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Updated about 1 month ago, 11/20/2024
Legal Advice-1st Position Lender, Borrower Filed Ch 11 Bankruptcy
I have invested a large sum of money with a company (individual with LLC) who has filed chapter 11 bankruptcy. I am the 1st position. I was prepaid 1st 6 months of interest. 8 months have passed and no additional payments have been received. I spoke with someone right after bankruptcy was filed. Calls to the company go to a voice mailbox that is full after the 6 month date.
I have created a Notice of Contract Default that I will be sending to them via their lawyer. Does anyone have any recommendations on how to proceed beyond this.
Below are some details of the loan agreement. I've replaced specific details with 'xxxx'.
Terms of Payment (interest only): On or before March 15, 2024, Borrower shall make a prorated interest payment for the month of March 2024 in the amount of xxxx per day beginning on the date of execution of this note through March 15, 2024. The first monthly interest installment of xxxxx due on or before April 15, 2024 and continuing in like consecutive monthly interest installments of this amount for a total of one (1) year or twelve (12) payments at which time the entire unpaid balance, including Principal, accrued but unpaid interest, will become due and payable. Interest shall accrue in the amount of xxxx per day. Installments will be due on the fifteenth (15"h) of every month; unless the fifteenth (15"h) should fall on a Sunday or federal holiday, in which case the payment will be due on the next business day. Payments will be applied first to accrued interest and the remainder to reduction of the Principal Amount. At Lender's option, a late fee of 5.000% of the installment may be added to any installment not received within ten (10) days of the due date. Installments postmarked by due date or received within five (5) days of the due date shall not be considered late. Extension: Borrower may extend this note once for up to twelve (12) months. If Borrower wishes to exercise this option to extend, Borrower shall notify Lender of Borrower's intent to extend in writing prior to the Maturity Date.
Security for Payment: This note is secured by n deed of trust of even date from Borrower to Doc Prep 911, Trustee, both of which cover the following real property: Lots xxxx, City of xxxx, according to the map or plat recorded in xxxx, Map Records, xxxx, Texas. Commonly known as xxxx. Other Security for Payment: None
Promise to Pay
Borrower promises to pay to the order of Lender the Principal Amount
plus interest at the Annual Interest Rate. This note Is payable at the
Place for Payment and according to the Terms of Payment. All unpaid
amounts are due by the Maturity Date. If any amount is not paid either
when due under the Terms of Payment or on acceleration of maturity,
Borrower promises to pay any unpaid amounts plus interest from the date
the payment was due to the date of payment at the Annual Interest Rate
on Matured, Unpaid Amounts.
Defaults and Remedies
A default exists under this note if (1) Borrower defaults in the payment of this note or in the performance of any obligation in any instrument securing or collateral to this note; (2) (a) Borrower or (b) any other person liable on any part of this note (an "Other Obligated Party") fails to timely pay or perform any obligation or covenant in any written agreement between Lender and Borrower or any Other Obligated Party other than as described in (1) above; (3) any representation in this note or in any other written agreement between Lender and Borrower or any Other Obligated Party is materially false when made; (4) a receiver is appointed for Borrower or an Other Obligated Party or any property on which a lien or security interest is created as security (the "Collateral Security") for any part of this note; (5) any Collateral Security is assigned for the benefit of creditors; (6) a bankruptcy or insolvency proceeding is commenced by Borrower, a partnership of which Borrower is a general partner, or an Other Obligated Party; (7) (a) a bankruptcy or insolvency proceeding is commenced against Borrower, a partnership of which Borrower is a general partner, or an Other Obligated Party and (b) the proceeding continues without dismissal for sixty days, the party against whom the proceeding is commenced admits the material allegations of the petition against it, or an order for relief is entered; (8) Borrower, a partnership of which Borrower is a general partner, or an Other Obligated Party is terminated, begins to wind up its affairs, or is authorized to terminate or wind up its affairs by its governing body or persons, or any event occurs or condition exists that permits the termination or winding up of the affairs of Borrower, a partnership of which Borrower is a general partner, or an Other Obligated Party; or (9) any Collateral Security is impaired by loss, theft, damage, levy and execution, issuance of an official writ or order of seizure, or destruction, unless it is promptly replaced with collateral security of like kind and quality or restored to its former condition.
Notwithstanding any other provision of this note, in the event of a default, before exercising any of Lender's remedies under this note or any deed of trust or warranty deed with vendor's lien securing it, Lender will first give Borrower written notice of default and Borrower will have ten days after notice is given in which to cure the default. If the default is not cured ten days after notice, Borrower and each surety, endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law, and rights under sections 51.003, 51.004 and 51.005 of the Texas Property Code.