IN THE DISTRICT COURT WITHIN AND FOR MCINTOSH COUNTY
STATE OF OKLAHOMA
BOKF, N.A.,
Plaintiff,
vs.
DEBRA STIRMAN,
SPOUSE OF DEBRA STIRMAN,
IF MARRIED,
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, Johnny Ledbetter, is deceased as more particularly hereinafter stated.
That the Defendant, Debra Stirman, was at the time she acquired an interest in and to the subject property a single person. That the Plaintiff does not know the current marital status of the Defendant, Debra Stirman, and therefore joins a spouse, if any, in order to foreclose any possible homestead interest which he/she may have or claim to have in said real estate and premises.
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 McIntosh County, State of Oklahoma, to-wit:
A TRACT OF LAND SITUATED IN LOTS 5 AND 6 OF BLOCK 40 IN THE CITY OF CHECOTAH, MCINTOSH COUNTY, OKLAHOMA, BETTER DESCRIBED AS FOLLOWS: BEGINNING AT THE SW CORNER OF SAID LOT 5; THENCE N14°12'37"E ALONG THE WEST LINE OF SAID LOTS 5 AND 6 A DISTANCE OF 109.61 FEET; THENCE S70°36'30"E A DISTANCE OF 123.80 FEET TO A POINT ON THE EAST LINE OF SAID LOT 6; THENCE S14°10'59"W ALONG THE EAST LINE OF SAID LOTS 5 AND 6 A DISTANCE OF 120.84 FEET TO THE SE CORNER OF SAID LOT 5; THENCE N65°29'07"W ALONG THE SOUTH LINE OF SAID LOT 5 A DISTANCE OF 125.20 FEET TO THE POINT OF BEGINNING;
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 2/24/2015 in the office of the County Clerk of McIntosh County, Oklahoma, and therein recorded in Book 956 at Page 699, 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 SEPTEMBER 1, 2019, 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 $98,068.79, with 3.75% interest per annum thereon from AUGUST 1, 2019, 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:
(a) That subsequent to the execution, delivery and recording of the note and mortgage herein sued upon by the Plaintiff and on or about July 9, 2019, John F. Ledbetter died intestate, a single person, a resident of McIntosh County, Oklahoma, leaving as sole surviving joint tenant in and to the real property sued upon herein, Debra Stirman, of legal age, Defendant herein.
That no administration proceeding on the estate of John F. Ledbetter, Deceased, have been had or commenced, and that no judicial determination of death or heirship has been had or made as to the said John F. Ledbetter, Deceased, and that so far as is known to Plaintiff, the said Defendant Debra Stirman, is the sole surviving joint tenant of said John F. Ledbetter, Deceased. That by reason of the premises, the same Defendant, Debra Stirman, may be claiming some right, title or interest in and to the above described real estate and premises, the exact nature of which is unknown to the Plaintiff except as herein set forth, but that any right, title, interest, estate or equity in or to said real estate and premises, or any part thereof, which said Defendants have or claim to have, is subsequent, junior and inferior to the mortgage and lien of the Plaintiff.
That the defendants, Debra Stirman, Spouse Of Debra Stirman, If Married, Occupant 1 (Real Name Unknown), Occupant 2 (Real Name Unknown), 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 F. Ledbetter is one and the same person as Johnny Ledbetter, Deceased.
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 In Rem against the real estate premises herein, the subject of the action in the sum of $98,068.79, with 3.75% interest per annum thereon from AUGUST 1, 2019, 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 20, day of February, 2020.
LAMUN MOCK CUNNYNGHAM & DAVIS, P.C.
ATTORNEYS' LIEN CLAIMED.
By: [hand signed]
MAEGAN WHELCHEL #33303
Attorneys for Plaintiff Cunningham
5613 North Classen Boulevard
Oklahoma City, OK 73118
(405) 840-5900
Note
NOTICE: THIS LOAN IS NOT ASSUMABLE WITHOUT THE APPROVAL OF THE DEPARTMENT OF VETERANS AFFAIRS OR ITS AUTHORIZED AGENT.
February 17, 2015
[Date]
Muskogee
[City]
OKLAHOMA
[State]
307 WEST OKMULGEE AVENUE
Checotah, OK 74426
[Property Address]
1. BORROWER'S PROMISE TO PAY
In return for a loan that I have received, I promise to pay U.S. $107,375.00 (this amount is called "Principal"), plus interest, to the order of the Lender. The Lender is BOKF, NA DEA Bank of Oklahoma
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 3.750 %.
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 April 01, 2015. 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 March 01, 2045, 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 P.O. Box 21368, Tulsa, OK 74121 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. $ 497.27
4. BORROWER'S RIGHT TO PREPAY
The Borrower shall have the right to prepay at any time, without premium or fee, the entire indebtedness or any part thereof not less than the amount of one installment, or $100.00, whichever is less. Any Prepayment in full of the indebtedness shall be credited on the date received, and no interest may be charged thereafter. Any partial Prepayment made on other than an installment due date need not be credited until the next following installment due date or 30 days after such Prepayment, whichever is earlier.
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 Fifteen 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 4.000 % of my overdue payment. 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. ALLONGE TO THIS NOTE
If an allonge providing for payment adjustments or for any other supplemental information is executed by the Borrower together with this Note, the covenants of the allonge shall be incorporated into and shall amend and supplement the covenants of this Note as if the allonge were a part of this Note. [Check applicable box]
☐ Graduated Payment Allonge ☐ Other [Specify] ☐ Other [Specify]
11. 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:
Regulations (38 C.F.R., Part 36) issued under the Department of Veterans Affairs ("VA") Guaranteed Loan Authority (38 U.S.C. Chapter 37) and in effect on the date of loan closing shall govern the rights, duties and liabilities of the parties to this loan and any provisions of this Note which are inconsistent with such regulations are hereby amended and supplemented to conform thereto.
WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED.
JOHNNY LEDBETTER -Borrower
[Sign Original Only]
☐ Refer to the attached Signature Addendum for additional parties and signatures.
Loan origination organization BOKF, NA DBA Bank of Oklahoma
NMLS ID 000000403501
Loan originator Madonna Rolens-Daniels
NMLS ID 000000492237
Without Recourse
PAY TO THE ORDER OF
BOKF. N.A.
BY: Suzanne M. West, VP
EXHIBIT" A "
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