Date: 10-01-2013

Case Style: Terex Financial Services, Inc. v. Builders Steel Co., Inc.

Case Number: CJ-2013-4074

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Cary E. Hiltgen, Scott Cleland Sublett, Anh Kim Tran

Defendant's Attorney: Bradley Kirk Beasley for First Pryority Bank

Description: 1. Terex Financial is a Delaware corporation with its principal place of business in Connecticut.

2. Builders Steel Co., Inc. is an Oklahoma corporation with its principal place of business in Tulsa, Oklahoma.

3. Noble Steel, Inc. is an Oklahoma corporation with its principal place of business in Tulsa, Oklahoma.

4. Brent Parsons is an individual with his residence in Tulsa, Oklahoma

5. Lauri Parsons is an individual with her residence in Tulsa, Oklahoma.

6. First United Bank and Trust Company is an Oklahoma corporation with its principal place of business in Durant, Oklahoma.

7. First Pryority Bank is an Oklahoma corporation with its principal place of business in Tulsa, Oklahoma.

8. U.S. Bancorp Business Equipment Finance Group is a Minnesota Corporation with its principal place of business in Marshall, Minnesota.

9. SureTec Insurance Company is a Texas corporation with its principal place of business in Houston, Texas.

10. The amount involved in this action is in excess of $10,000.00.

11. This Court has jurisdiction over the parties, the subject mailer of this action and venue is proper in Tulsa County, Oklahoma.

FACTS

12. On behalf of Builders Steel, Lauri Parsons signed a Master Note and Security Agreement, number 3000779, dated as of June 5, 2009, pursuant to which Builders Steel promised to pay to Terex Financial the sum of $327,316.48 with interest thereon at the rate of 5.99% in 54 equal monthly installments. See Master Note and Payment Schedule, attached as Exhibit “1

13. To secure the payment and performance of the Master Note, Builders Steel granted Terex Financial a security interest in the following items of equipment:

2007 Genie Industries Articulating Boom Model Z-6024, s/n 7946

2007 Genie Industries Articulating Boom Model 7-6024, s/n 7936

2007 Genie Industries Telehandler, Model GTH-1056 s/n 11157

2007 Genie Industries Articulating Boom, Model 7-60/34 s/n 7950


2007 Genie Industries Articulating Boom, Model Z-60134 s/n 7930

See Exhibit “1” at Schedule 1005222 dated June 16, 2011, Equipment Description — Exhibit A

14. Terex Financial perfected its security interest in the Equipment by filing financing statement on May 22, 2009 with the County Clerk for Oklahoma County, Oklahoma. See UCC Financing Statement attached as Exhibit “2”.

15. Schedule 1005222 was amended pursuant to the Amendment No. 1 to Schedule 1005222 dated January 12, 2012. See Amendment No. 1 to Schedule 1005222 attached as Exhibit “3”.

16. To further secure the payment and performance of the Master Note, Noble Steel, Inc. executed a corporate guarantee of the obligations of Builders Steel to Terex Financial. See Corporate Guaranty attached as Exhibit “4”.

17. To further secure the payment and performance of the Master Note, Brent Parsons and Lauri Parsons executed a personal guarantee of the obligations of Builders Steel to Terex Financial. See Personal Guaranty attached as Exhibit “5”.

18. Builders Steel has defaulted in the payment and performance of the Master Note. After due demand, Builders Steel has failed and refused to bring the Master Note current. There is currently due and owing to Terex Financial on the Master Note the sum of $224, 353.53.

19, Prior to the bringing of this action, Terex Financial exercised its rights for self-help repossession as provided for under the Master Note and Oklahoma’s Uniform Commercial Code. Terex Financial has repossessed 2007 Genie Industries Articulating Boom Model Z-60134 serial number 7950 and 2007 Genie Industries Arliculating Boom, Model Z-60/34 serial number 7930. These two items of equipment remain in the possession of Terex Financial and have not yet been sold.

20. The estimated value of the remaining items of equipment is $140,000.00, all of which are currently being wrongfully detained by Defendants. Terex Financial has attempted to contact Builders Steel to arrange for the release and re-conveyance of the remaining items without success.

21. Based on information received from Builders Steel in early July 2013, Genie Model Z-60134 S/N 7946 is located in Jenks, Oklahoma at the construction site for First Oklahoma Bank; Genie Model GTH-1056 SIN 11157 is located in Tulsa, Oklahoma on Builders Steel’s property; and Genie Model Z-60134 S/N 7936 is at the Dardanelle Nuclear Power Plant in Russellville, Arkansas.

23. Upon knowledge, information and belief, Lauri Parsons, president and CEO of Builders Steel, and her husband Brent Parsons, have recently been convicted of defrauding the Choctaw Indian Nation and are currently awaiting sentencing.

FIRST CAUSE OF ACTION — BREACH OF MASTER NOTE

For its first cause of action against Builders Steel, Terex Financial alleges and states:

24. Pursuant to the terms of the Master Note, Terex Financial accelerated the amounts due under the Master Note pursuant to its Default and Acceleration letter to Builders Steel of August 14, 2011 There is currently due and owing to Terex Financial on the Master Note the principal sum of $220,553.33, together with accrued interest thereon in the amount of $2,212.88 from August 14, 2013 at 5.99% per diem, together with accruing interest thereon in the amount of $1,587.32, from August 15, 2013 to August 28, 2013 at the rate of 18% per diem until fully paid.

WHEREFORE, Terex Financial requests a judgment against Builders Steel in the principal sum of $220553.33, together with accrued interest thereon in the amount of $3,800.20 together with accruing interest thereon, from August 28, 2013, at the rate of 18% per diem until fully paid, the costs of this action, including a reasonable attorney’s fee, and such other and further relief as is just and necessary.

SECOND CAUSE OF ACTION — BREACH OF GUARANTEES For its second cause of action against Brent Parsons, Lauri Parsons and Noble Steel, Terex Financial alleges and states:

25. Plaintiff reasserts and realleges Paragraphs 1-25.

26. Based on the default of Builders Steel under the Master Note and Security Agreement, Terex Financial has made demand on the Lauri Parsons, Brent Parsons and Noble Steel to pay all amounts due and owing to Terex Financial from Builders Steel under the Master Note and Security Agreement.

27. Lauri Parsons, Brent Parsons and Noble Steel have wholly failed and refused to pay Terex Financial according to the terms of their Personal Guarantees and Corporate Guaranty. There is currently due and owing to Terex Financial under the Personal Guaranty and Corporate Guaranty the principal sum of $220,553.33, together with accrued interest thereon in the amount of $3800.20 together with accruing interest thereon, from August 28, 2013, at the rate of 18% per diem. Pursuant to the terms of the Master Note and Security Agreement, Terex Financial is entitled to recover costs and attorney’s fees incurred in collection and enforcement of the Master Note and Security Agreement.

WHEREFORE, Terex Financial requests a judgment, jointly and severally, against Lauri Parsons, Brent Parsons and Noble Steel, in principal amount of $220,553.33, together with accrued interest thereon in the amount of $3,800.20 together with accruing interest thereon, from August 28, 2013, at the rate of 18% per diem until fully paid, the costs of this action, including a reasonable attorney’s fee, and such other and further relief as is just and necessary.

THIRD CAUSE OF ACTION — REPLEVIN

For its third cause of action against Defendants, Terex Financial alleges as follows:

28. Plaintiff reasserts and realleges Paragraphs 1-27.

29. Based on the fact that Terex Financial has a valid security interest in the equipment currently being wrongfully detained by Defendants, TFS is entitled to the immediate delivery of the equipment pursuant to 12 O.S. § 1571.

WHEREFORE, Terex Financial requests that this Court issue an Order for the immediate delivery of the 2007 Genie Industries Articulating Boom Model Z-6024, s/n 7946, 2007 Genie Industries Articulating Boom Model Z-6024, s/n 7936, and 2007 Genie Industries Telehandler, Model GTH-1056 s/n 11157.

FOURTH CAUSE OF ACTION — FORECLOSURE OF EQUIPMENT

For its fourth cause of action against Defendants, Terex Financial alleges as follows:

30. Terex Financial reasserts and realleges Paragraphs 1-29.

31. Defendants, First United Bank and Trust Company, First Pryority Bank, U.S. Bancorp Business Equipment Finance Group, and SureTec Insurance Company are all secured parties with UCC filing statements against Builders Steel. See UCC Filing Statements, attached collectively as Exhibit “6”.

32. The UCC filing statements indicate that these parties have a security interest in the “equipment” of Defendant Builders Steel.

33. However their security interests are subordinate to Terex Financial’s security interest in the equipment specifically identified in paragraph 13 of this Petition because Terex Financial has a valid purchase money security interest in the goods. Thus Terex Financial is entitled to foreclose upon the equipment once Terex Financial obtains possession of it.

34. Terex Financial is also entitled to a deficiency judgment for any remaining amounts owed to it by Defendants.

WHEREFORE, Terex Financial requests that this Court issue an Order that after the immediate delivery of the 2007 Genie Industries Articulating Boom Model 7-6024, sn 7946, 2007 Genie Industries Articulating Boom Model Z-6024, s/n 7936, and 2007 Genie Industries Telehandler, Model GTH-1056, s/n 11157 to Terex Financial, Terex Financial may foreclose on these pieces of equipment along with the 2007 Genie Industries Articulating Boom, Model Z-60134 s/n 7950 and 2007 Genie Industries Articulating Boom, Model 7-60/34 s/n 7930 which were previously repossessed. Terex Financial further requests that a deficiency be entered for the remaining amounts owed to Terex Financial by Defendants after the equipment is sold.

Outcome: Settled and dismissed with prejudice as to: Builders Steel Co, Inc., Noble Steel, Inc., Brent Parsons, Lauri Parsons, First Pryority Bank, First United Bank and Trust Company

Plaintiff's Experts:

Defendant's Experts:

Comments: