DO NOT SIGN a Kort & Scott Financial Group (KSFG) dba Sierra Corporate Management (SCM) Forbearance Agreement until you have sought professional and/or legal advice. Signing an SCM Forbearance Agreement waives your homeowner’s rights and releases KSFG/SCM from any and all past, present, and/or future liabilities, claims, disputes, controversies, suits, actions, causes of action, loss, debt, damages or injuries (collectively referred to as “claims”), matured or contingent, liquidated or unliquidated, known and unknown, suspected or unsuspected, which TENANT may have against PARK.
This Agreement is entered into by and between [Mobile Home Park Name] and its owners and management (hereinafter ("PARK") and Tenant [First Middle Last] and [First Middle Last] (hereinafter "TENANT"), owner of the mobilehome occupying [Street Address], [City] [State] [Zip] ("the Premises").
|Pay #||Pay Due||Beg Bal||Late Fee||Re Fee||Pay Amt||End Bal|
All items listed above must be completed no later than [Month] [Date], [Year].
Along with maintaining the Premises in neat and clean condition, abiding by guest and parking/vehicle rules and regulations, and acting in a fashion which is quiet, safe, orderly, and not cause of complaint from others in the park. Failure to comply with this term and condition of settlement shall be deemed a material breach of this Agreement, and shall constitute sufficient cause for PARK to dissolve the stay.
10.1. Neutral and Fair Dispute Resolution: To resolve disputes fairly, quickly and inexpensively between homeowner and lessor, all qualified disputes will be arbitrated pursuant to the FAA*, not state law, before an impartial arbiter jointly selected by lessor and homeowner from a list provided by an alternate dispute resolution organization such as the AAA** within 10 days after one side gives written notice of a qualified dispute. If more than one alternate dispute organization is proposed, the closest and least expensive shall apply. The arbiter shall have no less than twenty-five (25) years experience as an attorney or be a retired judge. A "qualified" dispute is a dispute which relates to or touches on subleasing, park maintenance, repair, renovation, operation, utilities, business practices, lessor's legal compliance, closure, housing discrimination, personal or bodily injury, property damage, rent adjustments, rent levels or fees, and any terms or provisions of tenancy, arbitrability of the proffered dispute, and, where the amount claimed exceeds small claims court jurisdiction. Excluded disputes include unlawful detainer, forcible detainer, foreclosure, and suits seeking injunctive relief. The arbiter will decide all aspects of the dispute, including arbitrability/enforceability of this clause. AAA** Commercial Rules will apply, and are available at www.adr.org (choose "rules and procedures," choose "rules," scroll down to "commercial arbitration rules and mediation procedures..."). A copy is also on file in the office and will be provided on request when notified of a dispute. No joinder of claims, consolidation of actions, or class actions allowed. Arbiter shall apportion advance costs between the parties equitably. An award shall be made within 120 days of selection of the arbiter. Costs to be awarded to the prevailing party; no attorney's fees to either side. Discovery permitted as allowed by the arbiter for good cause and by arbiter's rules, under applicable federal rules. Arbiter may award specific performance, damages and punitive damages as per federal law.
[* "FAA" refers to the "Federal Arbitration Act." ** "AAA" refers to the "American Arbitration Association"]
10.2. Release of Liability:
Unknown Claims: Homeowner understands and acknowledges that the significance and consequences of this waiver of Civil Code §1542 is that even if homeowner should eventually suffer additional damage arising out of any existing condition or act or omission, whether negligent or deliberate or any inaction of those released above, those injuries or damages would be waived by their signature(s) on this agreement. Furthermore, homeowner acknowledges that this release includes claims for damages not known to exist, and which, if known, would affect the decision to execute this release.
Please note: ¶ 10.1. of this agreement includes a binding arbitration clause for fast and efficient resolution of certain disputes.
GENERAL RELEASE OF CLAIMS: As additional consideration of this Agreement, and by reason of the expected full and faithful performance of the term and promises of this Agreement, TENANT additionally hereby agrees to fully and forever release and discharge PARK, including all owners, managers, management company, and each of their employees, agents and representatives, from all liability, claims, disputes, controversies, suits, actions, causes of action, loss, debt, damages or injuries (collectively referred to as "claims"), matured or contingent, liquidated or unliquidated, known and unknown, suspected or unsuspected, which TENANT may have against PARK. This waiver also specifically includes, but is not limited to any and all claims pertaining to TENANT tenancy application, lease agreement, tenancy in PARK, the instant action, and/or any other claims allegedly suffered by TENANT as a result of any alleged actions of PARK and its agent, employees; onsite managers, offsite management companies, and representatives, and all tenancy related claims.
This release also includes a waiver of the Civil Code §1542 which states:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
WHEREFORE, the parties executing this Agreement hereby express their consent, and approval hereof. The foregoing Agreement has been read, understood, and is agreed to by the parties signing below.
Dated: ____________________ Signature: ___________________________________
Dated: ____________________ Signature: ___________________________________
Dated: ____________________ Signature: ___________________________________
The action of refraining from exercising a legal right, especially enforcing the payment of a debt.
Historically, forbearance in a mortgage context, by a lender, has been granted for home owners in temporary or short-term financial difficulty.
When a commercial loan borrower defaults, the lender will often work with the borrower to get caught up on their payments or sometimes even modify the loan. However, there is a price tag, it is called the Forbearance Agreement. As a condition of not declaring a full default and foreclosing or filing a lawsuit, the lender requires the borrower to sign a Forbearance Agreement. Typically, the borrower waives all prior and current claims against the lender, agrees to some additional responsibilities, and pays a forbearance fee.
An agreement by SCM to forbear from exercising its legal rights pursuant to the Combined 3 Day Notice to Pay or Quit, 3 Day Notice to Perform Covenants or Quit, 60 Day Notice to Terminate Possession and Civil Code §798.56(e)(5) and covenants not to institute suit for unlawful detainer during the term of the Forbearance, provided TENANT comply with the terms and conditions stated herein.
A tenant is an adult who has signed a lease or rental agreement (or has an oral rental agreement) with a landlord to rent property, such as an apartment, condo, or house. The tenant has a legal relationship with the landlord that creates various responsibilities for both parties. Under most state laws, tenants have specified rights if the landlord fails to meet responsibilities to provide habitable rental housing, return security deposits, respect tenant’s privacy, and comply with other legal requirements.
Special rules in the Mobilehome Residency Law or the Recreational Vehicle Park Occupancy Law cover most landlord-tenant relationships in mobilehome parks and recreational vehicle parks.
California Mobilehome Residency Law
The term cotenants refers to two or more tenants who rent the same property under the lease or rental agreement. Cotenants share the same legal rights and responsibilities for the rent and other terms of the lease or rental agreement. In addition, each cotenant is legally responsible for complying with the terms of the agreement, including being obligated to pay the entire rent if others fail to pay their share (the legal name for this is “jointly and severally liable”).
Homeowner is a person who has a tenancy in a mobilehome park under a rental agreement.
California MRL §798.9
Resident is a homeowner or other person who lawfully occupies a mobilehome.
California MRL §798.11
Tenancy is the right of a homeowner to the use of a site within a mobilehome park on which to locate, maintain, and occupy a mobilehome, site improvements, and accessory structures for human habitation, including the use of the services and facilities of the park.
California MRL §798.12
Owning a home in a mobilehome park incorporates the dual role of “homeowner” (the owner of the home) and park resident or tenant (also called a “homeowner” in the Mobilehome Residency Law). As a homeowner under the Mobilehome Residency Law, you will be responsible for paying the amount necessary to rent the space for your home, in addition to other fees and charges. You must also follow certain rules and regulations to reside in the park.
California MRL §798.74.5
A criminal offense of obtaining money, property, or services from a person, entity, individual or institution, through coercion. Extortion does not require a threat of a criminal act, such as violence, merely a threat used to elicit actions, money, or property from the object of the extortion.
Compulsion; force; duress. It may be either actual, (direct or positive) where physical force is put upon a person to compel them to do an act against their will, or implied, (legal or constructive) where the relation of the parties is such that one is under subjection to the other, and is thereby constrained to do what their free will would refuse.
Compulsion refers to the forcible inducement to an act. It also means the act of compelling; the state of being compelled; an uncontrollable inclination to do something; duress. Compulsion can take forms other than physical force. The courts have been indisposed to admit it as a defense for any crime committed through yielding to it. It can best be considered under the heads of obedience to orders, martial coercion, duress per minas, and necessity.
Compel means to constrain, oblige and/or coerce someone, in some way, to yield or to do what one wishes e.g. to compel a recalcitrant debtor to pay.
Duress exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.
Volition or will is the cognitive process by which an individual decides on and commits to a particular course of action. It is defined as purposive striving and is one of the primary human psychological functions.
A phrase used in criminal law to describe conduct that is considered contrary to community standards of justice, honesty, or good morals. Turpitude means a corrupt, depraved, degenerate act or practice that shocks the public conscience.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
United States Constitution
RENT REMINDER / LATE RENT PROCESS
[Month] [Day], [Year]
[Mobile Home Park Name]
RE: Late Rent Process / 3-Day Notices / Forbearance
If you have already paid [Month] rent please disregard this letter.
However, be advised, if you plan to submit your rent payment late please make sure to include your late fee with your payment. RENT IS DUE NO LATER THAN [Month] [Day] at 8:00 AM.
[Month] [Day], [Year] we will be serving 3-Day Notices to all residents who have not paid. If rent is not received with late fee within the allotted 3-Day period your lease will be considered breached and you will be charged a $250 forbearance fee including the need to sign a forbearance agreement to reinstate your leasehold.
It is imperative that if you are having financial trouble and plan to pay your rent any later than [Month] [Day], [Year] at 8:00 AM that you contact me immediately. You may contact me at [Email Address] or leave a clear voicemail on the office phone at [Telephone] as I will be checking messages.
Thank you in advance for your cooperation in this matter and we are working to find a replacement manager for the park ASAP.
From the California Mobilehome Residency Law, Article 6, Termination of Tenancy. Section 798.56(e)(1) is one of the largest contributing factors to the loss of mobile homes to a Kort & Scott Financial Group named business entity. Click/tap the linked items below to expand/collapse the California Civil Codes being referenced in the aforementioned Forbearance Agreement.
§798.55(b)(1) –The management may not terminate or refuse to renew a tenancy, except for a reason specified in this article and upon the giving of written notice to the homeowner, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to sell or remove, at the homeowner’s election, the mobilehome from the park within a period of not less than 60 days, which period shall be specified in the notice. A copy of this notice shall be sent to the legal owner, as defined in Section 18005.8 of the Health and Safety Code, each junior lienholder, as defined in Section 18005.3 of the Health and Safety Code, and the registered owner of the mobilehome, if other than the homeowner, by United States mail within 10 days after notice to the homeowner. The copy may be sent by regular mail or by certified or registered mail with return receipt requested, at the option of the management.
§798.55(b)(2) –The homeowner shall pay past due rent and utilities upon the sale of a mobilehome pursuant to paragraph (1).
§798.55(c) –If the homeowner has not paid the rent due within three days after notice to the homeowner, and if the first notice was not sent by certified or registered mail with return receipt requested, a copy of the notice shall again be sent to the legal owner, each junior lienholder, and the registered owner, if other than the homeowner, by certified or registered mail with return receipt requested within 10 days after notice to the homeowner. Copies of the notice shall be addressed to the legal owner, each junior lienholder, and the registered owner at their addresses, as set forth in the registration card specified in Section 18091.5 of the Health and Safety Code.
California Civil Code §798.55
A tenancy shall be terminated by the management only for one or more of the following reasons:
Showing Only 1 of 7 Authorized Reasons – §798.56(e)(1)
§798.56(e)(1) –Nonpayment of rent, utility charges, or reasonable incidental service charges; provided that the amount due has been unpaid for a period of at least five days from its due date, and provided that the homeowner shall be given a three-day written notice subsequent to that five-day period to pay the amount due or to vacate the tenancy. For purposes of this subdivision, the five-day period does not include the date the payment is due. The three-day written notice shall be given to the homeowner in the manner prescribed by Section 1162 of the Code of Civil Procedure. A copy of this notice shall be sent to the persons or entities specified in subdivision (b) of Section 798.55 within 10 days after notice is delivered to the homeowner. If the homeowner cures the default, the notice need not be sent. The notice may be given at the same time as the 60 days’ notice required for termination of the tenancy. A three-day notice given pursuant to this subdivision shall contain the following provisions printed in at least 12-point boldface type at the top of the notice, with the appropriate number written in the blank:
Warning: This notice is the [insert number] three-day notice for nonpayment of rent, utility charges, or other reasonable incidental services that has been served upon you in the last 12 months. Pursuant to Civil Code Section 798.56(e)(5), if you have been given a three-day notice to either pay rent, utility charges, or other reasonable incidental services or to vacate your tenancy on three or more occasions within a 12-month period, management is not required to give you a further three-day period to pay rent or vacate the tenancy before your tenancy can be terminated.
§798.56(e)(5) –If a homeowner has been given a three-day notice to pay the amount due or to vacate the tenancy on three or more occasions within the preceding 12-month period and each notice includes the provisions specified in paragraph (1), no written three-day notice shall be required in the case of a subsequent nonpayment of rent, utility charges, or reasonable incidental service charges. In that event, the management shall give written notice to the homeowner in the manner prescribed by Section 1162 of the Code of Civil Procedure to remove the mobilehome from the park within a period of not less than 60 days, which period shall be specified in the notice. A copy of this notice shall be sent to the legal owner, each junior lienholder, and the registered owner of the mobilehome, if other than the homeowner, as specified in paragraph (b) of Section 798.55, by certified or registered mail, return receipt requested, within 10 days after notice is sent to the homeowner.
California Civil Code §798.56