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Monroe v. Bank of America Corp.

United States District Court, N.D. Oklahoma

March 28, 2018

AMY L. MONROE a/k/a AMY L. McCAFFERTY and C.MARCUS McCAFFERTY, Plaintiffs,
v.
BANK OF AMERICA CORPORATION, f/n/a BANK OF AMERICA, N A., and WILMINGTON SAVINGS FUND SOCIETY FSB, Defendants.

          OPINION & ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         Before the Court are motions to dismiss by Defendant Bank of America, N.A ("BANA") (Doc. 9) and Defendant Wilmington Savings Fund Society, FSB ("Wilmington").[1]

         I. Background

         On or 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. ¶ 7]).

         On 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]).

         On 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).[2]

         II. Legal Standards

         "To 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.

         III. Discussion

         As a 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.[3]

         A. Plaintiffs' First Claim

         In 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.

         Under 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).

         Because 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 ...


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