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Date: 04-11-2013

Case Style: OPY I, LLC v. First American Title Insurance Company, Inc.

Case Number: CJ-2007-7155

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Kort Alexander Besore

Defendant's Attorney: Mark W. Kuehling for First American Title Insurance Company, Inc.

Peter William Brolick for Kenneth M. Smith

Grant E. Cheadle for 61 MM, Ltd.

Description: OPY I, LLC, sued First American Title Insurance Company, Inc. on a breach of contract theory.

This case involves the interpretation and effect of an order releasing a Lis Pendens. Prior to the sale of the subject property, the Defendant, Orhan Yavuz, filed a suit against the prior owner. As part of the relief requested, Mr. Yavuz asserted a constructive trust against certain real property which included the subject property. In addition, Mr. Yavuz filed a Lis Pendens against the real property.

At the request of the Plaintiff and as a condition to the issuance of the policy insuring the title, First American required a release of the Lis Pendens. The Court entered an order releasing and expunging the Lis Pendens filed by Mr. Yavuz. It is uncontroverted that the order terminated any right, title, and interest of Mr. Yavuz in the subject property. The order did not terminate the litigation filed by Mr. Yavuz. The action was subsequently removed to federal court and eventually dismissed. The case has been re-filed in Switzerland.

Although the Plaintiff admits that the order terminated any interest of IVIr. Yavuz in the subject property, the current motion asks the Court to enter a partial summary adjudication determining as a matter of law that First American had a duty to take additional action to confirm the effect of the prior order and to quiet the title in relation to the claims of Mr. Yavuz.

It is respectfully submitted that First American was entitled to rely upon the prior order terminating the claims of Mr. Yavuz. The very purpose of obtaining the order releasing the Lis Pendens was to permit the transfer of the property. First American was not obligated to take additional action to establish the title of the Plaintiff. To hold otherwise would mean that the prior order expunging the Lis Pendens had no force or effect.



Journal Entry of Judgment:

The Court further finds that OPY I, LLC is in possession of and vested with legal title to the real property described as: LOTS FOUR (4) AND FIVE (5), BLOCK THREE (3), WOODLAND VALLEY OFFICE PARK, AN ADDITION TO THE CITY OF TULSA, TULSA COUNTY, STATE OF OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF. (hereinafter “Subject Property”)

The Court further finds that Third Party Defendant, Orhan Yavuz, has no constructive trust or any other right, title, lien, estate, encumbrance, claim or interest in the Subject Property. The Court further finds that on August 22, 2003, the Tulsa District Court, in Case No. CJ-2002-3458, entered an Order Expunging the Second Amended and Reslated Notice of Pendency of Action (“Expungement Order”). Upon the filing of the Expungement Order, all previously filed notices of pending suit filed by Orhan Yavuz in the office of the Tulsa County Clerk were released, expunged and stricken from the records of the Tulsa County Clerk. The Expungement Order entirely terminated any binding effect of the Lis Pendens or notice of any claim of Orhan Yavuz as to any person who became a purchaser, transferee, mortgagee or other encumbrancer for value of any interest in the Subject Property, other than a party to Tulsa District Court Case No. CJ-2002-3458 or the parties to the case pending in the United States District Court for the Northern District of Oklahoma, Case No. 03-CV-586 (jointly referred to hereinafter as the “Pending Cases”).

The Court further finds that the Expungement Order was a collateral order and judgment that removed any cloud on the title to the Subject Property resulting from the Lis Pendens or the Pending Cases.

The Court further finds that Orhan Yavuz did not obtain a stay, writ of prohibition or any other order affecting the validity of the Expungement Order. As a result, after the entry of the Expungement Order, 61 MM, Ltd. was free to sell, encumber or otherwise transfer any interest in the Subject Property to any person or entity that was not a party to the Pending Cases, free and clear of any claims of Orhan Yavuz. OPY I, L.L.C. was not a party to the Pending Cases. OPY I, L.L.C. was entitled to rely upon the Expungement Order when it purchased the Subject Property from 61 MM, Ltd. The Court further finds that any other claims of right, title, lien, estate, encumbrance, or other interest in or to the Subject Property by Orhan Yavuz are without merit or foundation and that Orhan Yavuz does not have, nor did he ever have a constructive trust, or any other right, title, lien, estate, encumbrance, claim or interest in or to the Subject Property.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff, OPY I, L.L.C., is the owner of fee simple title in and to the Subject Properly and that the claims of Orhan Yavuz against the Subject Property are without merit and fail as a matter of law; that the Defendant/Third Party Plaintiff, First American, and Plaintiff, OPY I, L.LC, are entitled to judgment against Third Party Defendant, Orhan Yavuz; quieting and confirming the title of OPY, I, L.L.C. in and to the Subject Property.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Third Party Defendant, Orhan Yavuz, does not have, nor did he ever have, a constructive trust, or any other right, title, lien, estate, encumbrance, claim or interest in or to the Subject Property and that all persons claiming, by or under Third Party Defendant, Orhan Yavuz, be forever barred and enjoined from claiming any right, title or interest in and to said premises.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that there is no just reason for delay and upon the express direction of the Court, this judgment shall be filed as a final judgment, fully and finally adjudicating the claims of Orhan Yavuz in and to the Subject Property.

Outcome: 02-16-2012 DISPSJE 2 YAVUZ, ORHAN 80804395 Feb 16 2012 1:57:33:623PM - $ 0.00 CANTRELL, DAMAN: THE COURT HAS REVIEWED THE DEFENDANT FIRST TITLE INSURANCE COMPNAY'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND BRIEF IN SUPPORT AGAINST THIRD PARTY DEFENDANT YAVUZ. YAVUZ HAS NOT RESPONDED. THE COURT HAS REVIEWED THE BRIEF AND EVIDENTIARY MATERIALS SUBMITTED , INCLUDING PLEADINGS, DEPOSITIONS, AFFIDAVITS AND OTHER MATERIALS. THE GRANTING OF A SUMMARY JUDGMENT MOTION ON THE MERITS OF A CAUSE OF ACTION IS AN ADJUDICATION ON THE MERITS EVEN WHEN NO RESPONSE IS MADE TO THE MOTION. FRIEDMAN V CRAIG, 2010 OK CIV APP 83, 81 OBJ 2024 (SEPT 11, 2010). BASED ON THIS EVALUATION, THE COURT FINDS NO SUBSTANTIAL CONTROVERSY AS TO ANY MATERIAL FACT. FLEETWOOD V. CHEVRON, 2010 OK CIV. APP. 63, 81 OKLA. BAR J. (AUGUST 21, 2010). ADDITIONALLY THE MOVING PARTY HAS ADDRESSED ALL MATERIAL FACTS AND SUBMITTED SUPPORTIVE EVIDENTIARY MATERIAL. NIDER V. REPUBLIC PARKING, 169 P.3D 738 (OKLA. CIV. APP. 2007), SPIRGES' V. CIRCLE K STORES, 743 P.2D 682 (OKLA. APP. 1987), (RULE 13, DISTRICT COURT RULES). THIS COURT MAY GRANT SUMMARY JUDGMENT WITHOUT A HEARING. (NIDER, SUPRA). THEREFORE, THE MOTION FOR SUMMARY JUDGMENT IS GRANTED ON BEHALF OF THE FIRST AMERICAN. JOURNAL ENTRY TO BE TENDERED BY SAME. NOTICE MAILED TO MARK KUEHLING, KURT BESORE, GRANT CHEADLE, AND PETER BROLICK.

CANTRELL, DAMAN: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. THE COURT IS PRESENTED WITH A QUESTION OF LAW, BOTH SIDES AGREE A FIRST IMPRESSION CASE IN OKLAHOMA. THE COURT AGREES WITH THE POSITION OF THE DEFENDANT THAT THE TERMS OF THE POLICY GIVE FIRST AMERICAN THE OPTION, NOT THE DUTY, TO CONFIRM TITLE. IN THIS SITUATION THE RELEASE OF LIS PENDENS MEANT THERE WAS NO ADVERSE INTEREST TO TITLE. THEREFORE, MOTION IS GRANTED. FOR SAME REASONS, PLAINTIFF'S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT IS RESPECTFULLY DENIED. DEFENDANT TO SUPPLY JOURNAL ENTRY. NOTICE MAILED TO KORT BESORE, MARK JUEHLING, PETER BROLICK, AND GRANT CHEADLE.

Plaintiff's Experts:

Defendant's Experts:

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