Cashing The Escrow Check
Do any of you have luck cashing the escrow check once you payoff the loan? I get a POA, have the address changed to my PO Box. So once the property is sold, the escrow check comes to me, but it is made out to the morgagors. Other investors have told me that they are successful getting the checks cashed or deposited at their bank with the POA - but I have not been successful. What do you all do with the escrow checks?
Brenda
Does your POA enable you, however remotely, to sign the mortgagers names to the check, the endorse it over to your entity?
The rules are made to minimize fraud. As long as you can take the responsibility away from the bank...by assuming it yourself... you should have no problems.
[addsig]
Quote: such times and in such manner and upon such financial terms as to him/her may seem proper, as well as the specific power to execute all Deeds, Notes, Deeds of Trust, Insurance, Mortgage Payments, Settlement Statements or such documents in connection therewith as may be required to effect or assist the transaction and closing of said loans, sale or sales.
(2) Everything, as I/we might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that said attorney or substitute shall lawfully do or cause to be done by virtue hereof.
Not sure I understand what you mean by "remotely".
Brenda
Sorry, my copy did not copy the full powers.
Quote: (1) To contract and sell, to transfer and convey and/or borrow against the real property listed below at such times and in such manner and upon such financial terms as to him/her may seem proper, as well as the specific power to execute all Deeds, Notes, Deeds of Trust, Insurance, Mortgage Payments, Settlement Statements or such documents in connection therewith as may be required to effect or assist the transaction and closing of said loans, sale or sales.
(2) Everything, as I/we might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that said attorney or substitute shall lawfully do or cause to be done by virtue hereof.
Power Of Attorney
Mcole, what are you saying? I am referring to the refund for insurance and taxes escrowed by the lender. In my experience, that check is mailed several weeks after closing.
Quote:
On 2006-05-09 08:29, bgrossnickle wrote:
Mcole, what are you saying? I am referring to the refund for insurance and taxes escrowed by the lender. In my experience, that check is mailed several weeks after closing.
Hi Brenda,
Sorry…I misunderstood your original post when I read it.
I was referring to other types of situations where monies due to the seller get transferred by escrow directly into a specified bank account, rather than a check being written to them. But obviously, that wouldn’t work for refunds from impound accounts coming several weeks later.
I have the seller sign an escrow letter that states any monies left in escrow should be applied to reduce the mortgage and should so state on the payoff letter.
I have used this in the past, and have had no problem. You just have to make sure the title company submits this paperwork with their payoff request, and that the payoff letter shows the escrow amount reducing the mortgage.
Although this is frustrating for sure it is also why I don’t give the seller a credit for the escrow account at purchase.
The following is included in all purchase contracts.
Seller’s Current Lender Will refund seller’s Current Impound Funds directly To Seller when The Existing Loan Is Paid In Full. There will not be a Credit or Debit To Either Buyer or Seller For impound accounts on This Transaction.
To cash the check you can do any of the following three things..
1) Deposit it directly in your account after properly indorsing the check to you using the POA. If you do not have the POA do not sign the payees name just yours and deposit it. I deposit at the teller.. I found the ATM process to check payee against the account name.
Most major banks do not verify signatures anymore so the chances of it getting kicked are slim.
2) Take the check to the payor’s bank and cash it over the counter or convert it into a cashiers check using the POA. A little more work to do but possible
3) pay a signing fee to the payee to come to your office or meet you at the payors bank to cash the check. I pay 75.00 when I have to do this.
Good Luck.
_________________
Michael Quarles
"Marketing is the key to Successful Investing"
[ Edited by IBuyHousesInc on Date 05/09/2006 ]
I have a P.O.A. that states that i can endorse, sign, receive, and cash or pay any checks, refunds, premiums, and deductables on behalf of the sellers. I have never had to use it.
Almost all banks overstate the payoff and therefore have to send the difference to whomever is on the account. I have the account changed over to me as trustee or manager and my attorney also requestes the checks be sent to me immedietly. They usually come to "my company" C.O. (care of) Jon Doe Trustee/manager. It helps to use a bank that has a number of branches that way if one of your local branches turnes you away just go shopping around to all of them, somebody will do it. I have also contacted previous owners and had them endorse checks before.
Now if for some reason the insurance check comes back and it doesnt state you or your company as trustee or manager then your either going to have to use the P.O.A. or contact the old seller. I like Michaels method best, just dont credit them for the insurance or anything. Best to get a really good P.O.A. drawn up that clearly spells out your duties.
Good Luck as always. Im sure you wont need it.[ Edited by ZinOrganization on Date 05/09/2006 ]
Sunre said: Quote: I have the seller sign an escrow letter that states any monies left in escrow should be applied to reduce the mortgage and should so state on the payoff letter.
I have used this in the past, and have had no problem. You just have to make sure the title company submits this paperwork with their payoff request, and that the payoff letter shows the escrow amount reducing the mortgage.
Sunre, would you mind posting the text of that letter?
[ Edited by beachmaster on Date 06/09/2006 ]
Sunre, would you mind posting the text of that letter?
Ok, here goes...................
AGREEMENT AND DECLARATION OF TRUST
(Pursuant California Probate Code)
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into this 13TH day of SEPTEMBER, 2005, by and between JORGE ALVARADO, as Grantor/Settlor/Creator, whose address is 7722 LAMKERSHIM STREET, HIGHLAND CA., 92346, (hereinafter referred to as the "Grantor(s)", and appointee DARRYL EVANS, who by his signature below accepts said appointment and is hereinafter referred to as the “Trustee(s)”, which designation shall include all successor Trustee(s), and appointee JORGE ALVARADO who by his signature below accepts said appointment and is hereinafter referred to as the Protector of the Trust, which designation shall include all successor Protector(s), of the Trust created hereby. (Probate Code- §15200(d))
Whereas, it is the Grantor(s) intention to in the near future, transfer by Trust Transfer Grant Deed, certain real property to THE 7722 LAMKERSHIM STREET PARTNERSHIP, a 50/50 joint venture, that will consist of Jorge Alvarado, an individual, and The 7722 Lamkershim Street Trust with DARRYL EVANS AS TRUSTEE”, the Trustee(s) evidenced by his, her or their signature below has agreed to accept such future transfer and agrees to hold that certain real property as fiduciary in Trust for the Beneficiary(ies) of said Trust, under the terms and conditions set forth below. (Probate Code- §15206(a), §15206(b), §15200(b), and §56))
Now, therefore, the parties hereby agree as follows:
1. Declaration of Trust. It is the intention of the Grantor(s) that a Trust be declared and created herein and hereby. Said Trust shall be known as and named “THE 7722 LAMKERSHIM STREET TRUST, DARRYL EVANS AS TRUSTEE,” (hereinafter referred to as the “Trust”). (Probate Code- §15201)
2. Trust Property. The corpus of the Trust will be ten dollars cash ($10.00) and 100% of “SELLER’S” interest in and to that certain real property (hereinafter referred to as the “Trust Property”) that the Grantor(s) shall transfer in the near future, by Trust Transfer Grant Deed to THE 7722 LAMKERSHIM STREET PARTNERSHIP, a 50/50 joint venture consisting of Jorge Alvarado, an individual, and The 7722 Lamkershim Street Trust with DARRYL EVANS AS TRUSTEE”. Said Trust Property is commonly known as 7722 LAMKERSHIM STREET, HIGHLAND CA. 92346 and is legally described in Exhibit “A” (attached hereto and made a part hereof by this reference). The Trustee(s) shall hold full legal and equitable title to said property, as fiduciary in Trust for the Beneficiary (ies) of said Trust, only for the use and purpose stated under the terms of this (“AGREEMENT”) and any valid addendum hereto duly executed by the parties. However, record title shall be held in the name of “THE 7722 LAMKERSHIM STREET PARTNERSHIP” a 50/50 joint venture consisting of Jorge Alvarado, an individual, and The 7722 Lamkershim Street Trust with DARRYL EVANS AS TRUSTEE".
3. Trust Purpose. The objects and purposes regarding the creation of this Trust shall be to conceal the identities of the Beneficiary (ies) and Protector(s) of the Trust from the public land records were said Trust Property is located, to hold full legal and equitable title to the Trust Property and to protect and conserve it until its sale, disposition or liquidation, or until the Trust is terminated or expires by its own terms and/or as a matter of law. The Trustee(s) shall not undertake any activity that is not strictly necessary to the achievement of the foregoing objects and purposes, nor shall this (“AGREEMENT”) be deemed to be, or create, or evidence the existence of a corporation, a Massachusetts Trust, or an Illinois Land Trust or any other type of business Trust, or an association in the nature of a corporation, or joint venture, limited liability company, limited liability partnership, family limited partnership or similar limited liability association by or between the Trustee(s), Protector(s) and the Beneficiary(ies),or by or between multiple Beneficiaries. (Probate Code- §15203)
4. Consideration. The Trustee(s) has paid no consideration for the transfer/conveyance of real property described herein. The transfer/conveyance will be accepted and held by the Trustee(s) subject to all existing liens, encumbrances, easements, restrictions or other clouds or claims against the title thereto, whether the same are of record or otherwise. The property will be held on the Trust’s terms and conditions and for the purposes hereinafter set forth, until the whole of the Trust estate is conveyed, free of this Trust, as hereinafter provided. (Probate Code- §15208)
5. Rights and Duties of the Beneficiary (ies). The persons and/or entities selected via the powers granted the Protector in paragraph 23 or named in Exhibit “B” (attached hereto and made a part hereof by this reference) (including their heirs, assigns or successors) hereof are the Beneficiary (ies) of this Trust, and as such, shall be entitled to all of the earnings, avails and proceeds of the Trust Property according to their interests set opposite their respective names. Unless otherwise agreed in advance, all Trust expenses shall be allocated according to each Beneficiary (ies)’s respective interest. No Beneficiary (ies) shall have any legal or equitable right, title or interest, as realty, in or to any real estate held in Trust under this Agreement, or the right to require partition of that real estate, but shall have only the rights, as personally, set out below. A Beneficial Interest in this Trust shall be deemed personal property, and may be assigned and transferred as such. No Beneficiary (ies) shall have the authority to contract for or in the name of any other Beneficiary (ies) or to bind any other Beneficiary (ies) personally, except as specifically set forth elsewhere in this (“AGREEMENT”), or provided for in law relative to community property. Unless its consent is first obtained in writing, no Beneficiary (ies) shall have any authority to contract for or in the name of the Trustee(s), or to bind the Trustee(s) personally. The deaths of any individual Beneficiary (ies), or the merger, reorganization, or dissolution of any Beneficiary (ies) in the form of corporation, partnership, Limited Liability Company or any other form of legally recognized entity shall not terminate this Trust or in any manner affect the powers of the Trustee(s). In the event of the death of any Beneficiary (ies), his/her/their/its right and interest hereunder, except as otherwise provided, shall pass to his/her/their/its executor, executrix or administrator and heirs at law, unless a Successor Beneficiary has been named.
The interests of the Beneficiary (ies) shall consist solely of the following rights respecting the Trust Property:
a. The right to direct the Trustee(s) to convey or otherwise deal with the title to the Trust Property as hereinafter set out.
b. The right to have full and exclusive control over the management and operation of the Trust Property, and control of the selling, renting and other handling and disposition of the Trust Property.
c. The right to collect, otherwise handle and receive the rents, proceeds and avails from the Trust Property, and except as provided in paragraph www.15.c. hereof, the proceeds of any sale or other disposition thereof.
6. Powers, Obligations and Duties of Trustee(s). The Trustee(s) shall not copy or show this (“AGREEMENT”) to any individual or entity other than the Beneficiary (ies), successor Trustee(s), Co-Trustee(s) or Protector, nor shall the Trustee(s) reveal the identity of the Beneficiary (ies) of the Trust Property to any individual or entity other than the Beneficiary (ies), successor Trustee(s), Co-Trustee(s) or Protector except by way of a Court Order duly executed by a Justice or Magistrate of a Court of competent jurisdiction. The Trustee(s) shall not record this (“AGREEMENT”) or the name of any of the Beneficiary (ies) in any place of public record.
The Trustee(s), as the sole owner of legal and equitable of the Trust Property, have the following powers with respect to the Trust Property, at the written direction of the Beneficiary (ies):
a. The power to issue notes or bonds and to secure the payment of the same by executing a deed of Trust, mortgage or other security instrument conveying a lien on the whole or any part of the Trust Property;
b. The power to borrow money, giving notes therefore, or to assume existing debts related to the Trust Property signed by them in their capacity as Trustee(s);
c. The power to have, together with, and at the direction of the Beneficiary (ies), the exclusive management and control of the property as if they were the absolute owner thereof, and the full power to do all things and perform all acts which in their judgment are necessary and proper for the protection and preservation of the Trust Property and for the interest of the Beneficiary (ies) in the property of the Trust, subject to the restrictions, terms, and conditions set forth herein;
d. The power to take possession of the Trust property in the event it becomes vacant;
e. The power to rent or lease the whole or any part of the Trust Property for long or short terms, but not for terms exceeding the term of the Trust then remaining;
f. The power to repair, alter, tear down, add to, or erect any building or buildings upon land belonging to the Trust; to fill, grade, drain, improve, and otherwise develop any land belonging to the Trust; to carry on, operate, or manage any building belonging to the Trust.
g. The power to sell, contract to sell and grant options to purchase the Trust Property or any right, title or interest therein for cash or on credit; to collect excess proceeds, exchange the Trust Property or any part thereof for any other real or personal property.
h. The power to make, execute, acknowledge, and deliver all deeds, releases, mortgages, leases, contracts, options, agreements, instruments, and other obligations of whatsoever nature relating to the Trust Property, and generally to have full power to do all things and perform all acts necessary to make the instruments proper and legal (and to do so by a duly appointed attorney-in-fact);
i. The power to collect notes, rents, obligations, dividends, and all other payments that may be due and payable to the Trust; to deposit the net proceeds thereof, as well as any other moneys from whatsoever source they may be derived, in any suitable bank or depository, and to draw the same from time to time for the purposes herein provided, paying the net proceeds there from to the Beneficiary (ies);
j. The power to pay all lawful taxes and assessments and the necessary expenses of the Trust; to employ such officers, brokers, property managers, engineers, architects, carpenters, contractors, agents, counsel, and such other persons as may seem expedient, to designate their duties and fix their compensation; to fix a reasonable compensation for their own services to the Trust.
k. The power to represent the Trust and the Beneficiary (ies) in all suits and legal proceedings relating to the Trust Property in any court of law or equity, or before any other bodies or tribunals; to begin suits and to prosecute them to final judgment or decree; to compromise claims or suits, and to submit the same to arbitration when, in their judgment, such course is necessary or proper.
l. The power to upon sale of the property located at: 7722 LAMKERSHIM STREET, HIGHLAND CA., 92346 to dissolve the Trust, reverting its holdings, and credits to the persons and/or entities selected via the powers granted the Protector in paragraph 23 or named in Exhibit “B” (attached hereto and made a part hereof by this reference) (including their heirs, assigns or successors).
m. The obligation to keep careful and accurate books showing the receipts and disbursements they have made on behalf of the Trust and also of the Trust Property and to keep books of the Trust open to the inspection of the Beneficiary (ies) and Protector.
n. The obligation to follow to the letter, the terms and conditions contained in any assignment of beneficial interest, contracts, agreements, notes and security agreements hereafter made under this Trust.
o. The obligation to provide the Protector in a timely manner with a copy of this Trust Agreement, any modifications or amendments thereto, all assignments of beneficial interest, promissory notes, security agreements, agreements, contracts or bills of sale that may apply to any such assignments of beneficial interests, and any and all other documents and correspondence which affects the Trust, Trust Property, or the rights and obligations of any party hereto in any manner whatsoever.
p. If there are more than one Trustee(s) to this Trust, then for purposes of carrying out any duty or obligation of Trustee(s) hereunder, one of the Trustee(s) may delegate his/her/their/its powers to a Co-Trustee(s). This shall specifically include the right of one Trustee(s) to hold the Trust Property solely in his/her/their/its name as Trustee(s).
q. Any additional power or authority of a Trustee(s) which is defined by state law, code or statute, is precluded if such additional powers shall cause this (“AGREEMENT”) to be construed as a “Trust” as defined in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
r. Trustee(s) in addition to the other duties herein imposed upon you, you shall have the obligation to keep a careful and complete record of all the beneficial interests in the Trust Property with the name and residence of the person or persons owning such beneficial interest, and such other items as they may deem of importance or as may be required by the Beneficiary (ies).
s. All additional powers and authorities of a Trustee(s) as defined by state law, code or statute, and which are not specifically granted herein, are made available to the Trustee(s) only upon written direction of the Beneficiary (ies).
7. Compensation of Trustee(s). The Beneficiary (ies) or their assigns jointly or severally agree that they may pay the Trustee(s) a Trustee(s) fee. And if so said Trustee(s) fee will be paid as agreed in a separate “Trustee(s) Fee Agreement which when attached and fully executed shall be made a part of this AGREEMENT AND DECLARATION OF TRUST.
8. Liability of Trustee(s). The Trustee(s) and their successors as Trustee(s) shall not be required to give a bond, and each Trustee(s) shall be liable only for his/her/their/its own acts and then only as a result of his/her/their/its own gross negligence or bad faith.
9. Removal of Trustee(s). The Beneficiary (ies) shall have the power to remove a Trustee(s) or appoint a successor to succeed him or her. This removal must be in writing, signed by all of the Beneficiary (ies). Upon Seven (7) days written notice, the Trustee(s) shall deliver to the Successor Trustee(s) (or to the Beneficiary (ies) named in said notice if a Successor Trustee(s) has yet be named) all books, records, bank account information, keys, security deposits, leases and funds in his/her/their/its possession, and execute any documents necessary to convey title and/or authority over the Trust and the Trust Property to the Successor Trustee(s). (Probate Code-§15640-§15645)
10. Resignation of Trustee(s). Any Trustee(s) may resign by giving thirty (30) days written notice to Beneficiary (ies). The Beneficiary (ies) shall appoint as Trustee(s) the person named as successor Trustee(s) herein (or proceed to appoint a new Trustee(s), if no such Successor Trustee(s) has been named or such Successor Trustee(s) is unavailable for whatever reason) to take the place of the Trustee(s) who had resigned, but the resignation shall not take effect until an affidavit signed and acknowledged before a notary public by both the resigning Trustee(s) and the new Trustee(s) has been procured in a form which is acceptable for recording in the registrar recorder’s office of all the counties in which properties held in this Trust are situated. If the Trust property is recorded in the name of the Trustee(s) himself or herself, the resigning Trustee(s) shall also execute a deed in the proper form and manner for recording in the registrar recorder’s office in the county in which the property is situated. Said deed and/or affidavit need not be recorded unless so requested of the new Trustee(s) at the written direction of the Beneficiary (ies).
.
a. In the event a new Trustee(s) is not appointed within Sixty (60) days after notice of the resignation of the existing Trustee(s) is received by the Beneficiary (ies), this (“AGREEMENT”) shall terminate, and the resigning Trustee(s) shall deliver all books, records, bank account information, keys, security deposits, leases and funds in his/her/their/its possession, and execute any documents necessary to convey title to the Trust Property to the Beneficiary (ies) as their interests may appear.
b. Whenever a new Trustee(s) has been appointed and has assumed the resigning Trustee(s) duties, he or she shall succeed to the title of all the properties of the Trust and shall have all the powers and be subject to all the restrictions granted to or imposed upon the Trustee(s) by this (“AGREEMENT”) and any assignments of beneficial interests or other (“AGREEMENT”) s made hereunder, and every Trustee(s) shall have the same powers, rights, and interests regarding the Trust Property, and shall be subject to the same restrictions and duties as the original Trustee(s), except as the same shall have been modified by amendment, as herein provided for. (Probate Code-§15640- §15645)
11. Death or Incapacity of Trustee(s). Upon the death, termination, resignation or physical or mental incapacity of a Trustee(s), a new Trustee(s) will be appointed as per paragraph “10” herein.
12. Beneficiary (ies) not bound by Trustee(s). The Trustee(s) is not an agent or partner of, and shall have no power to bind the Beneficiary (ies) personally and, in every written contract he or she may enter into, reference shall be made to this declaration; and any person, corporation or other legal entity contracting with the Trustee(s), as well as any Beneficiary (ies), shall look to the funds of the Trust and the Trust Property for payment under such contract, or for the payment of any debt, mortgage, judgment, or decree, or for any money that may otherwise become due or payable, whether by reason of failure of the Trustee(s) to perform the contract, or for any other reason, and neither the Trustee(s) nor the Beneficiary(ies) shall be liable personally therefore.
13. Third Party Dealings with Trustee(s). No party dealing with the Trustee(s) in relation to the Trust Property in any manner whatsoever, and, without limiting the foregoing, no party to whom the property or any part of it or any interest in it shall be conveyed, contracted to be sold, leased or mortgaged by the Trustee(s), shall be obliged to see to the application of any purchase money, rent or money borrowed or otherwise advanced on the property; to see that the terms of this Trust Agreement have been complied with; to inquire into the authority, necessity or expediency of any act of the Trustee(s); or be privileged to inquire into any of the terms of this Trust Agreement.
a. Every deed, mortgage, lease, or other instrument executed by the Trustee(s) in relation to the Trust Property shall be conclusive evidence in favor of every person claiming any right, title or interest thereunder (1) that at the time of delivery thereof the Trust created hereunder was in full force and effect; (2) that such instrument was executed in accordance with the terms and conditions of this (“AGREEMENT”) and all amendments hereof, if any, and is binding upon all Beneficiary (ies) hereunder; (3) that the Trustee(s) was duly authorized and empowered to execute and deliver every such instrument; (4) if a conveyance has been made to a successor or successors in Trust, that such successor or successors have been properly appointed and are fully vested with all the title, estate, rights, powers, duties and obligations of its, predecessor in Trust.
14. Recording of Agreement. Even though permissible, neither this (“AGREEMENT”) nor any summary of the contents hereof shall be recorded in the office of the county recorder in the county where all or a portion of the Trust Property is situated, or elsewhere, but if it is so recorded, that recording shall not be considered as notice of the rights of any person under this (“AGREEMENT”) derogatory to the powers of the Trustee(s). (Probate Code-§15210)
15. Term of Agreement. This (“AGREEMENT”) shall continue for a period of twenty-one years (21) from the date hereof. The Trustee(s) shall contact all Beneficiaries (ies) in writing at least twelve months prior to that time. The Trustee(s) shall place the Trust Property for public sale, pay all debts due and owing with regard to the Trust Property, and remit the proceeds to the Beneficiary (ies) according to their respective interests in the Trust. (Probate Code-§15211)
a. The Beneficiary (ies) may choose to renew this Trust for a term of twenty additional years or any lesser term by submitting their intention in writing to the Trustee(s), at least sixty (60) days prior to the end of any term hereof. (Probate Code-§15211)
b. If any portion of the Trust Property is in any manner or time period capable of being held in this Trust for a longer period of time than is permitted under the laws of the state governing this (“AGREEMENT”), or the vesting of any interest under this Trust could possibly occur after the end of such permitted time period, then, upon the occurrence of the foregoing, the Trustee(s) are directed to immediately terminate the Trust and to distribute the Trust Property to the Beneficiary (ies) as their respective interests may appear at the time of the termination of the Trust. As much as possible, the Trustee(s) will maintain the Trust Property intact and not liquidate it, but, rather, distribute the Trust Property in kind.
c. If at any time prior to the expiration of twenty-one years (21) from the date hereof the assets of this Trust consist solely of cash, the Trustee(s) shall transfer and deliver all of such assets to the Beneficiary (ies) in accordance with their respective interests.
d. Upon the completion of any of the actions described in subparts a., c., or d. of this paragraph 15, this Trust shall terminate.
16. Revocation Of The Trust. Grantor(s) may revoke this Trust at any time. Furthermore it may be modified by written Notice of Modification executed by the Beneficiary (ies) given to the Trustee(s), provided that all Beneficiary (ies) to this Trust, who retain the power of modification, execute said Modification of Trust indicating their unanimous consent thereto.
17. Income Tax Returns. The Trustee(s) shall not be obligated to file any income tax returns with respect to the Trust, except as required by law, and the Beneficiary (ies) individually shall report and pay their share of income taxes on the earnings and avails of the Trust Property or growing out of their interest under this Trust. In the event law requires an informational return, the Trustee(s) agree to execute the same after contacting all the Beneficiary (ies). It is the intention of the parties that this (“AGREEMENT”) does not create a “Trust” under the definition as set forth in Section 301.7701-4(a) of the Procedure and Administration Regulations of the Internal Revenue Code.
18. Assignment of Beneficial Interest. The interest of a Beneficiary (ies), or any part of that interest, may be transferred only by a written assignment, executed in duplicate and delivered to the Trustee(s). Until Trustee(s) has received and accepted the assignment by affixing his/her/their/its signature thereto, Trustee(s) is not bound by the assignment. Trustee(s) may not unreasonably withhold acceptance of any such assignment. Assignments not delivered to the Trustee(s) shall be void as to all subsequent assignees or purchasers who take without notice of any such undelivered assignment. No assignment of any interest hereunder, which purports to include the power to direct the Trustee(s) to convey or otherwise deal with the Trust Property, shall be valid without the written approval of all of the other Beneficiary (ies), which approval may not be withheld without good cause. Unless stated otherwise therein, any assignment of beneficial interest hereunder shall also include the attendant power of direction and modification of this (“AGREEMENT”), each of which powers may not be exercised without the unanimous consent of all of the Beneficiary (ies). Any Beneficiary (ies) who assigns his interest in full shall forever waive his right to direct or modify this Trust Agreement.
19. Individual Liability of Trustee(s). The Trustee(s) shall not be required, in dealing with the Trust Property or in otherwise acting under this (“AGREEMENT”), to enter into any individual contract or other individual obligation whatsoever; nor to make themselves individually liable to pay or incur the payment of any damages, attorneys’ fees, fines, penalties, forfeitures, costs, charges or other sums of money whatsoever. The Trustee(s) shall have no individual liability or obligation whatsoever arising from its ownership, as Trustee(s), of the legal and equitable title to the Trust Property, or with respect to any act done or contract entered or indebtedness incurred by it in dealing with the Trust Property or in otherwise acting under this (“AGREEMENT”), except only as far as the Trust Property and any Trust funds in the actual possession of the Trustee(s) shall be applicable to the payment and discharge of that liability or obligation.
20. Reimbursement and Indemnification of Trustee(s). If the Trustee(s) shall pay or incur any liability to pay any money on account of this Trust, or incur any liability to pay any money on account of being made a party to any litigation as a result of holding title to the Trust Property or otherwise in connection with this Trust, the Beneficiary (ies) agree that on demand they will pay to the Trustee(s) all such payments made or liabilities incurred by the Trustee(s), together with their expenses, including reasonable attorneys’ fees with interest at a rate of ten percent (10%) per year commencing on the date such funds are disbursed by Trustee(s), and that they will indemnify and hold the Trustee(s) harmless of and from any and all payments made or liabilities incurred by them for any reason whatsoever as a result of this (“AGREEMENT”) .Until Trustee(s) has been fully reimbursed for any payments, advances or other expenses together with interest, incurred by Trustee(s), Trustee(s) shall be under no duty to convey or otherwise deal with the Trust Property. Unless Trustee(s) has been provided with sufficient funds or indemnified to the satisfaction of Trustee(s), Trustee(s) shall not be required to advance or otherwise pay for any expense or liability resulting from this Trust.
21. Unanimous Direction of Beneficiary (ies). Wherever the “Beneficiary (ies)” requires an act, decision or direction or “Beneficiary (ies)” herein, said designation shall be deemed to mean all of the Beneficiary (ies) or all of a class of Beneficiary (ies) acting in a unanimous (“AGREEMENT”), unless a lesser percentage is so specified.
22. Appointment and Removal of Protector. The Grantor(s) has appointed JORGE ALVARADO as Protector of the Trust created hereby, and JORGE ALVARADO has accepted said appointment. The Beneficiary (ies) has full power and authority to remove JORGE ALVARADO from his position of Protector at his/her/ their discretion. The Beneficiary (ies) has full power and authority to appoint a successor Protector.
23. Duties of Protector. The Protector shall be responsible for monitoring the actions of the Trustee(s) in accordance with the terms and conditions hereof. The Protector, acting independently, shall only have the power to remove a Trustee(s) for good cause, and to appoint a new Trustee(s), if no Successor Trustee(s) has been named in this (“AGREEMENT”), or any such Successor Trustee(s) is unable to accept an appointment to the position thereof and the power to select the Beneficiary (ies) of the Trust created hereby, in the Protector’s on discretion. . The Grantor(s) gives no other powers to the Protector. The Trustee(s) shall recognize no other power of the Protector. (Probate Code-§15205(a)(2))
24. Resignation of Protector. Any Protector may resign by giving thirty (30) days written notice to Beneficiary (ies) and Trustee(s). A successor Protector shall be appointed subject to the terms of Paragraph 22, above, to take the place of the resigning Protector, but the resignation shall not take effect until an affidavit signed and acknowledged before a notary public by both the resigning Protector and the new Protector has been procured in a form which is acceptable to the Beneficiary (ies) as appropriate.
25. Appointment of new Protector. Whenever a new Protector has been appointed and has assumed the duties of the resigning Protector, he or she shall have only the powers and be subject to all the restrictions imposed upon the Protector by this (“AGREEMENT”).
26. Successor Trustee(s). The Beneficiary (ies) have selected those named in Exhibit “D” (when attached hereto and made a part hereof by this reference) to be the Successor Trustee(s).
27. Insurance. The Beneficiary (ies) agree at all times to carry such insurance as shall be required by any mortgagee of the Trust Property, insuring the Trustee(s). Shall Beneficiary (ies) fail to provide the required insurance, the Trustee(s), in its discretion, after reasonable notice, may procure such insurance as may be required by any mortgagee of the Trust Property, and the Beneficiary (ies) hereby jointly and severally agree that they will pay on demand to the Trustee(s) the amount of the premium on the insurance plus interest at the rate of ten percent (10%) per annum on the amount expended by Trustee(s) for such insurance.
28. Governing Law. This (“AGREEMENT”), and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of California. The laws of the State of California shall govern the validity, construction and administration of this Trust. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in the County in which the property sits. In the event that litigation results from or arises out of this (“AGREEMENT”) or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled. In such event, no action shall be entertained by said court or any court of competent jurisdiction if filed more than one year subsequent to the date the cause(s) of action actually accrued regardless of whether damages were otherwise as of said time calculable.
29. Binding Effect. The terms and conditions of this (“AGREEMENT”) shall inure to the benefit of and be binding upon any successor Trustee(s) or Protector under it, as well as upon the executors, administrators, heirs, assigns and all other successors in interest of the Beneficiary (ies).
30. Annual Statements. There shall be no annual meeting of the Beneficiary (ies), but the Trustee(s) shall prepare an annual report of its receipts and disbursements for the fiscal year preceding, which fiscal year shall coincide with the calendar year, and a copy of the report shall be sent by mail to the Beneficiary (ies) and Protector not later than February 28 following each year.
31. Termination of This Agreement. Unless stated otherwise in any assignment of beneficial interest made hereunder, this Trust may be terminated on thirty (30) days written notice signed by all of the Beneficiary (ies) and delivered to the Trustee(s). Upon the termination of this (“AGREEMENT”), the Trustee(s) shall deliver all books, records, bank account information, keys, security deposits, leases and funds in their possession, and execute any documents necessary to convey title to the Trust Property to the Beneficiary (ies) as their interests may appear.
32. Entire Agreement. This (“AGREEMENT”) contains the entire understanding between the parties and may be amended, modified, or terminated only by written (“AGREEMENT”) signed by the Trustee(s), and the Beneficiary (ies), subject to the terms and conditions of any assignment of beneficial interest hereafter made.
33. Notices. All notices required under this Trust Agreement shall be made by postage pre-paid certified U. S. Mail, Return Receipt Requested.
34. Principal Place of Administration of the Trust. The principal place of administration of this Trust shall be the address of the Trust Property.
35. Binding Arbitration. If the Beneficiary (ies) are unable to agree on any matter arising under this (“AGREEMENT”) or any contract, assignment or other (“AGREEMENT”) made pursuant hereto, they shall voluntarily submit to binding arbitration to be conducted by a member of the American Arbitration Association. All advance costs for such proceedings shall be paid for equally among the Beneficiary (ies). The Beneficiary (ies) against whom the decision is made shall be required to reimburse the Beneficiary (ies) in whose favor the decision was decided for all such advance costs expended. Likewise the Beneficiary (ies) against whom the decision is made shall pay for all further costs associated with said proceedings. The decision of these arbitration proceedings shall be final.
36. Trustee(s) may file Interpleader. Shall the Beneficiary (ies) in this (“AGREEMENT”), not voluntarily submit to binding arbitration, the Trustee(s) may file an interpleader in a court of proper jurisdiction, requiring the Beneficiary (ies) to settle their dispute. The Beneficiary (ies) shall pay for all costs associated with the interpleader.
37. Transfer of Trust Property Restricted. The Trustee(s) may not either voluntarily or involuntarily transfer the interest of a Beneficiary (ies) of this Trust without express written permission of the Beneficiary (ies).
38. Right To Create Lien. For and in consideration of the "Option Fee" evidenced by a separate
(“AGREEMENT”) known as the “OPTION AGREEMENT FOR PURCHASE OF REAL AND PERSONAL PROPERTY WITH SPECIAL POWER OF ATTORNEY”, and in compliance with paragraph 3 of said (“AGREEMENT”), JORGE ALVARADO does hereby grant to ABE WILLIAMS a lien (security interest) which has been or will be evidenced and perfected by the filing of a Uniform Commercial Code Financing Statement (U.C.C. filing), encumbering 100% of “SELLER’S” beneficial interest in and to “THE 7722 LAMKERSHIM STREET TRUST, DARRYL EVANS AS TRUSTEE”.
EXHIBIT “A”
Legal Description:
THE NORTH 30 FEET OF LOT 30 AND THE SOUTH 20 FEET OF LOTS 28 AND 29 OF TRACT NO. 2625, FREIDMANN SUBDIVISION, IN THE CITY OF HIGHLAND, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 37 OF MAPS, PAGE (S) 25, RECORDS OF SAID COUNTY.
EXHIBIT "B "
(Name of Beneficiary (ies))
JORGE ALVARADO
IN WITNESS WHEREOF, the parties hereto have executed this (“AGREEMENT”) as of the day and year first above written.
Signed, sealed and delivered in the presence of:
___________________________________ ______________________________________
JORGE ALVARADO-Grantor(s) DARRYL EVANS-Trustee(s)
______________________________
JORGE ALVARADO-Protector(s)
Thanks for the quick reply and form!
I will copy and paste to word for editing and review.
Have you successfully used this contract on a rental while you still carried a big mortgage against it and it never came to your lenders atten?