United States of America v. Smith et al

Filing 40

JUDGMENT by District Judge James H. Payne: entering judgment in rem in favor of United States of America against Glen Wayne Smith, Vanessa Lynn Smith (terminates case) (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

)
Plaintiff,
)
vs.
)
)
1)GLEN WAYNE SMITH, et al.,
)
Defendants. )

CIV 11-303-JHP

JOURNAL ENTRY OF JUDGMENT
This matter comes on to be heard this

31st

day of

May ,

2012, upon the issues in plaintiff's Amended Complaint filed
herein; the plaintiff, United States of America, appearing by and
through Mark F. Green, United States Attorney for the Eastern
District of Oklahoma and Thomas M. Wright, Assistant United States
Attorney for the Eastern District of Oklahoma; and none of the
other defendants appearing either in person or by counsel, but
being wholly in default; the Court carefully inspects and examines
the files, records, and processes herein and finds that subsequent
to the filing of plaintiff's complaint in this action, finds as
follows:
The defendants, Glen Wayne Smith, Vanessa Lynn Smith, HSBC
Bank Nevada and ASSET Acceptance, LLC., were served with summons
and complaint pursuant to Rule 4 of the Federal Rules of Civil
Procedure, more than twenty (20) days prior to this date; the Court
further finds that said defendants have made default and by reason
thereof, plaintiff's Amended Complaint should be and is hereby
taken as confessed by said defendants; the Court further finds that
plaintiff has fully complied with the Soldiers and Sailors Civil
Relief Act of 1940 and the amendments thereto, and that upon motion

and affidavit properly filed therefore, this Court has made and
entered its Order directing that judgment by default be entered
against

the

defendant

not

appearing

or

otherwise

answering

plaintiff's complaint, and such Order is filed herein.
NOW, the Court proceeds instanter to consider plaintiff's
Amended Complaint, and carefully examines the exhibits attached
thereto, including the notes, real estate mortgage, and financing
statements, and upon conclusion, after being fully advised in the
premises both as to the facts and the law, finds and adjudges the
plaintiff

has

fully

sustained

all

of

the

allegations

of

its

complaint; the Court further finds that the plaintiff is entitled
to and is hereby given a judgment against the defendants, Glen
Wayne Smith and Vanessa Lynn Smith, as prayed for in plaintiff's
Amended Complaint.
And the Court more specifically finds:
That Glen Wayne Smith and Vanessa L. Smith, as set out below,
executed and delivered to plaintiff the following promissory notes
as follows:

Instrument

Date

Amount

Interest

Number of
Installments

Note
02-06-06
$50,000.00
(Executed by Glen Wayne Smith only)

4.6250%

7

Note
02-06-06
$150,000.00
(Executed by Glen Wayne Smith and Vanessa L. Smith)

5%

40

2

Further,

that

in

order

to

secure

the

payment

of

said

promissory notes, the makers thereof, made, executed and delivered
to plaintiff, their certain real estate mortgage dated and filed as
follows:
Instrument

Filed

Book

Page

Mortgage

02-07-06

753

461

Said mortgage conveyed and mortgaged to plaintiff the following
described real property situated in McCurtain County, Oklahoma, towit:
All of the NE1/4 of SE1/4 of Section 31 and all that part
of the NE1/4 lying abd being South of the Frisco
Railroad, in Sec. 31, T6S, R22E of the IBM-containing
58.57 acres
and
The NW1/4 of the SE1/4 , Sec. 31, T6S, R22E - containing
40 acres together with all the improvements thereon and
the apprutenances thereto belonging, and warrant the
title to the same-commonely described as Rt #2 Box 205 of
Valliant, Ok. 74764.
As

collateral

security

for

payment

of

the

above

listed

promissory notes, the defendants, Glen Wayne Smith and Vanessa L.
Smith, executed and delivered to plaintiff a certain security
agreement thereby creating in favor of the plaintiff, a security
interest in certain crops, livestock, farm equipment and motor
vehicles described therein.
The security interest of plaintiff in said property was
perfected by Financing Statements filed with the County Clerks of

3

the following counties on the dates indicated, and under the file
numbers indicated.
County

File
Number

11-22-05

Oklahoma

E2005014075529

11-23-05
10-20-10

Secretary of State
Oklahoma

200506308
20101020021051790

Type

Filed

EU1 Filing
EFS-1
Financing Stmt

Further, that the said defendants have defaulted in the
payment of the installments provided in said notes, mortgage and
security agreement, and have not paid the same in the amounts and
at the times they agreed to pay the same, and by reason thereof,
there is now due and owing as of October 6, 2010, the following:

GLEN WAYNE SMITH
Unpaid Principal

Unpaid Interest

$162,000.74

$30,856.05

Daily Accrual
$22.0795

VANESSA LYNN SMITH
Unpaid Principal

Unpaid Interest

$152,910.09

$29,574.43

Daily Accrual
$20.9465

Further, that the said mortgage expressly provided that if the
borrowers shall default in the payment of the debt secured thereby,
the mortgagee may foreclose said mortgage and sell the mortgaged
property at foreclosure sale and apply the proceeds from such sale
on said debt; and that appraisement of said premises is expressly

4

waived, or not waived at the option of the mortgagee and plaintiff
states that it elects to have said premises sold with appraisement.
All

cattle

secured

by

the

Security

Agreement

have

been

converted.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT:
1.

That the plaintiff have an in rem judgment against the

defendant, Glen Wayne Smith, for the sum of $162,000.74, plus
interest to October 31, 2011, in the amount of $30,856.05, plus
interest from that date at the daily rate of $22.0795, until date
of judgment and interest from date of judgment at the legal rate
until paid in full, plus all costs and expenses of this action,
plus any sums which may be advanced to preserve and protect said
real property prior to or during foreclosure sale thereof.
And

a

further

in

rem

judgment

against

Glen

Wayne

Smith

adjudging that said security agreements be foreclosed and that the
same be declared a valid first lien, prior and superior upon the
chattels and livestock described in the security agreements, and
ordering the remaining chattels sold with or without appraisement,
as plaintiff shall elect at the time judgment is rendered herein.
2.

That the plaintiff have an in rem judgment against the

defendant, Vanessa Lynn Smith, for the sum of $152,910.09, plus
interest to October 31, 2011, in the amount of $29,574.43, plus
interest from that date at the daily rate of $20.9465, until date
of judgment and interest from date of judgment at the legal rate
until paid in full, plus all costs and expenses of this action,

5

plus any sums which may be advanced to preserve and protect said
real property prior to or during foreclosure sale thereof.
And a further in rem judgment against Vanessa Lynn Smith
adjudging that said security agreements be foreclosed and that the
same be declared a valid first lien, prior and superior upon the
chattels and livestock described in the security agreements, and
ordering the remaining chattels sold with or without appraisement,
as plaintiff shall elect at the time judgment is rendered herein.
3.

That the mortgage lien of the plaintiff, United States of

America, be and the same is hereby established as a first, prior
and superior lien on the real estate and premises hereinbefore
described, and that such mortgage lien be and the same is hereby
ordered foreclosed, and the mortgaged property is hereby ordered
appraised and sold by Judicial Sale in the manner provided by said
mortgage and by the provisions of Title 28 U.S.C. §2001 et seq.
4. That should a sale and confirmation occur, the defendants,
Glen Wayne Smith, Vanessa Lynn Smith, HSBC Bank Nevada and ASSET
Acceptance, LLC, and each of them, have no right, title, or
interest in or to said mortgaged real property, or any part
thereof; and that said defendant, and each of them, and all persons
claiming by, through or under them, be and are hereby perpetually
barred, restrained and enjoined from ever claiming or asserting any
right, title or interest in or to the said mortgaged property,
hereinbefore

described,

which

is

purchaser at sale.

6

adverse

or

hostile

to

the

5.

That any one in possession of subject property should

relinquish possession upon the receiving of the journal entry of
judgment.

If such possession is not relinquished at that time, a

Writ of Assistance will be issued.
6.

That the proceeds from the sale of said mortgaged

property be applied as follows:
FIRST:

To the payment of costs of this action, and
the cost of foreclosure sale;

SECOND:

To the satisfaction of the judgment in favor
of the plaintiff as follows:

Unpaid Principal
$162,000.74

GLEN WAYNE SMITH
Unpaid Interest
$30,856.05

Daily Accrual
$22.0795

Unpaid Principal
$152,910.09

VANESSA LYNN SMITH
Unpaid Interest
$29,574.43

Daily Accrual
$20.9465

plus interest from the date of judgment at the
legal rate of .21% per annum computed daily
and compounded annually until paid in full,
plus all costs and future costs of this
action; including maintenance and protection
fees;
THIRD:

The residue, if any, to be paid into the
office of the Clerk of this Court to abide the
further Order of this Court.

APPROVED AS TO FORM:
MARK F. GREEN
United States Attorney
S/THOMAS M. WRIGHT
THOMAS M. WRIGHT OBA 20378
Assistant U.S. Attorney
1200 West Okmulgee
Muskogee, Oklahoma 74401
918-684-5113
918-684-5130 - fax
[e-mail]
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