U.S. Bank, N.A. v. Alexander
2012 OK 43
| Okla. | 2012Background
- May 10, 2005 Alexander executed a note to MILA and a mortgage to MERS as nominee for MILA and successors; MERS identified as mortgagee under the security instrument.
- July 23, 2009 Wells Fargo filed foreclosure alleging default beginning April 1, 2009 and claimed to be holder of note and mortgage.
- October 6, 2009 substitution of U.S. Bank National Association as plaintiff; amended petition re-alleges original claims and adds additional parties with interest; attached unindorsed note and mortgage.
- April 19, 2010 judgment entered against Appellants; judgment vacated May 19, 2010 after appearance by Appellants’ counsel.
- June 8, 2010 Wells Fargo moved for summary judgment asserting it was holder; August 13, 2009 assignment from MERS to Appellee (effective March 1, 2005) attached; second summary judgment motion filed April 15, 2011; an allonge indorsed by MILA later attached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to enforce the note at filing | Alexander/Appellee had standing as holder | Appellants lacked possession/indorsement evidence | Standing unresolved; remand needed to determine holder status at commence of suit |
| Effect of indorsement/allonge on holder status | Allonge later proves holder status | No prior indorsement; insufficient evidence at filing | Material fact unresolved; remand required for proper determination |
| Authority of MERS as nominee to convey note | MERS can assign mortgage as nominee; transfer valid | No evidence MERS had authority to dorse the note | Issues of authority/mortgage-note assignment require remand |
| Validity of retroactive assignment dates | Assignment retroactive to 2005 supports transfer | Dates conflicting with note execution create material question | Remand needed to address assignment timing and validity |
| Summary judgment appropriate given competing evidence | Documentation supports standing and default | Factual disputes on transfer and ownership prevent summary judgment | Remand to resolve genuine issues of material fact |
Key Cases Cited
- Matter of the Estate of Doan, 726 P.2d 574 ( Okla. 1986) (standing predicated on direct, immediate, substantial interest)
- Hendrick v. Walters, 865 P.2d 1232 ( Okla. 1993) (standing may be raised at any stage; legal right to seek relief)
- Fent v. Contingency Review Board, 163 P.3d 512 ( Okla. 2007) (standing requirements; three threshold criteria)
- Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 159 P.2d 717 ( Okla. 1945) (to commence foreclosure, plaintiff must show right to enforce note)
- Engle v. Federal Nat. Mortg. Ass'n, 300 P.2d 997 ( Okla. 1956) (ownership of note carries with ownership of mortgage security)
- BAC Home Loans Servicing v. White, 256 P.3d 1014 ( Okla. Civ. App. 2011) (note ownership/possession under UCC; holder/rights distinctions)
- Deutsche Bank National Trust Co. v. Brumbough, 270 P.3d 151 ( Okla. 2012) (standing as dispositive issue; later remanded for factual development)
- J.P. Morgan Chase Bank, N.A. v. Eldridge, 273 P.3d 62 ( Okla. 2012) (concurrence/dissent on standing and foreclosure documentation)
- Kabba, 276 P.3d 1006 ( Okla. 2012) (dissenting views on securitized mortgage transfers)
- Matthews, 273 P.3d 43 ( Okla. 2012) (dissenting views on related foreclosure standing)