U.S. Bank, N.A., as Trustee, successor in interest to Wachovia Bank, National Association, as Trustee, successor by merger to First Union Bank as Trustee, for Mid-State Trust VII v. Kelly Mahoney

IN THE DISTRICT COURT WITHIN AND FOR BRYAN COUNTY CLERK STATE OF OKLAHOMA U.S. BANK, N.A., AS TRUSTEE, SUCCESSOR IN INTEREST TO WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR BY MERGER TO FIRST UNION BANK AS TRUSTEE, FOR MID- STATE TRUST VII, Plaintiff, vs. KELLY MAHONEY; GLENDAY MAHONEY; OCCUPANT(S) OF THE PREMISES; Defendants. CASE NO. CJ-2020-35 Judge: PETITION COMES NOW U.S. Bank, N.A., as Trustee, successor in interest to Wachovia Bank, National Association, as Trustee, successor by merger to First Union Bank as Trustee, for Mid-State Trust VII (herein: "Plaintiff"), and for its causes of action against the above-named defendants, alleges and states as follows: 1. Plaintiff was at all times and is duly authorized to bring this action. 2. That Kelly Mahoney and Glenda Mahoney (collectively herein: "Borrowers"), who were at all times married, are obligated on a certain promissory note and mortgage described below. 3. Borrowers, for good and valuable consideration, made, executed and delivered to Walter Mortgage Company, LLC, the original lender and Plaintiff's predecessor in interest, a certain written promissory note which is the subject of this action (herein: “Note”). A true and correct copy of the Note is attached hereto as Exhibit “A.” a. The Note is dated February 13, 2010; b. The Note is made in the amount of $116,649.60; c. The Note establishes an monthly payment installments of $486.04, due on the 5th day of each month; and d. The Note is indorsed in blank. 4. As part of the same loan transaction, and in order to secure the payment of the loan made, Borrower made, executed, and delivered to Walter Mortgage Company, LLC, the original lender of the Note and Plaintiff’s predecessor in interest, a mortgage and conveyed the mortgage to the mortgagee (herein: “Mortgage”). The mortgage encumbers the following property: Lot Two (2), Block Seven (7), in the RED RIVER CITY NORTH ADDITION to Bryan County, Oklahoma, according to the recorded plat thereof. (herein: “Property”). A true and correct copy of the Mortgage is attached as Exhibit “B.” a. The Mortgage is dated February 13, 2010; b. The signatories of the Mortgage are Kelly Mahoney, married & Glenda Mahoney, married; and c. The Mortgage was recorded in the Bryan County Clerk’s Office at Book 1256 and Page 847, on June 18, 2010. 5. By virtue of Quit Claim Deed, Borrowers are the present record owners of the subject Property. The Quit Claim Deed is recorded with the Bryan County Clerk’s Office at Book 1256 and Page 845, on June 18, 2010. 6. The Borrowers are obligated on the subject Note and have not been released from liability thereon. 7. The Mortgage encumbers the real estate along with all the improvements, easements, appurtenances, and fixtures from the date of the execution to present and hereafter, as well as all replacements and additions to the Property. Mortgage, Ex. B. 8. Plaintiff is entitled to enforce the Note in accordance with OKLA. STAT. TIT. 12A, §3-301. 9. Plaintiff has complied with all the terms and conditions of the Note and Mortgage. 10. Borrowers are in default. The default claimed is failure to make complaint payment, and the default date is February 5, 2018. The default has not been cured by any available means. 11. The Note and Mortgage provide that if default is made as to any of the terms of the Note and Mortgage by Borrowers, or if Borrowers fail to perform any of the other obligations described in the Note and Mortgage, that the entire unpaid principal, interest, and all other sums allowed and secured by the Note and Mortgage, shall become due and payable at the option of the Plaintiff. Further, in response to Borrowers’ default, Plaintiff is entitled to foreclose the mortgage to recover all amounts due, and to have the Property sold and all proceeds applied to the payment of the entire indebtedness described, allowed, and secured by the Note and Mortgage. 12. Plaintiff has made demand and has accelerated this loan in accordance with the Note, Mortgage, and applicable law. 13. As a necessary measure in the furtherance of enforcing this Note and Mortgage, Plaintiff has incurred costs, which are a further lien upon the Property secured by the Mortgage. 14. The Note and Mortgage provide that the attorney fees incurred by Plaintiff in the enforcement of the Note and Mortgage are the responsibility of Borrowers and constitute a further lien on the Property secured by the Mortgage. 15. After consideration of all credits to this loan account, Plaintiff is due the sum of $43,747.18 in unpaid principal balance, with 8.750% interest per annum thereon, or as adjusted by the Note and Mortgage, from January 5, 2018, until paid; and all other costs of this action including title costs, late fees, NSF fees, escrow advances, corporate advances, property preservation costs, attorney fees, and all costs and fees associated with the furtherance of this action, which is a first, prior, and superior lien on the Property. 16. Borrowers may claim some right, title, lien, estate, encumbrance, claim, assessment, or other interest in the Property by virtue of a possible homestead interest which they may have or claim to have in the Property. 17. With respect to the additional defendants, Plaintiff alleges as follows: a. Additional defendants, Occupant(s) of the Premises, whose true and correct legal identities are unknown to the Plaintiff at this time, may claim some right, title, lien, estate, encumbrance, claim, assessment, or interest in and to the Property, by virtue of occupancy of the Property. b. Plaintiff further asserts that any right, title, lien, estate, encumbrance, claim assessment, or interest claimed by any defendant is subordinate and inferior to the mortgage lien claimed by Plaintiff. Plaintiff respectfully requests that each and every defendant claiming and interest in the Property be required to establish the claimed right herein or be barred forever for further asserting such a claim. WHEREFORE, Plaintiff prays for a judgment in personam against Borrowers in the amount of $43,747.18, with 8.750% interest per annum thereon, or as adjusted by the Note and Mortgage, from January 5, 2018, until paid; all abstracting and title costs incurred by Plaintiff to enforce the Note and Mortgage; all late charges; NSF fees; escrow advances; corporate advances; taxes; insurance premiums; property preservation charges; attorney fees; and all fees and costs associated with this action as allowed by the Note and Mortgage. FURTHER, Plaintiff prays for judgment in rem against Borrowers, the Property, the Premises, and all other defendants, awarding judgment as follows: All defendants have set out their purported claims to the Property or have waived their rights to do so. Plaintiff's mortgage is declared a first, prior, and superior lien on the Property as to all other claims asserted, and further declaring that Plaintiff is entitled to all amounts set forth herein. That Plaintiff is entitled to foreclose the Mortgage, and the Property shall be sold for cash and that sale shall be had with appraisement. The proceeds of the sale shall be applied first to the payment of the costs incurred herein, and then to the satisfaction of the judgment amount, Mortgage, and lien asserted by Plaintiff. That Plaintiff's Mortgage lien interest is prior, first, and superior to all other claims of defendants. That all right, title, claim, encumbrance, or interest claimed by any defendant shall be adjudged junior, inferior, and subject to Plaintiff's Mortgage lien. That upon confirmation of the sale, that all and each of the defendants herein, be forever foreclosed, barred, and enjoined from asserting claim of a right, title, estate, encumbrance, or other interest of any nature to the Property. Finally, Plaintiff prays for any and all further relief this Court deems just and equitable. Respectfully submitted, Sally E. Garrison, OBA # 18709 Chad T. Hantak, OBA # 33651 THE MORTGAGE LAW FIRM, PLLC 421 NW 13th Street, Suite 300 Oklahoma City, OK 73103 Telephone: (405) 246-0602 Facsimile: (405) 698-0007 [email protected] [email protected] Attorneys for Plaintiff THIS MAY BE AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED MAY BE USED FOR THAT PURPOSE. NON-NEGOTIABLE PROMISSORY NOTE - OKLAHOMA WALTER MORTGAGE COMPANY, LLC. $ 116,649.60 February 13, 2010 For value received, I, we, or either of us, promise to pay to Walter Mortgage Company, LLC., at the office of said payee, P.O. Box 31601, Tampa, Florida 33631-3601, or at such other place as the holder hereof may designate in writing, the sum of One Hundred Sixteen Thousand Six Hundred Forty-nine and 60 / 100 Dollars ($116,649.60) in monthly installments of Four Hundred Eighty-six and 04 / 100 Dollars ($ 486.04) each, the first installment to become due and payable on the 5th day of the month following the 45th day after Release of the House to Buyer, and one installment to become due and payable on the 5 th day of each succeeding month until the whole of said indebtedness is paid. For each installment not paid in full within fifteen (15) days of its scheduled due date, the undersigned will be charged $19.00 or 5% of the unpaid amount of the installment in default, whichever is less. Only one late charge will be charged on any installment regardless of the period during which it remains in default. If any check tendered to holder or its assigns by maker hereunder is not paid upon presentation or is dishonored by the bank or depository institution upon which it is drawn, maker agrees to pay holder a returned check charge of $25.00, which charge, if incurred by maker, shall be considered as additional indebtedness secured hereby. It is agreed that time is of the essence of this note and that in the event of default in payment of any installment for a period of thirty days, the holder of this note may, at its option, after first deducting therefrom all precomputed but unearned Finance Charges, declare all of the remainder of said debt due and collectible and any failure to exercise said option shall not constitute a waiver of the right to exercise the same at any other time. From and after any event of default, interest shall be payable on all amounts in default, including, without limitation, the remaining unpaid amount financed, any late fees, attorney's fees, previously accrued and unpaid finance charges, and interest at the rate of 10% per annum until paid. The amount necessary to cure the default pursuant to a plan approved under Chapter 13 of the Bankruptcy Code shall include not only any remaining unpaid amount financed of this note but also the other aforementioned elements of the arrearages. In the event of such acceleration, the undersigned shall receive a credit for any unearned Finance Charge computed pursuant to the "Actuarial Method". This note is subject to the terms of a mortgage of even date herewith executed by the makers hereof as Mortgagor to the payee hereof as Mortgagee encumbering property in Bryan County, Oklahoma, and more particularly described therein. I, we and each of us, whether principal, security, guarantor, endorser or other party hereto, agree to be jointly and severally bound hereby and do severally waive presentment for payment, notice of non-payment, protest and notice of protest, and agree that extensions of time for payment may be granted by the holder hereof without notice. It is further agreed that if it becomes necessary to enforce collection and upon referral to an attorney, not a salaried employee of the holder, I/we, or either of us agree to pay a reasonable attorney fee not to exceed 15 percent of the unpaid debt and all costs of collection. The undersigned may pay in advance any amount remaining unpaid hereunder, and upon prepayment shall receive a credit for any unearned Finance Charge computed pursuant to the "Actuarial Method". NOTICE ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREBY UNDER. Given under the hand and seal of each party. [Signature] Kelly Mahoney Glenda Mahoney ALLONGE Account Name: Kelly mahoney and Glenda mahoney Pay to the order of William J. Wade, not in his individual capacity, but solely as Trustee for Mid-State Trust VII without recourse. Walter Mortgage Company, LLC [signature] Vice President Pay to the order of Wachovia Bank NA, formerly known as First Union National Bank without recourse. William J. Wade, trustee, not in his individual capacity, but solely as Trustee of Mid-State Trust VII By: Walter Mortgage Company, its Attorney-in-Fact [signature] Vice President ALLONGE TO PROMISSORY NOTE FOR PURPOSES OF FURTHER ENDORSEMENT OF THE FOLLOWING DESCRIBED NOTE, THIS ALLONGE IS AFFIXED AND BECOMES A PERMANENT PART OF SAID NOTE. Account Number: [REDACTED] Note Date: 2/13/2010 Amount: $116,649.60 Customer Name: Kelly Mahoney and Glenda Mahoney Property Address: 159 Townsend Rd, Cartwright OK 74731 ************************************************************ PAY TO THE ORDER OF: WITHOUT RECOLSURE U.S. Bank N.A. as Trustee, successor in interest to Wachovia Bank, N.A., successor by merger to First Union National Bank, by its Attorney-in-Fact Ditech Financial LLC f/k/a Green Tree Servicing LLC BY: [signature] Name: Teresa G Harris Title: Assistant Vice President I CERTIFY I RECEIVED $ 55.00 MORTGAGE TAX RECEIPT NO. 34092 DATE 6-18-10 Nancy Comner CO. TREASURER BY Deputy Branch SHERMAN No. Months 240 MORTGAGE - OKLAHOMA - WALTER MORTGAGE COMPANY, LLC. Know All Men By These Presents, That whereas on this _13_ day of _February__, 2010_ Kelly Mahoney, Married & Glenda Mahoney, Married of Bryan County, State of Oklahoma, hereinafter called Mortgagor, is justly indebted to WALTER MORTGAGE COMPANY, LLC., a limited liability company of the State of Delaware, having its principal office located at 3000 Bayport Drive, Tampa, Florida 33607, hereinafter called Mortgagee, in the sum of One Hundred Sixteen Thousand Six Hundred Forty-nine and 60/100 Dollars ($116,649.60) to secure the payment of which Mortgagor has executed one non-negotiable promissory note of even date herewith, payable to Mortgagee at it's office aforesaid or at such other place as the holder thereof may designate in writing, said sum being payable as set forth therein, the last installment thereunder being due and payable on the 5th day of the month that is 240 months from the date of this instrument, to which note reference is hereby made. Unless specified elsewhere, the maturity date of this instrument shall be deemed to be 240 months from the date of this instrument. NOW, THEREFORE, THIS INDENTURE WITNESSETH: That Mortgagor, for good and valuable consideration, and for the purpose of securing (1) payment of said indebtedness as in said note provided, (2) payment of all other moneys secured hereby, and (3) the performance of all the covenants, conditions, stipulations and agreements contained in the Sale Contract of even date between Mortgagor and Walter Mortgage Company, as well as those contained herein, has mortgaged and hereby mortgages, assigns, transfers, and sets over, unto Mortgagee, its successors and assigns forever, the following described property, real estate and premises, situated in Bryan County, State of Oklahoma, to-wit: Please see Legal Description attached hereto together with all and singular the ways, easements, riparian and other rights, and all tenements, hereditaments and appurtenances, thereunto belonging or in anyway appertaining, and all buildings, structures and other improvements now on said land or that hereafter may be erected or placed thereon, all fixtures attached thereto, all rents, income, issues and profits accruing and to accrue therefrom, and all judgments, awards of damages and settlements hereafter made as a result or in lieu of any taking of the premises or any part thereof under the power of eminent domain, or for any damage, whether caused by such taking or otherwise, to the premises or the improvements thereon or any part thereof. TO HAVE AND TO HOLD the above described property unto the Mortgagee, its successors and assigns. Mortgagor covenants and agrees with Mortgagee as follows: 1. That Mortgagor is lawfully seized in fee of the premises hereby conveyed; that Mortgagor has good right to sell and convey the same as aforesaid; that said premises are clear of all encumbrances; and that Mortgagor will forever warrant and defend the title to said premises against all claims and demands. 2. To pay all sums secured hereby when due. For each installment not paid in full within fifteen (15) days of its scheduled due date, Mortgagor will be charged $19.00 or 5% of the unpaid installment, whichever is less. Only one late charge will be charged on any installment regardless of the period during which it remains in default. 3. To pay, when due, all taxes and assessments of every type or nature levied or assessed against the premises or upon Mortgagee's interest therein, and any claim, lien or encumbrance against the premises which may be or become prior to this mortgage. 4. To pay all taxes which may be assessed upon this mortgage, or said note, or indebtedness secured hereby, without regard to any law, heretofore or hereafter enacted, imposing payment of all or any part thereof upon Mortgagee, except the mortgage registration tax to be paid upon the recording of this mortgage. In event of enactment of any law imposing payment of all or any portion of any such taxes upon Mortgagee, or the rendering by any court of competent jurisdiction of a decision that the undertaking by Mortgagor, as herein provided, to pay such tax or taxes is legally inoperative, then, unless Mortgagor nevertheless pays such taxes, all sums hereby secured, without any deduction, shall at the option of Mortgagee become immediately due and payable, notwithstanding anything contained herein or any law heretofore or hereafter enacted. 5. To keep the premises insured against loss or damage by fire, lightning, windstorm and such other hazards as may be required by Mortgagee, in an amount equal to the lesser of the actual cash value of said house or the indebtedness secured by this mortgage on said house, and in insurance companies acceptable to Mortgagee. To comply with this provision Mortgagor must deliver the policy or true copy of the policy to Mortgagee to be held without liability. Upon foreclosure of this mortgage or other acquisition of the premises or any part thereto by Mortgagee, said policy shall become the absolute property of Mortgagee. In the event of failure of Mortgagor to insure the premises as herein provided or in the event of the failure of the Mortgagee to deliver the policy of insurance or true copy thereof to the Mortgagee, the Mortgagee shall insure the premises in companies of its choosing and the premium expense incurred by the Mortgagee shall be paid by the Mortgagor. 6. That Mortgagor (i) will not remove or demolish nor alter the design or structural character of any building now or hereafter erected upon the premises unless Mortgagee shall first consent thereto in writing; (ii) will maintain the premises in good condition and repair; (iii) will not commit or suffer waste thereof; (iv) will not cut or remove nor suffer the cutting or removal of any trees or timber on the premises (except for domestic purposes) without Mortgagee's written consent; (v) will comply with all laws, ordinances, regulations, covenants, conditions and restrictions affecting the premises, and will not suffer or permit any violation thereof. 7. If Mortgagor fails to pay any claim, lien or encumbrance which is prior to this mortgage, or to keep the premises in repair or shall commit or permit waste, or if there be commenced any action or proceeding affecting the premises or the title thereto, then Mortgagee, at its option, may pay said claim, lien, or encumbrance, with the right of subrogation thereunder, may make such repairs and take such steps as it deems advisable to prevent or cure such waste, and may appear in any such action or proceeding and retain counsel therein, and take such action therein as Mortgagee deems advisable, and for any of said purposes Mortgagee may advance such sums of money as it deems necessary, but no payment by the Mortgagee of any such monies shall be deemed a waiver of the Mortgagee's right to declare the principal sum due hereunder by reason of the default or violation of Mortgagor in any of Mortgagor's covenants hereunder. Mortgagee shall be the sole judge of the legality, validity and priority of any such claim, lien, and encumbrance, and of the amount necessary to be paid in satisfaction thereof. Mortgagor will pay to Mortgagee, immediately and without demand, all sums of money advanced by Mortgagee pursuant to this mortgage, and all such sums shall be secured hereby. 8. It is further covenanted the Mortgagee may, at its option, advance moneys for the payment of insurance and taxes (including assessments) that should have been made by Mortgagor hereunder in order to protect the lien or security hereof, and Mortgagor agrees without demand to forthwith repay such money advanced by the Mortgagee, which amount shall bear interest at the rate of 10% per annum until paid and shall be added to the debt; provided, however, no payment by Mortgagee of any such moneys shall be deemed a waiver of Mortgagee's right to declare the principal sum due hereunder by reason of the default or violation of Mortgagor in any of Mortgagor's covenants hereunder. 9. If default for thirty (30) days be made in payment of any installment of said note or any part thereof, or if default be made in performance of any of Mortgagor's obligations, covenants or agreements hereunder (a) All of the indebtedness secured hereby shall become and be immediately due and payable at the option of Mortgagee, without notice or demand which are hereby expressly waived, and this mortgage may thereupon be foreclosed for the entire indebtedness, interest and costs, together with the statutory damages in case of protest. In the event of a foreclosure, the court shall direct a sale of the premises, to be with or without appraisement as Mortgagee may elect. As used herein, 'indebtedness' shall include, without limitation, any remaining unpaid amount financed, late fees, interest, attorney's fees and accrued and unpaid finance charges. In the event of a default under the sale contract, mortgage or note, the indebtedness shall bear interest at the rate of 10% per annum until paid in full. (b) Mortgagee shall, upon the filing of a petition for the foreclosure of this mortgage, be forthwith entitled to and may at once take the immediate possession of said premises and collect the rents, issues and profits thereof, being liable to account only for those actually received by Mortgagee, or Mortgagee at its option may have a receiver appointed by the court to take possession and control of the premises, and to collect the rents and profits thereof, under the directions of the court, without the proof required by statute; the amount so collected by such receiver shall be applied, under the direction of the court, to the payment of any judgment rendered or amount found due upon the foreclosure of this mortgage. 10. In case the indebtedness secured hereby or any part thereof for collection by suit or action on this mortgage is foreclosed or brought into the hands of an attorney for collection, suit, action for foreclosure, Mortgagor shall be chargeable with all costs and expenses including a reasonable attorney fee not to exceed 15 percent of the unpaid debt, which shall be immediately due and payable and added to the mortgage indebtedness secured hereby. 11. No delay by Mortgagee in exercising any right or remedy hereunder, or otherwise afforded by law, shall operate as a waiver thereof or preclude the exercise thereof during the continuance of any default hereunder. 12. Any agreement hereafter made by Mortgagor and Mortgagee pursuant to this mortgage shall be superior to the rights of the holder of any intervening lien or encumbrance. 13. For value received, the Mortgagor hereby expressly waives all right of homestead, exemption and stay laws granted by the constitution and laws of the State of Oklahoma. 14. When all indebtedness secured hereby has been paid, this mortgage and all assignments herein contained shall be void and this mortgage shall be released by Mortgagee at the cost and expense of Mortgagor; otherwise to remain in full force and effect. 15. This mortgage shall inure to and bind the heirs, legatees, devisees, administrators, executors, trustees, successors and assigns of the parties hereto. Whenever used herein, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. 16. In the event said house is not built entirely on the property of Mortgagor, Mortgagor agrees to indemnify Mortgagee for any damages suffered or costs incurred by Mortgagee as a result thereof. IN WITNESS WHEREOF, Mortgagor has hereunto set his hand and seal on the 13 day of February, 2010. Kelly Mahoney (SEAL) Kelly Mahoney Glenda Mahoney (SEAL) __________________________ (SEAL) __________________________ (SEAL) STATE OF OKLAHOMA ) COUNTY Grayson ) ss Before me, the undersigned, a Notary Public, in and for said County and State, on this 13 day of February, 2010, personally appeared Kelly Mahoney and Glenda Mahoney, to me known to be the identical person(s) who executed the within and foregoing instrument, and acknowledged to me that he/she/they executed the same as their free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and official seal the day and year last above written. Carrie Lewis Notary Public My commission expires: 10-1-2018 Notary Commission No.: 000071938 Prepared By and After Recording Return To: Jeanetta M. Brown, Esquire c/o Walter Mortgage Company, LLC. Title Department P.O. Box 31601 Tampa, FL 33631-3601 (813) 421-7600 I-2010-630860 Book 1256 Pg: 849 08/18/2010 10:38 am Pg 0847-0850 Fee: $19.00 Doc: $0.00 Tammy Reynolds - Bryan County Clerk State of Oklahoma EXHIBIT '1' LOT TWO (2), BLOCK SEVEN (7) IN THE RED RIVER CITY NORTH ADDITION TO BRYAN COUNTY, OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF.