HomeMy WebLinkAboutOrder 031 - Appt Successor TrusteeDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Work Session of July 15,2013
DATE: July 10,2013
FROM: Mark Pilliod Legal 6624
TITLE OF AGENDA ITEM:
An Order Appointing County Administrator as Successor Trustee
PUBLIC HEARING ON THIS DATE? No
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BACKGROUND AND POLICY IMPLICATIONS:
In 2001 the County sold to Michael Shields real property located in the La Pine Industrial Park and in
consideration accepted a promissory note and trust deed. The trust deed executed by Shields appointed
Western Title & Escrow Company as trustee and listed Deschutes County as beneficiary. Shields is in
default of the promissory note and it may be necessary for the county to foreclose on its trust deed.
Western Title & Escrow Company is not willing or prepared to undertake a foreclosure on the trust
deed and has recommended that the county appoint a successor trustee. The county's past practice has
been to appoint county counsel as trustee, which upon satisfaction of the underlying note facilitates a
convenient filing of a release and issuance of a deed of reconveyance to the buyer, but since the county
may need to foreclose on the trust deed in this instance, county counsel has recommended that the
Board appoint the County Administrator, Tom Anderson as trustee.
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FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Approve proposed order and authorize Chair signature on Appointment of Successor Trustee
ATTENDANCE: Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Legal and for the Appointment of Successor Trustee, the County Clerk
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Appointing County Administrator as *
Successor Trustee * ORDER NO. 2013-031
WHEREAS, in 2001 the County sold to Michael Shields real property located in the La Pine
Industrial Park and in consideration accepted a promissory note and trust deed, and a copy of the
trust deed is attached hereto, marked Exhibit A and incorporated herein; and
WHEREAS, the trust deed executed by Shields appointed Western Title & Escrow Company
as trustee and listed Deschutes County as beneficiary; and
WHEREAS, Shields is in default of the promissory note and it may be necessary for the county
to foreclose on its trust deed; and
WHEREAS, Western Title & Escrow Company is not willing or prepared to undertake a
foreclosure of a security interest in which it is listed as trustee and has recommended that the county
appoint a successor trustee; and
WHEREAS, the county's past practice has been to appoint county counsel as trustee, which I upon satisfaction of the underlying note facilitates a convenient filing of a release and issuance of a
deed of reconveyance to the buyer; I WHEREAS, inasmuch as the county may need to foreclose on the trust deed in this instance,
county counsel has recommended that the Board appoint the County Administrator, Tom Anderson as I trustee; now, therefore,
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j THE BOARD OF COUNTY
HEREBY ORDERS as follows:
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COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
PAGE 1 OF 2-ORDER No. 2013-031 (07/15/2013)
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Section 1. Board Chair is authorized on behalf of the County to execute the Appointment of
Successor Trustee, attached hereto as Exhibit B, appointing the County Administrator, Tom Anderson
as successor trustee to that Deed of Trust, attached hereto as
Exhibit A, in which Michael Shields is listed a Trustor, Deschutes County is listed as beneficiary and
Western Title & Escrow is listed as Trustee.
DATED this __ day of July, 2013.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ALAN UNGER, Chair
ArrEST: TAMMY BANEY, Vice Chair
Recording Secretary ANTHONY DeBONE, Commissioner
PAGE 2 OF 2-ORDER No. 2013-031 (07/15/2013)
... TRUST DEED
THIS TRUST DEED, made on this 02 day of April 2001,
MICHAEL R. SHIBLDS, an individual, as Grantor,
WESTIRN TITLE & BSCROW COMPANY, as Trustee, and
DESCHUTES COUNTY, A POLITICAL SUBDIVISION OF THI STATE OF OREGON, as Beneficiary,
WITNESSETH.
Grantor irrevocably grants, bargains, sells and conveys to trustee in trust, WJth
power of sale, the property in DESCHUTES County, Oregon, described as:
Lot 13, Block 3, LA PINE INDUSTRIAL SITE, PHASE II, Deschutes County,
Oregon.
tog~ther with all and singular the tenements, heredital1lent.~ and appurtenances and all other rights thereullto belonging or in anywise
now or hereafter appertallling, and !lIe rents, issues and profits thereof and alllil'.tures now or hereafter attached to or u$ed in connection
with the property.
FOR THE PURPOSE OF SECURlNG PERFORMANCE of each agreement of grantor herein contained and payment of the sum of
"ONE HUNDRED TWENTY THREE THOUSAND SIX HUNDRED EIGHTY"· Dollars, with interest
thereon
according to the terms of a promissory note of even date herewith, payable to benefic1alY.Q! order and made Ilayable by grantor! the
final payment of principal and interest nereof, if not sooner paid, to be due and payable~x:.I)QfX20nC .APR!L :J t 20 1
The date of maturity of the debt secured by this instrument is the date. stated above, on which the final installment of said nOle
becomes due and payable.
. n To profect the security of this trust deed, grantor agrees:
~ L To protect, preserve and ~jntain s;aid property in g<;lod coudition and repair; not to remove or demolish any building or jm·
V provelllent thereon; not to commit or pernnt any waste of said property.
2. To complete or restore promptly and in good workmaruilie manner any building or improvement which may be collstructed,
damaged or destroyed tllereon, and pay when due all costs incurred therefor.
3, To comply witll all Jaws. ordinances, regulations, covenants, conditions and restrictions affecting the properly; if the bendiciary
so requests, to loin ill executing such financing statements pun'uant to the Uniform Conunercial Code as the benefkiary lIlay require
and to pay for filing same in the proper public office or offices, as well as the cost of allliell searches made by filing officers or
. searching agencies as Illay be deemed desirable by the beneficiary.
4. To provide and contmuously lllaintain insurance on the buildings now or hereafter erected on said premises against loss or damage _
by tire and such other hazards as the beneficiary may frolll time to time require, ill all alllount not less than tlle full insurable value, -
written ill companies acceptable to the belleliciary, with loss payable to the latter; all policies of insurance shall be delivered to the -
beneficiary as soon as insured; if grantor shall fail for any reason to procure any such insurance and to deliver said policies to the
beneficiary at least tifteen days pnor to the expiration of any policy of illsurance now or hereafter placed 011 said tiuildiugs, the
beneticiary may procure sallle at grantor's expense. The alllount collected under any fire or other insurance policy IIlay be applied by
beneficiary upon allY indebtedness secured hereby and in such order as beneficiary Illay determine, or at option of bellehclary the
entire amount so collected. or any part thereof, may be released to grantor. Such application or release shallllot cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
5. To keep $3id premises free from cOllstructiollliens and to pay all taxes, assessments and other charges that llIay be levied or
assessed upon or against said property before any part of such taxes, assessments and other charges become past due or ilelinquem and
promptly deliver receipts therefor to beneficiary; should the grantor fail to make payment of any taxes, assessmeJllS, insurance
prelluulll~, liens or other charges payable by grantor, either by direct payment or by providing beneficiary with funds with which to
make such payment, beneficiary may, at its option, make payment thereof, and the amount so paid, with interest at the rllte set /{mh
in tlle note secured hereby, together with obligations descritied in para~raphs 6 and 1 of this trust deed, shall be added to and become
a part of Ule debt secured by this trust deed, without waiver of any nghts arising from breach of any of Ule covenants hereof and for
such payments, with interest as aforesaid, the property hereinbefore described, as well as the gramor, shall be bound to the sallie
extent tbat they are bound for the payment of the obligation herein described, and all such payments shall be illlIllediately due and
payable Wi!llOUt notice, and the nonpayment !llereof shall, at the option of the beneficiary, render all sums secured by this trust d~ed
Illlmediately due and payable and constitute a breach of tllis trust deed,
6. To pay all costs, fees and expenses of this trust deed including the east of title search as well as Ule other costs and expenses of
the trustee IIIcurred in connection with or in enforcing this obli,l:3tion and trustee's and attorney's fees actually incurred.
1. To appear in and defend any action or proceeding purportmg to affect the security rights or powers of beneficiary or trustee; and
ill any suit, action or proceedmg in which the beneficiary or trustee may appear, Illcluding any suit for Ule foreclosure of this deed,
to pay all costs and expenses, including evidence of title and the beneficiary's or trustee's attorney's fees; the amount of att(lflley'~
fees mentioned ill this paragraph 1 in all cases shall be fixed by the trial court and ill the event of an appeal from any judgement 01'
decrees of tlle trial court, grantor further agrees to pay such sum as the appellate court shall adjudge reasollable as the beneficiary'S
or trustee's attorney's fees Oil such appeal.
II is mutually agreed that:
8. In the evem that any portion or all of said prop!;rty shall be taken under tlle right of eminent donJain or condelllnation. beneficiary
shall have the right. if it so elects, to require iliat all or any portion of the mOllies payable as compensation for such taking. which are
NOTE: The Trust Deed Act provides that the Trustee hereunder must be either an attorney, who is an active member of the Oregoll
Stal~ Bar, a bank. trust company. or savings and loan assodation authorized to do business under the laws of Oregoll or the United
States, a title insurance company authorized !O insure title to real property of this state, its subsidiarie~, affiliates, agem, or branches,
the United States or any agency thereof. or an escrow licensed under ORS 696.505 to 696.585.
T R U S T DEE D
MICHAEL R. SHIELDS
P.O. BOX 154
LAPINE, OR 97739
Grantor
DESCHUTES COUNTY
BEND, OR
Beneficiary
After recording return to
WESTERN TITLE & ESCROW COMPANY
OF OREGON
................................"'. lOlO. "'.............lO ........................................................,:; "' • .."":."'..................11' Ii""_" !i' ...... ...."' .... ",,* ... _ ............ :::::::
Exhibit A to Order 2013·031
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ill excess of the amount required to pay all reasorulble costs, expenses and attorney's fees necessarily paid or incurred by gral1!or in sud,
proceedings, shall be paio to beneficiary and applied by it first upon any such reasorulble costs and expenses and attorney's fees,
both in the trial and appellate courts, necessarily paid or incurred by lienelictary in such proceedings, and ille balance applied upon the
indebtedness secured hereby; and gralllor agrees, at its own expense, to take such actions and execute such instruments as shall be
necessary in obtaining such compensation, promptly upon beneficiary's request.
9. At IIny time and frOIll time to time upon written request ofbeneticiary, payment of its fees and presentation of this deed and the
note for endorsement (in case of full reconveyances, for cancellation), without affecting the liability 01 any person for the paYlllellt of
th~ indebt~dlless, trustee may (a) consent to the making of any map or plat of said property; (b) join in granting any easement or
creating any restriction thereon; (c) join in any subordination or other agreement affecting thIS deed or tlie lien or charge thereof;
(d) recollvey, without warrant¥" all or any part of the property. The grantee in anr reconveyance may be described as the "person or
persons legally entitled thereto,' and the recitals therein of any matters or facts shal be conclusive proof of tile truthfuhless thereof.
Trustee's fees for any of tile services mentioned in this paragraph shall be not less than $5,
10. Upon any default by grantor hereunder. beneficiary lnay at any time without notice, either in person, by agent or by a receiver
to be appointed by a court. and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of said property or any part tbereof, in its own name sue or otherwise collect tile rents, issues and profits,
illcludin~ tilOse past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable
attorney s fees upon any indebtedness secured bereby, and in such order as beneficiary may determine.
II. The elltering upon and taking possession of said property, the collection of such rents, issues and profits, or the proceeds of lire
and other insurance polices or compensation or awards for any taking or damage of the property, and the apphcatioll or release thereof
as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
12, Upon default by grantor in payment of any indebtedness secured bereby or in his performance of auy agreement h~reullder, tilll~
being of the essence with respect to such payment and/or performance, the beneficiary may declare all sums secured hereby immediately
due and payable. In such an event the beneficiary at hIS election may proceed to foreclose this trust deed in equity as a lIlortgage or
direct the trustee to foreclose this trust deed by advertisement and sale, or may direct the trustee to pursue any oUler right Of remedy,
either at law or in equity, which the benefiCiary may have, In the event the beneficiary elects to foreclose by advertisement and sale,
the beneficiary or !lie trustee shall execute and cause to be recorded his written Ilotice of default and his el~clion to sell the said
described real property to satisfy the obligation secured hereby whereupon the trustee shall fix the time and place of sale, give lIotice
tilereof as then required by law and proceed to foreclose this trust deed ill the manner provided in ORS 86.735 to 86.795.
13. After the trustee has commenced foreclosure by advertisement and sale, and at any time prior to 5 days before the date the
trustee conducts the sale, the grantor or any other person so privileged by ORS 86.753, may cure the default or defaults. If the default
cOllsists of a failure to pay, when due, SUlllS secured by the trust deed, the default Illay be cured by paying the entire amount due al tile
time of the cure other than such portion as would not then be due had no default occurred, Any other default that is capable of being
cured llIay be cured by tendering the performance required under the obligation or trust deed. In any case, ill addition to curing the .
default or defaults, tile person effecting the cure shall pay to the beneficiary all costs and expenses actually incurred in enforcing th~
obligation of the trust deed together with trustee's and attonley's fees not ellceeding the amounts provided by law.
14. Otherwise. the sale shall be held on the date and at the time and place designated in the notice of sale or the tillle to which said
sale Illlly be postponed as provided by law. The trustee may sell said property either in one parcel or in separate parcels and shall
sell the parlOel or parcels at auction to the highest bidder for cash, payable at the time of sale. Trustee shall deliver to the purchaser
its deed in form as required by law conveying the property so sold, but without any covenant or warranty, express or implied.
The recitals in the deed of any matters of fact shall be conclusive proof of the truthfulness thereof. Any person, excluding the trustee,
but including the grantor and beneficiary, may purchase at the sale.
15, When trustee sells pursuant to the powers J)rovided herein, trustee shall apply the proceeds of sale to payment of 'I) the
expenses of sale, including the compensation of the trustee and a reasonable charge by trustee's attorney, (2) to the obligation
secured by the tlllst deed, (3) to aU persons having recorded liens subsequent to the the interest of the trustee in the trust deed as
their interests llllly appear in the order of their priority and (4) the surplus, if any, to the grantor or to his suc~es~or ill interest
entitled to such surplus.
16, Beneficiary may from time to time appoint a successor or successors to any trustee rulllled herein or to any successor trustee
appoint~d 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 rulmed or appointed hereunder. Each such appointment and substitution shall
be made by written instrument executed by beneficial'Y., which, when recorded in the mortgage records of !lIe county or coullties ill
which the property is situated, shall be conclusive proof of proper appointment of the successor trustee.
17. Trustee accepts this trust when this deed, duly executed and acknowledged is made a public record as provided by law. Trustee is
not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding ill which gramor,
beneficiary or trustee shall be a party unless such action or proceeding is brought b;y' trustee.
The grantor covenants and agrees to and with the beneficiary and the beneficiary s successor in interest that the gramor is lawfully
seized ill fee silllple of the real property and has a valid, unencumbered title thereto, except as may be set forth ill any exllibit aUa(;hed
and that the grantor will warrant and forever defend the same a~ainst all persons whomsoever.
WARNING: Unless grantor provides beneficiary with eVIdence of insurance coverage as required br the contract or lOll II
agreement between them, beneficiary may purchase insurance at grantor's expense fo protect benefiCiary's interest. This
insurance may, but need not, also protect grantor's Interest. If the collateral becomes damaged, the coverage purchased hy
beneficiary may not pay any claim made by or against grantor, Grantor may later cancel the coverage by providing el'ideuce
that grantor has obtained property coverage elsewhere, Grantor Is responsible for the cost of any insurance coverage purchased
by beneficiary, which cost may be added to grantor's contract or loan balanee, If It is so added, the interest rate 011 the under
Iving contract or loan will apply to it, The effective date of coverage may be the date grantor's prior coverage lapsed or the dale
~rantor failed 10 provide proof of coverage, The coverage beneficiary purchases may be considerably more eXI}ensjve .hau
Insurance grantor might otherwise obtain alone and may not satisfy any need for property damage coverage or any mandatory
liability insurance requirements Imposed by applicable law,
The grantor warrallL~ that the proceeds of the loan represented by the above described note and this trust deed are:
(a) primarily for grantor's llersonal, family, or household purposes [NOTICE: Line out the warranty that does not apply]
(b) for an organization, or (even if grantor IS a natural persoll) are for business or commercial purposes.
ThiS deed applies to, inures to the benefit of and binds all parties hereto, their beirs, legatees, devisees, adll1illistrator~, execuwrs,
personal representatives, successors, and assigns. The teml beneticary shall mean the holder and owner, including pledgee, of the
contract secured hereby, whether or not named as a beneficiary herein.
In COll~truing this mortgage, it is understood that the mortgagor or mortgagee ma be more than one person' that if the ~olltext so
requires, the singular shalr be taken to mean and include the plural and that generally 1grallllrultical changes shall be made, assumed
and i1!lplied to llIake the PJovisions hereof apply equally to corporations and to individu .
IN WITNESS WHEREOF, said grantor has hereunto set his hand the day and yea rst above written.
OFFICIAL SEAL
NICOLE LCLARK
NOTARY PUBLIC-OREGON
COMMISSION NO. 331549
STATE OF OREGON, County of _~~~ )9S.
This instrument was acknowledged before me on 4/2/Of. ,
By MICHAEL R. SHIELDS
My CommisslOn ExplreS c5<./;J..8jdC. f,,~~OC"90"
Exhibit A to Order 2013·031
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REQUEST FOR FULL RECONVEYANCE (To be used only when obligations have been paid)
TO: _____________________________________________________________ , Trustee
The ullder~igued is the legal owner and holder of all indebtedness secured by the foregoing trust deed. All sums secured by tile trust
deed have been fully paid and satisfied. You hereby are directed. on payment to you of any sums owing to you under the term~ of the
trust deed or pursuant to statute. to cancel all evidences of indebtedness secured by the trust deed (whicli are delivered to you herewith
together with the trust deed) and to reconvey. without warranty. to the parties deSignated by the terms of the trust deed the estate HOW
held by you under the same. Mail reconveyance and documents to:
DATED: ______________________, 19 __
Do not lose or destroy this Trust Deed OR THE NOTE which it secures.
Both IllUSI be delivered to the trustee for cancellation before
reconveyance will be lnade. Beneficiary
Exh.bil Ato Order 2013-031
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ADDENDUM TO TRUST DEED
MICHAEL R. SHIELDS, GRANTOR
"7(a). Grantor further agrees to comply with the environmental pollution
requirements as described below;
ENVIRONMENTAL POLLUTIQN. The provisions of this section supplement
other provisions that might be applied concerning the Grantor's obligations,
responsibilities and liabilities for environmental pollution, present and future, and
for compliance with the laws, regulations or orders of any governmental agency
concerning environmental pollution, present and future, on the premises. To the
extent that the provisions of this section conflict with any such other prOVisions,
the provisions of this section shall control.
Where terms of this section use terms that are found in applicable state and
federal environmental pollution laws, those terms shall have the same meaning
as they have in those state and federal laws.
Grantor acknowledges that Grantor has inspected and investigated the property
and otherwise informed itself on the condition of the premises and based upon
such inspection and investigation, Grantor is satisfied that the premises do not
now contain any amounts of hazardous, toxic, radioactive or other substances for
which a property owner or operator may be made liable under state or federal
environmental pollution or health and safety laws. Accordingly, Grantor agrees
that as between the Beneficiary and Grantor, Grentor will assume responsibility
and liability as set forth below in the removal and indemnification provision for
any release or discharge of hazardous, toxic, radioactive or other dangerous
substances regulated under state or federal pollution control laws found hereafter
on. in, or about the premises.
Grantor will not generate, store, process or dispose of or release or discharge
into the environment hazardous, toxic, radioactive or other dangerous
substances on or about the subject premises in any amount, nor will Grantor
allow such prohibited activities to take place on the property.
Grantor covenants to report, contain and remove in conformance with applicable
state and federal law any releases of hazardous. toxic. radioactive or other
substances regulated under state or federal pollution control laws that are found
on or in the premises or any releases of such materials found off the premises
that originated from the premises and to be responsible for the cost of removal of
such substances.
Grantor agrees to indemnify, defend and hold the Beneficiary, its officers, agents
and employees, harmless from and against any claims, demands, causes of
action or suits for damages, reimbursement or any other cost of compliance,
including, but not limited to, remedial action costs, removal costs, natural
resources damages, penalties, punitive damages, interest costs, attorney fees
and damages of any kind to third parties, arising from the discharge, release or
threatened release on or in the premises of any hazardous, toxic or radioactive
sUbsta~
~.Initial~
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Exhibit A to Order 2013·031
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Reserved for Recorder's Use
APPOINTMENT OF SUCCESSOR TRUSTEE
KNOW ALL MEN BY THESE PRESENTS THAT RELATIVE TO THAT CERTAIN DEED OF
TRUST DESCRIBED AS FOLLOWS:
Dated: April 2, 2001
Recorded: April 3, 2001
Recording Reference 2001-15359, Deschutes County Records
County of: Deschutes
State of: Oregon
Trustor: Michael R. Shields
Original Trustee: Western Title & Escrow Company
Original Beneficiary: Deschutes County, Oregon
THE UNDERSIGNED, who is the present Beneficiary under the Trust Deed, desires to appoint
a new Trustee in the place and stead of the original Trustee named above.
NOW THEREFORE, the undersigned hereby appoints Tom Anderson, Deschutes County
Administrator, whose address Is 1300 N.W. Wall St. Suite 200, Bend, Oregon, as Successor
Trustee under the said Trust Deed, to have all the power of the original Trustee, effective
immediately.
IN CONSTRUING this instrument, and whenever the context so requires, the singular
includes the plural.
IN WITNESS WHEREOF, the undersigned Beneficiary has executed this document. If the
undersigned is a corporation, it has caused its name to be signed and its seal, if any, affixed by an
officer or other person duly authorized to so by order of its board of directors.
Executed this ___ day of July, 2013
BV:
Title:
State of Oregon, County of _______ ) ss.
This instrument was acknowledged before me on this day of July, 2013 by
Notary Public for the State of Oregon
Exhibit B to Order 2013-031
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