Bank of America, NA v. Kabba
2012 OK 23
| Okla. | 2012Background
- Bank of America filed March 11, 2010 to foreclose on Kabba and spouse, claiming it held the note as successor by merger to LaSalle Bank under the Structured Asset Investment Loan Trust 2004-BNC2.
- Original lender was BNC Mortgage, Inc.; an Assignment of Real Estate Mortgage filed January 17, 2011 claimed BOA as successor, effective February 9, 2010, nine months after filing the petition.
- The note showed a blank indorsement, which was not referenced in the petition but appeared in the motion for summary judgment.
- The “Assignment of Mortgage” signed by MERS named BOA as assignee but did not mention the note.
- On June 13, 2011, the trial court granted summary judgment in BOA’s favor; Kabba challenged BOA’s standing to foreclose.
- The Court remanded for further determinations on whether BOA became a person entitled to enforce the note prior to filing, and the case may be dismissed and refiled if appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOA had standing to foreclose | Kabba argues BOA lacked direct, immediate interest to enforce the note | Kabba contends record fails to show BOA became holder before filing | Summary judgment reversed; factual issue on when BOA became entitled to enforce the note |
| Effect of assignment of mortgage on transfer of the note | BOA asserts rights as holder via note and mortgage-related assignments | Kabba asserts assignment of mortgage does not prove note transfer or delivery | Assignment of mortgage alone insufficient; need proof of delivery and purpose of delivery of the note for enforceability |
Key Cases Cited
- Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 159 P.2d 717 (Okla. 1945) (ownership of note carries with mortgage; standing analysis requires proof of right to enforce)
- Engle v. Federal Nat. Mortg. Ass'n, 300 P.2d 999 (Okla. 1956) (note ownership and mortgage inseparability under Oklahoma law)
- Hendrick v. Walters, 865 P.2d 1232 (Okla. 1993) (standing may be raised as a threshold issue; real party in interest concept)
- Fent v. Contingency Review Board, 163 P.3d 512 (Okla. 2007) (standing may be raised at any stage; three criteria of standing)
- Toxic Waste Impact Group, Inc. v. Leavitt, 890 P.2d 906 (Okla. 1994) (standing as real-party-in-interest; non-jurisdictional in state court)