Date: 02-18-2013

Case Style: BOKF, N.D. d/b/a Bank of Oklahoma v. Oxymagic Franchise Development Corp.

Case Number: CJ-2012-5675

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Scott F. Lehman

Defendant's Attorney:

Description: BOKF, N.D. d/b/a Bank of Oklahoma sued Oxymagic Franchise Development Corp., David Iseley aka David Allen Iseley on breach of contract theory claiming:

1. The Plaintiff, BOKF, is a banking corporation licensed to conduct business inthe State of Oklahoma

2 Defendant, OxyMagic Franchise Development, Corp (hereinafter known as “OxyMagic”), is an Oklahoma corporation with its principle place of business located inTulsa County.

3. Defendant, David Iseley a/k/a David Allen Iseley (hereinafter known as “David Iseley”), is an individual residing in Tulsa County.

4. The claims alleged herein arise out of Defendants breach of a Promissory Note (hereinafter referred to as “Note”), breach of a Commercial Security Agreement (hereinafter referred to as “Agreement”) and breach of a Commercial Guaranty (hereinafter referred to as “Guaranty”). Said Note, Agreement and Guaranty were executed in Tulsa, Oklahoma.

5. Jurisdiction and venue are properly vested with this Court.

COUNT I

BREACH OF NOTE

6. BOKF re-alleges and incorporates by reference all allegations made in Paragraphs
1-5 herein and further alleges and states the following:

7. On or about March 17, 2008, the Defendant, OxyMagic, by and through its President David Iseley, for good and valuable consideration, executed a Note in the principal sum of $40,000.00, with interest thereon at the initial contract rate of 8.5% per annum. A true and correct copy of the Note is attached hereto as Exhibit “A”.

8. Defendant, OxyMagic, has failed to make timely payments pursuant to the terms of the Note and is therefore in default.

9. After allowing all just credits, there is due to Plaintiff on said Note the sum of
$26,223.88, with accrued interest in the amount of $700.91 and interest thereon at 18.00% per annum from October 19, 2012, until paid; late charges in the amount of $220.48, expenses in the amount of $85.00, costs accrued and accruing, reasonable attorney’s fee, and all other allowable expenses.

WHERFORE, premises considered, BOKF, N.A. d/b/a Bank of Oklahoma, successor by merger to Bank of Oklahoma, N.A., demands judgment against the Defendant, OxyMagic, for the sum of $26,223.88, with accrued interest in the amount of $700.91 and interest thereon at 18.00% per aimum from October 19, 2012, until paid; late charges in the amount of $220.48, expenses in the amount of $85.00, costs accrued and accruing, reasonable attorney’s fees provided for by the terms of the Note and any other relief this court deems just and proper.

COUNT II

BREACH OF GUARANTY

10. BOKF re-alleges and incorporates by reference all allegations made in Paragraphs
1-9 herein and further alleges and states the following:
11. As further inducement to extend credit to OxyMagic, Defendant David Iseley signed, executed and delivered a Commercial Guaranty in favor of BOK. A true and correct copy of the Commercial Guaranty is attached hereto as Exhibit “B”.

12. Plaintiff has made proper demand on Defendant for payment, but Defendant has failed to satisfy his obligations pursuant to the terms of the Guaranty and is therefore in default under the terms of the Guaranty.

WHEERFORE, premises considered, BOKF, N.A. d/b/a Bank of Oklahoma, successor by merger to Bank of Oklahoma, N.A., demands judgment against the Defendant, David Iseley a/k/a David Allen Iseley for the sum of $26,223.88, with accrued interest in the amount of $700.91 and interest thereon at 18.00% per annum from October 19, 2012, until paid; late charges in the amount of $220.48, expenses in the amount of $85.00, costs accrued and accruing, attorneys fees provided for by the terms of the Note and Commercial Guaranty and any other relief this court deems just and proper.

COUNT III

REPLEVIN

13. BOKF re-alleges and incorporates by reference all allegations made in Paragraphs
1-12 herein and further alleges and states the following:

14. As further inducement to approve the Note the Defendant, OxyMagic, executed a Commercial Security Agreement granting BOK a security interest in the following general business assets:

All Inventory, Chattel Paper, Accounts, Equipment, and General Intangibles. In addition, the word “Collateral” also includes all of the following, whether now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located:

(A) All accessions, attachments, accessories, tools, parts, supplies, replacements of and additions to any of the collateral described herein, whether added now or later.

(B) All products and produce of any of the property described in this Collateral section.

(C) All accounts, general intangibles, instruments, rents, monies, payments, and all other rights, arising out of a sale, lease, consignment or other disposition of any of the property described in this Collateral section.

(D) All proceeds (including insurance proceeds) from the sale, destruction, loss or other disposition of any of the property described in this Collateral section, and sums due from a third party who has damaged or destroyed the Collateral or from that party’s insurer, whether due to judgment, settlement or other process.

(E) All records and data relating to any of the property described in this Collateral section, whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together with all of Grantor’s right, title and interest in and to all computer software required to utilize, create, maintain, and process and such records or data on electronic media.

See Exhibit “C”.

15. On March 26, 2008, BOKF perfected its security interest in the general business assets by filing a UCC-1 financing statement with the Oklahoma County UCC Central filing office. A true and correct copy of the UCC-1 filing is attached as Exhibit “D”.

16. BOKF has made proper demand for payment under the terms of the Note and Commercial Security Agreement.

17. Accordingly, BOKF is filing this action to recover the general business assets pledged by Defendant OxyMagic as security for the Note.

18. BOKF is entitled to reasonable attorney fees and its other reasonable costs associated in the collection of this matter pursuant to 12 O.S. § 936 and 12 O.S. § 1580.

19. Because of Defendant OxyMagic’s default under the Note and Agreement, BOKF has a special ownership or interest in the business assist pledged as security and is entitled to immediate possession of these items.

20. Actual value of the business assets is unknown.

21. The business assets have not been taken in execution on any Order or Judgment against BOKF or for the payment of any tax, fine or amercement assessed against BOK, or by virtue of an Order of Delivery issued under Chapter 31 of Title 12 of the Oklahoma Statutes, or any mesne or final process issued against BOKF; or, if taken in execution on any order or judgment against Plaintiff, that is exempt by law from being so taken.

22. BOKF believes that Defendant OxyMagic is in actual or constructive possession of the general business assets and that Defendant’s possession is subject to the rights of BOK.

Defendant, OxyMagic, has failed to deliver or relinquish possession of the general business assets to BOKF and is, therefore, wrongfully detaining the general business assets.

23. BOKF believes that Defendant OxyMagic may attempt to conceal damage or destroy the general business assets or remove them from the state or county and BOKF will thereby suffer irreparable harm. BOKF is without adequate remedy at law to prevent such harm and injury.

24. BOKF hereby requests the issuance of an Order of Delivery for the recovery of the general business assets. BOKF further requests the Clerk of this Court issue a Notice to be served upon Defendant OxyMagic, which notice shall notify Defendant that: i) an Order of Delivery of the general business assets is sought; ii) Defendant has the right to object by written response filed with the Court Clerk and delivered or mailed to BOKF’s attorney within (5) days after service of the Petition; and , iii) the Order of Delivery shall be issued by the Clerk in the
event no written response is filed within the (5) day period.

25. As a result of Defendant OxyMagic’s failure to comply with the terms of the
Note and Commercial Security Agreement, BOKF has suffered a loss in the $26,223.88, with
accrued interest in the amount of $700.91 and interest thereon at 18.00% per annum from
October 19, 2012, until paid; late charges in the amount of $220.48, expenses in the amount of
$85.00.

WHEREFORE, BOK demands:

A. That the Clerk of the Court issue the above-described Notice to Defendants;

B. That this Court enter a money judgment in favor of BOKF and against Defendants
OxyMagic Franchise Development, Corp. and David Iseley a/k/a David Allen
Iseley in the amount of $26,223.88, with accrued interest in the amount of
$700.91 and interest thereon at 18.00% per annum from October 19, 2012, until
paid; late charges in the amount of $220.48, expenses in the amount of $85.00, plus BOKF’s costs and reasonable attorney’s fees;

C. That the Court issue an Order for the immediate delivery of the collateral to BOKF; and

D. That the Court render judgment in favor of BOKF and against Defendants for the possession of the collateral, decreeing that BOKF’s interest in the above- described collateral is senior and prior to the interest of Defendants and authorizing the foreclosure of BOK’ s security interest in the collateral.

Defendants did not appear or answer.

Outcome: Judgment in favor of Plaintiff for $26,223.88.

Plaintiff's Experts:

Defendant's Experts:

Comments: