IN THE DISTRICT COURT OF WAGONER COUNTY
STATE OF OKLAHOMA
WESTERN SUN FEDERAL CREDIT UNION,
Plaintiff,
v.
RAY HOLMES and GERI HOLMES,
Defendants.
Case No. CJ-2026-0069
PETITION
Plaintiff, Western Sun Federal Credit Union, by its attorneys, ROBINETT, SWARTZ & DUREN, for its claims against the Defendants, Ray Holmes and Geri Holmes, allege the following:
1. Plaintiff is a federal credit union with its principal place of business in Tulsa, Oklahoma.
2. Defendants are citizens of Oklahoma.
3. The agreement sued upon in this action was executed and breached in Wagoner County, Oklahoma.
4. On or about April 8, 2019, Defendants executed the promissory note attached hereto as "Exhibit A".
5. Defendants are in default under the terms of the note by failing to make payments as agreed.
6. The collateral securing the note has been repossessed and sold. The sale of the collateral was commercially reasonable, and Plaintiff complied with all notices required by law.
7. There is currently due to the Plaintiff on the subject note, the principal sum of $12,825.25, plus late charges and repossession costs of $106.50 with interest accruing from
February 28, 2021, on the principal balance at the rate of 7.20% per annum, until paid, the costs of this action, accrued and accruing, and a reasonable attorney’s fee.
8. Plaintiff requests that upon entry of judgment herein in favor of the Plaintiff, that the Court also enter an Order directing the Oklahoma Employment Security Commission (“OESC”) to produce information in its possession concerning the employment of the judgment debtor(s) for the preceding four quarters, upon service of a certified copy of said Order on the OESC in accordance with 40 I.S. § 4-508(D). Plaintiff further requests that the Order direct the OESC to produce the requested information within 35 days from the date of service of the Order, pursuant to 40 O.S. § 4-508(D).
9. Pursuant to Title 15 U.S.C. § 1692(g), Fair Debt Collection Practices Act, if applicable, unless the person or entity responsible for the payment of the above debt, within thirty-five 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-five 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-five day period, the undersigned attorney for Plaintiff will provide the name and address of the original creditor, if different from the current creditor. The law does not require me to wait until the end of the thirty-five-day period following first contact with you before suing you to collect the debt. Even though the law provides that your answer to the petition is to be filed in this action within 35 days, you may obtain an extension of that time. Furthermore, no request will be made to the Court for a judgment until the expiration of thirty-five days after your receipt of this petition and summons. However, if you request proof of the debt or the name and address of the original creditor within the
thirty-five day period that begins with your receipt of this petition and summons, the law requires me to cease my efforts (through litigation or otherwise) until I mail the requested information to you. You should consult an attorney for advice concerning your rights and obligations in this suit.
This is an attempt to collect a debt (with the exception of a discharged debt in bankruptcy) and any information obtained will be used for that purpose.
WHEREFORE, Plaintiff requests judgment against the Defendants, Ray Holmes and Geri Holmes, for the principal sum of $12,825.25, plus late fees and repossession costs of $106.50 with interest accruing from February 28, 2021, on the principal balance at the rate of 7.20% per annum, until paid, the costs of this action, accrued and accruing, and a reasonable attorney’s fee, as well as all other and further relief to which the Plaintiff may be entitled.
Plaintiff further requests that upon entry of judgment, the Court also enter an Order directing the Oklahoma Employment Security Commission to produce employment information on the judgment debtor, as more fully set out above.
Respectfully submitted,
ROBINETT, SWARTZ & DUREN
By: ____________________________________________
Charles R. Swartz, OBA No. 22313
Christopher R. Kemp, OBA No. 31115
Mid-Continent Tower
401 S. Boston Ave., Suite 1600
Tulsa, Oklahoma 74119
Telephone: (918) 592-3699
Facsimile: (918) 592-0963
[email protected]
Attorneys for Plaintiff
Western Sun Federal Credit Union
WESTERN SUN FEDERAL CREDIT UNION
4620 W. Kenosha St,
Broken Arrow, OK 74012
(918) 362-1400
Loan and Security Agreements and Disclosure Statement: Covered Borrower Under the Military Lending Act
LOAN DATE 4/18/2019 LOAN NUMBER ACCOUNT NUMBER GROUP POLICY NUMBER MATURITY DATE 4/23/2020
BORROWER 1
NAME AND ADDRESS
Ray Holmes
36381 E 181st St
Porter, OK 74454
BORROWER 2
NAME (AND ADDRESS IF DIFFERENT FROM BORROWER 1)
Carl Holmes
36381 E 181st St
Porter, OK 74454
TRUTH IN LENDING DISCLOSURE: 'is' means an estimate
ANNUAL PERCENTAGE RATE
The cost of your credit as a yearly rate.
7.23
FINANCE CHARGE
The dollar amount the credit will cost you.
$14,872.57
Amount Financed
The amount of credit provided to you or on your behalf.
$36,127.00
Total of Payments
The amount you will have paid after you have made all payments as scheduled.
$50,099.57
Your Payment Schedule Will Be:
Number of Payments Amount of Payments When Payments Are Due
119 $426.00 Monthly (1/2/yr) Beginning 5/23/2019
1 $424.57 4/23/2029
Prepayment: If you pay off early you will not have to pay a penalty.
Required Deposit: The Annual Percentage Rate does not take into account your required deposit, if any.
Demand: Yes This obligation has a demand feature.
All disclosures are based on an assumed maturity of one year.
Filing Fees Non-Filing Insurance
Property Insurance: You may obtain property insurance from anyone you want that is acceptable to the Credit Union. If you get the insurance from us, you will pay
Late Charge:
If at any time your loan account becomes 10 days past due, you will be charged a late fee. The fee is added directly to your loan and is calculated by taking 5% of the scheduled payment, not to exceed $10.00 per occurrence. This fee will be assessed each time your loan reaches 10 days past the regularly scheduled due date.
Security: Collateral securing other loans with the Credit Union may also secure this loan, except any security interest in your shares, dividends, deposits or interest granted in connection with another loan does not apply to this loan. You are giving a security interest in the property described below:
<table>
<tr>
<th>Collateral</th>
<th>Property/Model/Make</th>
<th>Year</th>
<th>J.D. Number</th>
<th>Type</th>
<th>Value</th>
<th>Key Number</th>
</tr>
<tr>
<td>Bass Cat Pro. Puma FTD</td>
<td>Puma FTD</td>
<td>2013</td>
<td>BASV1148K213</td>
<td></td>
<td>$49,460.00</td>
<td></td>
</tr>
<tr>
<td>Mercury 250L</td>
<td>250L</td>
<td>2013</td>
<td>1B96S6204</td>
<td></td>
<td>$0.00</td>
<td></td>
</tr>
<tr>
<td>Bass Cat Trailer</td>
<td>Treiler</td>
<td>2013</td>
<td>458BC2229D1011852</td>
<td></td>
<td>$0.00</td>
<td></td>
</tr>
<tr>
<td>Other (Describe)</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
</table>
See your contract documents for any additional information about nonpayment, default, and any required repayment in full before the scheduled date.
SIGNATURES
By signing, or otherwise authenticating, as Borrower, you agree to the terms of the Loan Agreement. If property is described in the "Security" section of the Truth in Lending Disclosure, you also agree to the terms of the Security Agreement. If you sign, or otherwise authenticate, as "Owner of Property," you agree only to the terms of the Security Agreement.
CAUTION: IT IS IMPORTANT THAT YOU THOROUGHLY READ THE AGREEMENT BEFORE YOU SIGN IT.
Borrower 1 Signature Date
[Signature]
[Date]
Other Borrower [ ] Owner of Property [x] Witness [ ]
Borrower 2 Signature Date
[Signature]
[Date]
Other Borrower [ ] Owner of Property [x] Witness [ ]
© CUNA Mutual Group 2016 All Rights Reserved
Credit Union Western Sun FCU
Borrower(s) Ray Holmes
ITEMIZATION OF THE AMOUNT FINANCED
Itemization of Amount Financed of $36,127.00
Amount Given to You Directly $0.00
Amount Paid on Your Account
Prepaid Finance Charge $44.00
Amounts Paid to Others on Your Behalf: (If an amount is marked with an asterisk (*) we will be retaining a portion of the amount.)
$21.00 To OTC
$21.00 To
$18,500.00 To Seller Ben Jackson
To
To
To
To
To
To
$80.00 To VSI
$17,500.00 To Oklahoma State Bank
$5.00 To Mbrship 6-1287120
To
To
To
To
To
MILITARY LENDING ACT DISCLOSURES
Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of consumer credit to a member of the Armed Forces and his or her dependent may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit transaction or account: The costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than certain application fees for specified credit transactions or accounts); and any participation fee charged (other than certain participation fees for a credit card account).
Please call us at (800) 828-4771 to receive disclosures orally.
LOAN AGREEMENT
In this Loan Agreement ("Agreement") all references to "Credit Union," "we," "our," or "us," mean the Credit Union whose name appears above and anyone to whom the Credit Union assigns or transfers this Agreement. All references to "you," or "your" mean each person who signs, or otherwise authenticates, this Agreement as a borrower.
1. PROMISE TO PAY - You promise to pay $36,127.00 to the Credit Union plus interest on the unpaid balance until what you owe has been repaid. For fixed rate loans the interest rate is 7.20% per year.
Collection Costs:
You promise to pay all costs of collecting the amount you owe under this Agreement. These costs will include reasonable attorney fees not in excess of 15% of the unpaid debt after default and referral to an attorney, not a salaried employee of the credit union, unless you borrowed $1,000 or less at an interest rate greater than 10% per year.
2. PAYMENTS - You promise to make payments of the amount and at the time shown in the Truth in Lending Disclosure. You may prepay any amount without penalty. If you prepay any part of what you owe, you are still required to make the regularly scheduled payments, unless we have agreed to a change in the payment schedule. Because this is a simple interest loan, if you do not make payments exactly as scheduled, your final payment may be more or less than the amount of the final payment that is disclosed. If you elect voluntary payment protection, we will either include the premium or program fee in your payments or extend the term of your loan. If the term is extended, you will be required to make additional payments of the scheduled amount, until what you owe has been paid. You promise to make all payments to the place we choose. If this loan refinances another loan we have with you, the other loan will be canceled and refinanced as of the date of this loan. Unless otherwise required by law, payments will be applied to amounts owed in the manner we choose.
3. LOAN PROCEEDS BY MAIL - If the proceeds of this loan are mailed to you, interest on this loan begins on the date the loan proceeds are mailed to you.
4. SECURITY FOR LOAN - This Agreement is secured by all property described in the "Security" section of the Truth in Lending Disclosure. Property securing other loans you have with us also secures this loan, unless the property is a dwelling or the property is shares, dividends, deposits or interest.
5. DEFAULT - You will be in default under this Agreement if you do not make a payment of the amount required on or before the date it is due. You will be in default if you break any promise you made in connection with this loan or if anyone is in default under any security agreement made in connection with this Agreement. You will be in default if you die, file for bankruptcy, become insolvent (that is, unable to pay your bills and loans as they become due), or if you made any false or misleading statements in your loan application. You will also be in default if something happens that we believe may seriously affect your ability to repay what you owe under this Agreement or if you are in default under any other loan agreement you have with us;
6. ACTIONS AFTER DEFAULT - When you are in default, we may demand immediate payment of the entire unpaid balance under this Agreement. If we demand immediate payment, you will continue to pay interest at the rate provided for in this Agreement, until what you owe has been repaid. We may also exercise any other rights given by law when you are in default;
7. EACH PERSON RESPONSIBLE - Each person who signs, or otherwise authenticates, this Agreement will be individually and jointly responsible for paying the entire amount owed under this Agreement. This means we can enforce our rights against any one of you individually or against all of you together.
8. LATE CHARGE - If you are late in making a payment, you promise to pay the late charge shown in the Truth in Lending Disclosure. If no late charge is shown, you will not be charged one.
9. DELAY IN ENFORCING RIGHTS - We can delay enforcing any of our rights under this Agreement any number of times without losing the ability to exercise our rights later. We can enforce this Agreement against your heirs or legal representatives.
10. CONTINUED EFFECTIVENESS - If any part of this Agreement is determined by a court to be unenforceable, the rest will remain in effect.
11. NOTICES - Notices will be sent to you at the most recent address you have given us in writing. Notice to any one of you will be notice to all.
12. USE OF ACCOUNT - You promise to use your account for consumer (personal, family or household) purposes, unless the Credit Union gives you written permission to use the account also for agricultural or commercial purposes, or to purchase real estate.
13. NO ORAL AGREEMENTS - THIS NOTE CONSTITUTES A "WRITTEN LOAN AGREEMENT" PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, IF SUCH SECTION APPLIES. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
14. OTHER PROVISIONS -
Credit Union Western Sun FCU
Borrower(s) Ray Holmes
Loan No
Gerl Holmes
Acct. No
SECURITY AGREEMENT
In this Agreement all references to "Credit Union," "we," "our" or "us" mean the Credit Union whose name appears on this document and anyone to whom the Credit Union assigns or transfers this Agreement. All references to the "Loan" mean the loan described in the Loan Agreement that is part of this document. All references to "you" or "your" mean any person who signs, or otherwise authenticates, this Agreement.
1. THE SECURITY FOR THE LOAN - You give us what Is known as a security interest in the property described in the "Security" section of the Truth in Lending Disclosure that is part of this document ("the Property"). The security interest you give includes all accession. Accessions are things which are attached to or installed in the Property now or in the future. The security interest also includes any replacements for the Property which you buy within 10 days of the Loan and any extensions, renewals or refinancings of the Loan. It also includes any money you receive from selling the Property or from insurance you have on the Property. if the value of the Property declines, you promise to give us more property as security if asked to do so.
2. WHAT THE SECURITY INTEREST COVERS/CROSS COLLATERAL PROVISIONS - The security interest secures the Loan and any extensions, renewals or refinancings of the Loan. The security interest also secures any other loans, including any credit card loan, you have now or receive in the future from us and any other amounts you owe us for any reason now or in the future, except any loan secured by your principal dwelling. If the Property is household goods as defined by the Federal Trade Commission Credit Practices Rule or your principal dwelling, the Property will secure only this Loan and not other loans or amounts you owe us.
3. OWNERSHIP OF THE PROPERTY - You promise that you own the Property. You promise that no one else has any interest in or claim against the Property that you have not already told us about. You promise not to sell or lease the Property or to use it as security for a loan with another creditor until the Loan is repaid. You promise you will allow no other security interest or lien to attach to the Property either by your actions or by operation of law.
4. PROTECTING THE SECURITY INTEREST - If your state issues a title for the Property, you promise to have our security interest shown on the title. We may have to file what is called a financing statement to protect our security interest from the claims of others. You irrevocably authorize us to execute (on your behalf), if applicable, and file one or more financing, continuation, or amendment statements pursuant to the Uniform Commercial Code (UCC) in a form satisfactory to us. You promise to do whatever else we think is necessary to protect our security interest in the Property. You also promise to pay all costs, including but not limited to any attorney fees, we incur in protecting our security interest and rights in the Property, to the extent permitted by applicable law.
5. USE OF PROPERTY - Until the Loan has been paid off, you promise you will: (1) Use the Property carefully and keep it in good repair; (2) Obtain our written permission before making major changes to the Property or changing the address where the Property is kept. (3) Inform us in writing before changing your address. (4) Allow us to inspect the Property. (5) Promptly notify us if the Property is damaged, stolen or abused. (6) Not use the Property for any unlawful purpose. (7) Not retile Property in another state without telling us.
6. PROPERTY INSURANCE, TAXES AND FEES - You promise to pay all taxes and fees (like registration fees) due on the Property and to keep the Property insured against loss and damage. The amount and coverage of the property insurance must be acceptable to us. You may provide the property insurance through a policy you already have, or through a policy you get and pay for. You promise to make the insurance policy payable to us and to deliver the policy or proof of coverage to us if asked to do so.
If you cancel your insurance and get a refund, we have a right to the refund. If the Property is lost or damaged, we can use the insurance settlement to repair the Property or apply it towards what you owe. You authorize us to endorse any draft or check which may be payable to you in order for us to collect any refund or benefits due under your insurance policy.
If you do not pay the taxes or fees on the Property when due or keep it insured, we may pay these obligations, but we are not required to do so. Any money we spend for taxes, fees or insurance will be added to the unpaid balance of the Loan and you will pay interest on those amounts at the same rate you agreed to pay on the Loan. We may receive payments in connection with the insurance from a company which provides the insurance. We may monitor our loans for the purpose of determining whether you and other borrowers have complied with the insurance requirements of our loan agreements or may engage others to do so. The insurance charge added to the Loan may include (1) the insurance company's payments to us and (2) the cost of determining compliance with the insurance requirements. If we add amounts for taxes, fees or insurance to the unpaid balance of the Loan, we may increase your payments to pay the amount added within the term of the insurance or term of the Loan.
7. INSURANCE NOTICE - If you do not purchase the required property insurance, the insurance we may purchase and charge you for will cover only our interest in the Property. The premium for this insurance may be higher because the insurance company may have given us the right to purchase insurance after uninsured collateral is lost or damaged. The Insurance will not be liability insurance and will not satisfy any state financial responsibility or no fault laws.
8. DEFAULT - You will be in default if you break any promise you make or fail to perform any obligation you have under this Agreement. You will be in default if any property you have given us as security is repossessed by someone else, seized under a forfeiture or similar law, or if anything else happens that significantly affects the value of the property or our security interest in it. You will also be in default under this Agreement if the Loan is in default.
9. WHAT HAPPENS IF YOU ARE IN DEFAULT - When you are in default, we may demand immediate payment of the outstanding balance of the Loan without giving you advance notice and take possession of the Property. You agree the Credit Union has the right to take possession of the Property without judicial process if this can be done without breach of the peace. If we ask, you promise to deliver the Property at a time and place we choose. If the property is a motor vehicle or boat, you agree that we may obtain a key or other device necessary to unlock and operate it, when you are in default. We will not be responsible for any other property not covered by this Agreement that you leave inside the Property or that is attached to the Property. We will try to return that property to you or make it available for you to claim.
After we have possession of the Property, we can sell it and apply the money to any amounts you owe us. We will give you notice of any public disposition or the date after which a private disposition will be held. Our expenses for taking possession of and selling the Property will be deducted from the money received from the sale. Those costs may include the cost of storing the Property, preparing it for sale and attorney's fees to the extent permitted under state law or awarded under the Bankruptcy Code.
If you have agreed to pay the Loan, you must pay any amount that remains unpaid after the sale money has been applied to the unpaid balance of the Loan and to what you owe under this Agreement. You agree to pay interest on that amount at the same rate as the Loan until that amount has been paid.
10. DELAY IN ENFORCING RIGHTS AND CHANGES IN THE LOAN - We can delay enforcing any of our rights under this Agreement any number of times without losing the ability to exercise our rights later. We can enforce this Agreement against your heirs or legal representatives. If we change the terms of the Loan, you agree that this Agreement will remain in effect.
11. CONTINUED EFFECTIVENESS - If any part of this Agreement is determined by a court to be unenforceable, the rest will remain in effect.
12. NOTICE FOR ARIZONA OWNERS OF PROPERTY - It is unlawful for you to fail to return a motor vehicle that is subject to a security interest, within thirty days after you have received notice of default. The notice will be mailed to the address you gave us. It is your responsibility to notify us if your address changes. The maximum penalty for unlawful failure to return a motor vehicle is one year in prison and/or a fine of $150,000.00.
13. OTHER PROVISIONS
