Bancentre Corp v. Atlantic Management Corporation et al

Filing 48

JUDGMENT in favor of Bancentre Corp against 5 Crown Funding LLC, Atlantic Management Corporation, Blanchard Building Center Inc, Guenevere Inc, Karen L Copeland, Wayne E Copeland, Jr. Signed by Honorable Timothy D. DeGiusti on 4/9/2014. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BANCENTRE CORP., a Washington
corporation,
Plaintiff,
Case No. CIV-13-604-D

v.
ATLANTIC MANAGEMENT
CORPORATION, an Oklahoma
corporation, et al.
Defendants.

JUDGMENT
By Order entered on March 11, 2014 [Doc. No. 47], the Court granted Plaintiff’s
Motion for Summary Judgment on all claims against all parties. In accordance therewith, the
Court hereby enters judgment for Plaintiff as hereafter set forth, as required by Fed. R. Civ.
P. 58(a). All findings and conclusions in the Court’s Order are incorporated herein by
reference. The Court further FINDS AND ORDERS AS FOLLOWS:
1.

The citizenship of Plaintiff is diverse from the citizenship of all Defendants,

and therefore this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
2.

All Defendants reside or may be found within this judicial district, and the real

property that is the subject of Plaintiff’s foreclosure action is located in Cleveland County,
Oklahoma, within this judicial district. The events giving rise to Plaintiff’s claims for relief
occurred within this judicial district. Venue is therefore proper pursuant to 28 U.S.C. § 1391,
and no party has objected to such venue.

3.

Each of Defendants has been personally served with Summons and Plaintiff’s

Complaint, or has otherwise entered an appearance. By virtue of such service, and/or the
voluntary appearance of Defendants herein, the Court has personal jurisdiction over all of the
parties to grant the relief requested by Plaintiff, and no party has objected to personal
jurisdiction.
4.

On December 8, 2009, Defendant Atlantic Management Corporation (“AMC”)

executed and delivered to Plaintiff a promissory note in the original face amount of
$2,505,000, which provided for interest as stated therein, required monthly installment
payments to be made beginning on a date certain, matured on a date certain, and was secured
by real estate mortgages, as hereafter set forth, and the personal guaranties of Defendants
Wayne Copeland and Karen Copeland, as hereafter set forth. AMC has defaulted on the note
and failed to cure such default, and therefore, Plaintiff is entitled to an in personam judgment
against AMC for all amounts due thereunder. AMC owes Plaintiff under this note the
principal amount of $2,850,693.61, plus accrued interest through October 31, 2013, of
$528,497.58, and interest thereafter, beginning on November 1, 2013, at the per diem rate
of $1,167.72.
5.

On April 28, 2010, AMC executed and delivered to Plaintiff a promissory note

in the original face amount of $350,000, which provided for interest as stated therein,
required monthly installment payments to be made on a date certain, matured on a date
certain, and was secured by real estate mortgages, as hereafter set forth, and the personal
guaranties of Defendants Wayne Copeland. and Karen Copeland, as hereafter set forth.
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AMC has defaulted on the note and failed to cure such default, and therefore, Plaintiff is
entitled to an in personam judgment against AMC for all amounts due thereunder. AMC
owes Plaintiff under this note the principal amount of $501,675.44, plus accrued interest
through October 31, 2013, of $93,581.24, and interest thereafter, beginning on November 1,
2013, at the per diem rate of $206.16.
6.

On August 17, 2010, AMC executed and delivered to Plaintiff a promissory

note in the original face amount of $500,000, which provided for interest as stated therein,
required monthly installment payments to be made on a date certain, matured on a date
certain, and was secured by real estate mortgages, as hereafter set forth, and the personal
guaranties of Defendants Wayne Copeland and Karen Copeland, as hereafter set forth. AMC
has defaulted on the note and failed to cure such default, and therefore Plaintiff is entitled to
an in personam judgment against AMC for all amounts due thereunder. AMC owes Plaintiff
under this note the principal amount of $632,645.29, plus accrued interest through
October 31, 2013, of $118,016.68, and interest thereafter, beginning on November 1, 2013,
at the per diem rate of $259.99.
7.

On November 7, 2011, AMC executed and delivered to Plaintiff a promissory

note in the original face amount of $1,200,000, which provided for interest as stated therein,
required monthly installment payments to be made on a date certain, matured on a date
certain, and was secured by real estate mortgages, as hereafter set forth, and the personal
guaranties of Defendants Wayne Copeland and Karen Copeland, as hereafter set forth. AMC
has defaulted on the note and failed to cure such default, and therefore, Plaintiff is entitled
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to an in personam judgment against AMC for all amounts due thereunder. AMC owes
Plaintiff under this Note the principal amount of $1,134,738.31, plus accrued interest through
October 31, 2013, of $210,897.40, and interest thereafter, beginning on November 1, 2013,
at the per diem rate of $466.33.
8.

To secure the payment of each of the notes referenced above, and all other

liabilities and obligations owed by AMC to Plaintiff, contemporaneously with the execution
of the notes and/or upon subsequent advancements made under each of the notes, for good
and valuable consideration, AMC executed various mortgages. Each of the mortgages was
signed, attested, and acknowledged according to law, duly recorded with the Cleveland
County Clerk, and covered the following real property:
(a)

mortgage dated December 8, 2009, recorded December 9, 2009, at Bk. 4696,

Pg. 777 et seq.; mortgage dated October 28, 2011, recorded October 28, 2011, at Bk. 4928,
Pg. 257 et seq.; and mortgage dated May 18, 2012, recorded May 18, 2012, at Bk. 5005,
Pg. 1433 et seq., each of which mortgages covered the real property described as “Tract 1”
on Exhibit A attached hereto;
(b)

mortgage dated October 2, 2009, recorded October 5, 2009, at Bk. 4673,

Pg. 1136 et seq.; mortgage dated April 28, 2010, recorded May 11, 2010, at Bk. 4743,
Pg. 243 et seq.; and mortgage dated December 15, 2010, recorded January 10, 2011, at
Bk. 4829, Pg. 1046 et seq., each of which mortgages covered the real property described as
“Tract 2” on Exhibit A attached hereto; and

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(c)

mortgage dated August 17, 2010, recorded August 18, 2010, at Bk. 4776,

Pg. 1187 et seq.; and mortgage dated December 15, 2010, recorded January 10, 2011, at
Bk. 4829, Pg. 1090 et seq., each of which mortgages covered the real property described as
“Tract 3” on Exhibit A attached hereto. (The mortgages described on Exhibit A are
collectively referred to hereafter as the “Property.”)
9.

As a result of AMC’s default on its indebtedness owed to Plaintiff, Plaintiff is

entitled to an in rem judgment foreclosing all of its mortgages set forth above, including all
improvements, fixtures and personal property situated thereon or affixed thereto, as more
specifically ordered below.
10.

On June 2, 2011, Defendant 5 Crown Funding, LLC (“Crown”) executed and

delivered to Plaintiff a promissory note in the original face amount of $500,000, which
provided for interest as stated therein, required monthly installment payments to be made on
a date certain, matured on a date certain, and was secured by a security agreement, as
hereafter set forth, and the personal guaranties of Defendants Wayne Copeland and Karen
Copeland, as hereafter set forth. Crown has defaulted on the note and failed to cure such
default, and therefore, Plaintiff is entitled to an in personam judgment against Crown for all
amounts due thereunder. Crown owes Plaintiff under this note the principal amount of
$231,411.06, plus accrued interest through October 31, 2013, of $43,171.69, and interest
thereafter, beginning on November 1, 2013, at the per diem rate of $95.10.
11.

To secure the payment of the note from Crown, Crown contemporaneously

executed and delivered to Plaintiff a security agreement granting Plaintiff a security interest
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in collateral consisting generally of restaurant furniture, fixtures and equipment installed or
located on the property, more specifically described on Exhibit B attached hereto
(“Collateral”). The security agreement was properly executed and perfected in accordance
with law by filing with the Cleveland County Clerk. The Collateral was not taken in
execution on any order or judgment, or for the payment of any tax, fine or amercement
assessed against Plaintiff or pursuant to any other process issued against Plaintiff.
12.

As a result of Crown’s default on its note to Plaintiff, Crown has breached the

conditions of its security agreement, and therefore Plaintiff is entitled to an in rem judgment
foreclosing its security interest against the Collateral, and authorizing Plaintiff to take
possession thereof and sell it as authorized by law, as more specifically ordered below.
13.

By filing made on October 8, 2013 [Doc. No. 36], the Clerk has entered default

against Defendants Blanchard Building Center, Inc. and Guenevere, Inc. for failure to appear,
plead or otherwise defend in this action. Plaintiff is therefore entitled to an in rem judgment
against each of these Defendants to the extent that either of them has or may claim any right,
title, lien or interest in the Property. The Court hereby adopts and incorporates that Order
by reference, and confirms that whatever claim, right, title, lien or interest either of these
parties may have or assert in the Property is subordinate to Plaintiff’s mortgages. If any
proceeds from the sale of the Property, as hereafter ordered, remain after satisfaction of all
debts and amounts owed to Plaintiff, or any other party with a prior interest in the Property
as found herein, such proceeds shall remain with the Court to be subject to any claim that
either of these parties may then prove upon proper notice and hearing.
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14.

Defendants G.O.P.H., LLC, Billy E. Fowler, Forge Realty, LLC and

Professional Properties of Norman, Inc. each claim or may claim some right, title, claim or
interest in the Property, or some part thereof, pursuant to mortgages granted to these parties,
or their assignors, by AMC. Pursuant to multiple subordination agreements executed by each
of these Defendants, which were acknowledged according to law and filed with the
Cleveland County Clerk, each of these Defendants agreed to subordinate its mortgages to the
mortgages AMC granted the Plaintiff. Each of the subordination agreements is valid and
enforceable in all respects. As a result, Plaintiff’s eight mortgages on the Property are all
entitled to priority over whatever mortgage interest is claimed by each of the subordinating
Defendants. If any proceeds from the sale of the Property, as hereafter ordered, remain after
satisfaction of all debts and amounts owed to Plaintiff, or any other party with a prior interest
in the Property, such proceeds shall remain with the Court and be subject to any claim that
any of these subordinating Defendants may then prove upon proper notice and hearing.
15.

Defendants William’s Automatic Sprinkler, LLC, Samuel Ray Adams

(individually or as agent for Superior Stainless, Inc.), and THJ Realty, LLC claim or may
claim some right, title, lien or interest in the Property by virtue of materialman’s lien claims
or assignment of a judgment lien. Any such lien claims are subordinate to Plaintiff’s
mortgages. If any proceeds from the sale of the Property, as hereafter ordered, remain after
satisfaction of all debts and amounts owed to Plaintiff, or any other party with a prior interest
in the Property as found herein, such proceeds shall remain with the Court and be subject to
any claim that any of these parties may then prove upon proper notice and hearing.
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16.

Defendants County Treasurer and Board of County Commissioners for

Cleveland County, Oklahoma, claim or may claim some right, title, claim, lien or interest in
the Property for unpaid ad valorem taxes assessed against the Property. To the extent any
such real estate taxes are due and payable as of the time of the confirmation of the sale of the
Property, as ordered below, such outstanding taxes shall constitute a first and prior lien
against the Property, superior to Plaintiff’s mortgages, and shall be paid from the proceeds
of the sale, as provided below.
17.

Defendants Wayne Copeland and Karen Copeland each individually executed,

on multiple dates, separate continuing guaranty agreements in favor of Plaintiff guaranteeing
all amounts owed by AMC and/or Crown. Each of the guaranty agreements was supported
by contemporaneous and adequate consideration, and is otherwise valid and enforceable
against each of these Defendants. As a result, Plaintiff is entitled to an in personam
judgment against Defendants Wayne Copeland and Karen Copeland, jointly and severally,
for the full amount owed by AMC and Crown, as hereafter ordered.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff have
judgment, in personam, against Atlantic Management Corporation on all of Plaintiff’s notes,
in the total principal amount of $5,119,752.65, plus interest accrued thereon through October
31, 2013 of $950,934.26, and thereafter accruing, beginning November 1, 2013, at the per
diem rate of $2,100.20 until the date of entry of this judgment, plus any other costs and
expenses allowed in the notes and mortgages, or as allowed by law, including in particular
any amounts paid by Plaintiff for insurance, taxes and utilities on the Property not included
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in principal amount stated above, and which accrue on or before the date of confirmation of
the sale of the Property, as hereafter ordered, and post-judgment interest as provided by law.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff have
judgment, in personam, against 5 Crown Funding, LLC on Crown’s Note, in the total
principal amount of $231,411.06, plus interest accrued thereon through October 31, 2013 of
$43,171.69, and interest accruing thereafter, beginning November 1, 2013, at the per diem
rate of $95.10, until the date of entry of this judgment, plus any other costs and expenses
allowed in the notes and security agreements, or as allowed by law, including in particular
any amounts paid by Plaintiff for insurance, taxes and preservation of the Collateral, not
included in principal amount stated above, and which accrue on or before the date of
confirmation of the sale of the Collateral, and post-judgment interest as provided by law.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff’s security
interest in the Collateral pledged by 5 Crown Funding, LLC, as described on Exhibit B
attached hereto, is a valid and prior lien against the Collateral, as against Crown’s right, title,
claim or interest therein, and that such security interest is hereby ordered foreclosed. 5
Crown Funding, LLC is ordered to deliver immediate possession of the Collateral to the
Plaintiff, pursuant to which Plaintiff may proceed to sell or dispose of such Collateral as
allowed by law. Subject to any claim and priority that any other party may establish in the
Collateral, the proceeds from the sale or other disposition of the Collateral shall be applied
to the satisfaction of all debts and amounts owed to Plaintiff by Crown, including the costs
and expenses of such sale.
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff have
judgment, in personam, jointly and severely, against Wayne E. Copeland, Jr. and Karen L.
Copeland for all amounts owed by Atlantic Management Corporation and 5 Crown Funding,
LLC, as adjudged above, and post-judgment interest as provided by law.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff is entitled
to an in personam money judgment against Atlantic Management Corporation, 5 Crown
Funding, LLC, Wayne E. Copeland, Jr. and Karen L. Copeland for a reasonable attorneys’
fee incurred in connection with this case and as allowed pursuant to the notes, mortgages,
security agreements, guaranty agreements and/or by law, subject to proper and timely motion
by Plaintiff to establish the amount, reasonableness and necessity thereof.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff’s
mortgages against the Properties are hereby foreclosed, and such Properties, described on
Exhibit A attached hereto, together with all improvements located thereon, are hereby
ordered to be sold, collectively, or in separate tracts as Plaintiff may elect, to satisfy
Plaintiff’s judgment herein and all amounts adjudicated and owed under this judgment,
including any subsequent judgment for attorneys’ fees and costs which may be hereafter
ordered by the Court pursuant to proper motion and order. At the request of Plaintiff, a
special execution and order of sale and foreclosure shall be issued demanding the appropriate
officer or authority to levy upon the Property and, after having the Property appraised as

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provided by law, which Plaintiff has expressly elected, to proceed to advertise and sell the
Property as provided by law. The proceeds of such sale shall be applied as follows:
First, to the payment of the costs of the sale and costs of this action;
Second, to the payment of any real estate taxes owed on the Property as of the time
of the sale;
Third, to the payment of Plaintiff’s in personam judgments awarded above;
Fourth, to the payment of Plaintiff’s attorneys’ fees and expenses, when awarded by
the Court pursuant to proper motion, and any court costs and other costs of this action as
authorized by law; and
Fifth, the residue of such sale proceeds, if any, shall remain with the Court to await
further order and distribution to any other parties claiming and proving a right, title, claim
or interest which is subordinate to Plaintiff.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that after the sale of
the Property and Collateral, upon confirmation thereof by this Court or another court of
competent jurisdiction, all Defendants shall be forever barred and foreclosed from asserting
any right, title, claim or interest, in rem, against the Collateral and the Property, and any and
all improvements located thereon, superior to Plaintiff’s interest as adjudicated herein,
including asserting any equity of redemption allowed by law, provided, however, this
provision shall not bar any claims, in personam, that any such parties may have against

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Atlantic Management Corporation, 5 Crown Funding, LLC, Wayne E. Copeland, Jr. and/or
Karen L. Copeland.
IT IS SO ORDERED this 9th day of April, 2014.

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EXHIBIT B
DESCRIPTION OF COLLATERAL PLEDGED BY 5 CROWN FUNDING, LLC

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

Item K-5, Stainless Steel Chef’s Counter
Item 001, 3 Compartment Walk-in Coolers
Two (2) 100 Gallon A. O. Smith 199.000 BTU High Recovery Hot Water Heaters
(#BTH199) from Hajoca
Ansul Fire Supression System from Automatic Fire Control
Lennox Industries Roof Top Package Units, total of nine (9) Units – two segments:
Segment #1 and Segment #2
Custom Made 39 foot long by 14 foot tall Illuminated Bar Display System EST.
Automatic Door System – Segment 1 and Segment 2
One (1) 46” LED T.V. with Blu-Ray Player
Iron Masters, four (4) fire screens
Cool Tech 10 Unit (16 Tons+) Self Contained Refrigeration Package System
Captive Aire Hood System, eighty (80) feet of stainless steel hoods with exhaust fans
(6)
Captive Air Make-Up Air System
Petersen Chair Company – 100 chairs plus 13 bar stools per invoice
Component Data Rack/Cabling Concepts
JNT Lighting - all invoices prior to June 3, 2011