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 SJATES 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, doing business as
Christiana Trust, not in its individual capacity, but solely
as trustee for BCAT 2015-14BTT (“Wilmington”)
(Doc. 18). In a prior order (Doc. 30), this Court granted
BANA's motion to dismiss as to Plaintiffs' first and
second claims. Wilmington's motion to dismiss was granted
as to Plaintiffs' first claim, but denied as to the
second claim. The Court determined that additional briefing
was needed before ruling on whether to dismiss
Plaintiffs' third claim, slander of title.
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.3d at 1105.
third claim in their complaint, Plaintiffs assert slander of
title. (Doc. 2-2 at 7-8 [Compl. at ¶¶ 18-21]).
Plaintiffs allege that Defendants knew no later than
September 26, 2012, that the Mortgage was “fatally
defective and unenforceable.” (Id. at 7
[Compl. at ¶ 19]). Nonetheless, Defendants have
allegedly “continued to make untenable legal
demands” and have engaged “in a campaign of
harassment.” (Id.). The specific misconduct
alleged in the complaint is the filing of the
“untenable” foreclosure action in 2016 and
Defendants' refusal to release the mortgage.
(Id. at 7-8 [Compl. at ¶¶ 20-21]; Doc. 25
elements of a slander of title claim under Oklahoma law
include: (1) publication; (2) a false statement in the
publication; (3) malice in the publication; (4) special
damage resulting from the publication; and (5) ownership or
possession of the property that is the subject of the
publication. Grasz v. Discover Bank ex rel. SA Discover
Fin. Servs., Inc., 315 P.3d 406, 409 (Okla.Civ.App.
2013). Defendants argue that Plaintiffs have failed to allege
any unprivileged, slanderous publication made by them.
Defendants also contend that Plaintiffs have failed to
specifically allege special damages.
(Second) of Torts § 587 provides:
A party to a private litigation . . . is absolutely
privileged to publish defamatory matter concerning another in
communications preliminary to a proposed judicial proceeding,
or in the institution of or during the course and as a part
of, a judicial proceeding in which he participates, if it has
some relation to the proceeding.
(Am. Law Inst. 1977). Section 586 grants the same absolute
privilege to attorneys participating as counsel in a judicial
proceeding. These sections have been held by Oklahoma courts
to apply to slander of title actions. See Bennett v.
McKibben, 915 P.2d 400 (Okla.Civ.App. 1996) (holding
that statements made in the original and amended petitions
were absolutely privileged); Pryor v. Findley, 949
P.2d 1218, 1219 (Okla.Civ.App. 1997) (“Statements made
in judicial pleadings are absolutely privileged.”). The
Court finds that Defendant Wilmington's commencement of
the 2016 lawsuit clearly falls within § 587 and, thus,
is absolutely privileged.
the Court finds that the 2016 lawsuit was timely filed. Upon
review of the case law and the parties' supplemental
briefing, the Court finds that the six-year statute of
limitations, codified at Okla. Stat. tit. 12A,
§ 3-118(a), applies to the note and mortgage in this
case. This conclusion finds direct support in Cinco
Enterprises, Inc. v. Botts, in which the Oklahoma Court
of Civil Appeals provided the following explanation:
However, 12A O.S. 1991 § 3-118(a) provides a six-year
statute of limitations for actions to enforce the obligations
of a promissory note, while 42 O.S. 1991 § 23 provides
that a lien is extinguished “by the mere lapse of the
time within which, under the provisions of civil procedure,
an action can be brought upon the principal obligation,
” and 42 O.S. 1991 § 5 specifically provides that
the provisions of Title 42 apply to mortgages. Thus, any
action by [the creditor] to enforce the underlying obligation
secured by the mortgage is time-barred, and [the
creditor]'s right to enforce its mortgage was
extinguished by the passage of six years after the promissory
note became due.
931 P.2d 81, 83 (Okla.Civ.App. 1996) (emphasis added).
See also Bankers Trust Co. of Cal., N.A. v.
Wallis, 280 P.3d 974, 976 n.8 (Okla.Civ.App. 2012)
(applying the six-year statute of limitations to a
foreclosure action based on a promissory note). Even assuming
that Plaintiffs' debt under the promissory note was
accelerated in 2011 upon the commencement of the first
foreclosure suit, brought by BANA (see Doc. 30 at
6), then the mortgage and note were still enforceable in
Court also finds that Defendants' alleged failure to
release the mortgage lien after the expiration of the SOL
does not constitute “publication” for a slander
of title claim. In Borison v. Bank Leumi Trust Co. of
N.Y., the Oklahoma Court of Civil Appeals found
“no Oklahoma authority that failure to release an
authorized judgment, which has not been satisfied,
constitutes slander of title.” 972 P.2d 1188, 1190
(Okla.Civ.App. 1998). “Whether Bank's ...