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Item N5 BOARD OF' COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: February 18. 2009 Division: County Attorney Bulk Item: Yes ~ No Department: County Attorney Staff Contact PersonIPhone #: Bob Shillinger AGENDA ITEM WORDING: Approval of Request to waive conflict to allow Gray Robinson, P.A. to represent bank in foreclosure action in which Monroe County has a Second Mortgage on the property as part of the SIllP loan program ITEM BACKGROUND: Monroe County has previously retained the law office of Gray Robinson, P.A. to handle various litigation cases for the County. Gray Robinson also represents other clients including banks in foreclosure actions. Gray Robinson has discovered a conflict on interest and request approval from the Board of County Commissioners to waive said conflict to allow them to represent bank in foreclosure action in which Monroe County will be a named party Defendant based on a second mortgage that was issued to the property owner on July 29, 2005 as part of the SIllP loan program. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: None STAFF RECOMMENDATIONS: Approval TOTAL COST: N/ A INDIRECT COST: N/ A BUDGETED: Yes _No COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH_ Year APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management _ DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # A-dd- 0 t\ t'I~S Revised 1/09 'Fll,Ef {;1,OS9014~__~__"...,._..""....,___._~________",_,,_,__>__~'__~_'''~__'_ [~fH, IS MOR, T,G.AGE IS GIVEN TO MONROE, COUNT, Y AND 1.,fH,3U13.1EOT TO PAYMEN1,' O,',I,~, I JJgCLJMENT ARV STAMP TAXATION PURSUANT TO E.'=2fE!?t' ST[~.:fUE 42.Q.513 _.__~ ~~"" --~~~~.. THIS IS A BALLOON MORTGAGE WHERE THJi~ PillNCIPAIJ BALANCE DUE UPON MATURITY IS $45,000.00, TOGETHER WITH ACCRUED INTERESTf iF ANY', AND ALL ADV ANCEMENTS MADE BY THE MORTGAGE UNDER THE TERMS OF THIS SECOND MORTGAGE. r: SECOND MORTGAGE (Due on Sale, Refinan~ing or Renlal) COUNT\' OF MONROE SHIP LOAN PROGRAM This second mortgnge is made this July 29, 2005, between the Mortgagorl GEORGE & CHRISTINE RODRIGUEZ, a manied couple, (herein the IIBorrowerl") and the Mortgagee, the COUNTY OF MONROE, an agency and instrumentulity of the Stute of Florida, whose address is Monroe County Courthouse, 500 Whitehead Street, Key West, Floridn 33040 (herein the "Lender.") WHERBAS, the Borrower has applied to TIB Bank of the Keys ("Participant") for a loan for the purchase of the Property (as defined herein.) which Mortgage Lonn shall be secured by a First Mortgllge lien (the "First Mortgage") in favor of Participant. The Borrower has applied to the County of Monroe Special Programs Office for R SHIP Program Loan in the original principal amount of FORTY FIVE THOUSAND DOLLARS AND NO CENTS ($45,OOO,OO), the "Loan," the Borrower along with his/her/their family, intends to reside us a household In the Property (as defined herein,) which Property is u single-family residence, Ilnd WHEREAS, the Borrower is indebted to Lender in the principal sum of FORTY FIVE THOUSAND DOLLARS AND NO CENTS ($45,000.00), which indebtedness Is evidenced by the Borrower's Promissory Note dated July 29, 2005 and extensions and renewals thereqf (herein I.Note,") providing for payment of principal indebtedness If not sooner paid, due and payable on July 29, 2035. TO SEcuRE to the Lender the repayment of the indebtedness evidenced by the Notc; the payment of all other sums, advanced in accordance herewith to protect the security of this Mortgage: IlI1d the perfoonance of the covenants and agreements of the Borrower herein contained tlie Borrower does hereby mortgage, grant and convey to Lender the following described property located in the County of Monroe, State of Florida: Lot 45, Block 07, Illdian Mou"ds Estates, Sugarloaf KeYJ Monroe County, Florida Which has the address of Lot 45. Block 7 (SIlI:CI) SUlmrloaf Kcv F1or1da ICily) (SUIte) . 33042 (Zip Code) (herein the "Property Address:") TOGETHER with all the improvements now or hereafter erected on the property, and aU easements, rights, appurtenances, and rents all of which shall be deemed to be nnd remnin n purt of the property covered by this Mortgage; Ilnd all of the foregoing, together with said property (or the leasehold est8t~ If this Mortgage Is on a leasehold) are hereinafter refened to as the "Property. II Do~n 1533654 0B/~e/2~0~ 11100A" FU.d & Recorded In Official Recordlll or MONROE COUNTY DANNY L. KOLHAGE t7SI08/ze05 11 : 88AM MORTGAGE DOC STAMP ct.: FP $157.50 This instrument was prepared by: Speoial Programs Office 1400 Kennedy Drive Key West, FL 33040 Docg 1!5336!54 Bkg 2140 pgU 831 RODRJOUEZFTHB MORTGAOE07250$ Puge I BORFWWER COVENANTS, represonts and warrants to the Lender and its successors [HId fl8signs thut Borrower is lawfully seized of the estate hereby eonveyed and has the right to mortgage, grant and convey the Propelty, and the Property is lmencumbered, except for ,he mortgage lien of the First Mortgage in favor of Participant, and for other encumbrances of reoord, Borrower covenants, represents and warrants to the Lender and its successors and assigns that Borrower will defend generally the title to the Property against all claims and demands, subject to the mortgage lien of the First MOltgage nnd other encumbrances of record. BORROWER FURTHER COVENANTS and agrees with the Lender IlS follows: 1. Payment. The Borrower shall promptly pay when due the indebtedness evidenced by the Note. 2" Prior Mortl!al!es and Deeds of Trust~ Chor~es: Liens. Lender and Borrower acknowledge and agree that this Mortgage is subject and subordinate in aU respects to the liens, tenns, covenants and conditions of the First Mortgnge nnd to nil advances heretofore made. The Borrower shall perform all of the Borrower's obligations under the First Mortgage nnd any other mortgage, deed of trust or other security agreement with a lien that has priority over this Mortgage, including the Borrower's covenunts to m~ke payments when due. The Borrower shall payor cause to be pnid all taxes, assessments and other charges, fines and impositions attributable to the Property that may attain a priority over this Mortgage, nnd leasehold payments or ground rents, if nny. 3. Hazard Insurance. The Borrower shall keep the improvements now e"isting or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage," and such other hazards liS the Lender may require and in such amounts and for such period as the Lender may require. The insurance carrier providing the insurance shall be chosen by the Borrower subject LO approval by the Lender, provided tbat suoh approval shall not be unreasonably withheld. All insurance policies and renewols thereof sholl be in a form acceptable Lo the Lender and shnll include B standard mortgage clause In favor of, and in a form acceptable to the Lender. The Lender shall have the right Lo hold the policies and renewnJs thereof, subject to Lhe tenns of the First Mortgage and any other mortgage, deed of trust or other security agreement with a lien that has priority over this Mortgage. In the event of loss, the Borrower shall give prompt notice to the insurance conier and to the Lender. The Lender may make proof of loss if not made promptly by the Borrower. If the Property is abandoned by the Borrower. or If the Borrower fails LO respond to the Lender within thirty (3J) days from the date notice mailed by the Lender to the Borrower that the insurance cumer offers to seLlle a claim for insurance benefits, the Lender is authorized to collect and apply the insurance proceeds at the Lender's option either to restoration or repuir of the Property or to the sums secured by this Mortgage. 4. Preservation and Maintenance of Pronerty: Leaseholds: Condomlnlumg: Planned Unit DeveloDments. The Borrower shall keep the Property in good repair and shall not commit waste or pennit impahment or deterioration of the Property and shall comply with the provisions of any lease if this Mortgage is on a leasehold. If this Mortgage is on u unit in a condominium or a planned unit development, the Borrower shall perfonn all of the Borrower's obligations under the declaration or covenants creating or governing such condominium or planned unit development, the by-Jaws and regularions of the condominium or planned unit development, and constituent documents. 5. Protection of Lender's Securitv. If the Borrower fails to perform the covenants and agreements contained in this Mortgage, or if any aolion or proceeding is commenced that materially affects the Lender's interest in the Property. Then tile Lender, at the Lender's option upon notice to the Borrower, may make such appearances, disburse such sums, including reasonable attorney's fees, and take such action !IS Is necessary to protect the Lender's Interest in the Property. . Doets 1!i336!54 Bk~ 2140 PvM 832 G.~ ~ ItOUIllGUBZ FIlm MORTGAGE 07250$ Page 2 Any amounts disbursed by lhr- Lender' purSUElnllo this Paragraph 5, with interest thereon, ni the rate of twelve percent (12%) per annum, shall become additional indebtedness of the: Borrower secured by this Mortgage. Unless the Borrower and the Lender agree to GIller tel1lls of payment. such amounts sholl be payable upon notice from the Lender to tbe Borrower requesting payment thereof, Nothing contained in this Puragraph 5 shall require the Lender to incur any ex.pense or take any action hereunder. 6" inspection, The Lender may make or cause to be made reasonable entries upon the inspections of the Property, provided that the Lender shall give .Borrower notice prior to OilY such inspection specifying reasonable cause therefor to the Lender's interest in the Propclty. 7. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be puid to the Lender, subject to the tenus of any mortgage, deed of trust or to the security agreement with a lien that has priority over this Mortgage. 8. Borrower Not Released: Forbearance bv Lender Not a Waiver. Extension of the time for' payment or modification of amortization of the sums secured by this Mortgage granted by the Lender to any successor in interest of the Borrower shall not operate to release, in a manner, the JiablJity of the original Borrower and the Borrower's successors in, interest, The Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Mortgage by reason of any demand made by the original Borrower nTld the Borrower's successors in interest. Any forbenrance by the Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable IIlW, shall not be a waiver of or preclude the exercise of any such right or remedy. 9. Successors Dnd Asshms Bound: .Joint nnd Several Liabllitv: Co-Shmers. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns far the Lender nnd the Borrower, subject to the provisions of Paragraph 14 hereof. If more than one Borrower executes this Mortgage, all coVenants, representations, warranties and agreements of Borrower shan be joint nnd several. Any Borrower who co-signs this Mortgage, but does not execute the Note: (n) is co-signing this Mortgage only to mortgage. Grant and convey thnt Borrower's interest in the Property to the Lender under the tenns of this Mortgage, (b) is not personally liable on the Note or under this Mortgage, and (c) agrees that Lender and uny other Borrower hereunder may agree to extend, modify, forbear, or make any other accommodations with regard to the terms of this Mortgage or the Nole without the Borrower's consent and without releasing that Borrower or modifying this Mortgage as to thut Borrower's interest in the Property. 10. Notice. Except far any notice required under applicable law to be given In another manner: (a) Dny notice of the Borrower provided for in this Mortgage shnll be given by dellvering it or by mailing such notice by certified or registered mail, postage prepaid, addressed to the Bortower at the Property Address or at such other address ns the Borrower may designate by notice to the Lender as provided herein, and (b) any notice to the Lender and/or the Federal National Mortgage Association ("Fannie Mae") shall be given by certified or registered mail, postage prepaid, and if to the Lender at the Lender's address Slated on page 1 hereof with 8 copy to Servicer, jf to Fannie Mac, addressed to 950 East Paces Feiry Road, Atlanta, Georgia 31326, Attention: Lonn Administration, or to such other address as the Lender may designate tiy notice to the Borrower as provided herein. Any notice provided for in thIs Mortgage shall be deemed to have been given to the Borrower or lhe Lender when given in the manner designated herein. I I. Governlnll Law: Severabllltv: Costs. This Mortgage shall be governed by the laws of the Stale of Plorida, and. to tbe extenl applicable hereto, the Jaws and regulations of lhe United States of America. In the event that any provision or clause of this Mortgage or the Note conflicts with applicable Jaw, such conflict provision. and to Lhis and the provisions of this Mortgage or the Note that can be given effect Without the conflicling provision, and to this and the provisions of tbis Mortgage and the Note are declared to be severable, As used herein, "costs," "expenses," and:ualtome)'s' fees" include all sums Lo cY the extent not prohibited by applicable law or limite~ herein. G Doell 11533654 0 RODR1UlISZ FTHIJ MORTOt\oa07Z5DS Page 3 Bk" 2140 P911 833 t r- I? E?Ol'l.'9:Yi.g,l:')i COl1Y.: BDJTOVVCf shall be Imnlshed a COnf01TIled copy of I he Note lmd of this Mortgage [It the Lime of execution or after recordation hereof. 13. RchablUtation Loan A~~ Borrower shall fulfill till of BO!1-owcr's obligations under any home rehabilitation, improvement, repair, or other loan agreement thut Bon"ower enters into with the Participnnt, the Lender. at the Lender's option. may require BOlTOWf;r to execute and deliver to the Lender, in a fonn acceptable to the lender, ns assignment of any rights. claims or defenses that Borrower may have against parties who supply labor, materials or services in connection with improvements made to the ProperlY, ]4. Transfer of the Prooerty. If all or any part of the Property or any Interest in it is sold, transferred, gifted or otherwise conveyed, whether by voluntary net, involuntarily, by operalion of law or otherwise, or if the Borrower Is divested of title by Judicial sale,levy or other proceeding, or if foreclosure action is inslituted against the Property, or if lhe First Mortgage is satisfied or refimmced, or if the Property is leased or rented, 1111 sums secured by this Mortgage shaH immediately become due and payable as provided herein. In the event that lhe property is constructed, developed, financed or owned by Habitat for Humanity of Key West and Lower Florida Keys, Inc., Habitat for Humanity of the Middle Keys, Inc., Habitat for Humanity of the Upper Keys, Inc. or Habitnts Keys Solutions, Inc., this mortgage may be assumed should the following conditions exist at the time of sale; (a) The prospective buyer(s) qualify under SHIP Program income eligibility guidelines; (b) the trunsaclion maintains the properties affordability to the prospective buyer; (c) the properties long tenn affordabiJity criteria are recorded, enforced and for a period of not less than the term of the SIDP Program mortgage and the transaction is consistent with such affordubility criteria. Lender shall give Borrower noUce of acceleration. The notice shall provide a period of not less than thirty (30) days from the date the notice is given provided in Paragraph JO hereof wUhin which the Borrower must pay all sums secured by this Mortgage. If Borrower falls to pay these sums prior to the expiration of this period, the Lender muy invoke any remedies permitted by this Mortgage without further notice or demand on the Borrower. ]5. Acceleration: Remedies. Except as provided in Paragraph 14 hereof, upon the BOlTower's breach of any covenant or agreement or the BOlTower in this Mortgage, Including the covenants to pay when due any sums secured by this Mortgage, or in lhe event that the BOlTower shall have made material misrepresentations or material omissions in his/her/their application for a SHIP Loan, the Lender, at the Lender"s option, may declare all of the sums secured by this Mongage to be Immediately due and payable without further demand and may foreclose this Mortgage by judicial proceeding. Prior to tnking nny defaults action including acceleration of this Mortgage, the Lender shall give notice to the Senior Lien Holder and to the Borrower as provided in Paragraph 10 hereof specifying (J) the breach (if the breach is curable; (2) the action required to cure 5uch breach; (3) a date. not less than ten (10) days fonn the date the notice is mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before the dale specified in the notice may result in acceleration of the 9ums secured by this Mortgage, foreclosure by judicial proceeding, and sale of the Property. The notice shall further inConn Borrower of the right to reinstate after acceleration ,and the right tc assert In the foreclosure proceeding the nonexistence of a default or any other defensive of Borrower to acceleration and foreclosure. The Lender sholl be entitled to collect in such proceeding all expenses of foreclosure, inclul:!ing, but not limited to, reasonable attorneys' fees, court costs, and costs of documentary evidence, abstmcts and title reports. 16. Borrower's Rleht to Reinstate. NotWithstanding the Lender's acceleration of the sums secured by this Mortgage due to the Borrower's breach, the BOlTower shall have the right to have any proceedings begun by the Lender to enforce this Mortgage discontinued at any time prior to entry of a judgment enforcing this Mortgage if: (u) the Borrower pnys the Lender nil sums that would be then due under this Mortgage and the Note had no acceleration occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the Borrower contained in this Mortgage: (c) the Borrower pays all reasonable expenses incurred by the Lender in enforcing the covenanls and agreemenls of the Borrower contained in this Mortgage, and in enforcing the Lender's remedies 8S provided in Paragraph 15 hereof, including, but not limited to, reasonable attorneys' fees and court costs; and (d) the Borrower takes such action as the Lender may reasonably require to assure that the lien of this Mortgage. the Lender's interest in the Property nnd RODRIClUCZ FrHB MORTOAOH 072SDS Poge 4 6- (jl ~5' un u II) ~;; ISJtJ &11 a fJ -Ill ~ the Borrower's obligation to pay the sums secured by this Niorignge shall Gontinuc unimpBirea. Upon such payment llnd cure by the Borrower, thi:; rvlortgage and the obIigutiol"m secured hereby shalJ remflJn in full force and effect as jf no acceleration had occun"ed. 17. Assi[!nment or Rents: Appojntmcn~ of Receiver. As uddltional security hereunder, the Borrower hereby assigns to the Lender the rents of the Property, provided that the Borrower shall, prior to accelerntion under Paragraph 15 hereof or abandonment of the Property. have the right to collect and retllln such rents as they become due nnd payable. Upon accelemtlon under Paragraph 15 !lereof or abandonment of lhe Property, the Lender shull be entitled to have a receiver appointed by a court to enter upon, take possession of and manage the Property and to collecllhe rents of the Property including those past due. All rents oollecled by the receiver shall be applied first to the payment of the costs of management of the Property and collection of rams, including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable Ittlomeys' fees, and then to the sum secured by this Mortgage. The receiver shall be liable to account only for those rents actually received. 18. Release. Upon payment of all sums secured by this Mortgage, Lender shall release this Mortgage wiLhout charge to BOlTOwer. Borrower shllll pay all costs of recordation, if nny. 19. AUornevs' Fees. As used In this Mortgage and in the Note, "attorneys' fees" shaH include attorneys' fees. if any, incurred in connectiO'J1 with the collection or enforcement of this Mortgage or of the Note, whether or not suit is brought and whether incurred at trial, on appenl. in bankruptcy proceedings or otherwise. 20. Snecial SIDP ProID'sm Covennnts. ReDresent~tions. The Borrower covenants, represents, and warrants to the Lender that; (8) the Borrower along with hislher/theirl family, intends LO reside as a household illlhe Property; (b) the Properly is a single-family residence; (c) the Borrower's total annunl family Income at the time of its applIcation for the Loan did not exceed the income limit by family size for eligibility to participate in the SIDP Program, (d) at least three percent (3%) of the required down payment must be paid by the Borrower from his or her own resource!;. 21. PrinciDol Payment. Lender shall give the Borrower the right to negotiate a repayment schedule for 90 days after ilie last payment is due on the First Mortgage for all sums secured by this Mortgage that have been deferred, The terms and conditions of the repayment schedule negotiated after the last payment is due on the First Mortgage shall provide for a below market Interest rate, a term for up to thirty (30) years, a principal and interest not to exceed the original First Mortgage prlncipnJ and interest payment and such payment of principal and interest when combined with real-estate taxes and property insurance shall not exceed 1wenty five percent (25%) of the household income. IN WITNESS WHEREOF, the Borrower has executed this Mortgage. Doc. 1633654 Bka 2140 Pgn 83$ /lOmUOUEZ flTHU MORTOAOB 1172S05 ((L Poge S ~ NOTiCE TO BORROVVEH. DO NOT SIGN THIS MORTGAGE IF IT CONTAINS B1JANK SPACES, ALL SPACES SHOULD BE COMPLETED BEFORE YOU 81.GN. THIS IS A BALLOON MORTGAGE 'VHERE THE PLUNCIPAL BAllANCE DUE UPON MA 'FURlTY IS $45,000.00, TOGETHER WITH ACCRUED INTEREST, IF ANY t AND ALL ADVANCEMENTS MADE BY trHE MORTGAGEE UNDER THE 1ERMS OF THJS SECOND MORTGAGE. Doctl 15336S4 SkU 214~ pg" S3G itness Signalu~ Printed Name: Erica J. Garrlck.Rodrlguez ~1\1V\.J<y CA.'YU' D fl,JL Witness Signature Name: ~'("o...Y'Id~C<\.nt:lL<, r ~8~ Address: ~ ..~ ' . '~~ LWitness Signll1ufe Printed Namel=flCa I. Garrlck.Rodriguez Qv,n= ~ (ft=.o J u- Witness Signalu Nume: ~i"r.Y'\rI~ U\J"\QLc.$ ~2d~L Bo ower a Address: STATE OF FLORIDA COUNTY OF MONROE ore me this Jl.qft. day of ~J!er 2005 by .. ~ ,w Is personally known to me or who has produced a valid driver c se as identification and who did not take an outh. ~&W ~ ERlOA I. OAIU1ICK ROORlllUEZ S IIJ. ~"1- MY COMMISSION I DD387780 r EXPIRES. ~1lI2G. 2DG8 ~d rrvu NOlIly Pa.liClJl1dellrltlllr. cfi:1!iA:Uy Ignature Printed Name: Erica I. Garrick-Rodriguez Commission Number: My Commission Ex.pires; I1ONRoE COllNTY OFFICIAL RECORDS THIS MORTGAGE IS GIVEN TO MONROE COUNTY AND IS SUBJECT TO PA VMENT OF DOCUMENTARY STAMP TAXATrC!)N PURSUANT TO FLORIDA STATUE 420.513 RODRIOIIEZ FfHB MORTGAGE 072505 Page 6