is granted to secure in
accordance with the applicable state law:
(a) all future advances and readvances that may subsequently be
made to Mortgagor by Mortgagee evidenced by the Note, or any other promissory
notes, and all renewals, replacements, modifications and extensions thereof;
provided, however, that nothing contained herein shall create an obligation on
the part of Mortgagee to make future advances or readvances to Mortgagor, and
(b) all other indebtedness of Mortgagor to Mortgagee now or hereafter
existing, whether direct or indirect, the maximum amount of all indebtedness
outstanding at any one time secured hereby not to exceed twice the face amount
of the Note, plus interest thereon, all charges and expenses of collection incurred
by Mortgagee, including court costs, and reasonable attorneys' fees; and also
in order to charge the Mortgaged Property with such payment, performance and
observance.





Article
III





3.01. Successors and Assigns. This Mortgage shall inure to the benefit of
and be binding upon Mortgagor and Mortgagee and their respective legal
representatives, heirs, executors, administrators, successors and assigns. (No right in Mortgagor to sell, transfer or
encumber the Premises may be inferred from this paragraph.)





3.02. Terminology. The words "Mortgagor" and
"Mortgagee" shall include the legal representatives, heirs,
executors, administrators, successors and assigns of the parties hereto, and
all those holding under either of them.
If more than one party shall execute this Mortgage, the term
"Mortgagor" shall mean all parties signing, and each of them, and
each agreement, obligation and Secured Indebtedness of Mortgagor shall be and
mean the several as well as joint undertaking of each of them. Pronouns used herein shall include both
genders and both the singular and the plural, and the grammatical construction
of sentences shall be deemed conformed thereto.





3.03. Captions for Convenience. The captions and headings in this Mortgage
have been provided for convenience only and shall not limit the scope or extent
of any provision hereof.





3.04. Severability. If any provision of this Mortgage should be
held by a court of competent jurisdiction to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not affect
the validity, legality and enforceability of the remaining provisions of this
Mortgage.





3.05. Applicable Law. This Mortgage shall be governed by and
construed in accordance with the laws of the State of ___________.





3.06. Time of the Essence. Time is of the essence of this Mortgage and
each of the other Loan Documents.





3.07. Notice, Etc. Notices and other communications hereunder
shall be effective if given in writing by hand delivery to the recipient
thereof, or by certified United
States mail, postage and charges prepaid,
addressed to the recipient at the addresses for Mortgagor and Mortgagee set
forth on the first page of this Mortgage.
Notices given by hand shall be effective upon receipt. Notices given by certified mail shall be
effective on the third (3rd) day after deposit in the United States
mail, addressed as aforesaid. Either
party hereto may change the address for notice by notifying the other party
hereto of the new address in the manner set forth herein for giving
notices. (No obligation on the part of
Mortgagee to provide any notice whatsoever may be inferred from this Section.)





3.08. No Implied Waiver by Mortgagee. No indulgence or departure at any time by the
Mortgagee from any of the provisions hereof, or of any obligation hereby
secured, shall modify the same or relate to the future or waive future
compliance therewith by the Mortgagor.





3.09 Conflict of Laws. If any
provision of this Mortgage conflicts with applicable law, such



conflict
shall not affect other provisions of this Mortgage that can be given effect
without the conflicting provision, and to this end the provisions of this
Mortgage are declared to be severable.











3.10 Right of Inspection. Mortgagee may make or cause to be made
reasonable entries upon the inspections of the Property upon giving Mortgagor
prior notice.





3.11 Solvency. The undersigned Mortgagor represents to
Mortgagee that such Mortgagor is benefited by the loan evidenced by the Note,
whether or not the Mortgagor is the obligor thereon; that Mortgagor's
obligations under this Mortgage will not render Mortgagor insolvent, and that
adequate and sufficient consideration has been given to Mortgagor for its
execution and delivery of this Mortgage.





3.12 Waiver
of Jury Trial
. MORTGAGOR, AFTER CONSULTATION WITH ITS
ATTORNEYS, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION, PROCEEDING, LITIGATION OR
COUNTERCLAIM BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE
MORTGAGE, THE NOTE, THE LOAN DOCUMENTS AND ANY OTHER AGREEMENT CONTEMPLATED TO
BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS, WHETHER VERBAL OR WRITTEN, OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE MORTGAGEE ACCEPTING THIS MORTGAGE.





3.13 Waiver
of Appraisal Rights
. The laws
of ___________ provide that in any real estate foreclosure proceeding a
defendant against whom a personal judgment is taken or asked may within thirty
days after the sale of the Mortgaged Property apply to the court for an order
of appraisal. The statutory appraisal
value as approved by the court would be substituted for the high bid and may
decrease the amount of any deficiency owing in connection with the
transaction. THE UNDERSIGNED HEREBY
WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID
AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY
APPRAISED VALUE OF THE MORTGAGED PREMISES.





IN
WITNESS WHEREOF, this Mortgage has been duly executed under seal by Mortgagor
as of the day and year first above written.





Witnesses:





____________________________ Mortgagor





_______________________



____________________________

















STATE OF ___________ )



)



COUNTY OF ___________ )







Personally
appeared before me _____________________________ who, in oath, says that s/he
saw the within named ________________________, sign the within Mortgage of Real
Estate, and the said, as its act and deed, deliver the same, and that (s)he
with ________________________________ witnessed the execution thereof.





Sworn
to before me this _____



day of
_____________, ______







___________________________(L.S.) ___________________________



NOTARY
PUBLIC Witness



My Commission
Expires:





Ask Your Own Legal Question
Customer reply replied 5 years ago
Would it have to be both my brother and myself since we own it jointly or can I just sign it. Then does it need to be filed anywhere with the State of New York?
Lawyer: Richard, Attorney replied 5 years ago
You would both need to sign it. It must be filed in the real property records of the county in which the property is located.
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