Walters Bank & Trust Co. v. Patty A. Lewis

IN THE DISTRICT COURT IN AND FOR COTTON COUNTY STATE OF OKLAHOMA Walters Bank & Trust Co., Plaintiff, vs. Patty A. Lewis, a single person, the Treasurer of Cotton County, Oklahoma; and, the Board of County Commissioners of Cotton County, Oklahoma, Defendants. FORECLOSURE PETITION COMES NOW the Plaintiff, Walters Bank & Trust Co., and for its Petition against the Defendants, Patty A. Lewis, a single person, Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma, alleges and states as follows: 1. The Defendant, Patty A. Lewis, did on the 17th day of October, 2006, execute a Real Estate Mortgage with Power of Sale, securing a Promissory Note covering the following described property: Lots Twenty-four (24), Twenty-five (22), Twenty-six (26), Twenty-seven (27) and Twenty-eight (28), in Block Thirty-three (33), in Walter Heights Addition to Walters, Cotton County, State of Oklahoma, as shown by the recorded plat thereof. which such Mortgage was filed of record with the office of the Cotton County Clerk, Cotton County, Walters, Oklahoma on the 22nd day of December, 2006, duly recorded in Book #340, Page #698, after all real estate mortgage taxes were paid. Copies of said Note and Mortgage are attached hereto as Exhibit “A” and Exhibit “B,” respectively and made a part hereof. 2. That said Note and Mortgage provide for the payment of $61,300.00, together with interest of 6.995% per annum. The record title to said property and possession thereof is held by Patty A. Lewis, and the Mortgage held by Walters Bank & Trust Co. is a first and superior lien on said property, superior to the claims of the Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma. 3. That the terms and conditions of said Note and Mortgage have been breached in that the payment has not been paid in accordance therewith. Walters Bank & Trust Co. has declared the total amount of said Note and Mortgage to be due, according to the terms thereof; and there is due and unpaid thereon the principal sum in the sum of $56,828.05, late fees to February 20, 2020 of $342.08 and as shall further accrue, interest to February 20, 2020 of $2,835.99 and further interest of 6.995% per annum from February 20, 2020 ($10.82 per diem), until paid in full; and all such other charges as provided in the Note and Mortgage; ad valorem taxes advanced and abstracting expenses incurred herewith. 4. That the Defendants, the Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma, may claim some right, title or interest in the herein described property by virtue of property taxes levied and assessed against the Defendant, Patty A. Lewis, a single person, and that any right, title or interest of said Defendants is junior and inferior to the rights of the Plaintiff herein. 5. That Walters Bank & Trust Co. is entitled to a judgment against the Defendant, Patty A. Lewis, for the principal sum in the sum of $56,828.05; late fees to February 20, 2020 of $342.08 and as shall further accrue; interest to February 20, 2020 of $2,835.99 and further interest of 6.995% per annum from February 20, 2020 ($10.82 per diem), until paid in full; and all such other charges as provided in the Note and Mortgage; ad valorem taxes advanced and abstracting expenses incurred herewith; attorney's fees in a reasonable amount which is no less than the amount of $7,500.00, and the costs accrued and accruing herein, and an in rem judgment against all other Defendants. The said judgment should provide that the mortgage lien on said property is superior to the claims of Patty A. Lewis, the Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma. The said property should be sold to satisfy the mortgage lien, and upon sale thereof, Patty A. Lewis, the Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma, should be forever barred from asserting any claim or interest therein against the purchaser thereof. 6. Pursuant to Title 15 U.S.C.A. §1692 (g), Fair debt Collection Practices Act, unless the person or entity responsible for the payment of the above debt, within thirty (30) days after receipt of this notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector. If said person notifies the attorney for the Plaintiff in writing, within thirty (30) 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 by the said attorney. Upon written request, within said thirty (30) day period, the attorney will provide said party with the name and address of the original creditor, if different from the current creditor. You are hereby notified that the Plaintiff or its servicer may be reporting the defaults and/or delinquencies under the Promissory Note set out above, to the appropriate credit reporting bureaus. WHEREFORE, Walters Bank & Trust Co. prays that it be granted a judgment foreclosing its mortgage on the following described property: Lots Twenty-four (24), Twenty-five (22), Twenty-six (26), Twenty-seven (27) and Twenty-eight (28), in Block Thirty-three (33), in Walter Heights Addition to Walters, Cotton County, State of Oklahoma, as shown by the recorded plat thereof. with a judgment being entered against Defendant, Patty A. Lewis, for the said principal sum, interest and late fees to February 20, 2020 in the total amount of $60,006.12; further interest of 6.995% per annum from February 20, 2020 ($10.82 per diem), until paid in full; additional late payment charges from February 20, 2020; escrow shortage as provided in the Mortgage; attorney's fees in a reasonable amount which is no less than the amount of $7,500.00; ad valorem taxes advanced and abstracting expenses incurred herewith; and, the costs accrued and accruing herein, and an in rem judgment against all other Defendants. That the said property be ordered sold to satisfy such judgment and that upon sale thereof, Patty A. Lewis, the Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma, be forever barred and enjoined from asserting any interest therein, adverse to the purchasers thereof. SECOND CAUSE OF ACTION COMES NOW the Plaintiff, Walters Bank & Trust Co., and for its second cause of action against the Defendants, Patty A. Lewis, the Treasurer of Cotton County, Oklahoma, and the Board of County Commissioners of Cotton County, Oklahoma, alleges and states as follows: 7. That the mortgaged property involved in the above-styled case is in danger of being lost, removed, or materially injured, and the conditions of the Mortgage have not been performed, and, further, the property is probably insufficient to discharge the mortgage debt. For such reasons, the Plaintiff is entitled to have a receiver appointed upon such notice as the Court deems just and proper, with such receiver to take charge of said real estate, manage and control the real estate and the rents therefrom, if any. Otherwise, the Plaintiff's security will be dissipated to the Plaintiff's irreparable damage. WHEREFORE, Plaintiff prays that the Court grant this application instanter, and without the necessity of hearing this application, the Court appoint a receiver to take possession and control of the property and operate and manage it. [signature] HYMAN Z. COPELAND, INC. Hyman Z. Copeland, OBA#1902 Charity D. Stubblefield, OBA #20858 117 North Broadway Walters, OK 73572 (580) 355-8800/(580) 875-2121 [email protected] ATTORNEYS FOR PLAINTIFF ATTORNEY'S LIEN CLAIMED PROMISSORY NOTE - Fixed or Variable Rate - Real Estate - Residential Consumer DEBTOR'S NAME(S) • PATTY A. LEWIS DEBTOR'S ADDRESS 221 E. WYOMING Walters, OK 73572 LENDER'S NAME AND ADDRESS Walters Bank & Trust Co. 201 N. Broadway Walters, OK 73572 DATE OF NOTE 10/17/2006 NOTES NUMBER Maturity Date 10/17/2031 Principal Amount $61,300.00 Customer Number [blank] Officer DM Social Security/TIN Number 448-72-1048 ACTUAL/360 [ ] ACTUAL/365 [X] MAXIMUM PER ANNUM INTEREST RATE CHANGE [ ] MINIMUM ANNUAL PERCENTAGE RATE [ ] MAXIMUM ANNUAL PERCENTAGE RATE [ ] ☐ FIXED INTEREST RATE PER ANNUM ☐ VARIABLE INTEREST RATE INDEX PRESENT INDEX RATE [ ] MARGIN OVER/UNDER INDEX [ ] VARIALE RATE INDEX [ ] INITIAL PER ANNUM RATE 6.995 % ☐ NEW LOAN ☐ RENEWAL OF LOAN NUMBER(S) ☐ FULLY ADVANCED ☐ MULTIPLE ADVANCES PURPOSE OF LOAN DEBT CONSOLATION COLLATERAL DESCRIPTION LOT 24,25,26,27; & 28, BLOCK 33, WALTER HEIGHTS ADD, COTTON COUNTY, OKLAHOMA. PAYMENT TERMS Demand or in absence of demand; Principal and interest are payable in 299 equal installment payments consisting of principal and interest, in the amount of $433.26 each, commencing on November 17, 2006 and continuing monthly thereafter, and one (1) final installment payment consisting of the full amount of the principal and all accrued interest remaining due and payable on October 17, 2031. THESE DOCUMENTS ARE BEING EXECUTED AS A MATTER OF CONVENIENCE AND IN ACCORDANCE WITH A PLAN OF REORGANIZATION CONFIRMED BY THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF OKLAHOMA IN THE CASE STYLED: IN RE PATRICIA ANN LEWIS, CASE NUMBER BK 06-11501-NLJ. THE PARTIES DO NOT INTEND THAT THE EXECUTION OF THESE DOCUMENTS WILL WORK A NOVATION. ACCORDINGLY, THE WALTERS BANK AND TRUST SHALL RETAIN ALL ITS RIGHTS AND REMEDIES AGAINST LEWIS, SUBJECT TO THE TERMS OF THE PLAN CONFIRMED IN LEWIS' BANKRUPTCY. PROMISE TO PAY. For value received, the undersigned Debtor(s), whether one or more, and jointly and severally if more than one, agree(s) to the terms of this Note and promises to pay to the order of Walters Bank & Trust Co. above at its place of business as shown hereon, or such other place as may be designated in writing by Lender, the Principal Amount of this Note and any accrued and unpaid Finance Charges, together with interest on unpaid Principal Amount until Maturity at the per annum interest rate(s) stated above and according to the payment terms stated above. Depending on the box checked above, interest on this Note is calculated either on the assumption that every month consists of thirty (30) days or thirty-one (31) days or thirty-sixty-five (365) days, based upon the actual number of days elapsed on a basis on a 360 day year (Actual/360) or a 365 day year (Actual/365). All prepaid Finance Charges are earned when imposed and are not subject to rebate on prepayments of Note. For purposes of computing interest and determining the date principal and interest payments are received, all payments will be deemed made only when received in collected funds. Payments are applied first to accrued and unpaid Finance charges, and then to payments on the principal balance. In this Note, "Debtor" includes any party liable under this Note, including endorsers, co-makers, guarantors and otherwise, and "Lender" includes all subsequent holders. VARIABLE RATE. If this is a Variable Rate transaction as indicated above, the interest rate shall vary from time to time with changes (whether increases or decreases) in the Index Rate shown above. The rate on this Note will be the Index Rate plus a Margin, if any, as indicated above. Each change to the effective rate on the same day the Index Rate changes unless a different effective date is indicated above. If the Index Rate is Lender's base or prime rate, it is determined by Lender in its sole discretion, primarily on a basis of its cost of funds, is not necessarily the lowest rate Lender is charging its customers, and is not necessarily a published rate. In no event shall the rate be below the Minimum Rate or above the Maximum Rate shown above or change in any monthly period more than shown above. Except as otherwise stated above, no restrictions exist on changes in the Index or interest rate. The rate shall not exceed the highest rate allowed by law or the rate set forth above whichever is less, either before or after Maturity. ALL PARTIES PRINCIPAL. All Debtors shall each be regarded as a principal and each Debtor agrees that any party to this Note, with Lender's approval and without notice to any other party, may from time to time renew this Note or consent to one or more extensions or deferrals of the Maturity Date for any term(s) or to any other modification(s), and all Debtors shall be liable in same manner as on the original note. ADVANCES. If the Fully Advanced box is checked, then the Debtor acknowledges that the entire Principal Amount has been advanced to the Debtor or for Debtor's account or benefit. If the Multiple Advances box is checked, then the Debtor understands that the Lender will disburse the proceeds of this Note in increments, up to the Principal Amount, but in even or in odd dollar increments. The Debtor has no right to rebalance any advances disbursed. The balance due the Debtor may under this Note is the aggregate of all such disbursements, less any payments of principal made on this Note. Interest will accrue only on the actual amount of principal disbursed and outstanding from time to time. Any loans or advances the Lender makes to the Debtor or for the Debtor's account or benefit are presumed to be made under the terms of this Note. The Lender may make advances under this Note at the oral or written request of the Debtor or any party designated or authorized in writing by the Debtor until the Debtor revokes such designation or authorization in writing received by the Lender, provided that the Lender has the right, but is not obligated, to require written authorization from the Debtor prior to honoring any oral request. PREPAYMENT. Debtor shall have the right to prepay all or any part of the principal due under this Note at any time, subject to the following conditions: (a) all interest shall be paid through the date of prepayment; (b) if this Note provides for monthly or other periodic payments, there will be no changes in the due dates or amounts following any partial prepayments unless Lender agrees to such changes in writing; and (c) upon prepayment, in whole or in part, Lender may charge and Debtor agrees to pay a fee or premium calculated as follows (this fee/premium provision will not apply if prohibited by applicable law): LATE PAYMENTS. When permitted by law, any principal and/or interest amount not paid within ten calendar days after the due date will be assessed the Greater of $816.50 or 8% of the amount past due, as a late charge fee, with a minimum Fee of $816.50. In addition, any principal and/or interest not paid by the Maturity Date of this Note shall thereupon bear interest at the applicable rate stated in this Note plus a late fee per annum. In no event shall the fees and related charges either before or after maturity be greater than permitted by law. COLLATERAL. This Note is secured by real property and the debt evidenced by this Note and all other obligations of Debtor to Lender, including renewals and extensions, are secured by all collateral securing such Note and all other security interests and mortgages previously or subsequently granted to Lender as more specifically described in security documents, mortgages and other securing documentation, and by all money, deposits and other property owned by any debtor and in Lender's possession or control, except when the acquisition of a security interest would violate any law or right of rescission, in which case the security interest is waived to that extent. ACCELERATION. At option of Lender, the unpaid balance of this Note and all other obligations of Debtor to Lender, whether direct or indirect, absolute or contingent, now existing or later arising, shall become immediately due and payable without notice or demand, upon or after the occurrence or existence of any of the following events or conditions: (a) any payment required by this Note or by any other note or obligation of Debtor to Lender is not timely made; (b) any default or any event or condition which continues or exists which might accelerate the note, agreement or undertaking; (b) Debtor defaults in performing any covenant, obligation, warranty or provision contained in any loan agreement or in any instrument or document securing or relating to this Note or any other note or obligation of Debtor to Lender; or to otherwise effect a sale; (c) Debtor furnishes false or inaccurate information or representation to Lender by or on behalf of Debtor; provided the same have been in any material respect when made or furnished; (d) any levy, seizure, garnishment or attachment is made against any asset of any Debtor; (e) Lender determines, at any time and in Lender's sole discretion, that the prospect of payment of this Note is impaired; (f) whenever, in Lender's sole judgment, the collateral for the debt evidenced by this Note becomes unsalable or insufficient, unless charged off or written down upon request, Debtor fails to provide additional collateral as required by Lender; (g) all or any part of the collateral for the debt evidenced by this Note is lost, stolen, substantially damaged or destroyed; (h) any Debtor dies or becomes incompetent; or (i) a receiver is appointed over all or part of any Debtor's property, or any Debtor makes an assignment for the benefit of creditors, files for relief under any bankruptcy or insolvency law, or becomes subject to an involuntary proceeding under such laws. RIGHT OF OFFSET. Except as otherwise restricted by law, any indebtedness due from Lender to Debtor, including, without limitation, any deposits or credit balances due from Lender, is pledged to secure payment of this Note and any other obligation to Lender of Debtor, and may at any time while the whole or any part of such obligation(s) remains unpaid, either before or after Maturity, be used toward the payment of this Note or any other obligation to Lender by any Debtor. ADDITIONAL PROVISIONS. (1) No waiver by Lender of any payment or other right under this Note or any related agreement or documentation shall operate as a waiver of any other payment or right. All Debtors waive presentment, notice of acceleration, notice of dishonor and nonreceipt and to consent to such increases and failures as may be stated herein and to additional releases of any Debtor. (2) This Note and the obligations evidenced by it are to be construed and governed by the laws of the state indicated in Lender's address shown in this Note. (3) All Debtors agree to pay costs of collection, including, as allowed by law, an attorney's fee equal to a minimum of 15% of all sums due upon default or such other maximum fee as allowed by law. (4) Upon signing below, Debtor is acknowledging receipt of a copy of this Note and related documentation which contain the complete and entire agreement between Lender and any party liable for payment under this Note. No variation, condition, modification, change or amendment to this Note or related documents shall be binding unless in writing and signed by all parties. No legal relationship is created by the execution of this Note and related documents except that of debtor and creditor or as stated in writing. DEBTOR'S SIGNATURE(S) X Patty A. Lewis REAL ESTATE MORTGAGE WITH POWER OF SALE (INDIVIDUAL - CONSUMER) KNOW ALL PERSONS BY THESE PRESENTS that: PATTY A. LEWIS, A SINGLE PERSON (called "Mortgagor," whether one or more) mortgages to: Walters Bank & Trust Co., 201 N. Broadway, Walters, OK 73572 (called "Mortgagee," whether one or more and which term shall be construed to include Mortgagee's successors and assigns) the following described real estate and premises located in COTTON County, State of Oklahoma: LOTS 24,25,26,27, & 28, BLOCK 33, WALTER HEIGHTS, ADDITION TO WALTERS, COTTON COUNTY, STATE OF OKLAHOMA. THESE DOCUMENTS ARE BEING EXECUTED AS A MATTER OF CONVENIENCE AND IN ACCORDANCE WITH A PLAN OF REORGANIZATION CONFIRMED BY THE UNITED STATE BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF OKLAHOMA IN THE CASE STYLED: IN RE PATRICIA ANN LEWIS, CASE NUMBER BK 06-11501-NLJ. THE PARTIES DO NOT INTEND THAT THE EXECUTION OF THESE DOCUMENTS WILL WORK A NOVATION. ACCORDINGLY, THE WALTERS BANK AND TRUST SHALL RETAIN ALL ITS RIGHTS AND REMEDIES AGAINST LEWIS, SUBJECT TO THE TERMS OF THE PLAN CONFIRMED IN LEWIS' BANKRUPTCY. with all the buildings and other improvements located or constructed on the real estate, all fixtures, personal property used on or in, and appurtenances to the real estate (collectively referred to as the "Mortgaged Property"). This mortgage creates a security interest in the Mortgaged Property and like kind future property from the time this Mortgage is granted. Mortgagor warrants the title to the Mortgaged Property. This Mortgage is given by Mortgagor to Mortgagee to secure the full payment and performance of the indebtedness evidenced by the following described promissory Note(s) (the "Note," whether one or more) and any modifications, renewals or substitutions of the Note, as well as any other amounts owing to Mortgagee under the terms of this Mortgage (collectively, the "Debt"): Promissory note dated 10/17/2006, in the name of PATTY A. LEWIS, in the amount of $61,300.00, at the rate of 6.995%, with a maturity date of 10/17/2031. Mortgagor further agrees (a) to pay and discharge all taxes and assessments on the Mortgaged Property before they become delinquent; (b) to keep all the Mortgaged Property insured under policies which are acceptable to, and for the benefit of, Mortgagee; (c) to cure all title defects or clouds on or claims against Mortgagor's title which may arise or be discovered; (d) to keep the Mortgaged Property in good condition and repair, and to repair or replace any damaged or destroyed Mortgaged Property; and (e) to discharge any levies, liens, attachments, or other claims which may be asserted against the Mortgaged Property. Mortgagor also agrees with respect to the Mortgaged Property to comply with all environmental laws and regulations now in force or later promulgated and to disclose to Mortgagee upon request all information regarding the environmental status of the Mortgaged Property. Mortgagee grants Mortgagee the right to acquire additional environmental information regarding the Mortgaged Property. Mortgagor also grants Mortgagee or its agents a license to enter onto the Mortgaged Property and inspect it for any reason and further agrees to indemnify Mortgagee for any liability associated with the Mortgaged Property. The discovery of undisclosed environmental hazards on the Mortgaged Property may at the option of Mortgagee be considered an Event of Default under this Mortgage. If the Mortgaged Property is Mortgagor's homestead and a Mortgagor is the spouse of another Mortgagor or the Borrower identified in the Note but is not obligated under the Note and is only signing this Mortgage to satisfy the requirements of Title 16 Okla. Stat. § 4 (which requires a spouse to sign a mortgage on homestead property), then such Mortgagor is not obligated under the provisions of the immediately preceding paragraph and is only signing this Mortgage to convey his or her interest in the Mortgaged Property. If Mortgagor fails to fulfill the agreements in the Mortgage, Mortgagee may purchase insurance or pay taxes, assessments or other liens and appropriate sums to protect the Mortgaged Property, and shall have a lien secured by this Mortgage for the amount of those sums with interest at the rate on the Note secured by this Mortgage except as otherwise provided in the Note. If Mortgagee is required to first give Mortgagor notice, notice mailed or delivered at least 5 days before action is taken will be considered reasonable. Mortgagor confers on mortgagee or its attorney or agent the power to sell the Mortgaged Property and the interests of all persons in it in the manner provided in the Oklahoma Power of Sale Mortgage Foreclosure Act (Title 46 Okla. Stat.§ 40es ser). On the occurrence of an Event of Default (as described in this Mortgage), Mortgagee may, at its option, accelerate payment of the Debt and all other indebtedness secured by this Mortgage so that all the Debt shall be immediately due and payable and may either exercise the Power of Sale or foreclose this Mortgage in a judicial foreclosure. The following are considered "Events of Default:" (a) any default in payment of the Debt or performance under the Note; (b) Mortgagor falls to perform any covenant or agreement contained in this Mortgage or in any other indebtedness, obligation or agreement of the Mortgagor to Mortgagee or to another; (c) Mortgagor sells, conveys, transfers, hypothecates, or in any other manner ceases to be the owner or in possession of all or any portion of or interest in the Mortgaged Property, except as agreed to by Mortgagee in writing or as permitted under applicable law; or (d) Mortgagee believes the prospect of payment under the Note is impaired or the Mortgaged Property is in jeopardy. Subject to the provisions of the Oklahoma Power of Sale Mortgage Foreclosure Act, Mortgagee may accelerate payment of the Debt for the reasons stated in this Mortgage without notice to, or demand on, Mortgagor. As often as any action may be taken to foreclose this Mortgage or to exercise rights under the Power of Sale Mortgage Foreclosure Act, Mortgagor agrees to pay to Mortgagee an attorney's fee of 15% of the amount due or the actual amount of the attorney's fee, whichever is greater, in addition to other sums due, all of which shall be secured by this Mortgage except as otherwise provided in the Note. (Continued on reverse side hereof) If there is a foreclosure of this Mortgage other than by Power of Sale, Mortgagor waives appraisement of the Mortgaged Property, unless Mortgagee seeks an appraisal. Appraisal shall be at Mortgagee's sole option, to be declared when the petition to foreclose is filed or when judgment is taken. Mortgagor understands and agrees that on Mortgagor's default, a court may grant specific performance of Mortgagor's agreements in this Mortgage, and Mortgagee will have the right to take possession of the Mortgaged Property by appointing a receiver as allowed by Title 12 Okla. Stat. § 1551.2(c) which authorizes appointment when a condition of a mortgage has not been performed and the mortgage provides for appointment of a receiver. The court may also appoint a receiver on any other ground specified in Title 12 Okla. Stat. § 1551. "A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE." SIGNATURE(S) OF MORTGAGOR(S) Signed and Delivered on this Date: Date: 10/17/2006 PATTY A LEWIS STATE OF OKLAHOMA {Comanche } SS. COUNTY OF COTTON The foregoing instrument was acknowledged before me on this 47th day of October 2008 by PATTY A. LEWIS, A SINGLE PERSON MELISSA L. WILLIAMSON Notary Public - State of Oklahoma Commissioned In Comanche County Commission No. 01011036 Commission Expires: August 04, 2009 My Commission Expires: 8-4-2009 NOTARY PUBLIC