Exhibit 10.2
LOAN SERVICING AGREEMENT
AND AUTHORIZATION TO COLLECT
This Agreement is entered into as of the date set forth below by and
between Redwood Home Loan Company, a California corporation dba Redwood Mortgage
(BROKER) and BENEFICIARY for the purpose of establishing the terms, conditions
and authority for the servicing of a loan evidenced by a promissory note (the
Note) and deed of trust (the Deed of Trust), described as follows:
Borrower: ____________________________________________________________________
Loan Amount: $ __________ Term: ____________ Interest Rate: _________%
Late Charge: $ ___________ Prepayment Bonus: Yes _____ No _____
Deed of Trust Recorded: Instrument No. __________ County _______________, CA
Beneficiarys Investment: $ ________ Percentage of Ownership: ___________%
It is understood that the BENEFICIARYS interest in said Note may be a
partial ownership, and that other lenders (partial beneficiaries) also may own
fractional undivided interests in said Note. BENEFICIARY and the other partial
beneficiaries (collectively Beneficiaries) are not engaged in a partnership or
joint venture, but their relationship is specifically agreed to be that of
tenants in common. This Agreement shall be executed in counterpart by all
Beneficiaries, each of which shall be deemed an original and all of which
together shall constitute one agreement, and the terms hereof shall be uniformly
binding upon and enforceable by BENEFICIARY and all other partial beneficiaries,
against BROKER and as between themselves.
BENEFICIARY hereby appoints BROKER to service the Note on his behalf from
and after the close of escrow, to hold the original Note and the original Deed
of Trust as BENEFICIARYS agent, and to deliver copies of all other documents as
provided in BENEFICIARYS escrow instructions executed in connection with this
loan transaction to BENEFICIARY at the address indicated below. Such servicing
activities shall include all activities reasonably and customarily required to
collect, disburse and account for payment of principal, interest, late charges
and prepayment bonuses under the Note and to enforce all the terms and
provisions of the Note and Deed of Trust. BROKER accepts such appointment and
agrees to use diligence in the performance of its duties hereunder.
BROKER further agrees as follows: (1) All loan payments received by BROKER
hereunder shall be deposited immediately into BROKERS trust account, which
trust account shall be maintained in accordance with the provisions of law and
rule for trust accounts of licensed real estate brokers and in accordance with
the provisions of Rule 260.105.30 of Title 10 of the California Administrative
Code; (2) Such loan payments shall not be commingled with the other assets of
BROKER or any affiliate, or used for any transaction other than the transaction
for which such funds are received by BROKER; (3) All loan payments received on
the Note (less service fees as described below and other costs, charges, and
anticipated foreclosure expenses) shall be transmitted to BENEFICIARY and the
other partial beneficiaries pro rata according to their respective percentage
ownership interests in the Note within 25 days after receipt thereof by BROKER;
(4) BROKER shall provide BENEFICIARY with a monthly and annual accounting of
BENEFICIARYS interest in the Note; (5) BROKER shall use diligence and care to
assure that proper casualty insurance is maintained on the real property covered
by the Deed of Trust or Deeds of Trust securing the Note; (6) BROKER shall issue
demands for payment and otherwise enforce the terms of the note in accordance
with its established policies; (7) BROKER shall request Notices of Default on
prior encumbrances pursuant to California Civil Code Section 2924(b) and will
promptly notify BENEFICIARY of any such defaults, and (8) To the extent required
by 10 Cal.Adm.C. Rule 260.105.30(j)(3), BROKER will arrange for the inspection
of BROKERS trust account by an independent certified public accountant and
forward the report of such accountant to the California Commissioner of
Corporations in the manner required by law.
In the event of any default by the obligor or obligors under the Note,
Broker shall perform all acts and execute all documents necessary to exercise
the power of sale contained in the Deed of Trust or Deeds of Trust securing
same, including without limitation the following: Substitute trustees, select a
foreclosure agent, give demands, accept reinstatements, commence litigation to
enforce the collection of the note, obtain relief from any court-ordered stay of
foreclosure proceedings, defend any litigation which may seek to restrain said
foreclosure, receive a trustees deed for the benefit of BENEFICIARIES, as
tenants-in-common, and otherwise to do all things reasonably necessary or
appropriate to enforce BENEFICIARYS rights under the Note and Deed of Trust or
Deeds of Trust. BENEFICIARY hereby authorizes BROKER to initiate, maintain
and/or defend any such legal actions or proceedings in the name of BENEFICIARY,
and to employ attorneys therefor at BENEFICIARYS expense.
BENEFICIARY agrees that BROKER shall not be liable for any costs, expenses
or damages that may arise from or in connection with any acts or omissions of
BROKER or its agents or employees hereunder, so long as any such act or omission
shall have been undertaken in good faith, notwithstanding any active or passive
negligence (whether sole or contributory) of BROKER or its agents or employees,
and BENEFICIARY shall hold BROKER harmless therefrom.
In consideration for the services to be rendered hereunder, BROKER shall be
entitled to receive an annual service fee equal to one and one half percent
(1.5%), or such lesser amount as may be agreed to by BROKER and BENEFICIARY from
time to time, of the outstanding principal balance of the Note, payable in equal
monthly installments, or in other periodic payments if payments by obligor are
made other than monthly. BROKER is hereby authorized to deduct and retain all
such service fees from the collected monthly loan payments. In addition,
BENEFICIARY hereby assigns to BROKER fifty percent (50%), or such lesser amount
as may be agreed to by BROKER and BENEFICIARY from time to time, of all
collected late charges that become due and owing under the Note, and, further,
in the event BROKER has advanced its own sums to BENEFICIARY shall be deemed to
have assigned to BROKER one hundred percent (100%) of all such late charges
accruing and paid with respect to such payments. In addition, BENEFICIARY hereby
assigns to BROKER twenty percent (20%), or such lesser amount as may be agreed
to by BROKER and BENEFICIARY from time to time, of all collected prepayment
penalties that become due and owing under the Note.
In the event of default in payment of any sum due under the Note, BROKER
shall be authorized to advance such payments to BENEFICIARY, but shall have no
obligation whatsoever to do so. In the event the source for any payment to
BENEFICIARY is not the obligor under the Note, then BROKER shall inform
BENEFICIARY of the actual source of such payment. BROKER shall also be
authorized to advance monthly payments or other sums to any senior lien holder,
to pay insurance and taxes and to pay any other expenses reasonably incurred in
connection with the enforcement of the Note and the protection of the security
of the Deed of Trust securing same, but shall have no obligation whatsoever to
do so.
In the event of a default under the Note or Deed of Trust, or any
foreclosure action, legal action, sale or any other event in which payments are
advanced to BENEFICIARY or any other person or expenses are incurred to protect
the rights of BENEFICIARY under the Note and Deed of Trust, then BENEFICIARY
agrees to pay (or reimburse BROKER for) his pro rata share of such advances and
expenses upon demand therefor by BROKER, according to his respective ownership
interest in the Note. In the event BENEFICIARY fails to pay such sums upon
demand, then the following provisions shall apply: (1) interest shall accrue on
such sums at the same rate as is provided in the Note, and (2) BROKER and the
other partial beneficiaries shall have the option, but not the obligation, to
advance such sums for the benefit of BENEFICIARY, and in such event the
defaulting BENEFICIARY shall and hereby agrees to forfeit, in favor of the other
partial Beneficiaries who advance defaulting BENEFICIARYS share of such sums,
twenty-five percent (25%) of defaulting BENEFICIARYS ownership interest in the
Note and Deed of Trust. It is further agreed that said defaulting BENEFICIARY
shall forfeit, in favor of the other partial Beneficiaries, all interest in any
profits or excess funds that said defaulting BENEFICIARY may otherwise be
entitled to. All sums thereafter collected by BROKER hereunder shall be applied
in the following priority; (1) first, to the reinstatement of any senior liens
or encumbrances; (2) Second, to reimburse BROKER for any advances made by BROKER
hereunder; (3) Third, to reimburse all Beneficiaries for any advances made to
enforce the Note or protect the security of the Deed of Trust or Deeds of Trust
securing same, in the same order as such advances were make; (4) Fourth, to the
payment of principal under the Note; (5) Fifth, to the payment of accrued but
unpaid interest under the Note (such principal and interest to be allocated
among all BENEFICIARIES after providing for any defaulting BENEFICIARYS partial
forfeiture as described above); and (6) Thereafter, any remaining sums shall be
allocated only among those BENEFICIARIES who did not default in the advancement
of sums upon demand therefor by BROKER.
In the event BENEFICIARY assigns his interest in the Note to any person,
such assignment shall be evidenced by execution and delivery to BROKER of an
Assignment of Note and Deed of Trust in recordable form, and the assignee shall
be required to execute a counterpart of this Agreement.
BENEFICIARIES holding 50% or more of the unpaid dollar amount of the Note
may determine and direct the actions by BROKER on behalf of all BENEFICIARIES in
the event of default or with respect to other matters requiring the direction or
approval of the BENEFICIARIES.
Upon any default under the Note or Deed of Trust BENEFICIARY shall have the
right to (1) direct the Trustee under the Deed of Trust to exercise the power of
sale contained therein, or (2) to bring an action of judicial foreclosure, in
which event all other partial BENEFICIARIES shall be joined therein. BENEFICIARY
understands and acknowledges that, if the power of sale under the Deed of Trust
securing the Note is exercised, all BENEFICIARIES may acquire fee title to the
security property as tenants-in-common. In such event, reasonable cooperation
between all BENEFICIARIES will be essential for the protection of this
investment, and BENEFICIARY therefore agrees to execute in favor of BROKER a
special power of attorney authorizing BROKER on behalf of BENEFICIARY to sell
such property on such terms and conditions as BROKER may deem proper and
reasonable.
BENEFICIARY hereby authorizes BROKER, as BENEFICIARYS agent, to receive
and act upon any Notice of Rescission delivered by any borrower under the Truth
in Lending Simplification and Reform Act (the Act) with respect to the Note or
any refinancing thereof. In the event that BENEFICIARY is a creditor as defined
in the Act, BENEFICIARY hereby agrees that BROKER shall comply with all
requirements of the Act and regulations issued thereunder, and to give all
written disclosures required thereby.
In the event at the time of maturity of this Note, the borrower is in the
process of refinancing the loan with the assistance of BROKER, the BENEFICIARY
agrees to extend the term of this loan for an additional period not to exceed
(90) days or such other period of time to which the BROKER AND BENEFICIARY
agree. All other terms and conditions of the original Promissory Note shall
continue in full force and effect during said extension period.
This Agreement may be terminated by the parties as follows: (1) by BROKER,
at any time, upon 30 days written notice to BENEFICIARY, (2) by BENEFICIARY
and/or other partial BENEFICIARIES holding 50% of the outstanding ownership
interests in the Note, upon 30 days written notice to BROKER. BENEFICIARY
understands that this Agreement may not be terminated by BENEFICIARY alone
without the written consent of such 50% interest of all owners of the Note, and
further that other partial Beneficiaries have the right to terminate this
Agreement as to all Beneficiaries including the undersigned BENEFICIARY, without
BENEFICIARYS consent, if such other partial BENEFICIARIES constitute such 50%
interest of all owners of the Note. In such event, BENEFICIARY agrees to accept
the substitution of any servicing agent chosen by such 50% interest so long as
the compensation to be paid shall not exceed the amounts set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates set forth below.
BROKER: REDWOOD HOME LOAN COMPANY, a
California corporation, dba REDWOOD MORTGAGE
By:____________________________________________
D. Russell Burwell, President
Date: __________________________________________
BENEFICIARY: _______________________________________________
_______________________________________________
By: ____________________________________________
D. Russell Burwell, General Partner
Date: __________________________________________