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This Assignment of Claims and Right to Excess Proceeds (“Assignment”) is entered into as of the date written below, by and between (individually, or collectively if more than one assignor “Assignor”), and Athaniel Myers LLC (“Assignee”) upon the following terms: Assignor does hereby assign, transfer and convey to Assignee all right, title, and interest of Assignor in and to any and all claims, demands, rights, and causes of action (“Claims”) for the recovery and collection of any and all of the excess proceeds (“Excess Proceeds”) which Assignor may claim arising out of the foreclosure sale of the real property (the “Property”) located at in order for Assignee to seek to recover the Excess Proceeds from the sale of the Property.
In consideration of Assignee’s agreement to take commercially reasonable steps to seek to recover the Excess Proceeds, and for other good, due, adequate and valuable consideration, the receipt of which is hereby acknowledged, Assignee shall pay to Assignor 15% of the net recovery of Excess Proceeds received by Assignee (after the payment of all attorneys’ fees, hard costs, filing fees, and related third party costs and fees expended by Assignee to recover same) obtained by Assignee’s actions (the “Purchase Price”). The Purchase Price, if any, shall only be delivered to Assignor upon the later of the following: (i) the 91st day after the effective date of this Assignment; or (ii) execution and delivery to Assignee of a completed IRS Form W-9, at which time Assignor shall confirm receipt of said proceeds by signing an acknowledgement, including a receipt, release and waiver relating to same. Assignor and Assignee acknowledge that the value of the Claims being assigned herein is difficult to determine because the number and amount of claims that may or will be submitted against the Excess Proceeds and the amount of costs and fees that will be incurred in the effort to collect the Excess Proceeds have yet to occur/will occur in the future. The Purchase Price represents the parties’ best estimate of the value of the Claims assigned herein.
Assignor may also have rights to a homestead exemption relating to the Property. For the consideration described above, Assignor also hereby assigns and transfers, and Assignee hereby accepts, all of Assignor’s rights to file for and obtain the proceeds relating to Assignor’s homestead exemption (to the extent they exist). The proceeds of the homestead exemption shall be defined as part of the Excess Proceeds. Assignor hereby conveys to Assignee all of the rights necessary to execute and provide and/or record a homestead declaration as provided under state law. While this transfer and assignment provides Assignee with the right to file for said homestead exemption, it in no way creates a duty on Assignee to do so.
In connection with Assignor’s assignment of the Claims set forth above, and in order to effect Assignee’s ability to recover the Excess Proceeds, Assignor hereby conveys to Assignee any and all of Assignor’s rights and powers incident to and required to prosecute or pursue the Claims and to obtain, file, seek and recover the Excess Proceeds. Assignor hereby authorizes Assignee to perform all acts in furtherance of recovering the Excess Proceeds that Assignor has the right to perform prior to this Assignment. By entering into this Assignment, Assignor and Assignee do not create any joint venture, partnership, or any other relationship, including any agency relationship between said parties or on behalf of Assignor or Assignee.
YOU, THE ASSIGNOR/BUYER, MAY CANCEL THIS CONTRACT AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THE TRANSACTION OR RECEIPT OF THE PRODUCT, WHICHEVER IS LATER. ASSIGNOR HEREBY ACKNOWLEDGES AND AGREES THAT ASSIGNEE HAS NOT MADE ANY REPRESENTATION OR GUARANTY OF ANY KIND REGARDING THE AMOUNT OF RECOVERY OF EXCESS PROCEEDS THAT MAY BE OBTAINED. However, the parties agree to each use commercially reasonable efforts to cooperate in an effort to seek to maximize the recovery of Excess Proceeds.
Assignor represents, warrants and covenants that Assignor: (a) has not previously assigned or transferred any of its rights to any Claims related to the Property or the Excess Proceeds, (b) that Assignor will not individually seek to recover all or a portion of said Claims, including but not limited to the Excess Proceeds, or assign or sale all or a portion of said Claims to another party following the execution of this Assignment, and (c) that Assignor is not currently a debtor in any pending bankruptcy proceeding under Title 11 of the United States Code. Assignor warrants that it will both indemnify and hold the Assignee harmless from any liability regarding any claim of right to any of the Property, the Excess Proceeds, the Claims, or the Purchase Price including but not limited to claims of spouses, ex-spouses, partners, other lien holders, or any other claimant purporting to have received any assignment of such claim from Assignor, as well as any claim arising as a result of a deficiency claim or deficiency judgment. In the event Assignor breaches any obligation or representation made herein, or if Assignor shall file any bankruptcy petition within 90 days after the date of this Assignment, Assignor agrees that it will pay any damages incurred by Assignee, including but not limited to the full amount of the Purchase Price as well as any attorneys’ fees, as a result of such breach or action. Further, in the event Assignor recovers any portion of the Excess Proceeds from any source other than as established in this Assignment, Assignee shall have a legal claim to recover said damages directly from any disbursement of Excess Proceeds payable to Assignor. This Assignment is limited solely to the assignment by Assignor to Assignee of the benefits to the Excess Claim and or Property described herein. Assignee does not assume and Assignor remains wholly liable for any debts, obligations, collections, or any other liabilities of Assignor(s) of any kind, whether or not in connection with the foreclosure of the Property, and whether or not previously secured by the Property or subject to claim against the Excess Proceeds. In connection with this Assignment, Assignor hereby waives and relinquishes to Assignee any interest it has in all Claims and rights to proceeds allowed under any comparable statute or rule. Assignor consents to the disclosure of this Assignment to the trustee for any sale of the Property (or others), and the designation of Assignee as a known claimant to the Excess Proceeds (and other Assigned Property), with notice of such deposited funds to be made solely to Assignee as follows:
Athaniel Myers LLC
PO BOX 786
Valrico, FL 33595
The invalidation or unenforceability in any particular circumstance of any of the provisions of this Assignment shall in no way affect any of the other provisions hereof, which shall remain in full force and effect. If any provision of this Assignment is deemed unreasonable by a court of law, it shall not invalidate the provision, but the court shall modify the terms of such provision in accordance with law and equity.
Assignee hereby discloses that it is not a licensed real estate broker or agent. One or more members or managers of Assignee may be licensed real estate brokers or agents, however, no such person has acted in any brokerage or agency capacity or relationship with regard to this Assignment.
ASSIGNOR HEREBY DECLARES that Assignor has been advised of a right to file a claim for Excess Proceeds, if any, resulting from the foreclosure sale of the Property. Assignor represents that Assignor has been afforded the opportunity to seek legal counsel regarding this Assignment.
DATED the day of , .
One or more Assignors (collectively referred to as Assignor throughout the above stated Assignment) represent(s) and warrant(s) either for the entity(ies) each represents or in their individual capacities, as appropriate, that each: (a) has the authority to act as represented below; (b) has read the foregoing Assignment, including each and every one of the statements, agreements and representations contained therein; and (c) each declares under penalty of perjury under the laws of the State of that the foregoing is true and correct.
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