NATIONAL COLLEGIATE STUDENT LOAN, TRUST 2007-1, a Delaware Statutory Trust, Plaintiff/Appellee,
CHRISTOPHER ESTER, Defendant/Appellant.
Mandate Issued: 03/27/2019
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
DAMAN H. CANTRELL, TRIAL JUDGE
Cotts Reed, Keith A. Daniels, William L. Nixon, Jr., LOVE,
BEAL & NIXON, Oklahoma City, Oklahoma, for
Greggory Thomas Colpitts, Lauren Danielle Colpitts, THE
COLPITTS LAW FIRM, Tulsa, Oklahoma, for Defendant/Appellant.
JACK GOREE, VICE-CHIEF JUDGE
Lender sued Borrower alleging he owed $68, 937.40 on an
educational loan. The trial court granted Lender's motion
for summary judgment. Borrower appeals.
Plaintiff, National Collegiate Student Loan Trust 2007-1, a
Delaware Statutory Trust (Lender), sued Defendant,
Christopher Ester, (Borrower), alleging Borrower owed $68,
937.40 on an educational loan. The trial court granted
Lender's motion for summary judgment, finding there is no
genuine issue of material fact and concluding that Lender is
entitled to judgment as a matter of law.
In its motion for summary judgment, Lender contended that on
January 29, 2007, Borrower signed a Non-Negotiable Credit
Agreement (the agreement) with Bank of America, N.A. for an
educational loan. The agreement was subsequently transferred,
sold, and assigned to Plaintiff, National Collegiate Student
Loan Trust 2007-1, a Delaware Statutory Trust (Lender).
Borrower defaulted on the obligation. Lender pointed out that
the agreement specifically stated, "Non-Negotiable
Credit Agreement," and also stated that the Uniform
Commercial Code (UCC) does not apply. It argued that the
agreement is not a negotiable instrument, and the parties
specifically agreed therein that the UCC is not controlling.
In his objection to the motion for summary judgment, Borrower
argued that Lender lacked standing.  He stated that in
order to enforce an instrument, the plaintiff has the burden
of proving it is a "person entitled to enforce an
instrument" by showing it is (i) the holder of the
instrument, (ii) a nonholder in possession of the instrument
who has the rights of a holder, or (iii) a person not in
possession of the instrument who is entitled to enforce the
instrument. Deutsche Bank National Trust Company v.
Byrams, 2012 OK 4, ¶5, 275 P.3d 129, referencing
12A O.S. 2011 §3-301. While he admitted that the
agreement provides that Article 3 of the UCC does not apply,
he nevertheless argues that Lender must demonstrate that it
is in possession of the original document, and it has not
done that. Borrower claims that Lender has not established
that it is the proper plaintiff.
Standing focuses on the party seeking to get his complaint
before the court and not on the issues tendered for
determination. Knight ex rel. Ellis v. Miller, 2008
OK 81, ¶11, 195 P.3d 372. The question is whether the
party invoking the court's jurisdiction has a legally
cognizable interest in the outcome of the controversy.
Id. The burden is on the party invoking a
court's jurisdiction to establish standing. Oklahoma
Educ. Ass'n v. State ex rel. Oklahoma Legislature,
2007 OK 30, ¶7, 158 P.3d 1058. If the plaintiff alleges
facts which are sufficient to establish standing, then the
case proceeds to the next stage. Id. at ¶10.
When a party does not rely on a particular statute or
constitutional provision authorizing suit, the question of
standing depends on whether the party has alleged a personal
stake in the outcome of the controversy. Id.,
¶16. This is an action for breach of contract. Thus, the
question of Lender's standing depends on whether Lender
has a personal stake in the outcome of the case.
When standing is challenged in a contract action, the usual
issue is whether the party suing is the proper party to bring
the action. Here, Bank of America entered into a contract
with Borrower. Lender, not Bank of America, filed suit
against Borrower. The question is whether Lender is the
proper party to sue.
Lender's right to enforce the debt is not governed by the
UCC because the agreement is not a negotiable instrument.
The agreement specifically provides that it is not governed
by Article 3 of the UCC. Thus, standing is not analyzed in
the same way as a mortgage foreclosure action where the
plaintiff must demonstrate it is the holder of the promissory
note or has the rights of a holder. See Deutsche Bank
National Trust Co. v. Byrams, supra. In this case,
Borrower executed the agreement which provides that Lender
may assign the right to payment to another. Lender's
petition alleges: (1) Borrower entered into the agreement
with Bank of America on January 29, 2007, (2) Bank of America
assigned agreement to Lender, (3) Borrower defaulted on the
obligations under the agreement, (4) Borrower is indebted to
Lender in the amount of $68, 937.40. As a threshold legal
question, we hold Lender has alleged sufficient facts to
establish standing. Oklahoma Educ. Ass'n v. State ex
rel. Oklahoma Legislature, 2007 OK 30, ¶10.
Although a trial court in making a decision on whether
summary judgment is appropriate considers factual matters,
the ultimate decision turns on purely legal determinations,
i.e., whether one party is entitled to judgment as a matter
of law because there are no material disputed factual
questions. Therefore, as the decision involves purely legal
determinations, the appellate standard of review of a trial
court's grant of summary judgment is de novo.
Tiger v. Verdigris Valley Electric Cooperative, 2016 OK 74,
¶13, 410 P.3d 1007. We, like the trial court, will
examine the pleadings and evidentiary materials submitted by
the parties to determine if there is a genuine issue of
material fact. Ross v. City of Shawnee,1 ...