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 S/ATES DISTRICT JUDGE
following facts are undisputed by the parties. In 2006, Amy
L. Monroe (a/k/a Amy L. McCafferty) executed a promissory
note payable to Bank of America, N.A. (“BANA”) in
the principal sum of $175, 000.00. (Doc. 2-2 at 10-19 of 43).
Amy and C. Marcus McCafferty (“the
McCafferty's”) then executed a mortgage to secure
the note. (Id. at 20-39 of 43). On March 10, 2011,
BANA filed a foreclosure action (“the 2011
Action”) in the Tulsa County District Court against the
McCafferty's. (Doc. 25-1 at 2 of 37). BANA's petition
in this 2011 Action contained the following assertions:
7. That said EMA [the promissory note] and mortgage provide
that if default be made in the payment of any of the monthly
installments, or on failure or neglect to keep or perform any
of the other conditions and covenants of the mortgage, that
the entire principal sum and accrued interest, together with
all other sums secured by said mortgage, shall at once become
due and payable, at the option of the holder thereof, and the
holder shall be entitled to foreclose said mortgage and
recover the unpaid principal thereon and all expenditures of
the mortgagee made thereunder, with interest thereon, and to
have said premises sold and the proceeds applied to the
payment of the indebtedness secured thereby, together with
all legal and necessary expense and all costs.
8. That default has been made upon said [note] and mortgage
in that the installments due the 10th day of August, 2010,
and thereafter have not been paid.
. . .
10. That after allowing all just credits there is due
Plaintiff [BANA] on said [note] and mortgage the sum of $174,
996.31, with 2.99% interest per annum thereon, or as adjusted
by the Note and Mortgage, from the 10th day of July, 2010,
until paid; said abstract and title exam expense; late fees
of $130.02; corporate advances of $95.00; the further sum of
a reasonable attorney's fee, and for all costs of this
action, for which amounts said mortgage is a first, prior and
superior lien upon the real estate and premises above
(Doc. 25-1 at 3-4 of 37). The 2011 Action was dismissed
without prejudice on October 17, 2012.
2015, BANA assigned all of its interest in the mortgage to
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. 19-1). Then, on June 30, 2016, Wilmington filed a new
foreclosure action (“the 2016 Action”) against
the McCafferty's in the Tulsa County District Court. That
lawsuit was dismissed on January 5, 2017, for failure to
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. (Doc. 2 at 3-9 of 43). Defendants then removed the
action to this Court on May 3, 2017, and moved to dismiss
these claims under Fed.R.Civ.P. 12 (b)(6). (Doc. 9, 18). This
Court granted BANA's motion to dismiss as to all three of
Plaintiffs' claims and Wilmington's motion to dismiss
as to Plaintiffs' first and third claims. (Doc. 30, 37).
The second claim for relief, in which Plaintiffs seek a
declaratory judgment regarding the enforceability of the note
and mortgage, has survived as against Wilmington. (Doc. 37 at
Show Cause Order
18, 2018, the Court ordered Defendant Wilmington to show
cause why summary judgment should not be entered in favor of
Plaintiffs on their second claim. (Doc. 38). The Court had
already determined that, under Oklahoma law, an election to
accelerate a debt causes the statute of limitations to begin
to run against the whole amount due. (See Doc. 30 at
4-6). Moreover, the Court had concluded that a six-year
statute of limitations applied to both the note and mortgage.
(See Doc. 37 at 3). Thus, the Court reasoned, if the
debt was accelerated in 2011 when BANA first initiated a
foreclosure action against Plaintiffs, then the note and
mortgage would no longer be enforceable. It appeared to the
Court that the issue of whether the debt was accelerated in
2011 was not genuinely in dispute, since BANA demanded the
entire principal sum and accrued interest in its 2011
petition for foreclosure. See Union Central Life Ins. Co.
v. Adams, 38 P.2d 26, 29 (Okla. 1934), overruled in
part on other grounds by Okla. Brick Corp. v. McCall,
497 P.2d 215 (Okla. 1972).
parties have had an opportunity to brief the Court on this
issue. (See Doc. 39, 40, 41). In its response brief,
Wilmington revealed that it filed a new foreclosure action
(“the 2017 Action”) on December 18, 2017, in the
Tulsa County District Court. (Doc. 39-1). Wilmington argues
that Oklahoma's “savings statute” gave
Wilmington one year from the dismissal of the 2016 Action to
re-file a foreclosure action against the McCafferty's.
cited savings statute, Okla. Stat. tit. 12, ...