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DEED OF TRUST
ADAMSF O p TY, NE
INST. N0. ~~080629
Dated- -off Time~~t
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REGISTER OF DEEDS
This Deed of Trust is made this L d y of February, 2008, by Tony R. Colon and Joan
M. Colon, Husband and Wife, TRUSTOR, whose address is 931 N. Baltimore Avenue, Hastings,
Nebraska.
BENEFICIARY:
Robbie J. Ackles
927 N. Baltimore Avenue
Hastings, NE 68901
TRUSTEE:
Michael E. Sullivan
Burlington Center Suite 305
747 North Burlington Avenue
P.O. Box 43
Hastings, NE 68902
WITNESSETH:
1. Conveyance. The Trustor hereby conveys, sells and warrants to the Trustee, in
trust, with power of sale, the following described real estate:
Lot Seven (7), Block One (1), McKnight's Addition to the City of
Hastings, Adams County, Nebraska,
the intention being to convey hereby an absolute title in fee simple, together with all buildings,
fixtures, improvements and appurtenances thereunto belonging.
The Trustor covenants and agrees with the said Trustee and Beneficiary that it is
lawfully seized of said premises; that Trustor has good, right and lawful authority to sell and
convey said premises; that said premises are free and clear of all liens and encumbrances; and
that Trustor will warrant and defend title to said premises unto the Trustee and its successors and
assigns forever against the claims of all persons.
2. Trustor's Primary Obligation: This Deed of Trust is given for the purpose of
securing performance of each agreement of Trustor herein contained and the payment of Six
Thousand Four Hundred Seventy-Three Dollars and Sixty-Four Cents ($6,473.64), upon the
terms set forth in a written Promissory Note dated January 15, 2008. Additionally, the Trustor
acknowledges that the Beneficiary has the right to make future advances (as defined in Neb. Rev.
Stat. § 79-1002), and this Deed of Trust is given to secure the Trustor's obligation to repay any
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such future advances.
3. Trustor's Secondary Rights and Duties: While title is vested in Trustee and
until filing of Notice of Default, the Trustor shall:
A. Retain possession of the premises and collect the rents and revenues
therefrom.
B. Maintain the buildings and improvements located thereon in good
condition and repair and shall not remove or sell the same without the
written consent of the beneficiary which shall not be unreasonably
withheld.
C. Procure and maintain policies of insurance against the usual hazards of
fire, hail, windstorm and other similar risks, in sums and underwritten by
companies acceptable to the Beneficiary, with loss payable to the parties as
their interests may appear, and deliver copies of such policies to said
Beneficiary. Said insurance policies shall be in an amount of not less than
the balance due on any promissory note or notes secured hereby, and shall
name the Beneficiary as an additional insured thereunder.
D. Pay all taxes and assessments against the above-described real estate prior
to delinquency.
E. Upon request of Beneficiary, Trustor shall pay to Beneficiary each month
such amount as is determined by the Beneficiary to be necessary to enable
the Beneficiary to have sufficient funds on hand to satisfy the Trustor's
obligation for insurance premiums, taxes, and assessments.
4. Default: Trustor covenants and agrees that its failure to make any payment of
either principal or interest on the Promissory Note secured hereby when due and payable, or of its
failure to comply with any of the covenants and agreements herein, shall cause the whole sum of
money hereby secured to become due and collectible at once at the option of the Beneficiary, and
the Beneficiary shall have the right to cause Notice of Default to be given and the premises sold
as provided herein.
5. It is Mutuallygreed That:
A. Trustee's Ordinary Duties: At any time and from time to time, upon
written request of the Beneficiary, payment of fees and presentation of this
Deed of Trust and the Promissory Note for endorsement (in case of full
reconveyance, for cancellation and retention), without affecting the
liability of any person for the payment of this indebtedness, Trustee shall
(a) consent to the making of any map or'plat of said property; (b) join in
granting any easement or creating any restriction thereof; (c) join in any
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subordination or other agreement affecting this Deed of Trust or the lien or
charge thereto; (d) reconvey, without warranty, all or any part of said
property.
B. Reconve~nce: When the obligation secured by this Deed of Trust has
been satisfied, the Trustee shall, upon written request by the Beneficiary,
reconvey the trust property. The Grantee in any reconveyance shall be the
Trustor or its successor in interest. The Beneficiary shall deliver to the
Trustor the Deed of Trust and the Promissory Note shown as satisfied and
paid in full. In the event the Beneficiary improperly refuses to request a
reconveyance from the Trustee, the Trustor shall have the rights and
remedies as set forth in Section 76-1014 of the Nebraska Statutes as the
same are constituted at the time this Deed of Trust is executed.
C. Default and Deficiency Judgment Procedure: Upon default by Trustor
in the payment of any indebtedness secured hereby or in the performance
of any agreement hereunder, Beneficiary may declare all sums secured
hereby immediately due and payable by delivery to Trustee of a written
declaration of default. If Beneficiary desires said property be sold, it shall
deposit with Trustee this Deed of Trust and all Promissory Notes and
documents evidencing expenditures secured hereby, and shall deliver to
Trustee a written Notice of Default and election to cause said property to
be sold in the form required by law, which shall be duly filed for record by
the Trustee. Sale and distribution procedure shall be as follows:
(1) After the lapse of such time as may be required by law following
the recordation of said Notice of Default, and Notice of Sale
having been given as required by law, Trustee, without demand on
Trustor, shall sell said property on the date and at the time and
place designated in said Notice of Sale, at public auction to the
highest bidder, the purchase price to be payable in lawful money of
the United States at the time of sale. The person conducting the
sale may, for any cause he deems expedient, postpone the sale from
time to time until it shall be completed, and in every case, notice of
postponement shall be given by public declaration thereof by such
person at the time and place last appointed for the sale; provided, if
the sale is postponed for longer than one day beyond the day
designated in the Notice of Sale, notice thereof shall be given in
the same manner as the original Notice of Sale. Trustee shall
execute and deliver to the purchaser its deed conveying said
property so sold, but without any covenant or warranty, express or
implied. The recitals in the deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including
the Beneficiary, may purchase at the sale.
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(2) When Trustee sells pursuant to the powers herein, Trustee shall
apply the proceeds of sale to the payment of costs and expenses of
exercising the power of sale and of the sale, including payment of
Trustee's fees actually incurred, which Trustee's fees shall be in the
amount of $50.00 or one-half of one percent of the entire unpaid
..principal sum secured, whichever is greater; and then to the items
in subparagraph (3) in the order there stated.
(3) After paying the items specified in subparagraph (2) if the sale is
by Trustee or the proper court, and other costs of foreclosure and
sale if sale is pursuant to judicial foreclosure, the proceeds of sale
shall be applied in the order stated to the payment of:
(a) Cost of any evidence of title procured in connection with any
conveyance.
(b) All sums then secured hereby.
(c) The remainder, if any, to the person or persons legally
entitled thereto.
(4) At any time within three months after a sale of property under this
Deed of Trust as hereinabove provided, an action may be
commenced to recover any balance due upon the obligation as
provided in Section 76-1013 of the Nebraska Statutes.
D. Option to Foreclose: Upon the occurrence of any default hereunder,
Beneficiary shall have the option to foreclose this Deed of Trust in the
manner provided by law for the foreclosure of mortgages on real property.
E. Substitute Trustee: Beneficiary may from time to time substitute a
successor or successors to any Trustee named herein or acting hereunder.
Upon such appointment and without conveyance to the successor Trustee,
the latter shall be vested with all title, powers and duties conferred upon
any Trustee herein named or acting hereunder. Each such appointment
and substitution shall be made by written instrument and executed by
Beneficiary containing reference to this Deed of Trust and its place of
record, which, when recorded in the office of the Register of Deeds of the
county or counties in which said properly is situated, shall be conclusive
proof of the proper appointment of the successor Trustee. The foregoing
power of substitution and the procedure thereof shall not be exclusive of
the power and procedure provided for by law for the substitution of a
Trustee in place of the Trustee named herein.
F. Assignability and Acceleration: Trustor covenants and agrees that the
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Beneficiary shall have the option of declaring the unpaid balance
immediately due and payable upon any conveyance, assignment or transfer
of Trustor's interest in the premises during the term of the loan secured
hereby in the absence of written consent from the Beneficiary or its
assignees, which consent shall not be unreasonably withheld. If said sum
remains unpaid for fifteen (15) days after a nonconsential conveyance,
assignment or transfer occurs, Beneficiary can cause Notice of Default to
be given and the premises will be sold as provided herein.
G. Rent Assignment: As,additional collateral.security for the loan and
effective forthwith upon filing of a Notice of Default, this instrument shall
serve as an assignment by the Trustor to the Trustee of all rents and
revenues resulting from the property, and Trustee is authorized to take
possession of the property, rent or lease the same on terms it deems best
and to collect the rents and revenues and apply the same upon unpaid
interest, principal, taxes or insurance premiums or for maintenance and
preservation of the premises.
H. Waiver of Defaults: The waiver by Trustee or Beneficiary of any default
of Trustor under this Deed of Trust shall not be or be deemed to be a
waiver of any other or similar defaults subsequently occurring.
I. 10-Day Grace Period: The power of sale herein conferred upon the
Trustee shall not be exercised until a full ten (10) days, including the one
(1) or two (2) month periods specified in Sections 76-1006(2) and 76-1012
R.R.S., have elapsed after Notice of Default has been filed as provided by
law.
J. Costs of Trustee: The Trustor shall pay all charges imposed by the
Trustee.
K. Effect: The designation "Trustor" herein shall extend to and apply to the
undersigned, singular or plural, and the covenants and agreements of the
parties herein shall be binding upon their heirs, devisees, executors,
administrators, successors and assigns.
L. Construction: This Deed of Trust shall be construed according to the
laws of the State of Nebraska and the Trustee and the Beneficiary shall
have all of the benefits and rights made available by the Nebraska Trust
Deeds Act as the same now exists as well as any additional rights which
may be created under any amendments thereto.
M. Regulation Z Waiver: The Trustor agrees this transaction is not a
transaction between a borrower and a commercial lender and waives any
three (3) day right to rescind it may have, together with any rights to
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disclosures and notices in addition to those made herein, if any, under
federal and state Truth in Lending and Consumer Protection legislation.
N. Notice of Default: Each party to this instrument requests that a copy of
any Notice of Default and a copy of any Notice of Sale hereunder shall be
mailed to each person who is a party hereto, at the address of such person
set forth herein.
O. Recording Costs and Abstract: The Trustor shall pay the cost of
recording its Warranty Deed and this Deed of Trust. The abstract or title
insurance, as the case may be, shall be returned to the Beneficiary to be
held as additional security during the term of this Deed of Trust, except
during periods of title examination and correction.
P. Attorney's Fees: In the event either party defaults in the,performance of
this contract and the aggrieved party has to resort to a lawsuit to enforce its
rights hereunder, the aggrieved party shall be entitled to sue for its
damages in connection with said lawsuit, including accrued and estimated
court cots and attorney's fees to the full extent then allowed by the court
where said action is filed. This provision shall be enforceable in any
proceeding between the parties hereto and need not be enforced in a
separate action for recovery of attorney's fees and expenses, and is inserted
in this instrument for the express purpose of implementing Article I,
Section 13 of the Nebraska Constitution which provides there shall be a
remedy for every injury.
Q. Substitution: The parties may agree to amend or substitute any note or
notes which this Deed of Trust secures, and in such event; this Deed of
Trust shall remain in full force and effect as security for the such
substituted or amended note(s), unless otherwise agreed by the parties.
Executed the date first above written.
1 G"u ,
Tony R. olon
J an .Colon
STATE OF NEBRASKA )
ss:
COUNTY OF ADAMS )
The foregoing instrument was acknowledged before me this ~ day of February, 2008,
by Tony R. Colon and Joan M. Colon, Husband and Wife.
r
III G~EMICHAEL E. SULLIVAN a Notary Public
My Comm. Exp. June 21 2010
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