Bancentre Corp v. Atlantic Management Corporation et al

Filing 47

ORDER granting 40 Motion for Summary Judgment. Plaintiff is directed to prepare and submit an appropriate judgment consistent with this order within 7 days. Signed by Honorable Timothy D. DeGiusti on 3/11/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BANCENTRE CORP., a
Washington Corporation,
Plaintiff,
vs
ATLANTIC MANAGEMENT
CORPORATION, an Oklahoma
corporation, et al.,
Defendants.

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NO. CIV-13-604-D

ORDER
Before the Court is Plaintiff’s motion for summary judgment [Doc. No. 40]. None of
the Defendants have responded to Plaintiff’s motion, although they were granted extensions
of time to do so. However, pursuant to Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.
2002), the Court does not deem the motion confessed but determines whether the asserted
material facts are properly supported and if so, whether those facts entitle Plaintiff to
judgment as a matter of law.
The Court finds the following material facts are properly supported and not
controverted by Defendants. Plaintiff Bancentre Corp. is the holder of four promissory notes
executed and delivered to Plaintiff by Defendant Atlantic Management Corporation (AMC).
The dates and amounts of those notes are as follows:
December 8, 2009
April 28, 2010
August 17, 2010
November 7, 2011

$2,505,000.00
$ 350,000.00
$ 500,000.00
$1,200,000.00

Plaintiff is also the holder of a promissory note dated June 2, 2011 in the amount of $500,000
executed and delivered to Plaintiff by Defendant Crown Funding, LLC (Crown). On October
2, 2009, December 8, 2009, April 28, 2010, August 17, 2010, May 31, 2011 and November
10, 2011, Defendants Wayne Copeland and Karen Copeland each individually executed
separate continuing Guaranty Agreements in favor of Plaintiff guaranteeing payment of all
amounts owed by Defendants AMC and/or Crown to Plaintiff. Defendants AMC and Crown
have each defaulted on their respective notes by failing to timely pay the required amounts
of principal and interest and other charges and expenses required under the notes and related
mortgages and have failed to cure their defaults, after required notice thereof, and are
indebted to Plaintiff for the amounts set forth below:

Note

$2,850,693.61
$ 50l,675.44
$ 632,645.29
$1,134,738.31
$5,119,752.65
$ 231,411.06

Per diem
beginning 11/1/13

$528,497.58
$ 93,581.24
$ 118,016.68
$ 210,897.40
$ 950,934.26
$ 43,171.69

Principal

AMC Note12/08/09
AMC Note 04/28/10
AMC Note 08/17/10
AMC Note 11/07/11
Total
Crown Note 06/02/11

Interest
through 10/31/13

$1,167.72
$ 206.16
$ 259.99
$ 466.33
$

95.10

Neither Wayne Copeland nor Karen Copeland has made any payments under their respective
Guaranty Agreements.
Substantially contemporaneously with execution of the notes and/or at the time of
subsequent advances made on the notes, AMC executed the following mortgages covering
the following tracts of land in favor of Plaintiff to secure the notes:

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Mortgage Date
10/02/09
12/08/09
04/28/10
08/17/10
12/15/10
12/15/10
10/28/11
05/08/12

Amount

Record Date
10/05/09
12/09/09
05/11/10
08/18/10
01/10/11
01/10/11
10/2811
05/18/12

$ 350,000.00
$2,505,000.00
$ 350,000.00
$ 500,000.00
$ 119,000.00
$ 103,000.00
$1,200,000.00
$ 500,000.00

Tract #
1
2, 3 & 4
1
5
1
5
2,3 & 4
2, 3 & 4

AMC has defaulted under each of the mortgages referenced above by defaulting on payment
of its notes identified above.
Defendant Billy E. Fowler (Fowler) claims some right, title or interest in tracts 1 and
2 mortgaged to Plaintiff, pursuant to an Assignment of Mortgage from Republic Bank &
Trust to Fowler, which assignment was recorded with the Cleveland County Clerk on
September 11, 2009. On the following dates, Fowler signed and recorded Subordination
Agreements agreeing to subordinate his mortgage interest to Plaintiff’s various mortgages,
as specified in the Subordination Agreements:
Agreement Date
10/02/2009 (Tract 1)
12/08/2009 (Tract 2)
04/24/2010 (Tract 1)
12/15/2010 (Tract 1)
11/04/2011 (Tract 2)
04/13/2012 (Tract 2)

Record Date
10/05/2009
12/09/2009
05/11/2010
01/10/2011
11/04/2011
05/18/2012

Defendant Forge Realty, LLC (Forge) claims some right, title or interest in tract 3
mortgaged to Plaintiff, pursuant to an Assignment of Mortgage from Republic Bank & Trust
to Forge, which assignment was recorded with the Cleveland County Clerk on September 15,
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2009. On the following dates, Forge signed and recorded Subordination Agreements
agreeing to subordinate its mortgage interest to Plaintiff’s various mortgages, as specified
in the Subordination Agreements:
Record Date
12/09/2009
11/04/2011
05/18/2012

Agreement Date
12/08/2009
11/04/2011
04/13/2013

Defendant G.O.P.H., LLC (GOPH) claims some right, title or interest in tract 5
mortgaged to Plaintiff, by virtue of an Assignment of Mortgage from Stillwater National
Bank & Trust Company to GOPH, which assignment was recorded with the Cleveland
County Clerk on June 5, 2009. On the following dates, GOPH signed and recorded
Subordination Agreements agreeing to subordinate its mortgage interest to Plaintiff’s various
mortgages, as specified in the Subordination Agreements:
Record Date
08/18/2010
01/10/2011

Agreement Date
08/17/2010
12/15/2010

Defendant Guenevere, Inc. (Guenevere) claims some right, title or interest in tract 4
mortgaged to Plaintiff, by virtue of an original Mortgage granted to Guenevere by AMC
recorded with the Cleveland County Clerk on January 24, 2008. On the following dates,
Guenevere signed and recorded Subordination Agreements agreeing to subordinate its
mortgage interest to Plaintiff’s various mortgages, as specified in the Subordination
Agreements:

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Agreement Date
12/07/2009
11/04/2011
04/12/2012

Record Date
12/09/2009
11/04/2011
05/18/2012

Defendant Professional Properties of Norman, Inc. (PPN) claims some right, title or
interest in tracts 2, 3 and 4 mortgaged to Plaintiff, pursuant to an original mortgage granted
to PPN by AMC recorded with the Cleveland County Clerk on February 4, 2008. On the
following dates, PPN signed and recorded Subordination Agreements agreeing to subordinate
its mortgage interest to Plaintiff’s various mortgages, as specified in the Subordination
Agreements:
Record Date
12/09/2009
11/07/2011
05/18/2012

Agreement Date
12/07/2009
11/04/2011
04/17/2012

To secure payment of the June 2, 2011 note from Crown to Plaintiff, Crown
contemporaneously executed and delivered to Plaintiff on June 2, 2011 a Security Agreement
granting Plaintiff a security interest in collateral consisting generally of restaurant furniture,
fixtures and equipment installed or located in the restaurant property. Crown has admitted
that the Agreement grants Plaintiff a special ownership interest in the collateral in the event
of default, and further admits that Plaintiff is now entitled, in view of the admitted default,
to take possession of the collateral and dispose of it in a commercially reasonable manner.
Defendants Williams Automatic Sprinkler, LLC (Williams), Samuel Ray Adams
(Adams), and Blanchard Building Center, Inc. (Blanchard) may claim some interest in the

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mortgaged property by virtue of mechanics’ or materialmen’s liens. Defendant THJ Realty,
LLC (THJ) may claim some interest in the mortgaged property by virtue of a judgment lien.
The mechanics’ and materialmen’s liens are subordinate to Plaintiff’s mortgages. Adams’
lien is subordinate because it has lapsed inasmuch as he did not sue to foreclose his lien
within one year after the date of the filing, see Okla. Stat. tit. 42, §§ 149 & 172, and because
Adams’ lien rights could not have attached until after November 14, 2011 when he entered
into a contract to perform work for Defendant Wayne Copeland and his affiliated company.
See American First Title & Trust Co. v. Ewing, 403 P.2d 488 (Okla. 1965). Williams’ lien
claim on the mortgaged property is subordinate to Plaintiff because in its Answer Williams
“disclaims its interest in the above styled litigation and real property which is the subject of
the instant foreclosure action.” Blanchard’s lien claim is subordinate to Plaintiff’s mortgages
because Blanchard has defaulted in this case, see Entry of Default [Doc. No. 36], and by
virtue thereof Blanchard has confessed Plaintiff’s allegations and claim for relief. THJ
claims a lien pursuant to an assignment of judgment from Slagi, LLC taken against AMC,
as evidenced by the original Statement of Judgment filed on October 11 2012, which was
subsequent to the recording of all of Plaintiff’s mortgages. Therefore, pursuant to Okla. Stat.
tit. 42, § 15, THJ’s judgment lien is subordinate to Plaintiff’s mortgages.
Based upon the foregoing undisputed material facts, the Court concludes that Plaintiff
is entitled to judgment as a matter of law on its Complaint herein. Plaintiff as the holder of
promissory notes from AMC and Crown, who are in default, is entitled to enforce the notes

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against those Defendants. Therefore, Plaintiff is entitled to in personam money judgments
against those Defendants in the amounts, which are undisputed, as set forth above. Plaintiff
is also entitled to in personam money judgments against Defendants Wayne Copeland and
Karen Copeland, jointly and severally, for the indebtedness of both AMC and Crown.
Plaintiff is also entitled to judgment in rem determining that all of Plaintiff’s mortgages are
valid, prior and superior to the claims of AMC; to the claims of Defendants Fowler, Forge,
GOPH, Guenevere and PPN by virtue of Subordination Agreements those parties signed; and
to the lien claims of Defendants Williams, Adams, Blanchard and THJ, and for foreclosure
of Plaintiff’s mortgages. Plaintiff is also entitled to an in rem judgment determining that the
right, title and interest of any and all persons or parties claiming by or through any of the
Defendants (except the Cleveland County Treasurer and Commissioners to the extent of any
valid ad valorem tax claims) are subject, junior and inferior to Plaintiff’s mortgage liens, and
that such persons and entities are forever barred from asserting any claims against Plaintiff’s
interest in the mortgaged properties. In addition, Plaintiff is entitled to judgment in rem
determining that Plaintiff’s security interest in the personal property collateral described
herein pledged to Plaintiff by Crown is valid, prior and superior to any claim or interest held
or alleged by Crown or AMC, foreclosing the security interest and ordering that possession
of the collateral be delivered to Plaintiff for disposition in a commercially reasonable
manner, with the proceeds to be applied first to the costs of that disposition, and then in
satisfaction of Plaintiff’s money judgment against Crown.

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In addition, Plaintiff is entitled to a money judgment for its costs herein, and such
other costs and expenses as allowed pursuant to the notes, mortgages, security agreement,
or as allowed by law. Finally, Plaintiff is entitled to a money judgment for a reasonable
attorney’s fee incurred in connection with this case and as allowed pursuant to the notes,
mortgages, security agreement, or by law, subject to a proper motion for attorney fees by
Plaintiff.
In accordance with the foregoing, Plaintiff’s motion for summary judgment [Doc. No.
40] is GRANTED. Plaintiff is directed to prepare and submit to the Court within 7 days an
appropriate judgment consistent with this Order.
IT IS SO ORDERED this 11th day of March, 2014.

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