United States District Court, N.D. Oklahoma
AMY L. MONROE a/k/a AMY L. McCAFFERTY and C.MARCUS McCAFFERTY, Plaintiffs,
BANK OF AMERICA CORPORATION, f/n/a BANK OF AMERICA, N A., and WILMINGTON SAVINGS FUND SOCIETY FSB, Defendants.
OPINION & ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
the Court are motions to dismiss by Defendant Bank of
America, N.A ("BANA") (Doc. 9) and Defendant
Wilmington Savings Fund Society, FSB
about March 20, 2006, Plaintiff Amy L. Monroe (a/k/a Amy L.
McCafferty) executed the Bank of America Equity Maximizer
Agreement and Disclosure Statement ("the Note").
(Doc. 2-2 at 4 of 43 [Pet. ¶ 6]). On the same day, Amy
and C. Marcus McCafferty ("the McCafferty's")
executed a mortgage ("the Mortgage") to secure the
Note. (Id. [Pet. ¶ 7). The real property
described in the Mortgage is "Lot(s) 5, Block 8,
Morningside Addition Subdivision, the City of Tulsa, Tulsa
County, Oklahoma. (Id. at 39 of 43). Lot 5 is one of
four lots that comprise the McCafferty's homestead at
1616 South Owasso Avenue. (Id. at 4-5 of 43 [Pet.
March 10, 2011, BANA filed an action in the Tulsa Country
District Court against the McCafferty's. (Id. at
5 of 43 [Pet. ¶ 8]). This lawsuit was dismissed without
prejudice on October 17, 2012. (Id. [Pet.¶9]).
On June 24, 2016, counsel for the McCafferty's sent a
letter to BANA's agent, Fay Servicing, LLC, demanding
that BANA release the Mortgage of record. (Id. at 6
of 43 [Pet. ¶ 10]). Then, on June 30, 2016, Wilmington
filed a new civil action in the Tulsa County District Court.
(Id. [Pet. ¶ 11]). That lawsuit was dismissed
on January 5, 2017, for failure to serve process.
(Id. [Pet. ¶¶ 11-12]).
April 12, 2017, Plaintiffs filed a Petition in the Tulsa
County District Court seeking declaratory judgments regarding
the validity of the Mortgage and the enforceability of the
Note and Mortgage, as well as asserting a claim of slander of
title. Defendants then removed this action to this Court on
May 3, 2017, and moved to dismiss these claims under
Fed.R.Civ.P. 12 (b)(6).
survive a motion under Rule 12(b)(6), a plaintiff must plead
sufficient factual allegations 'to state a claim to
relief that is plausible on its face.'"
Brokers' Choice of America, Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting
Bell Atl Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In ruling on a Rule 12(b)(6) motion,
the court must liberally construe the pleadings, take all
well-pleaded facts as true, and make all reasonable
inferences in favor of the non-moving party. Brokers'
Choice of Am., 861 F.3datll05.
preliminary matter, the Court hereby takes judicial notice of
the assignment of the Mortgage from BANA to Wilmington, as
evidenced by the Assignment of Mortgage document submitted by
Defendants. Pursuant to Fed.R.Evid. 201(b), the Court
"may judicially notice a fact that is not subject to
reasonable dispute because it. . . can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned." Moreover, on a motion to
dismiss, a court may consider a document that is central to
the plaintiff s claim, even if the plaintiff does not
incorporate the document by reference or attach it to the
complaint. Pace v. Swerdlow, 519 F.3d 1067, 1072-73
(10th Cir. 2008). Here, Defendants have submitted copies of
an Assignment of Mortgage dated September 16, 2015, and
recorded with the Tulsa County Clerk. (Doc. ll-l;Doc. 19-1).
This Assignment of Mortgage shows that BANA assigned all of
its interest in the Note and Mortgage to Wilmington.
(See Doc. 11-1 at 2; Doc. 19-1 at 2). Because the
Court hereby finds that BANA no longer has an interest in the
Note and Mortgage in question, Plaintiffs' first and
second claims are hereby dismissed as to BANA.
Plaintiffs' First Claim
regard to Plaintiffs' first claim, in which they seek a
declaratory judgment regarding the validity of the Mortgage,
Wilmington argues that the allegedly erroneous property
description in the Mortgage does not render it unenforceable.
certain circumstances, Oklahoma law allows for the
reformation of a mortgage when it misdescribes the property
covered by the mortgage. See Clement Mortg. Co. v.
Lewis, 253 P. 88 (Okla. 1926) (allowing reformation when
the record showed that the mortgagor and mortgagee both
intended the mortgage to cover lots 1, 2, and 3 of block 69
instead of lots 1 and 2 of block 68); see also Stillwater
Natl Bank & Tr. Co. v. Woolley, 823 P.2d 374, 377
(Okla.Civ.App. 1991) ("Thus even where a mortgage
misdescribes the property intended to be mortgaged, the
mistake is a matter to be corrected by a proper proceeding .
. . ."). In Oklahoma, “[t]he rule is that mere
indefiniteness in the description of land in a mortgage, or
an error of description, although it may be such as to render
the instrument prima facie inoperative, does not necessarily
invalidate it; but evidence of extrinsic facts relative to
the situation of the parties and the circumstances attending
the transaction may be received to impart certainty to the
description." Varner-Collins Hardware Co. v. New
Milford Sec. Co., 153 P. 667, 669 (Okla. 1915).
an erroneous property description does not necessarily
invalidate a mortgage under Oklahoma law, there is no legal
basis for the declaratory judgment Plaintiffs seek in their
first cause of ...