Silagy v. BAC Home Loans Servicing, LP fka Countrywide Home

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

Russ Kendig
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
In re: )
) CHAPTER 7
MICHELLE L. CASTO, )
) CASE NO. 09-63299
Debtor. )
) ADV. NO. 10-6027
)
ANNE PIERO SILAGY, TRUSTEE, ) JUDGE RUSS KENDIG
)
Plaintiff, )
)
y. )
)
BAC HOME LOANS SERVICING, L-P., )
) MEMORANDUM OF OPINION
Defendant. ) (NOT FOR PUBLICATION)
)

On April 21, 2010, BAC Home Loans Servicing filed a motion to dismiss this adversary
proceeding. This motion is now before the Court.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the
general order of reference entered in this district on July 16, 1984. This is a core proceeding
under 28 U.S.C. § 157(b)(2)(A), (K) and (O). Venue is appropriate under 28 US.C. § 1409. The
following constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rule
of Bankruptcy Procedure 7052.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

‘Provo Doc 14 FILED 05/20/10 ENTERED 05/20/10 08:29:02 Page 1 of 21

This opinion is not intended for publication or citation. The availability of this opinion, in
electronic or printed form, is not the result of a direct submission by the Court.

BACKGROUND

Debtor Michelle L. Casto (‘debtor’) is a co-owner of real property identified as Stark
County Parcel No 62-00128 and commonly known as 5370 Wayesburg Drive SE, Waynesburg,
OH 44688. On June 21, 2005, debtor and non-debtor Barbara A. Barnett executed a mortgage
(“mortgage”) in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee
for lender RBC Mortgage Company.' The mortgage is attached to this opinion as Exhibit A. The
mortgage was recorded with the Stark County Recorder on June 22, 2005 as instrument number
200506220040259. On June 25, 2009, MERS assigned its interest in debtor’s mortgage to BAC.

On March 18, 2010, chapter 7 panel trustee Anne Piero Silagy (“trustee”) filed a
complaint seeking to avoid the mortgage pursuant as to 11 USS.C. § 544 and Ohio Revised Code
§ 5302.12. According to the trustee, the mortgage is avoidable because the mortgage does not
define “borrower” to include the debtor, and, as a result, the debtor’s name does not appear in the

granting clause.

The section of the mortgage that defines “borrower” appears as follows:

(8) Borrower” a BARBARA A. BARNETT, an Unmarried Woman .

“a om E ct >
Wechelle Casdan

Wer: inl bate, A Borne bb a ack

S: fi io

%

vm co.

Two other features of the mortgage are relevant to the parties’ arguments. First, each page
of the mortgage is initialed by the debtor, Barbara A. Barnett, and J essie A. Casto, who signed
the mortgage to release his dower interest.

'The debtor signed for Barbara A. Barnett as her attorney-in-fact. The trustee’s complaint
does not allege that this was improper.

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Second, the signature block of the mortgage appears as follows:

_ BY SIGNING BELOW, Bevrower uccepts ara agrees fo the terms aid cowensnts costniaed in this
Security Lastrumient and in any Rider executed Sy Borrower and recnrded verh a

Vi temece a . ‘ é ya.
Weitnesaen: Pon Aa Fi. Conon acd: i
etimy Sode lay cu est Eh a gh hee Adana
dguaftl Gaend- othe! ATE Avs fact
ee ee ae es ‘Self

BARBARA A. BARNETT Bomoees
aeting herein by and threnqh his fher
lawful agent and ahterney-in-fact
MECHELLE CASTO

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Beton cod Hartiewrr
STANDARD FOR DISMISSAL

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal if the
opposing party’s complaint fails to state a claim on which relief can be granted. When
considering a Rule 12(b)(6) motion, the Court must assume that all the factual allegations are
true and determine whether those allegations give rise to a right to relief beyond a speculative
level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007). Documents attached to a
complaint or referenced therein become part of the pleadings and may be considered on a motion
to dismiss. Commercial Money Center, Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th

Cir. 2007).

LAW AND ANALYSIS

Ohio Revised Code § 5301.01(A) establishes the requirements for a properly executed
mortgage and requires that a mortgage be signed by the mortgagor:

(A) A deed, mortgage, land contract . . . or lease of any interest in real
property and a memorandum of trust . . . shall be signed by the grantor,
mortgagor, vendor, or lessor in the case of a deed, mortgage, land contract,
or lease or shall be signed by the trustee in the case of a memorandum of

trust... .

Ohio Revised Code § 5302.12 provides a sample form for an Ohio mortgage. The form
includes a signature line for the “mortgagor.” The form does not include a definition section, but

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provides that the parties “may insert in the mortgage any other lawful agreement or condition.”
Importantly, “R.C. 5302.12 only requires that a mortgage follow ‘in substance’ the form set forth
in that section; it does not demand perfection.” Equifirst Corp. v. Kaehne, 2008 WL 3271249, *9
(Ohio App. 2008).

Under Ohio law, “a writing, or writings executed as part of the same transaction, will be
read as a whole, and the intent of each part will be gathered from a consideration of the whole.”
Foster Wheeler Envirosponse, Inc. v. Franklin County Convention Facilities Authority, 678
N E.2d 519, 526 (1997). In considering whether a party is a mortgagor in substance, courts have
considered factors such as whether the party is defined as mortgagor, the manner in which the
party signed the mortgage, and whether the party initialed each page of the mortgage. E.g., Wells
Fargo Bank v. Nelson, 2009 WL 1651533, *3—*4 (S.D. Ohio); Kaehne, 2008 WL 3271249, at
*6—*9,

In this case, the parties clearly intended the debtor to be a mortgagor. The definition of
“borrower” is ambiguous. However, the debtor initialed each page of the mortgage, and signed
the mortgage as “borrower.” Furthermore, the Court notes that Jessie A. Casto signed the
mortgage to release his dower interest. If the parties did not intend the debtor to be a mortgagor,
BAC would not have required Jessie A. Casto’s signature.

As BAC points out, the facts in this case are similar to the facts in Kaehne. In Kaehne, the
defendant in a state court foreclosure action contended that her mortgage was invalid because the
it did not define her as a borrower. Kaehne, 2008 WL 3271249, at *9. However, she initialed
every page of the mortgage and signed the mortgage as a borrower. Id. The court rejected the
defendant’s arguments because the error was not substantial enough to set aside the mortgage. Id.
at *9.

On the other hand, the facts in this case are easily distinguished from the facts in Nelson.
In Nelson, the definition section of the mortgage clearly specified that the debtor was signing
only to release her dower interest, and the debtor signed the mortgage as a “non-borrower.”
Nelson, 2009 WL 3271249, at *1. Under these circumstances, it was blatantly obvious to the
court that the debtor had no intent to mortgage her interest in her property. See id. at *4.

Accordingly, BAC’s motion to dismiss is granted.
An order will issue simultaneously with this opinion.
# # #

SERVICE LIST:

Anne Piero Silagy

220 Market Ave South
Suite 900

Canton, Oh 44702

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John J Rutter

Roetzel & Andress, LPA
222 S. Main Street
Akron, OH 44308

BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing L.P.
c/o CT Corporation System

1300 E. Ninth Street

Cleveland, OH 44114

Robert B Holman

Holman, Frank & McDonald
PO Box 46390

Cleveland, OH 44146

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Return To:
mac weesonge Compt sce 200 fill
Houston, TX 77040 Instr 2pesenzzeggoz52 96/22/2008

Bick, Cantaty Racor der a BeejaneT3 1
P. d By: NET .
nee vortgage Company woe tne ‘x vee INC.
13100 Northwest Freeway, Suite 200 Suite 120

Houston, TX 77040 = Massillon, OH 44646

“OS

|Space Above This Line For Recording Data}

MORTGAGE

MIN 100058900103002846

DEFINITIONS

Words used in multiple sections of this document are defined below and other words are defined in
Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are

also provided in Section 16.

(A) "Security Instrument" means this document, which is dated June 21, 2005 :

together with all Riders to this document.
(B)"' Borrower" is BARBARA A. BARNETT, an Unmarried Woman .

Weta: Barbara A Bacne Ht and Mechelle sta
b AB mC.

Borrower is the mortgagor under this Security Instrument.

(C) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS js a separate corporation that is
acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the mortgagee
under this Security Instrument, MERS is organized and existing under the laws of Delaware, and has an
address and telephone number of P.O, Box 2026, Flint, MI 48501-2026, tel (888) 679-MERS.

(D) "Lender" is RBC Mortgage Company

Lender isa Corporation
organized and existing under the laws of Illinois

Lender's address is 13100 Northwest Freeway, Suite 200, Houston, TX 77040

329-10327899

OH!0-Single Family-Fannie MaelFredgie Mac UNIFORM INSTRUMENT WITH MERS Form 3036 1/041
Co.

pA At0H) (0408) b A.B

Page 1 of 15 Initials: m..

VNP Morigags Solutions Inc {300)521-7291

io

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Rick Campbell
Stark County Recorder

26/22/2005
:ZOPMMTGE
720060028731

MLL

(E) “Note” means the promissory note signed by Borrower and dated June 21, 2005

The Note states that Borrower owes Lender
Dollars

(U.S. $ 90,000.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic
Payments and to pay the debt in full not later than July 1, 2035 .

(F) "Property" means the property that is described below under the heading ” Transfer of Rights in the
Property.”

(G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges
due under the Note, and all sums due under this Security Instrument, plus interest.

(H) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following
Riders are to be executed by Borrower [check box as applicable]:

LJ Adjustable Rate Rider [_] Condominium Rider (_] Second Home Rider
[_] Balloon Rider FJ Planned Unit Development Rider L_] 1-4 Family Rider
(_] va Rider (_] Biweekly Payment Rider [_] other(s) [specify] -

means all controlling applicable federal, state and local statutes, regulations,

(1) "Applicable Law
of law) as well as all applicable final,

ordinances and administrative rules and orders (that have the effect
non-appealable judicial opinions.

(J) "Community Association Dues,
charges that are imposed on Borrower or

association or similar organization.
(K) ‘Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by

check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic
instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit
or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller
machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse

transfers.

(L) "Escrow Items" means those items that are described in Section 3.

(M) "Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds paid
by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i)
damage.to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the
Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the
value and/or condition of the Property

(N) "Mortgage Insurance” means insurance prot
the Loan.
(O) "Periodic Payment” means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument

{P) "RESPA” means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et seq.) and its
implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to
time, or any additional or successor legislation or regulation that governs the same subject matter. As used
in this Security Instrument, "RESPA” refers to all requirements and restrictions that are imposed in regard
to a "federally related mortgage loan” even if the Loan does not qualify as a “federally related mortgage

loan” under RESPA.

329-10327899 4
initials BAD
m.c. Form 3036 1/01

GEB-EA (0H) 205) paga 2 of 15
®
/ “

Fees, and Assessments" means all dues, fees, assessments and other
the Property by a condominium association, homeowners

ecting Lender against the nonpayment of, or default on,

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ag

Instr :298
P:3 of 16 86/22/2205

Rick Campball 12: 29PMMTGE
Stark County Recorder 120050028731

(Q) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or
nol that party has assumed Borrower's obligations under the Note and/or this Security Instrument

TRANSFER OF RIGHTS IN THE PROPERTY

Lender: (i) the repayment of the Loan, and all renewals,
Note; and (ii) the performance of Borrower's covenants and
d the Note. For this purpose, Borrower does hereby

mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns)
and to the successors and assigns of MERS the following described property located in the
of STARK :
[Name of Recording Jurisdiction}
ted herein by reference for

This Security Instrument secures to
extensions and modifications of the
agreements under this Security Instrument an

[Type of Recording Jurisdiction}
See Exhibit "A" attached hereto and incorpera

all purposes.

which currently has the address of

Parcel ID Number:
5370 WAYNESBURG DRIVE SOUTHEAST {Street}
WAYNESBURG [City], Ohio 44688 (Zip Code]

("Property Address”):

TOGETHER WITH all the improvements now or hereafter erected on the property, and all
easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and
additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this
Security Instrument as the "Property." Borrower understands and agrees that MERS holds only legal title
to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or
custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any
or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to
take any action required of Lender including, but not limited to, releasing and canceling this Security
Instrument.

BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has
the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for
encumbrances of record. Borrower warrants and will defend generally the title to the Property against all
claims and demands, subject to any encumbrances of record.

THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform

covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real

property

329-10327899 /
Initiais. bA 42
GS saion) 40405) Page 3 of 15 " G
Yat

Form 3036 1/01

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a

Pd of 16 F: $140.00 96/22/2005

Rick Campbell 12: 29PMMTGE
Stark County Recorder 720052228731

LEGAL DESCRIPTION EXHIBIT “A”
SITUATED IN THE TOWNSHIP OF SANDY, COUNTY OF STARK AND STATE OF OHIO:

KNOWN AS AND BEING PART OF THE NORTHEAST QUARTER OF SECTION 6, (1-17, R-7), MORE
FULLY BOUNDED AND DESCRIBED AS FOLLOWS, TO-WIT:

BEGINNING AT THE NORTHWEST CORNER OF SAID NORTHEAST QUARTER OF SECTION 6,
THENCE SOUTH 03 DEGREES 05’ 01” WEST ALONG THE WEST LINE OF SAID QUARTER
SECTION, A DISTANCE OF 333.67 FEET TO A MAGNETIC NAIL WITH FLASHER SET ON THE
CENTERLINE OF WAYNESBURG DRIVE S.E., A 60 FOOT PUBLIC RIGHT-OF-WAY, PASSING
OVER, FOR REFERENCE, A | INCH IRON BAR WITH SQUARE TOP FOUND AT A DISTANCE OF
9.79 FEET, SAID MAGNETIC NAIL BEING THE TRUE PLACE OF BEGINNING FOR THE TRACT OF

LAND HEREIN DESCRIBED;

1. THENCE NORTH 18 DEGREES 58’ 47” EAST A DISTANCE OF 96.98 FEET TO A 5/8 INCH IRON
BAR SET, PASSING OVER A 5/8 INCH IRON BAR SET AT 54.94 FEET;

2. THENCE NORTH 67 DEGREES 30° 02” EAST A DISTANCE OF 215.00 FEET 10 A 5/8 INCH
TRON BAR SET,

3 THENCE NORTH 33 DEGREES 39” 29” EAST A DISTANCE OF 123.43 FEET TO A 5/8 INCH
IRON BAR SET ON A WESTERLY LINE OF A TRACT OF LAND NOW OR FORMERLY OWNED

BY R. KING;

4. THENCE SOUTH 02 DEGREES 49° 00” WEST ALONG SAID KING TRACT, A DISTANCE OF
219.95 FEET TO A 5/8 INCH IRON BAR SET IN A DITCH AT A CORNER OF SAID KING TRACT;

5, THENCE SOUTH 65 DEGREES 19” 00” WEST ALONG SAID KING TRACT, A DISTANCE OF
302.19 FEET TO A MAGNETIC NAIL WITH FLASHER SET ON THE CENTERLINE OF SAID
WAYNESBURG DRWE, PASSING OVER A 5/8 INCH BAR SET AT 30.92 FEET FROM SAID

NAIL;

6 THENCE NORTH 10 DEGREES 38” 43” WEST ALONG SAID CENTERLINE, A DISTANCE OF
54.6] FEET TO A MAGNETIC NAIL WITH FLASHER SET AT A POINT OF CURVATURE;

7. ‘THENCE ALONG SAID CENTERLINE ON A CURVE TO THE LEFT HAVING A CENTRAL
ANGLE OF 01 DEGREES 25° 17”, A RADIUS OF 636.62 FEET, A TANGENT OF 7.90 FEET, A
CHORD OF 15.79 FEET, AND A CHORD BEARING OF NORTH 11 DEGREES 21’ 21” WEST, AN
ARC DISTANCE OF 1579 FEET TO THE TRUE PLACE OF BEGINNING.

THE ABOVE DESCRIBED TRACT OF LAND CONTAINS 1.000 ACRE OF LAND AS SURVEYED
UNDER THE SUPERVISION OF BRUCE D. CONERY, P.S. NO. 6499 OF BUCKEYE SURVEYING
I$ PART OF A TRACT OF LAND

SERVICES, INC., OF CANTON, OHIO, IN JULY OF 1996, AND
CONVEYED TO R. & N. ALMIR. BY A DEED RECORDED IN OFFICIAL RECORD 503, PAGE 503 OF

‘THE STARK COUNTY RECORDS.

BASIS OF BEARINGS: NORTH 87 DEGREES 00’ 00” WEST ON THE NORTH LINE OF SECTION 6 AS

PER OFFICIAL RECORD 503, PAGE 503
PERMANENT PARCEL NUMBER: 62-00128

PROPERTY ADDRESS: 5370 WAYNESBURG DRIVE SE., WAYNESBURG, OHIO 44688

164-6

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xf

je

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Instr }200596220840259

P:5 of 18 F:$140 00 86/22/2205
Rick Campbell 12; 2PM ATGE
Stark County Recordar 120050028731

UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:

1. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges.
Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any
prepayment charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items
pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S
currency. However, if any check or other instrument received by Lender as payment under the Note or this
Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments
due under the Note and this Security Instrument be made in one or more of the following forms, as
selected by Lender: {a) cash; (b) money order; (c) certified check, bank check, treasurer's check or
cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a
federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer.

Payments are deemed received by Lender when received at the location designated in the Note or at
such other location as may be designated by Lender in accordance with the notice provisions in Section 15.
Lender may return any payment or partial payment if the payment or partial payments are insufficient to
bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the Loan
current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial
payments in the future, but Lender is not obligated to apply such payments at the time such payments are
accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay
interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring
the Loan current If Borrower does not do so within a reasonable period of time, Lender shall either apply
such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding
principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower

hall relieve Borrower from making payments due under

might have now or in the future against Lender s
the Note and this Security Instrument or performing the covenants and agreements secured by this Security

Instrument.
2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all

payments accepted and applied by Lender shalt be applied in the following order of priority: (a) interest

due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments

shall be applied to each Periodic Payment in the order in which it became due. Any remaining amounts
shall be applied first to late charges, second to any other arnounts due under this Security Instrument, and

then to reduce the principal balance of the Note.
if Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a

sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and
the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received
from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment can be
paid in full. To the extent that any excess exists after the payment is applied to the full payment of one or
more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall
be applied first to any prepayment charges and then as described in the Note.

Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under
the Note shal! not extend or postpone the due date, or change the amount, of the Periodic Payments.

3. Funds for Escrow items. Borrower shall pay to Lender on the day Periodic Payments are due
under the Note, until the Note is paid in full, a sum (the "Funds”) to provide for payment of amounts due
for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a
lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c)
premiums for any and al] insurance required by Lender under Section 5; and (d) Mortgage Insurance
premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage
Insurance premiums in accordance with the provisions of Section 10. These items are called "Escrow
Items." At origination or at any time during the term of the Loan, Lender may require that Community

329-10327899

EDs A108) (0405) Page 4 of 15
®

initials:

mn C Form 3036 1/01

ft ‘a

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Ng

12
:6 af 18 F:$140 80 06/22/2005
Rick Campbell 12:29PM MTGE

Stark County Recorder T20@5002873t

Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and
assessments shall be an Escrow [tem. Borrower shall promptly furnish to Lender all notices of amounts to
be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives
Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's
obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be
in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts
due for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires,
shall furnish to Lender receipts evidencing such payment within such time period as Lender may require
Borrower's obligation to make such payments and to provide receipts shail for all purposes be deemed to
be a covenant and agreement contained in this Security Instrument, as the phrase “covenant and agreement”
is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and
Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9
and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such
amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given in
accordance with Section 15 and, upon such revocation, Borrower shall pay to Lender all Funds, and in
such amounts, that are then required under this Section 3.
Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply
the Funds at the time specified under RESPA, and (b) not to exceed the maximum amount a lender can
require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and
reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable
Law.
The Funds shall be held in an institution whose deposits are insured by a federal agency,
instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in
any Federal Home Loan Bank. Lender shali apply the Funds to pay the Escrow Items no Jater than the time
specified under RESPA. Lender shal! not charge Borrower for holding and applying the Funds, annually
analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the
Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing
or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower
any interest or earnings on the Funds. Borrower and Lender can agree in writing, however, that interest
shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the

Funds as required by RESPA.
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to

Borrower for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow,
as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to
Lender the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12
monthly payments. If there is a deficiency of Funds held in escrow, as defined under RESPA, Lender shail
notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make
up the deficiency in accordance with RESPA, but in no more than 12 monthly payments.

Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund
to Borrower any Funds held by Lender.

4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions

attributable to the Property which can attain priority over this Security Instrument, leasehold payments or
ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To
the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3.

Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable
to Lender, but only so long as Borrower is performing such agreement; (0) contests the lien in good faith
by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to

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Initials: b at Sa b

CD -8A(0H) cons) Paga 5 of 18 oi Form 3036 1/04
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Stark County Recorder 7120050028731

prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings
are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating
the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien
which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the
lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or
more of the actions set forth above in this Section 4.

Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or
reporting service used by Lender in connection with this Loan

5, Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on
the Property insured against loss by fire, hazards included within the term “extended coverage,” and any
other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance.
This insurance shal? be maintained in the amounts (including deductible levels) and for the periods that
Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of
the Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's
tight to disapprove Borrower's choice, which right shall not be exercised unreasonably. Lender may
require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone
determination, certification and tracking services; or (b) a one-time charge for flood zone determination
and certification services and subsequent charges each time remappings or similar changes occur which
reasonably might affect such determination or certification, Borrower shall also be responsible for the
payment of any fees imposed by the Federal Emergency Management Agency in connection with the
review of any flood zone determination resulting from an objection by Borrower

If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any
particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might
not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk,
hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower
acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of
insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall
become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest
at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from
Lender to Borrower requesting payment.

All insurance policies required by Lender and renewals of such policies shall be subject to Lender's
right to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as
mortgagee and/or as an additional loss payee. Lender shail have the right to hold the policies and renewal
certificates, If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and
renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Lender,
for damage to, or destruction of, the Property, such policy shall include a standard mortgage clause and

shal] name Lender as mortgagee and/or as an additional loss payee. .
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender

may make proof of loss if not made promptly by Borrower. Untess Lender and Borrower otherwise agree
in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall
be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and
Lender's security is not lessened. During such repair and restoration period, Lender shall have the right to
hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the
work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken
promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series
of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law
requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any

329~-10327899
initials b. A “ b
ED-6A (OH) 405) Page 6 of 25 m ¢ Form 3036 1/04
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lung

Riok Campbell 12; 29PMMTGE
Stark County Recorder 128060026731

interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by
Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If
the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance
proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in
Section 2.

If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance
claim and related marters. If Borrower does not respond within 30 days to a notice from Lender that the
insurance carrier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day
period will begin when the notice is given. In either event, or if Lender acquires the Property under
Section 22 or otherwise, Borrower hereby assigns to Lender (a) Borrower's rights to any insurance
proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Instrument, and
(b) any other of Borrower's rights (other than the right to any refund of unearned premiums paid by
Borrower) under all insurance policies covering the Property, insofar as such rights are applicable to the
coverage of the Property. Lender may use the insurance proceeds either to repair or restore the Property or
to pay amounts unpaid under the Note or this Security Instrument, whether or not then due.

6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal
residence within 60 days after the execution of this Security Instrument and shall continue to occupy the
Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender
otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating
circumstances exist which are beyond Borrower's control.

7. Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not
destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the
Property. Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in
order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is
determined pursuant to Section 5 that repair or restoration is not economically feasible, Borrower shall
promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or
condemnation proceeds are paid in connection with damage to, or the taking of, the Property, Borrower
shall be responsible for repairing or restoring the Property only if Lender has released proceeds for such
purposes. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of
progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient
to repair or restore the Property, Borrower is not relieved of Borrower's obligation for the completion of
such repair or restoration

Lender or its agent may make reasonable entries upon and inspections of the Property. If it has
reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shail give
Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause.

8, Borrower's Loan Application. Borrower shall be in default if, during the Loan application
process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's
knowledge or consent gave materially false, misleading, or inaccurate information or statements to Lender
(or failed to provide Lender with material information) in connection with the Loan. Material
representations include, but are not limited to, representations concerning Borrower's occupancy of the
Property as Borrower's principal residence.

9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument. if
(a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there
is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under
this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for
enforcement of a lien which may attain priority over this Security Instrument or to enforce Jaws or
regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is

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Rick Campbell 12: 29PMMTGE
Stark County Recorder 120050028731

ect Lender's interest in the Property and rights under this Security
d/or assessing the value of the Property, and securing and/or repairing
the Property Lender's actions can include, but are not limited to: (a) paying any sums secured by a lien
which has priority over this Security Instrument; (b) appearing in court; and {c) paying reasonable
attorneys’ fees to protect its interest in the Property and/or rights under this Security Instrument, including
its secured position in a bankruptcy proceeding Securing the Property includes, but is not limited to,
entering the Property to make repairs, change locks, replace or board up doors and windows, drain water
from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned
on or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not
under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all
actions authorized under this Section 9.

Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower
secured by this Security Instrument These amounts shall bear interest at the Note rate from the date of
disbursement and shalt be payable, with such interest, upon notice from Lender to Borrower requesting
payment.

If this Security Instrument is on a leasehold,
lease. If Borrower acquires fee title to the Property,

Lender agrees to the merger in writing.
10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan,

Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If, for any reason,
the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that
previously provided such insurance and Borrower was required to make separately designated payments
toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to obtain
coverage substantially equivalent to the Mortgage Insurance previously in effect, at a cost substantially
equivalent to the cost to Borrower of the Mortgage Insurance previously in effect, from an alternate
mortgage insurer selected by Lender. If substantially equivalent Mortgage Insurance coverage is not
available, Borrower shall continue to pay to Lender the amount of the separately designated payments that
were due when the insurance coverage ceased to be in effect. Lender will accept, use and retain these
payments as a non-refundable loss reserve in licu of Mortgage Insurance, Such loss reserve shall be
non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and Lender shali not be
required to pay Borrower any interest or earnings on such loss reserve. Lender can no longer require loss
reserve payments if Mortgage Insurance coverage (in the amount and for the period that Lender requires)
provided by an insurer selected by Lender again becomes available, is obtained, and Lender requires
separately designated payments toward the premiums for Mortgage Insurance If Lender required Mortgage
Insurance as a condition of making the Loan and Borrower was required to make separately designated
payments toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to
maintain Mortgage Insurance in effect, or to provide a non-refundable loss reserve, until Lender's
requirement for Mortgage Insurance ends in accordance with any written agreement between Borrower and
Lender providing for such termination or until termination is required by Applicable Law. Nothing in this
Section 10 affects Borrower's obligation to pay interest at the rate provided in the Note.

imburses Lender (or any entity that purchases the Note) for certain losses it

Mortgage Insurance ret
may incur if Borrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage

reasonable or appropriate to prot
Instrument, including protecting an

Borrower shall comply with ail the provisions of the
the leasehold and the fee title shall not merge unless

Insurance.

Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may
enter into agreements with other parties that share or modify their risk, or reduce losses. These agreements
are on terms and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to

these agreements. These agreements may require the mortgage insurer to make payments using any source

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ene nie ene eeeze e025 06/22/2808
Rick Campbell 12: 29PMMTGE
Stark County Recorder 1720050028731

of funds that the mortgage insurer may have available (which may include funds obtained from Mortgage
Insurance premiums).

As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer,
any other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that
derive from (or might be characterized as) a portion of Borrower's payments for Mortgage Insurance, in
exchange for sharing or modifying the mortgage insurer's risk, or reducing losses. If such agreement
provides that an affiliate of Lender takes a share of the insurer's risk in exchange for a share of the
premiums paid to the insurer, the arrangement is often termed "captive reinsurance.” Further:

(a) Any such agreements will not affect the amounts that Borrower has agreed to pay for
Mortgage Insurance, or any other terms of the Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage Inserance, and they will not entitle Borrower to any refund.

(b) Any such agreements will not affect the rights Borrower has ~ if any - with respect to the
Mortgage Insurance under the Homeowners Protection Act of 1998 or any other Jaw. These rights
may include the right to receive certain disclosures, to request and obtain cancellation of the
Mortgage Insurance, ta have the Mortgage Insurance terminated automatically, and/or to receive 3
refund of any Mortgage Insurance premiums thai were unearned at the time of such cancellation or

termination.
11. Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby

assigned to and shall be paid to Lender.

If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of
the Property, if the restoration or repair is economically feasible and Lender's security is not lessened
During such repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds
until Lender has had an opportunity to inspect such Property to ensure the work has been completed to
Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may pay for the
repairs and restoration in a single disbursement or in a series of progress payments as the work is
completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such
Miscellaneous Proceeds, Lender shall not be required to pay Borrower any interest or earnings on such
Miscellaneous Proceeds. If the restoration or repair is not economically feasible or Lender's security would
be lessened, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument,
whether or not then due, with the excess, if any, paid to Borrower. Such Miscellaneous Proceeds shal] be
applied in the order provided for in Section 2.

in the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous
Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
the excess, if any, paid to Borrower.

In the event of a partial taking, destruction, or loss in value of the Property in which the fair market
value of the Property immediately before the partial taking, destruction, or Joss in value is equal to or
greater than the amount of the sums secured by this Security Instrument immediately before the partial
taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in writing, the sums
secured by this Security Instrument shall be reduced by the amount of the Miscellaneous Proceeds
multiplied by the following fraction: (a) the total amount of the sums secured immediately before the
partial taking, destruction, or loss in value divided by (b) the fair market value of the Property
immediately before the partial taking, destruction, or loss in value. Any balance shall be paid to Borrower

In the event of a partial taking, destruction, or loss in value of the Property in which the fair market
value of the Property immediately before the partial taking, destruction, or loss in value is less than the
amount of the sums secured immediately before the partial taking, destruction, or loss in value, unless
Borrower and Lender otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums
secured by this Security Instrument whether or not the sums are then due.

329-10327899 A
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P.4t of 18F: $440.20 06/22/2005
Rick Campbell 12: 29PMMTGE
Stark County Recorder 120052028731

If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the
Opposing Party (as defined in the next sentence) offers to make an award to settle a claim for damages,
Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized
to collect and apply the Miscellaneous Proceeds either to restoration or repair of the Property or to the
sums secured by this Security Instrument, whether or not then due. "Opposing Party" means the third party
that owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in
regard to Miscellaneous Proceeds.

Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in
Lender's judgment, could result in forfeiture of the Property or other material impairment of Lender's
interest in the Property or rights under this Security Instrument. Borrower can cure such a default and, if
acceleration has occurred, reinstate as provided in Section 19, by causing the action or proceeding to be
dismissed with a ruling that, in Lender's judgment, precludes forfeiture of the Property or other material
impairment of Lender's interest in the Property or rights under this Security Instrument The proceeds of
any award or claim for damages that are attributable to the impairment of Lender's interest in the Property
are hereby assigned and shalt be paid to Lender

All Miscellaneous Proceeds that are not applied to restoration or repair

applied in the order provided for in Section 2.
12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for

payment or modification of amortization of the sums secured by this Security instrument granted by Lender
to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower
or any Successors in Interest of Borrower. Lender shall not be required to commence proceedings against
any Successor in Interest of Borrower or to refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Security Instrument by reason of any demand made by the original
Borrower or any Successors in Interest of Borrower. Any forbearance by Lender in exercising any right or
remedy including, without limitation, Lender's acceptance of payments from third persons, entities or
Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or
preclude the exercise of any right or remedy.

33. Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants
and agrees that Borrower's obligations and liability shall be joint and several. However, any Borrower who
co-signs this Security Instrument but does not execute the Note (a "co-signer"): (a) is co-signing this
Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the
terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security
Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or
make any accommodations with regard to the terms of this Security Instrument or the Note without the
co-signer’s consent.

Subject to the provisions of Section 18, any Successor in Interest of Borrower who assumes
Borrower's obligations under this Security Instrument in writing, and is approved by Lender, shall obtain
all of Borrower's rights and benefits under this Security Instrument. Borrower shall not be released from
Borrower's obligations and liability under this Security Instrument unless Lender agrees to such release in
writing. The covenants and agreements of this Security Instrument shall bind (except as provided in
Section 20) and benefit the successors and assigns of Lender.

14. Loan Charges. Lender may charge Borrower fees for services performed in connection with
Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this
Security Instrument, including, but not limited to, attorneys’ fees, property inspection and valuation fees.
In regard to any other fees, the absence of express authority in this Security Instrument to charge a specific
fee to Borrower shall not be construed as a prohibition on the charging of such fee. Lender may not charge
fees that are expressly prohibited by this Security Instrument or by Applicable Law.

of the Property shall be

329-10327899 ’
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Rick Campbell 12: 2SPMMTGE
Stark County Recorder 122050028731

ifthe Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted so
that the interest or other loan charges collected or to be collected in connection with the Loan exceed the

permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the
dy collected from Borrower which exceeded permitted

charge to the permitted limit, and (b) any sunis alreat
limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal
owed under the Note or by making a direct payment to Borrower. If a refund reduces principal, the
reduction will be treated as a partial prepayment without any prepayment charge (whether or not a
prepayment charge is provided for under the Note), Borrower's acceptance of any such refund made by
direct payment to Borrower will constitute a waiver of any right of action Borrower might have arising out
of such overcharge.
15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument
must be in writing. Any notice to Borrower in connection with this Security Instrument shail be deemed to
have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's
notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers
unless Applicable Law expressly requires otherwise. The notice address shall be the Property Address

unless Borrower has designated a substitute notice address by notice to Lender. Borrower shall promptly

notify Lender of Borrower's change of address. If Lender specifies a
change of address, then Borrower shall only report a change of address through that specified procedure.
There may be only one designated notice address under this Security Instrument at any one time. Any
notice to Lender shall be given by delivering it or by mailing it by first class mail to Lender's address
stated herein unless Lender has designated another address by notice to Borrower, Any notice in
connection with this Security Instrument shall not be deemed to have been given to Lender until actually
received by Lender. If any notice required by this Security Instrument is also required under Applicable
Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security

Instrument.

16. Governing Law; Severability; Rules of Construction. This Security Instrument shall be
governed by federal law and the law of the jurisdiction in which the Property is located. All rights and
ements and limitations of

obligations contained in this Security Instrument are subject to any requir
Applicable Law. Applicable Law might explicitly or implicitly allow the parties to agree by contract or it
might be silent, but such silence shall not be construed as a prohibition against agreement by contract In
the event that any provision or clause of this Security Instrument or the Note conflicts with Applicable
Law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be
given effect without the conflicting provision.

As used in this Security Instrument: (a) words of the masculine gender shall mean and include
corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and
include the plural and vice versa; and (c) the word "may" gives sole discretion without any obligation to

take any action
17. Borrower's Copy. Borrower shail be given one copy of the Note and of this Security Instrument.
Borrower. As used in this Section 18,

18. Transfer of the Property or a Beneficial Interest in
“Interest in the Property” means any legal or beneficial interest in the Property, including, but not limited
to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or
escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser.

If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower
is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior
written consent, Lender may require immediate payment in full of all sums secured by this Security
Instrument, However, this option shall not be exercised by Lender if such exercise is prohibited by

Applicable Law.

procedure for reporting Borrower's

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Rick Campbell 12: 29PM MTGE
Stark County Recorder 1720050028731

If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall
ice is given in accordance with Section 15

provide a period of not less than 30 days from the date the not
within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay
these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this

Security Instrument without further notice or demand on Borrower.

19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions,
Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time
prior to the earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in

this Security Instrument; (b) such other period as Applicable Law might specify for the termination of
Borrower's right to reinstate, or {c) entry of a judgment enforcing this Security Instrument. Those
conditions are that Borrower: (a) pays Lender al! sums which then would be due under this Security
Instrument and the Note as if no acceleration had occurred; (b)} cures any default of any other covenants or

agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited
to, reasonable attorneys fees, property inspection and vatuation fees, and other fees incurred for the
purpose of protecting Lender's interest in the Property and rights under this Security Instrument; and (d)
takes such action as Lender may reasonably require to assure that Lender's interest in the Property and
rights under this Security Instrument, and Borrower's obligation to pay the sums secured by this Security
Instrument, shall continue unchanged. Lender may require that Borrower pay such reinstatement sums and

expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c)
certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon
lity or entity; or (d) Electronic

an institution whose deposits are insured by a federal agency, instrumenta
Funds Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby
shall remain fully effective as if no acceleration had occurred, However, this right to reinstate shall not
apply in the case of acceleration under Section 18.

20. Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in
the Note (together with this Security Instrument) can be sold one or more times without prior notice to
Borrower. A sale might result in a change in the entity (known as the “Loan Servicer") that collects
Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan
servicing obligations under the Note, this Security Instrument, and Applicable Law. There also might be
one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan
Servicer, Borrower will be given written notice of the change which will state the name and address of the
new Loan Servicer, the address to which payments should be made and any other information RESPA
requires in connection with a notice of transfer of servicing. If the Note is sold and thereafter the Loan is
serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan servicing obligations
to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not
assumed by the Note purchaser unless otherwise provided by the Note purchaser.

Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an
individual litigant or the member of a class) that arises from the other party's actions pursuant to this
Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by
reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such
notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the
other party hereto a reasonable period after the giving of such notice to take corrective action. If
Applicable Law provides a time period which must elapse before certain action can be taken, that time
period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and
opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to
Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective

action provisions of this Section 20.

329-10327899
initiats io A. B&

Gp saion (e405) page 12 of 18 y c

Form 3036 1/01

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cyte

Rick Campbel! 12:29PM
Stark County Recorder 120080028731

21. Hazardous Substances. As used in this Section 21: (a) “Hazardous Substances” are those
substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the
following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides
and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials;
(b) "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that
relate to health, safety or environmental protection; (c) "Environmental Cleanup” includes any response
action, remedial action, or removal action, as defined in Environmental Law; and (d) an "Environmental!
Condition” means 2 condition that can cause, contribute to, or otherwise trigger an Environmental
Cleanup.
Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous
Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrower shall not do,
nor allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental
Law, (b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release ofa
Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding
two sentences shall not apply to the presence, use, or Storage on the Property of small quantities of
Hazardous Substances that are generally recognized to be appropriaie to normal résidential uses and to
maintenance of the Property (including, but not limited to, hazardous substances in consumer products).

Borrower shall promptly give Lender written notice of (a) any investigation, claim, demand, lawsuit
or other action by any governmental or regulatory agency or private party involving the Property and any
Hazardous Substance or Environmental Law of which Borrower has actual knowledge, (b) any
Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of
release of any Hazardous Substance, and (c) any condition caused by the presence, use or release of a
Hazardous Substance which adversely affects the value of the Property. Lf Borrower learns, or is notified
by any governmental or regulatory authority, or any private party, that any removal or other remediation
of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary
remedial actions in accordance with Environmental Law Nothing herein shall create any obligation on

Lender for an Environmental Cleanup.

NON UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following
Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to
acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a)
the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date
the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the
default on or before the date specified in the notice may result in acceleration of the sums secured by
this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shalt
further inform Borrower of the right to reinstate after acceleration and the right to assert in the
foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration
and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its
option may require immediate payment in fult of all sums secured by this Security Instrument
without further demand and may foreclose this Security Instrument by judicial proceeding. Lender
shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22,
including, but not limited to, costs of title evidence.

23. Release. Upon payment of all sums secured by this Security Instrument, Lender shall discharge
this Security Instrument. Borrower shall pay any recordation costs. Lender may charge Borrower a fee for
releasing this Security Instrument, but only if the fee is paid to a third party for services rendered and the

charging of the fee is permitted under Applicable Law.

329-10327899
wis O : A : &

CED -BA(0H) 10405) Page 13 of 15
@

hye

Form 3036 7/04

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EECA

B net Bf 2783S, ie. $3° 26/22/2005
2:29PM MTGE

Rick Gamptel! 1
Stark County Recerder Tpes028791

24, Certain Other Advances. In addition to any other sum secured hereby, this Security Instrument
shall also secure the unpaid principal balance of, plus accrued interest on, any amount of money loaned,
advanced or paid by Lender to or for the account and benefit of Borrower, after this Security Instrument is
delivered to and filed with the Recorder's Office, STARK
County, Ohio, for recording. Lender may make such advances in order to pay any real estate taxes and
assessments, insurance premiums plus ali other costs and expenses incurred in connection with the
operation, protection or preservation of the Property, including to cure Borrower's defaults by making any
such payments which Borrower should have paid as provided in this Security Instrument, it being intended
by this Section 24 to acknowledge, affirm and comply with the provision of Section 5301.233 of the
Revised Code of Ohio.

BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this
Security Instrument and in any Rider executed by Borrower and recorded with it.

Witnesses: a oa a &a wh
Dax Se wexcene (eb ae c- de Ahan?
ni 6 Cae ok ot ea Ey ar fot
ry? ah 4 ts (Seal)
BARBARA A, seas -Borfower

acting herein by and through his/her
lawful agent and attorney-in-fact
MICHELLE CASTO

(Seal)

~Borrower

(sca) Make boc Cnet sea
Borrower isan Ne} ve. ex OSD ro __ Borrower

PUBS Bek é

(Seal) ~ (Seal)
-Borrower CG C59 |e A. Cas4 ra) +Borrawer

Deleasirg Dower”

yO
(Seat) Tytevestr (Seal)
~Borrower ~Borrower
329-10327639
GBP-6A(OH) cor05) Page 14 of 15 Form 3036 1/04

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Instr : 200508220040259 P:16 of 16 F : $140 00 06/22/2005 Rick Campbell 12:29PMMTGE Stark County Recorder T20050028731
STATE OF OHIO, STARK
STARK County ss:
This instrument was acknowledged before me this 21 st day of June 2005 by BARBARA A. BARNETT, an Unmarried Woman acting herein by and through her lawful agent and atty-in- fact Michelle Casto, and Michelle Castro
ATTA: Barbara A. Barnett and Michelle Esta Jessie A CASto releasing dowe interest,
My Commission Expires: 2-26-2009
Notary Public Kimberly Ann REAM
This instrument was prepared by RBC Mortgage Company 13100 Northwest Freeway, Suite 200 Houston, TX 77040
329-10327899
VMP-6A(OH) (0405)
Page 15 of 15
Initials; B.A.B JAC. Form 3036 1/01
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