Voorhis v. BOK Financial Corporation et al

Filing 98

OPINION AND ORDER by Judge Claire V Eagan ; denying 70 Motion to Reconsider (Re: 68 Minute Order,, Ruling on Motion for Leave to File Document(s),,, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

LISA LETT VOORHIS,

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Plaintiff,
v.
BOK FINANCIAL CORPORATION and
BOKF, N.A.,
Defendants.

Case No. 13-CV-0197-CVE-TLW

OPINION AND ORDER
Now before the Court is Plaintiff’s Motion for Reconsideration of Order Granting Defendant
BOKF’s Motion for Leave to File Counterclaims and to Strike Defendant BOKF, N.A.’s
Counterclaims (Dkt. # 70). Plaintiff asks the Court to reconsider its order (Dkt. # 68) granting
defendant BOKF, N.A’s (BOKF) motion for leave to file counterclaims based on alleged
misrepresentations in plaintiff’s application to refinance her home mortgage, because BOKF delayed
in seeking leave to file its counterclaims and failed to show good cause to assert counterclaims
against plaintiff. BOKF responds that plaintiff will suffer no unfair prejudice from allowing BOKF
to assert counterclaims and plaintiff’s disputes with the facts alleged by BOKF should be raised in
a motion for summary judgment, rather than in response to a motion to amend.
I.
Plaintiff Lisa Lett Voorhis filed this case in the United States District Court for the District
of New Mexico alleging that defendant BOK Financial Corporation and BOKF engaged in unfair
lending practices by inflating the closing costs to refinance her home mortgage and by illegally
taking money from her escrow account. In her original complaint, plaintiff alleged claims under the

Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq., the Truth in Lending Act, 15
U.S.C. § 1601 et seq., and the Oklahoma Secure and Fair Enforcement for Mortgage Licensing Act,
OKLA. STAT. tit 59, § 209 et seq. Defendants filed a motion (Dkt. # 36) to transfer venue to the
Northern District of Oklahoma, and the motion was granted. After the case was transferred, this
Court entered a scheduling order setting, inter alia, a discovery cutoff of July 16, 2013 and a May
17, 2013 deadline to file motions to join additional parties or amend the complaint. Dkt. # 48.
Plaintiff filed an amended complaint (Dkt. # 49) asserting additional claims under Oklahoma and
New Mexico law.
On May 29, 2013, BOKF served its first written discovery requests on plaintiff and it sought
information about plaintiff’s use of the real property for which plaintiff obtained a home mortgage.
Plaintiff stated in her discovery responses that she had not continuously used the property as her
residence before or after the refinancing of her home mortgage, but she did not verify her discovery
responses. Dkt. # 66-2, at 5. BOKF took plaintiff’s deposition on July 10, 2013 and plaintiff
confirmed that did use the property as her primary residence when the refinancing transaction was
closed in November 2011. Dkt. # 66-3, at 5. On July 11, 2013, BOKF filed a motion for leave to
assert counterclaims against plaintiff, because BOKF offered plaintiff a reduced interest rate based
on her representations at the time of the refinancing that she would be using the subject real property
as her primary residence. Dkt. # 66, at 4. The Court granted BOKF’s motion before waiting for
plaintiff’s response deadline to expire, and BOFK filed counterclaims (Dkt. # 69) for fraud and
negligent misrepresentation against plaintiff. BOFK claims that plaintiff signed an affidavit of
residency stating that:
The Property is or will be Borrowers’ Primary Residence. This means at least one
of the Borrowers who executes the Note and Deed of Trust or Mortgage will take
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title to and occupy the Property. The Property is now occupied as the Borrowers’
principal residence or will be occupied as Borrowers’ principal residence no later
than sixty (60) days after this date or sixty (60) days after the Property shall first
become ready for occupancy as a habitable dwelling, whichever is later and shall
continue to occupy the property as Borrowers’ Principal residence for at least one
year after the date of occupancy. The Borrowers have no present intention that is
contrary to this representation.
Dkt. # 69-2, at 1. According to plaintiff’s discovery responses and deposition testimony, it does not
appear that she resided at the subject real property within 60 days of the closing of the refinancing
transaction. Dkt. # 66-2, at 4-5.
II.
Plaintiff asks the Court to reconsider its order granting BOKF’s motion for leave to file
counterclaims, because BOKF unduly delayed when filing its motion and BOKF’s motion is based
on misstatements of fact.1 Dkt. # 70. BOKF responds that plaintiff’s factual challenges to the
proposed counterclaims would be more appropriately raised in a motion for summary judgment and
plaintiff will suffer no unfair prejudice from defending against BOKF’s counterclaims.
Under Fed. R. Civ. P. 13, counterclaims should be filed when the original answer is served
against an opposing party. When a party discovers new evidence giving rise to a counterclaim as
discovery proceeds, the party must move to amend its pleadings under Fed. R. Civ. P. 15(a) in order
to assert a counterclaim against the opposing party. Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th
Cir. 2006); Harris v. United States Dep’t of Veterans Affairs, 126 F.3d 339, 345 (10th Cir. 1997).
Rule 15(a) provides that “leave shall be freely given when justice so requires.” Minter v. Prime
Equipment Co., 451 F.3d 1196, 1204 (10th Cir. 2006); Bradley v. Val-Mejias, 379 F.3d 892, 900

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Plaintiff was not afforded an opportunity to respond to BOKF’s motion and the Court
declines to apply the standard of review applicable to motions to reconsider.
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(10th Cir. 2004). “In the absence of any apparent or declared reason-such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance . . . the leave
sought should, as the rules require, be ‘freely given’” Foman v. Davis, 371 U.S. 178, 182 (1962).
An amendment is futile if it would be subject to dismissal pursuant to Fed. R. Civ. P. 12. Jefferson
County Sch. Dist. No. R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999).
The Court will initially consider plaintiff’s argument that BOKF unduly delayed when filing
its motion for leave to file counterclaims. Denial of a motion to amend or to assert counterclaims
may be appropriate if the moving party unduly delayed when filing its motion and has no adequate
explanation for the delay. Minter, 451 F.3d at 1206. A motion to amend is subject to denial when
the “party seeking amendment knows or should have known of the facts upon which the proposed
amendment is based but fails to include them in the original [pleading] . . . .” Frank v. U.S. West,
Inc., 3 F.3d 1357, 1366 (10th Cir. 1993) (quoting Las Vegas Ice & Cold Storage Co. v. Far West
Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)). Plaintiff argues that BOKF knew of the factual basis
for its motion when it originally filed its answer in November 2012, because BOKF asserted an
affirmative defense based on plaintiff’s alleged noncompliance with the affidavit of residency. Dkt.
# 70, at 7. BOKF responds that it raised an affirmative defense in its answer based on its
“information and belief” but it did not have a sufficient factual basis to assert a counterclaim, and
it confirmed plaintiff’s residency status through the discovery process before bringing a
counterclaim against plaintiff. Dkt. # 72, at 5. BOKF acknowledges that it filed its motion for
leave to file counterclaims after the deadline in the scheduling order for motions to amend, but it
states that its motion was filed one day after plaintiff’s deposition and it could not have filed its

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motion until it obtained evidence providing a good faith basis to assert counterclaims against
plaintiff. The Court finds that BOKF has provided a reasonable explanation for any delay in filing
its motion for leave to file counterclaims, and BOKF’s motion should not be denied due to undue
delay.
Plaintiff also argues that BOKF’s motion misrepresents the facts concerning plaintiff’s
affidavit of residency and BOKF fails to provide mitigating facts showing why plaintiff did not
reside at the subject real property after the refinancing was completed. Dkt. # 70, at 3-6. In order
to defeat a motion to amend on the ground of futility, the party opposing the motion must show that
the proposed counterclaim would not survive a motion to dismiss under Rule 12(b)(6). When ruling
on a motion to dismiss under Rule 12(b)(6), a court must accept all the well-pleaded allegations of
the complaint as true, even if doubtful in fact, and must construe the allegations in the light most
favorable to claimant. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Even though
plaintiff disputes BOKF’s allegations, the Court has reviewed BOKF’s counterclaims and finds that
BOKF has stated counterclaims for fraud and negligent misrepresentation against plaintiff. BOKF
alleges that plaintiff signed an affidavit of residency in connection with the refinancing of real
property and that plaintiff did not reside in the real property within 60 days after the transaction was
closed. Plaintiff argues that BOKF fails to consider her justification for failing to reside at the
property, but she has not shown that BOKF has failed to state counterclaims against her. In her
motion for summary judgment, plaintiff may offer evidence tending to negate any inference that she
intentionally or negligently made misrepresentations concerning her intent to reside at the real
property, but the Court may not disregard the well-pleaded allegations of BOKF’s counterclaims
when considering whether the counterclaims would survive a motion to dismiss. The Court has

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considered plaintiff’s arguments and does not find that it would have reached a different result, and
plaintiff’s motion to reconsider should be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reconsideration of Order
Granting Defendant BOKF’s Motion for Leave to File Counterclaims and to Strike Defendant
BOKF, N.A.’s Counterclaims (Dkt. # 70) is denied.
DATED this 19th day of August, 2013.

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