McGINNITY v. KIRK, 362 P.3d 186

The Kirks bought an 1883 house in 1987 under a Contract for Deed requiring $400/month; the Neeces later assigned the contract to the McGinnitys in 1998.
McGinnitys sued (consolidated forcible entry & detainer and foreclosure) alleging multiple breaches: failure to keep property insured, conveyance to a third party, waste, failure to keep buildings in repair, and failure to restore. They sought foreclosure (not damages).
The parties stipulated the unpaid contract balance was $27,406.27.
The trial court found the Kirks breached the contract (failure to maintain insurance and maintain the property), granted in rem foreclosure, quieted title to McGinnitys, denied the Kirks’ counterclaims (including abuse of process), and reserved attorney fees; lower appellate court affirmed and this Court granted certiorari.
This Court held: property value exceeded debt (no waste-based foreclosure), but evidence supports breach for failing to maintain insurance and maintain the property; abuse-of-process claim fails. The trial court judgment is affirmed and appeal-related attorney fees and costs were awarded.

Issue	Plaintiff's Argument (McGinnitys)	Defendant's Argument (Kirks)	Held
Whether waste justified foreclosure	Waste rendered security inadequate, supporting foreclosure	No waste; value exceeded debt and Kirks intended to pay/take title	No — evidence showed security adequate; waste not proved
Whether failure to maintain insurance breached the contract	Contract requires continuous insurance; policy nonrenewed in 2005 and Kirks failed to maintain coverage during foreclosure	Kirks asserted they were unaware of nonrenewal reasons and were moving so did not maintain new insurance	Yes — continuous insurance is a covenant; Kirks breached by not maintaining insurance during foreclosure
Whether failure to keep property in good repair breached the contract	Contract separately required keeping buildings/improvements in good repair; evidence of significant interior/exterior deterioration	Kirks contended many defects preexisted, disputed photos/timing, and performed repairs	Yes — weighing conflicting evidence, trial court's finding of breach for failure to maintain property is not against the clear weight of the evidence
Abuse of process counterclaim by Kirks	Forcible entry & detainer was improperly used instead of foreclosure to evict them — improper use of process	McGinnitys used forcible entry & detainer for its intended purpose (possession); process used legitimately	No — process was used for its intended purpose; abuse of process not established

Phillips v. Hill, 555 P.2d 1043 (Okla. 1976) (tender of full contractual debt can preclude foreclosure where seller is made economically whole)
Federal Land Bank of Wichita v. Story, 756 P.2d 588 (Okla. 1988) (discusses public policy protecting mortgagee contractual rights and judicial power to prevent waste during foreclosure)
Lawton v. Lincoln, 191 P.2d 926 (Okla. 1948) (foreclosure for waste requires proof that waste rendered mortgage security inadequate)
Lincoln Mortg. Investors v. Cook, 659 P.2d 925 (Okla. 1982) (doctrine against clogs on equitable right of redemption)
Greenberg v. Wolfberg, 890 P.2d 895 (Okla. 1994) (abuse of process requires use of process for an immediate objective other than that for which it was designed)