348 P.3d 707
Okla. Civ. App.2015Background
- Roesler executed a 2006 note and mortgage to WMC for $105,300; default was alleged in March 2010.
- Deutsche Bank filed foreclosure in April 2011 attaching an unendorsed copy of the note; it later supplied a copy showing a blank endorsement but undated.
- The trial court dismissed the initial petition for failure to show standing and allowed amendment; Deutsche Bank filed an amended petition in October 2012 attaching the endorsed (undated) note.
- Roesler moved to dismiss and later opposed summary judgment, arguing lack of standing at filing, lack of authenticating evidence, improper endorsements/delivery, and trust/PSA defects (REMIC/acceptance period).
- The district court granted summary judgment for Deutsche Bank in May 2014; Roesler appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing at time of filing | Deutsche Bank argued recorded mortgage transfer and later-produced endorsed note show right to enforce | Roesler: Deutsche Bank lacked right to enforce when suit was filed because original petition attached unendorsed note | Holding: Initial petition lacked prima facie proof, but the amended petition (with endorsed note) cured the standing defect under Lyon |
| Authenticity/foundation of note | Bank produced original note, produced it for inspection, and submitted servicer affidavit | Roesler: Bank failed to lay foundation; note in Bank's possession may not be the original | Holding: Possession of a suitably endorsed note is prima facie evidence; foundation was adequate and burden shifted to Roesler to rebut |
| Admissibility/competence of servicer affidavit | Bank: Wells Fargo affiant authorized, examined business records, competent to swear | Roesler: Affidavit is self-interested and inadmissible | Holding: Affiant was not an "interested party" for exclusion; affidavit admissible for summary judgment credibility issues |
| Delivery/undated endorsement & PSA timing | Bank: Possession and production of endorsed note show delivery and right to enforce; amended filing cures timing | Roesler: Undated endorsement fails to prove delivery during trust acceptance window; PSA/REMIC rules bar trust acceptance after cutoff | Holding: Possession satisfied delivery; PSA timing/tax/REMIC issues are merits questions and Roesler lacks standing to challenge trust compliance; summary judgment affirmed |
Key Cases Cited
- Wells Fargo Bank, N.A. v. Heath, 280 P.3d 328 (Okla. 2012) (plaintiff must have right to enforce note at filing to have standing)
- HSBC Bank USA v. Lyon, 276 P.3d 1002 (Okla. 2012) (an amended refiled petition attaching a properly endorsed note can cure prior standing defect)
- Deutsche Bank Nat’l Trust Co. v. Byrams, 275 P.3d 129 (Okla. 2012) (ownership of the note carries the mortgage; assignment of mortgage alone does not establish right to enforce the note)
- Cahill v. Kilgore, 350 P.2d 928 (Okla. 1960) (possession of a suitably endorsed note is prima facie evidence of ownership)
- Poafpybitty v. Skelly Oil Co., 517 P.2d 432 (Okla. 1973) (credibility of interested affiants is typically for the factfinder)
- Reeds v. Walker, 157 P.3d 100 (Okla. 2006) (burden shifts to opponent to raise genuine fact issues after prima facie showing)
- City of Jenks v. Stone, 321 P.3d 179 (Okla. 2014) (summary judgment standard)