Date: 03-09-2013

Case Style: Esperanza Rezl Estate Investments, LLC v. Dequean J. Steele

Case Number: CJ-2012-6671

Judge: Bill Graves

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Terry Stokes

Defendant's Attorney:

Description: Esperanza Rezl Estate Investments, LLC sued Dequean J. Steele on a breach of contract theory claiming:

1. Plaintiff was at all times hereinafter mentioned and now is duly organized, existing and authorized to bring this action.

2. Upon information and belief, defendant Steele was at all times hereinafter mentioned, and now is, a single person.

3. On July 15, 2010, Steele, for a good and valuable consideration, made, executed and delivered to Plaintiff, a certain written promissory note (“Note”), a true copy of which is hereto attached, marked Exhibit “A”, and made a part hereof by reference. Pursuant to the terms of the Note, Steele agreed to pay Plaintiff the sum of $94,905.00, with interest at the rate of 6.5%, in monthly installmehts as set forth therein.

4. As a part of the same transaction and to secure the payment of the Note and the indebtedness represented thereby, Steele, as the owner of the real estate hereinafter described (the “Property”), made, executed and delivered to Plaintiff, a certain real estate mortgage in writing (the “Mortgage”), and therein and thereby mortgaged and conveyed to Plaintiff the following described real estate situated in Oklahoma County, State of Oklahoma, to-wit:

Unit 12317 in Cedar Springs Condominium, a Unit Ownership Estate, according to the recorded Declaration thereof dated 1-21-81, in Book 4741, page 1526, and any and all amendments thereto, as recorded in the records of the County Clerk, Oklahoma County, State of Oklahoma, and the undivided percentage interest in the common elements appertaining thereto,

with the buildings and improvements and the appurtenances, hereditaments and all other rights thereunto appertaining or belonging, and all fixtures then or thereafter attached or used in connection with the Property and premises. The Mortgage was duly executed and acknowledged according to law, the mortgage tax duly paid thereon, and was on the 20th day of July, 2010, Ii led in the office of the County Clerk of Oklahoma County, Oklahoma, and therein recorded in Book RE1 1414, at Page 1664, which Mortgage and the record thereof is incorporated herein by reference as provided by law, a copy of which is attached hereto as Exhibit “B.”

5. Upon purchase of the Property, a Unit Ownership Estate, Steele became obligated to pay homeowners dues to Plaintiff (“HOA Dues”) in the amount of $95.00 per month.

6. Plaintiff is the present holder of the Note and Mortgage. Plaintiff has complied with all of the terms, conditions precedent and provisions of the Note and Mortgage, and is duly empowered to bring this suit.

7. The Note provides, as of the date of default, for a total monthly installment of
$599.86 to be paid to the Plaintiff until maturity on July 15, 2040.

8. The Note and Mortgage provide that if default be made in the payment of any of the monthly installments, or on failure or neglect to keep or perform any of the other conditions and covenants of the Mortgage, including payment of assessments such as the HOA Dues, the entire principal sum and accrued interest, together with all other such sums secured by the Mortgage, shall at once become due and payable, at the option of the holder thereof, and the holder shall be entitled to foreclose the Mortgage and recover the unpaid principal thereon and all expenditures of the mortgagee made thereunder, with interest thereon, and to have the Property and premises sold and the proceeds applied to the payment of the indebtedness secured thereby, together with all legal and necessary expense and all costs.

9. Default has been made upon the Note and Mortgage fri that the installment due the
15 day of July, 2011 and thereafter, as well as the HOA Dues from and after December, 2011, have not been paid. Upon default, Steele agreed to pay default interest at a rate of 10% per annum.

10. Prior to the bringing of this action, and as a necessary expense thereof, Plaintiff caused title work to be extended and certified to date at a cost which charge is a further lien secured by the Mortgage of the Plaintiff herein sued upon.

12. The Note and Mortgage provide that in case of a foreclosure of the Mortgage and as often as any proceedings shall be taken to foreclose the same, Steele will pay an attorney’s fee as therein provided, and that the same shall be a further charge and lien on the Property and premises.

13. After allowing all just credits there is due to Plaintiff on the Note and Mortgage the principal sum of $93,935.31, with 10% interest per annum thereon or as adjusted by the Note and Mortgage, late fees as provided in the Note, all from the 1 5th day of July, 2011, until paid; abstract and title expense; a reasonable attorney’s fee, and for all costs of this action, for which amounts the Mortgage is a first, prior and superior lien upon the Property and premises above described.

14. Steele is further indebted to Plaintiff for the amount of $1,045.00 from December,
2011 through October 15, 2012, for unpaid [-IQA Dues, with such amounts continuing to accrue at the monthly rate of $95.00, plus late fees and costs of collection, for which amounts the Mortgage is a first, prior and superior lien upon the Property and premises above described.

15. The Mortgage specifically provides that appraisement of the premises is expressly waived or not waived at the option of the mortgagee; that Plaintiff elects to have the Property sold with appraisement.

16. Plaintiff further alleges as follows:

a. Steele is the present record owner of the Property. Plaintiff prays that Steele be summoned in this case and be required to set up in this suit any right, title or interest claimed in and to the lands involved in this action or be forever barred from claiming any right in and to the Property.

b. Steele is obligated on the Note and has not been released from liability thereon. Plaintiff prays that Steele be summoned in this case and be required to set up in this suit any right, title or interest claimed in and to the Property or be forever barred from claiming any right in and to the Property and premises herein sued upon.

c. Defendant, Spouse, if any, of Steele, may claim some right, title lien, estate, encumbrance, claim, assessment, or interest in and to the Property by virtue of any possible homestead interest which she may have or claim to have in or to the Property and premises herein sued upon.

d. Defendants, John Doe and Jane Doe, if any and whose true and cored legal names are unknown to Plaintiff, may claim some right, title lien, estate, encumbrance, claim, assessment, or interest in and to the Property and premises herein sued upon by virtue of any interest they may claim as occupants thereof.

e. Any right, title, or interest which is or may be claimed by any Defendant is subordinate and inferior to the Mortgage lien claimed by the Plaintiff, and Plaintiff prays the Defendants be summoned in this case and be required to set up in this suit any right, title or interest claimed in and to the Property or be forever barred from claiming any right in and to the Property and premises herein sued upon.

WHEREFORE, Plaintiff prays for judgment in personam against the Defendant, Dequean J. Steele, in the principal sum of $93,935.31, with 10% interest per annum thereon, or as adjusted by the Note and Mortgage, from the 15th day of July, 2011, until paid; abstract and title expense; escrow advances if any; the sum of $1,045.00 for unpaid homeowners dues; the further sum of a reasonable attorney’s fee; and for all subsequent advances by Plaintiff, if any, for taxes, insurance premiums, or expenses necessary for the preservation of the Property, and for all costs of this action.
And for a further judgment in rem against all Defendants adjudging:

A. All Defendants be required to appear and set forth any right, title, claim or interest which they have, or may have, in and to the Property and premises; and

B. The Mortgage be foreclosed and that the same be declared a valid first, prior and superior lien upon the Property for and in the amounts above set forth, and ordering the Property and premises sold, for cash, with or without appraisement, as the Plaintiff has elected and as provided in the Mortgage and by law, subject to unpaid taxes, advancements by Plaintiff for taxes, insurance premiums, or expenses necessary for the preservation of the Property, if any, to satisfy the judgment, and that the proceeds arising there from be applied to the payment of the costs herein, and the payments and satisfaction of the judgment, Mortgage and lien of this Plaintiff, and that the surplus, if any, be paid into Court to abide the further order of the Court; and,

C. That all right, title and interest of Defendants, and each of them, if any, in and to the Property be adjudged subject, junior and inferior to the Mortgage lien and judgment of Plaintiff, and that upon confirmation of such sale the Defendants, and each of them, and all persons claiming by, through or under them since the commencement of this action, be forever barred, foreclosed and enjoined from asserting or claiming any right, title, interest, estate or equity of redemption in or to the Property and premises, or any part thereof and
That this Plaintiff have such other and further relief as may be just and equitable.

The defendant did not appear or answer.

Outcome: This matter comes on before the Court for consideration on this 15th day of February, 2013, with Plaintiff, Esperanza Real Estate Investments, LLC (“Plaintiff”), appearing through its attorney Terry Stokes; the Defendant, Dequean J. Steele, appeared not, although duly and lawfully served with summons, and is hereby adjudged to be in default.

The Court finds that the Defendant, Dequean J. Steele, was personally served with summons in the manner required by law and has failed to answer, otherwise plead or appear herein. The Court approves the service upon said Defendant as meeting the statutory requirements and said Defendant is in default and is hereby adjudged to be in default.

It appears that the Defendant, Dequean J. Steele, is not in the Military Service of the United States as reported by the Servicemember’s affidavit in accordance with the Servicemember’s Civil Relief Act of 2003 (“SCRA”) and Department of Defense Status Report, filed in this matter on January 25, 2013. Further, if said Defendant is in the military service, his rights are not prejudiced in defense of this action within the meaning of the SCRA; thatthe interest of said Defendant, hereinabove found to be in default, will not be prejudiced by a trial at this time, that no bond should be required under the SCRA, and it is hereby ordered that Plaintiff proceed to trial against said Defendant.

Thereupon, the parties so appearing, either in person or by pleading as above set forth, the Plaintiff then moved to dismiss Defendants the Spouse, if any, of DeQuean J. Steele, John Doe andJane Doe, and the Court finds that this cause should be, and hereby is dismissed against said Defendants Spouse, if any, of DeQuean J. Steele, John Doe and Jane Doe, and each of them, and the Court further finds that said Defendants in fact have no right, title or interest in or to the real estate and premises hereinafter described.

WHEREUPON, Plaintiff introduced its evidence, including its Note and Mortgage herein sued upon, and rested, and the Court hearing such evidence, and being fully advised in the premises, finds generally in favor of the Plaintiff and against the Defendant, DequeanJ. Steele, and that the allegations of Plaintiff’s Petition are true.

The Court further finds that the Defendant, Dequean J. Steele, for good and valuable consideration, made, executed and delivered to Plaintiff the Promissory Note (“Note”) and Mortgage (“Mortgage”) sued upon by Plaintiff; that Plaintiff is the owner and holder thereof entitled to enforce the same, and there is a balance due, owing and unpaid thereupon in the sum of $93,935.31, plus interest at a rate often percent (10’%) per annum, in the amount of $13,794.34 from July 15, 2011, through January 1, 201 3, as set forth in the Note and Mortgage. Plaintiff is further entitled to interest under the Note accruing thereafter at a daily rate of $25.74, the sum of $1,330.00 for unpaid homeowners dues as set forth in the Mortgage, with such dues to continue thereafter at the monthly rate of $95.00, court costs accrued and accruing in the present amount of $298.70, and the further sum of $ 2331.00 as a reasonable attorney’s fee as provided for in the Note and Mortgage, and for all advances by Plaintiff, if any, for taxes, insurance premiums, or expenses necessary for the preservation of the subject property, and for all costs of this action and any reasonable attorney fees and costs incurred during the enforcement of the judgment, and that all of said amounts are secured by the Mortgage and constitute a first, prior and superior lien upon the real estate and premises hereinafter described, and that any and all right, title or interest which the Defendant has in and to this cause or claims to have in said real estate and premises, is subsequent, junior and inferior to the Mortgage and lien of the Plaintiff.

The Court further finds that the Defendant, Dequean J. Steele, has made default in the performance of the terms and conditions of said Note and Mortgage as alleged in Plaintiff’s Petition, and the Plaintiff is entitled to the foreclosure of the Mortgage sued upon in this cause as against the Defendant in and to this cause.

The Court further finds that Plaintiff has complied with all of the terms, conditions and provisions of the Note and Mortgage.

The Court further finds that the Mortgage owned, held and sued upon by Plaintiff herein expressly waives appraisement or not, at the option of the owner and holder thereof, such option to be exercised at the time judgment is rendered herein, and that the Plaintiff elects to have the property sold with appraisement.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant, Dequean J. Steele, was personally served with summons in the manner required by law and has failed to answer, otherwise plead or appear herein. The Court approves the service upon said Defendant as meeting the statutory requirements and the Defendant is in default and is hereby adjudged to be in defau It.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff has complied with all of the terms, conditions and provisions of the above Note and Mortgage.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff, Esperanza Real Estate Investments, LLC, have judgment, in personam, of and from the Defendant, Dequean J. Steele, in the principle sum of $93,935.31, plus interest at a rate often percent (1001o) per annum, in the amount of $13,794.34 from July 15, 2011 through January 1, 2013, as set forth in the Note and Mortgage. Plaintiff is further entitled to interest accruing thereafter at a daily rate of $25.74, the sum of $1,330.00 for unpaid homeowners dues as set forth in the Mortgage, with such dues accruing thereafter at the monthly rate of $95.00, preservation expenses accrued and accruing, abstracting expenses accrued and accruing, court costs accrued and accruing in the present amount of $298.70, and the further sum of $___________ as a reasonable attorney’s fee as provided for in the Note and Mortgage, and for all advances by Plaintiff, if any, for taxes, insurance premiums, or expenses necessary for the preservation of he subject property, and for all costs of this action and any reasonable attorney fees and costs incurred during the enforcement of the judgment; and that all of said amounts are secured by said Mortgage and constitute a first, prior and superior lien upon the real estate and premises, except for unpaid real property ad valorem taxes and/or special assessments, which are superior by law, located in Oklahoma County, Oklahoma, described as follows, to-wit:
Unit 12317 in Cedar Springs Condominium, a Unit Ownership Estate, according to the recorded Declaration thereof dated 1-21-81, in Book 4741, page 1526, and any and all amendments thereto, as recorded in the records of the County Clerk, Oklahoma County, State of Oklahoma, and the undivided percentage interest in the common elements appertaining thereto,
and that any and all right, title or interest which the Defendant, Dequean J. Steele, has or claims to have, in and to said real property is subsequent, junior and inferior to the Mortgage and lien of the Plaintiff, except for unpaid real property ad valorem taxes and/or special assessments, which are superior by law.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Mortgage and lien of the Plaintiff, in the amounts hereinabove found and adjudged, be foreclosed, and a special execution and order of sale issue out of the office of the District Court Clerk in this cause, directed to the Sheriff to levy upon, advertise and sell, after due and legal appraisement, the real estate and premises hereinabove described, subject to unpaid taxes, advances by Plaintiff for taxes, insurance premiums, or expenses necessary for the preservation of the subject property, if any, and pay the proceeds of said sale to the Clerk of this Court, as provided by law, for application as follows:

1. To the payment of the costs herein accrued and accruing;

2. To the payment of the judgment lien of the Plaintiff in the amounts herein set out, and any advancements by Plaintiff for taxes, insurance premiums, or expenses necessary for the preservation of the subject property, and;

3. The balance, if any, to be paid to the Clerk of this Court, to await further Order of this Court,

said Order reserving the right of Plaintiff to recall said execution by oral announcement and/or further order of the Court prior to the sale.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that upon confirmation of said sale, Defendant Dequean J. Steele, and all persons claiming by, through or under him since the commencement of this action, or otherwise, be forever barred, foreclosed and enjoined from asserting or claiming any right, title, interest, estate, lien, or equity of redemption in and to the said real estate and premises or any part thereof, except as set forth hereinabove.

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Defendant's Experts:

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