Wells Fargo Bank, N.A. v. John Edward Taylor III

THE DISTRICT COURT WITHIN AND FOR OKLAHOMA COUNTY STATE OF OKLAHOMA WELLS FARGO BANK, N.A., Plaintiff, vs. JOHN EDWARD TAYLOR III, KRIS M. TAYLOR, CATHY M. CHRISTENSEN, CAVALRY SPV I, LLC, MIDLAND CREDIT MANAGEMENT, ASSET ACCEPTANCE LLC, DEACONESS HEALTH SYSTEM, LLC D/B/A ALLIANCEHEALTH DEACONESS, OCCUPANT 1 (REAL NAME UNKNOWN), OCCUPANT 2 {REAL NAME UNKNOWN} Defendants, P E T I T I O N Comes now the Plaintiff and for its cause of action against the Defendant above named, alleges and states: 1. That the Plaintiff was at all times hereinafter mentioned, and now is, a national association, duly organized, existing and authorized to bring this action. That the defendants, John Edward Taylor III and Kris M. Taylor, were at all times hereinafter mentioned, and now are, husband and wife. That the said defendant, Cathy M. Christensen is claiming some right, title or interest in and to the subject property which constitutes a cloud upon the title of the Plaintiff, but that said defendant, has no right, title, lien, estate, encumbrance, claim, assessment, or interest, either in law, or in equity, in and to the real property involved herein. That the said defendant, Midland Credit Management, is claiming some right, title or interest in and to the subject property which constitutes a cloud upon the title of the Plaintiff, but that said defendant, has no right, title, lien, estate, encumbrance, claim, assessment, or interest, either in law, or in equity, in and to the real property involved herein. That the said defendant, Asset Acceptance LLC, is claiming some right, title or interest in and to the subject property which constitutes a cloud upon the title of the Plaintiff, but that said defendant, has no right, title, lien, estate, encumbrance, claim, assessment, or interest, either in law, or in equity, in and to the real property involved herein. That the said defendant, Deaconess Health System, LLC dba AllianceHealth Deaconess, is claiming some right, title or interest in and to the subject property which constitutes a cloud upon the title of the Plaintiff, but that said defendant, has no right, title, lien, estate, encumbrance, claim, assessment, or interest, either in law, or in equity, in and to the real property involved herein. That the said defendant, Cavalry SPV I, LLC, is claiming some right, title or interest in and to the subject property which constitutes a cloud upon the title of the Plaintiff, but that said defendant, has no right, title, lien, estate, encumbrance, claim, assessment, or interest, either in law, or in equity, in and to the real property involved herein. That the Plaintiff does not know, and with due diligence is unable to ascertain, the true and correct name(s) of the individuals occupying the real property, and therefore sues said individuals by the names of Occupant 1 and Occupant 2, whose true and correct names are unknown to Plaintiff. That said individuals are made parties defendant herein to foreclose any right, title, or interest which they may have or claim to have in and to the real estate and premises herein sued upon by reason of their occupancy. 2. That the original maker(s), for a good and valuable consideration, made, executed and delivered to the Payee, a certain written purchase money promissory note; a true copy of said note is hereto attached, marked Exhibit "A," and made a part hereof by reference. 3. That as a part of the same transaction, and to secure the payment of the note above described and the indebtedness represented thereby, the owner(s) of the real estate hereinafter described, made, executed and delivered to the Payee of said note, a certain purchase money real estate mortgage in writing, and therein and thereby mortgaged and conveyed to said mortgagee the following described real estate situated in Oklahoma County, State of Oklahoma, to-wit: LOT EIGHTEEN (18), IN BLOCK ONE (1) OF HIDDEN CREEK ESTATES, IN DEL CITY, OKLAHOMA COUNTY, OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF; with the buildings and improvements and the appurtenances, (including any modular, manufactured or mobile home located thereon) hereditaments and all other rights thereunto appertaining or belonging, and all fixtures then or thereafter attached or used in connection with said premises. That said mortgage was duly executed and acknowledged according to law, the mortgage tax duly paid thereon, and was filed on 3/30/2012 in the office of the County Clerk of Oklahoma County, Oklahoma, and therein recorded in Book 11883 at Page 86, which mortgage and the record thereof is incorporated herein by reference as provided by law. Together with all Modification Agreements entered into subsequent to the execution and recording of the mortgage herein sued upon. 4. That thereafter, for a good and valuable consideration, said note and mortgage were assigned and endorsed to the Plaintiff. That Plaintiff has complied with all of the terms, conditions precedent and provisions of said note and mortgage, and is duly empowered to bring this suit. 5. Said mortgage provides that in addition to and together with the monthly payments of principal and interest as provided in said note, the mortgagor(s) will pay on the first day of each month, installments of taxes, assessments and insurance premiums, if any, relating to said property and said mortgage, agreed to be paid on said note and mortgage by said makers thereof. 6. That said note and mortgage provide that if default be made in the payment of any of the monthly installments, or on failure or neglect to keep or perform any of the other conditions and covenants of the mortgage, that the entire principal sum and accrued interest, together with all other sums secured by said mortgage, shall at once become due and payable, at the option of the holder thereof, and the holder shall be entitled to foreclose said mortgage and recover the unpaid principal thereon and all expenditures of the mortgagee made thereunder, with interest thereon, and to have said premises sold and the proceeds applied to the payment of the indebtedness secured thereby, together with all legal and necessary expense and all costs. 7. That default has been made upon said note and mortgage in that the installments due MAY 1, 2018, and thereafter have not been paid. 8. That preliminary to the bringing of this action, and as a necessary expense thereof, this Plaintiff caused the abstract of title to be extended and certified to date at a cost of a reasonable amount for title search and examination expenses of a reasonable amount with interest per annum thereon, until paid. 9. That said note and mortgage provide that in case of a foreclosure of said mortgage and as often as any proceedings shall be taken to foreclose the same, the makers will pay an attorney's fee as therein provided, and that the same shall be a further charge and lien on said premises. 10. That after allowing all just credits there is due to Plaintiff on said note and mortgage the sum of $123,213.35, with 4.25% interest per annum thereon from APRIL 1, 2018, until paid; said abstract expense of a reasonable amount with interest thereon, until paid; title search and examination expenses of a reasonable amount with interest per annum thereon, until paid; and a reasonable attorney's fee, and for all costs of this action; and for all charges due under the terms of the note and mortgage, and for such sums as may have been advanced since default on the indebtedness herein sued upon or may be hereafter advanced or incurred by Plaintiff through completion of this action, including taxes, recording fees, assessments, hazard insurance premiums, expenses reasonably necessary for the preservation of the subject property, or of the priority of Plaintiff's first mortgage lien, and further including costs, expenses and attorneys fees incurred in any bankruptcy instituted by any party defendant and all expenses, costs and attorneys fees of execution and sale, including poundage upon sale and that said amounts are secured by said mortgage and constitute a first, prior and superior lien upon the real estate and premises above described. 11. That said mortgage specifically provides that appraisement of said property is expressly waived or not waived at the option of the mortgagee. 12. Plaintiff further alleges as follows: That the defendants, John Edward Taylor, Kris M. Taylor, Cathy M. Christensen, Cavalry SPV I, LLC, Midland Credit Management, Asset Acceptance LLC, Deaconess Health System, LLC D/B/A AllianceHealth Deaconess, Occupant 1, Occupant 2, may be claiming some right, title, lien, estate, encumbrance, claim, assessment or interest in or to the real estate and premises involved herein adverse to the Plaintiff, which constitutes a cloud upon the title of Plaintiff, but that any right, title, lien, estate, encumbrance, claim, assessment or interest, either in law or in equity which said defendants, or any or either of them may have or claim to have, is subsequent, junior and inferior to the first mortgage lien of the Plaintiff. That John Taylor is one and the same person as John Edward Taylor III, Defendant herein. That Chris Taylor and Christina Taylor are one and the same person as Kris M. Taylor, Defendant herein. That said interest or claims arising by reason of the foregoing facts and circumstances, as well as any other right, title or interest which the defendants named herein, or any or either of them have or claim to have, in or to said real estate and premises is subsequent, junior and inferior to the mortgage and lien of the Plaintiff. 13. In accordance with the Fair Debt Collection Practices Act, Title 15 U.S.C.A. Sec.1692(g), if applicable, unless the person or entity responsible for the payment of the above debt, within thirty days after receipt of this notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid; and if said person or entity notifies the undersigned attorney for Plaintiff in writing within said thirty day period that the debt, or any portion thereof, is disputed, said attorney will obtain verification of the debt and a copy of such verification will be mailed to said person or entity by the undersigned attorney for Plaintiff; and upon written request by you within the thirty day period, the undersigned attorney for Plaintiff will provide the name and address of the original creditor, if different from the current creditor. WHEREFORE, Plaintiff prays judgment on Defendant, John Edward Taylor III, in the sum of $123,213.35, with 4.25% interest per annum thereon from APRIL 1, 2018, until paid; abstract expense of a reasonable amount, with interest thereon, until paid; title search and examination expenses of a reasonable amount with interest per annum thereon, until paid; and a reasonable attorney's fee, and for all costs of this action; and for all charges due under the terms of the note and mortgage, and for such sums as may have been advanced since default on the indebtedness herein sued upon or may be hereafter advanced or incurred by Plaintiff through completion of this action, including taxes, recording fees, assessments, hazard insurance premiums, expenses reasonably necessary for the preservation of the subject property, or of the priority of Plaintiff's first mortgage lien, and further including costs, expenses and attorneys fees incurred in any bankruptcy instituted by any party defendant and all expenses, costs and attorneys fees of execution and sale, including poundage upon sale, on any judgment hereafter entered in this cause, including poundage upon sale, and for all costs of this action. And for a further judgment against all of the Defendants in and to this cause adjudging: That all of the Defendants herein be required to appear and set forth any right, title, claim or interest which they have, or may have, in and to said real estate and premises; and That said mortgage be foreclosed and that the same be declared a valid first, prior and superior lien upon the real estate hereinbefore described, for and in the amounts above set forth, and ordering said real estate and premises sold, for cash, with or without appraisement, as the Plaintiff may elect at the time judgment is entered as provided in said mortgage and by law, subject to unpaid taxes, advancements by Plaintiff for taxes, insurance premiums, or expenses necessary for the preservation of the subject property, if any, to satisfy said judgment, and that the proceeds arising therefrom be applied to the payment of the costs herein, and the payments and satisfaction of the judgment, mortgage and lien of this Plaintiff, and that the surplus, if any, be paid into Court to abide the further order of the Court. That should the proceeds of sale be insufficient to pay the Plaintiff's judgment and upon application of Plaintiff and hearing, a deficiency judgment be awarded to Plaintiff against such Defendants as may be personally liable therefor, all as provided by law. That all right, title and interest of said Defendants, and each of them, if any, in and to said real estate, be adjudged subject, junior and inferior to the mortgage lien and judgment of this Plaintiff, and that upon confirmation of such sale, the Defendants herein, and each of them, and all persons claiming by, through or under them since the commencement of this action, be forever barred, foreclosed and enjoined from asserting or claiming any right, title, interest, estate or equity of redemption in or to said premises, or any part thereof; That this Plaintiff have such other and further relief as may be just and equitable. Signed and dated this 20th, day of February, 2020. LAMUN MOCK CUNNYNGHAM & DAVIS, P.C. ATTORNEYS' LIEN CLAIMED. By: _________________________ KELLY M. PARKER #22673 Attorneys for Plaintiff 5613 North Classen Boulevard Oklahoma City, OK 73118 (405) 840-5900 MIN: 1003502-0000145589-8 Loan Number: NOTE Case Number: 51-51-6-0579024 THIS LOAN IS NOT ASSUMABLE WITHOUT THE APPROVAL OF THE DEPARTMENT OF VETERANS AFFAIRS OR ITS AUTHORIZED AGENT. MARCH 29, 2012 COLUMBIA MISSOURI {Date} {City} (State) 5425 CROOKED CREEK ROAD, OKLAHOMA CITY, OKLAHOMA 73117 {Property Address} 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S.$138,934.00 (this amount is called "Principal"), plus interest, to the order of the Lender. The Lender is MORTGAGE RESEARCH CENTER, LLC DBA VETERANS UNITED HOME LOANS, A MISSOURI LIMITED LIABILITY COMPANY. I will make all payments under this Note in the form of cash, check or money order. I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay interest at a yearly rate of 4.250%. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments I will pay principal and interest by making a payment every month. I will make my monthly payment on the 1st day of each month beginning on MAY 1, 2012. I will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal. If, on APRIL 1, 2042 I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "Maturity Date." I will make my monthly payments at 2101 CHAPEL PLAZA COURT, SUITE 107, COLUMBIA, MISSOURI 65203 or at a different place if required by the Note Holder. (B) Amount of Monthly Payments My monthly payment will be in the amount of U.S.$683.47 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, I will tell the Note Holder in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I make a partial Prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the Principal I owe under this Note or by making a direct payment to me. If a refund reduces Principal, the reduction will be treated as a partial Prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 4% of my overdue payment of principal, interest, and escrow for taxes and insurance. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. (D) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by delivering it or by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: Transfer of the Property; Acceleration; Assumption. This loan may be declared immediately due and payable upon transfer of the property securing such loan to any transferee, unless the acceptability of the assumption of the loan is established pursuant to Section 3714 of Chapter 37, Title 38, United States Code. The acceptability of any assumption shall also be subject to the following additional provisions: (a) Funding Fee: A fee equal to one-half of 1 percent of the balance of this loan as of the date of transfer of the property shall be payable at the time of transfer to the loan holder or its authorized agent, as trustee for the Department of Veterans Affairs. If the assumee fails to pay this fee at the time of transfer, the fee shall constitute an additional debt to that already secured by this instrument, shall bear interest at the rate herein provided, and at the option of the payee of the indebtedness hereby secured or any transferee thereof, shall be immediately due and payable. This fee is automatically waived if the assumee is exempt under the provisions of 38 U.S.C. 3729(c). (Note: The funding fee for loans assumed between 12/13/02 and 09/30/03 will be 1 percent.) (b) Processing Charge: Upon application for approval to allow assumption of this loan, a processing fee may be charged by the loan holder or its authorized agent for determining the creditworthiness of the assumee and subsequently revising the holder's ownership records when an approved transfer is completed. The amount of this charge shall not exceed the maximum established by the Department of Veterans Affairs for a loan to which Section 3714 of Chapter 37, Title 38, United States Code applies. (c) Indemnity Liability Assumption: If this obligation is assumed, then the assumee hereby agrees to assume all of the obligations of the veteran under the terms of the instruments creating and securing the loan. The assumee further agrees to indemnify the Department of Veterans Affairs to the extent of any claim payment arising from the guaranty or insurance of the indebtedness created by this instrument. If the acceptability of the assumption of this loan is not established for any reason, and Lender exercises its option to declare all sums secured by this Security Instrument immediately due and payable, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 14 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. NOTICE TO BORROWER Department of Veterans Affairs regulations at 38 C.F.R. 36.4337 provide as follows: "Regulations issued under 38 U.S.C. Chapter 37 and in effect on the date of any loan which is submitted and accepted or approved for a guaranty or for insurance thereunder, shall govern the rights, duties, and liabilities of the parties to such loan and any provisions of the loan instruments inconsistent with such regulations are hereby amended and supplemented to conform thereto." WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED JOHN EDWARD TAYLOR III (Seal) ____________________________ (Seal) -Borrower -Borrower _____________________________ (Seal) ____________________________ (Seal) -Borrower -Borrower _____________________________ (Seal) ____________________________ (Seal) -Borrower -Borrower [Sign Original Only] EXHIBIT"A" PAGE 4 OF 5 PAGES ALLONGE Loan Date: MARCH 29, 2012 Borrower(s): JOHN EDWARD TAYLOR III Property Address: 5425 CROOKED CREEK ROAD, OKLAHOMA CITY, OKLAHOMA 73117 Principal Balance: $138,934.00 PAY TO THE ORDER OF Wells Fargo Bank, N.A. Without Recourse Company Name: MORTGAGE RESEARCH CENTER, LLC DBA VETERANS UNITED HOME LOANS By ______________________ FUNDING MANAGER JAMIE DICKHERBER MORTGAGE RESEARCH CENTER, LLC DBA VETERANS UNITED HOME LOANS WITHOUT RE COURSE PAY TO THE ORDER OF WELLS FARGO BANK, N.A. BY ______________________ DAVID C. PETERSON, SENIOR VICE PRESIDENT 065