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Date: 11-05-2013

Case Style: Fraces L. Mendoza v. Debborah D. Moran

Case Number: CJ-2012-4244

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: James J. Proszek

Defendant's Attorney: Justin Brian Munn and Elizabeth Wells Burden

Description: Fraces L. Mendoza sued Debborah D. Moran on an auto negligence theory claiming:

1. Mendoza is, and at all times relevant to this action was, a resident of Tulsa County, Oklahoma.

2. Moran is, and at all times relevant to this action was, a resident.of TulsjDounty, Oklahoma.

3. The real property which is the subject of this action is located in Tul$County, Oklahoma.

4. The contract giving rise to this action was made in Tulsa County, Oklahoma.

5. Venue is therefore proper in this Court pursuant to 12 OkIa. Stat. § § 131(1 )(a), (d), 139.

FACTUAL BACKGROUND

6. Mendoza and Moran are sisters.

7. Prior to July 25, 2007, Mendoza had legal and equitable title in fee simple of the following-described real property: Lot 11, Block 4, Rustic Meadows AMD, Tulsa County, Oklahoma, a/Ida 8021 South 77th East Avenue (the “Real Property”).

8. At that time, the Real Property had a value of approximately $97,000.00. There were no liens or encumbrances against the Real Property.

9. At that time, Mendoza also owned a substantial amount of personal property, including, but not limited to, furniture, appliances, tools, electronic equipment, housewares and jewelry which was located within the residence on the Real Property (the “Personal Property”).

10. At that time, Mendoza, who was 60 years old and not in good health, was facing a two-year period of incarceration.

11. At that time, Mendoza had a grandson, Kecgan James Patrick Darby (“Darby”) who was 14 years old.

12. At that time, Mendoza lived alone in the Real Property. In light of her pending incarceration, Mendoza needed someone to care for the Real Property and safeguard the Personal Property during her impending two-year period of incarceration.

13. Given her poor health, as well as concerns of the dangers she would face during her impending two-year period of incarceration, Mendoza was extremely concerned that she would die during that two-year period of incarceration.

14. At that time, it was Mendoza’s desire that if she died during the two-year period of incarceration, the Real Property and the Personal Property would be conveyed to Darby when Darby reached the age of 25.

15. In light of these circumstances, in or around July 2007, Mendoza entered into an oral contract with Moran. Pursuant to this oral contract, Moran was to watch over and maintain the Real Property and safeguard the Personal Property.

16. In the event that Mendoza died during her two-year period of incarceration, Moran was to attempt to lease the Real Property until Darby reached the age of 25 and divide any rent received from the lease of the property among Moran, Darby and Mendoza’s other sister, Jude Mendoza. When Darby reached the age of 25, the Real Property and the Personal Property were to be conveyed to Darby.

17. In order to facilitate this oral contract, on or about July 25, 2007, Mendoza executed a quit claim deed conveying bare legal title to the Real Property to Moran.

18. Both Mendoza and Moran understood and agreed that Mendoza retained equitable title to the Real Property.

19. In the event Mendoza survived her two-year period of incarceration, Moran would, upon Mendoza’s release from the Tulsa County Jail, re-convey legal title to the Real Property to Mendoza.

20. In May 2007, Mendoza began her two-year period of incarceration in the Tulsa County Jail.

CLAIMS FOR RELIEF

21. Mendoza repeats the allegations in paragraphs 1 through 20 above and incorporates them by reference into her claims for relief.

22. In October 2009, Mendoza was released from prison.

23. Upon her release from prison, Mendoza requested that Moran reconvey legal title to Real Property to Mendoza. Despite repeated demands from Mendoza, Moran has refused to do so.

24. Upon her entry into the residence on the Real Property in October 2009, Mendoza also discovered that Moran had failed to safeguard the Personal Property and had allowed that Personal Property to be removed from the residcnce on the Real Property.

25. Mendoza has paid the property taxes on the Real Property for 2007, 2009, 2010 and 2011.

26. As a result of Moran’s breach of her oral contract with Mendoza, Mendoza has been deprived of legal title to the Real Property which is valued at approximately $97,000.00.

This has resulted in damages to Mendoza of approximately $500.00 representing additional property taxes Mendoza has had to pay due to the inability to claim a homestead exemption.

27. It has also placed the Real Property at risk because without legal title, Mendoza cannot obtain insurance coverage on the Real Property.

28. As a result of Moran’s breach of the parties’ oral contract, Mendoza has also suffered damages of at least $25,900.00 representing the value of the Personal Property which Moran failed to safeguard.

WHEREFORE, Mendoza respectfully requests judgment in her favor against Moran:

(1) declaring that Mendoza is the equitable owner of the Real Property; (2) declaring that Moran, as the trustee of a resulting trust that arose in July 2007, holds legal title to the Real Property in trust for Mendoza, the beneficiary of that resulting trust; (3) requiring Moran to immediately convey legal title to the Real Property to Mendoza; (4) awarding Mendoza damages of $26,400.00 or such other amount as is proved at trial; (5) awarding Mendoza all costs of this action, including a reasonable attorney’s fee; and (6) awarding Mendoza such other and further relief as this Court deems just and equitable.

Outcome: Agreed Journal Entry of Judgment:

1. Defendant shall convey all right, title and interest in and to the real property which is the subject of this action, to wit, Lot 11, Block 4, Rustic Meadows AMD, Tulsa County, Oklahoma, alk!a 8021 South 77th East Avenue (the “Real Property”), to Plaintiff by means of a quit claim deed;

2. Defendant is awarded judgment against Plaintiff in the amount of $6,000.00 on Defendant’s counterclaim (“Defendant’s Judgment”), which judgment shall bear interest from the date ofjudgment until satisfied at the rate of 5.25% per annum.

3. Upon filing in the records of the Tulsa County, Oklahoma Clerk as required by 12 Okla. Stat. § 706, Defendant’s Judgment shall constitute a lien upon the Real Property (the “Judgment Lien”).

4. Defendant shall take no action to collect or enforce the Defendant’s Judgment or to foreclose the Judgment Lien until such time as the sale or other transfer of the Real Property or the death of the Plaintiff.

5. Notwithstanding anything to the contrary in 12 Okia. Stat. § 735 and/or 42 Okla. Stat. § 35, the mere passage of time shall not extinguish or otherwise bar Defendant’s right to collect or enforce Defendant’s Judgment or foreclose the Judgment Lien upon: (a) the sale or other transfer of the Real Property, or (b) the death of the Plaintiff.

6. Plaintiff shall have the right at any time to satisfy Defendant’s Judgment and obtain a release of Defendant’s Judgment and the Judgment Lien by payment of the principal amount of the Defendant’s Judgment and accrued interest.

7. Each party shall bear their own attorney’s fees and costs.

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