Bank of Am., N.A. v. Morris

• Decision Date: 24 September 2014
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. ,No. 111843.,111843.
• Parties: BANK OF AMERICA, N.A., Plaintiff/Appellee, v. Jene MORRIS, Defendant/Appellant. and Tara Morris, Defendant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

338 P.3d 138
2014 OK CIV APP 91

BANK OF AMERICA, N.A., Plaintiff/Appellee
v.
Jene MORRIS, Defendant/Appellant.
and
Tara Morris, Defendant.

No. 111843.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

Sept. 24, 2014.

Greg A. Young, Baer, Timberlake, Coulson & Cates, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee.

Babette Patton, Breathwit & Patton, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant.

Opinion

KEITH RAPP, Judge.

¶ 1 The trial court defendant, Jene Morris (Morris), appeals an Order which denied Morris' Motion to Vacate a summary judgment and subsequent foreclosure judgment entered in favor of the plaintiff Bank of America, N.A. (Bank).¹

BACKGROUND

¶ 2 Bank brought this action against Morris and Tara Morris (husband and wife), and

338 P.3d 139

others (named Jon Doe and Jane Doe as occupants of the mortgaged premises), to recover on a promissory note (Note) and foreclose a mortgage given as security for the Note. Bank attached a copy of the Note to the petition. The original payee was Quicken Loans, Inc.

¶ 3 The Note shows two endorsements. Neither endorsement is dated. One endorsement is a blank endorsement executed by an individual shown as senior vice-president of Bank. The second endorsement is payable to Bank and executed on behalf of Quicken Loans, Inc. by an individual whose title is “capture manager.” In this appeal, Morris does not question execution of the Note and mortgage or the endorsements.

¶ 4 Bank alleged in its verified petition:

That the Plaintiff was entitled to enforce the Note prior to, and is entitled to enforce the Note at and subsequent to the filing of this Petition.

¶ 5 The Record contains a pleading styled “Defendants (sic) Answer.” The pleading is signed by Jene Morris, pro se.² The names of the “defendants” are not given in the body of the pleading. Although there are inconsistencies in the pleading, it does admit ownership of the property and execution of the Note.³

¶ 6 Bank moved for summary judgment against all defendants. Among other statements, the summary judgment motion stated that “the plaintiff is the holder of the note.” The Petition containing the above allegation, a copy of the Note, and a copy of the mortgage with an assignment were added as exhibits.

¶ 7 Bank's exhibit C to its Motion is an affidavit by one of its officers. Among the averments, the Bank's officer stated:

5. That Bank of America, N.A., directly or through an agent, has possession of the Note and entitled to enforce the Note prior to the filing of the Petition and has remained in possession and entitled to enforce the Note subsequent to the filing of the Petition through the present time. The promissory note has been duly endorsed. Bank of America N.A. is the assignee of the security for the referenced loan.

¶ 8 Neither Morris responded to the Motion for Summary Judgment. The trial court entered an Order granting summary judgment.⁴ This order was followed by a final journal entry granting in rem judgment and authorizing foreclosure.

¶ 9 By counsel, Jene and Tara Morris timely filed a Motion to Vacate Judgment. Their basis for the motion focused upon the quoted language in the Bank officer's affidavit that Bank “directly or through an agent, has possession of the Note.” They argued that Bank had failed to establish the requisite possession required under CPT Asset Backed Certificates, Series 2004–EC1 v. Cin Kham and Ngul Liam Cing, 2012 OK 22, 278 P.3d 586 and Deutsche Bank v. Brumbaugh, 2012 OK 3, 270 P.3d 151.

¶ 10 The Bank responded.⁵ Bank distinguished the cases, arguing that here the Note was the same instrument at all times and in the cases there were changes over time. Bank further argued that it established possession and the reference to possession by an agent was immaterial to whether it had the required possession. Last, Bank argued that the Motion to Vacate had not provided any evidence that Bank did not have the required possession and the default

338 P.3d 140

in responding to the summary judgment admitted the possession.

¶ 11 The trial court denied the Motion to Vacate. Jene Morris appeals. The appeal reiterates the contentions presented in the Motion to Vacate.

STANDARD OF REVIEW

¶ 12 The test for measuring the legal correctness of the trial court's ruling on a motion to vacate or set aside judgment is whether sound discretion was exercised upon sufficient cause shown to vacate, modify, open or correct its earlier decision, or to refuse the relief sought. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482 ; VanNort v. Davis, 1990 OK CIV APP 95, ¶ 9, 800 P.2d 1082, 1085. An order vacating said judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused that discretion, because a petition to vacate a judgment is addressed to the sound legal discretion of the trial court. Burroughs v. Bob Martin Corporation, 1975 OK 80, ¶ 23, 536 P.2d 339, 342–43.

¶ 13 The underlying decision was the summary judgment leading to the foreclosure judgment. Thus, the assessment of the trial court's exercise of discretion in denying the motion to vacate rests on the propriety of the underlying grant of summary judgment. As a result, the abuse-of-discretion question is settled by a de novo review of the summary adjudication's correctness. See Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106–07 (motion for new trial after summary judgment).

ANALYSIS AND REVIEW

¶ 14 Even though an opposing party does not respond, the trial court must insure that the motion is meritorious. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by Order of the Supreme Court).

¶ 15 The sole issue in this case revolves around whether the Bank officer's affidavit statement about having an agent in possession of the Note precludes summary judgment under the Deutsche Bank v. Brumbaugh line of cases. This Court holds that mere possession by an agent is possession by its principal.⁶ Premier Bank v. Cohen–Esrey Properties, Inc., 859 F.Supp. 1388, 1396 (D.Kan.1994) ; Sauls v. Whitman, 1935 OK 247, ¶ 14, 42 P.2d 275, 278 ; Jackson v. Kincaid, 1896 OK 72, ¶ 11, 46 P. 587, 590 (“That the possession of the agent is the possession of his principal is too elementary to require the citation of authorities.”).

¶ 16 Therefore, the grant of summary judgment was appropriate and without error. Morris presented no other basis for vacating the foreclosure judgment. The trial court's decision refusing to vacate its judgment is affirmed.

¶ 17 AFFIRMED.

THORNBRUGH, J., concurs, and FISCHER, P.J., concurs in result.

FISCHER, P.J., concurring in result.

¶ 1 This case presents a procedural issue not previously...