INTERNATIONAL BANK OF COMMERCE, A Texas State Banking Association, Successor To Local Oklahoma Bank, Formerly Known As Local Federal Bank, F.S.B., Plaintiff/Appellee,
JIMMIE A. FRANKLIN and BRENDA D. FRANKLIN, Husband and Wife, Defendants/Appellants, and United States of America, ex rel. Internal Revenue Service; State of Oklahoma, ex rel. Oklahoma Tax Commission; and Ford Motor Credit Company, LLC., Defendants.
Mandate Issued: 10/16/2019
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE PATRICIA G. PARRISH, TRIAL JUDGE
A. Franklin, FRANKLIN LAW FIRM, Bethany, Oklahoma, for
R. Waldo, JAMES R. WALDO, P.L.L.C., Oklahoma City, Oklahoma,
JACK GOREE, CHIEF JUDGE
Jimmie A. Franklin and Brenda D. Franklin, husband and wife
(Defendants), appeal the trial court's summary judgment
in favor of International Bank of Commerce (IBC or Bank) in
this action to foreclose a mortgage. The issues for review
are whether the Bank has any available claims against
Defendants, or whether the foreclosure is barred by the
statute of limitations or 58 O.S. §333. 
On February 13, 1996, Lillian E. Franklin, Jimmie
Franklin's mother, executed a note for $48, 000.00, with
interest payable at a rate of 7% per annum to Local Federal
Bank, F.S.B.  That same day, Lillian E. Franklin and
John O. Franklin, as husband and wife, executed a mortgage on
their property in favor of Local Federal Bank, F.S.B. to
secure the note. After the execution of the note and
mortgage, Lillian and John Franklin died. In the decree of
distribution of Lillian's estate, the property encumbered
by Bank's mortgage was distributed to Jimmie A. Franklin.
No payments were made to Bank after January 2015. In 2017,
Bank filed its petition to foreclose on the property. In the
foreclosure proceedings below, the trial court granted
Bank's motion for summary judgment.
Summary judgment procedure is governed by 12 O.S. 2011
§2056 and Rule 13 of the Rules for District Courts of
Oklahoma. 12 O.S.Supp. 2013, Ch. 2, App.1. Appellate courts
review summary judgments de novo because they are
based solely on legal determinations. Carmichael v.
Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. A
final order in summary proceedings may be granted only when
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.
§2056(C). A fact is "material" if proof of the
fact would have the effect of establishing or refuting one of
the essential elements of a cause of action or a defense
asserted by the parties. Hadnot v. Shaw, 1992 OK 21,
¶18, 826 P.2d 978, 985. All inferences and conclusions
drawn from the underlying facts contained in the record are
to be considered in the light most favorable to the party
opposing summary judgment. Deutsche Bank National Trust
v. Brumbaugh, 2012 OK 3, ¶7, 270 P.3d 151, 153.
Foreclosure Cause of Action
The purpose of a foreclosure action is to satisfy, out of the
proceeds of a sale of the estate in the mortgaged property,
the claim of the holder of the obligation when there is a
default in the performance of the act it is given to secure.
Foreclosure requires a showing of a valid mortgage and
default. A mortgage is a lien which is made security for the
performance of an act; it can be a charge on property for
payment or discharge of debt. 42 O.S. §1  and §5.
See also Williamson v. Winningham, 1947 OK 231, 186
P.2d 644 (1948). A mortgage on real estate is considered an
incident to the debt secured thereby. Smith v. Bush,
1935 OK 331, ¶8, 44 P.2d 921. See also 42 O.S.
§21.  "To foreclose, a claim must be
adjudicated, and the validity and priority of a lien must be
established. There must also be an adjudication of all
claims, titles, or interests in the property involved, and
the right of redemption must be extinguished so that a valid
and effectual sale may be held." Peat, Marwick,
Mitchell & Co. v. Bates, 1992 OK CIV APP 120,
¶7, 839 P.2d 208, 210 citing Stephenson v.
Clement, 1935 OK 374, 43 P.2d 430.
The mortgage on the property at issue came about because
Lillian and John Franklin granted a mortgage on their
property as security for the promissory note executed by
Lillian Franklin. The mortgage is the security instrument
given to the bank to secure repayment of the note. The terms
of the note require monthly payments. No payments have been
made since January 1, 2015, and the note and mortgage ...