Monroe et al v. Bank of America, N.A. et al
OPINION AND ORDER by Judge John E Dowdell ; terminating party Bank of America, N.A. ; denying 32 Motion to Amend; granting 9 Motion to Dismiss; granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim (Re: State Court Petition/Complaint ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
AMY L. MONROE a/k/a AMY L.
McCAFFERTY and C. MARCUS
BANK OF AMERICA CORPORATION,
f/n/a BANK OF AMERICA, N.A., and
WILMINGTON SAVINGS FUND SOCIETY, )
Case No. 17-cv-248-JED-JFJ
OPINION & ORDER
Before the Court are motions to dismiss by Defendant Bank of America, N.A. (“BANA”)
(Doc. 9) and Defendant 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. 18). In a prior order (Doc. 30), this Court granted BANA’s motion to dismiss as to Plaintiffs’
first and second claims. Wilmington’s motion to dismiss was granted as to Plaintiffs’ first claim,
but denied as to the second claim. The Court determined that additional briefing was needed before
ruling on whether to dismiss Plaintiffs’ third claim, slander of title.
“To survive a motion under Rule 12(b)(6), a plaintiff must plead sufficient factual
allegations ‘to state a claim to relief that is plausible on its face.’” Brokers’ Choice of America,
Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ruling on a Rule 12(b)(6)
motion, the court must liberally construe the pleadings, take all well-pleaded facts as true, and
make all reasonable inferences in favor of the non-moving party. Brokers’ Choice of Am., 861
F.3d at 1105.
As the third claim in their complaint, Plaintiffs assert slander of title. (Doc. 2-2 at 7-8
[Compl. at ¶¶ 18-21]). Plaintiffs allege that Defendants knew no later than September 26, 2012,
that the Mortgage was “fatally defective and unenforceable.” (Id. at 7 [Compl. at ¶ 19]).
Nonetheless, Defendants have allegedly “continued to make untenable legal demands” and have
engaged “in a campaign of harassment.” (Id.). The specific misconduct alleged in the complaint
is the filing of the “untenable” foreclosure action in 2016 and Defendants’ refusal to release the
mortgage. (Id. at 7-8 [Compl. at ¶¶ 20-21]; Doc. 25 at 12).
The elements of a slander of title claim under Oklahoma law include: (1) publication; (2)
a false statement in the publication; (3) malice in the publication; (4) special damage resulting
from the publication; and (5) ownership or possession of the property that is the subject of the
publication. Grasz v. Discover Bank ex rel. SA Discover Fin. Servs., Inc., 315 P.3d 406, 409 (Okla.
Civ. App. 2013).
Defendants argue that Plaintiffs have failed to allege any unprivileged,
slanderous publication made by them. Defendants also contend that Plaintiffs have failed to
specifically allege special damages.
Restatement (Second) of Torts § 587 provides:
A party to a private litigation . . . is absolutely privileged to publish defamatory
matter concerning another in communications preliminary to a proposed judicial
proceeding, or in the institution of or during the course and as a part of, a judicial
proceeding in which he participates, if it has some relation to the proceeding.
(Am. Law Inst. 1977). Section 586 grants the same absolute privilege to attorneys participating
as counsel in a judicial proceeding. These sections have been held by Oklahoma courts to apply
to slander of title actions. See Bennett v. McKibben, 915 P.2d 400 (Okla. Civ. App. 1996) (holding
that statements made in the original and amended petitions were absolutely privileged); Pryor v.
Findley, 949 P.2d 1218, 1219 (Okla. Civ. App. 1997) (“Statements made in judicial pleadings are
absolutely privileged.”). The Court finds that Defendant Wilmington’s commencement of the
2016 lawsuit clearly falls within § 587 and, thus, is absolutely privileged.
Moreover, the Court finds that the 2016 lawsuit was timely filed. Upon review of the case
law and the parties’ supplemental briefing, the Court finds that the six-year statute of limitations,
codified at Okla. Stat. tit. 12A, § 3-118(a), applies to the note and mortgage in this case. This
conclusion finds direct support in Cinco Enterprises, Inc. v. Botts, in which the Oklahoma Court
of Civil Appeals provided the following explanation:
However, 12A O.S. 1991 § 3-118(a) provides a six-year statute of limitations for
actions to enforce the obligations of a promissory note, while 42 O.S. 1991 § 23
provides that a lien is extinguished “by the mere lapse of the time within which,
under the provisions of civil procedure, an action can be brought upon the principal
obligation,” and 42 O.S. 1991 § 5 specifically provides that the provisions of Title
42 apply to mortgages. Thus, any action by [the creditor] to enforce the underlying
obligation secured by the mortgage is time-barred, and [the creditor]’s right to
enforce its mortgage was extinguished by the passage of six years after the
promissory note became due.
931 P.2d 81, 83 (Okla. Civ. App. 1996) (emphasis added). See also Bankers Trust Co. of Cal.,
N.A. v. Wallis, 280 P.3d 974, 976 n.8 (Okla. Civ. App. 2012) (applying the six-year statute of
limitations to a foreclosure action based on a promissory note). Even assuming that Plaintiffs’ debt
under the promissory note was accelerated in 2011 upon the commencement of the first foreclosure
suit, brought by BANA (see Doc. 30 at 6), then the mortgage and note were still enforceable in
The Court also finds that Defendants’ alleged failure to release the mortgage lien after the
expiration of the SOL does not constitute “publication” for a slander of title claim. In Borison v.
Bank Leumi Trust Co. of N.Y., the Oklahoma Court of Civil Appeals found “no Oklahoma authority
that failure to release an authorized judgment, which has not been satisfied, constitutes slander of
title.” 972 P.2d 1188, 1190 (Okla. Civ. App. 1998). “Whether Bank’s judgment is enforceable or
constitutes a cloud on [the debtor]’s title is not relevant to a slander of title claim . . . .” Id.
Borison was distinguished, to an extent, in Grasz v. Discover Bank ex rel. Discover
Financial Services, Inc., 315 P.3d 406 (Okla. Civ. App. 2013). In Grasz, the court found that
failure to release an authorized judgment that had been discharged in bankruptcy could constitute
slander of title. Id. at 410. Yet, this Court finds no basis in Grasz for holding that the failure to
release a mortgage lien that has been extinguished under the applicable statute of limitations can
support a slander of title claim. Instead, the case law suggests that a quiet title action is the
appropriate next step for a mortgagor who believes the statute of limitations has run on a mortgage
lien. See Abboud v. Abboud, 14 P.3d 569, 571 (Okla. Civ. App. 2000) (“[I]f the statute of
limitations has, by operation of law, barred an action to foreclose a mortgage lien then the lien is
no impediment to the mortgagor’s right to quiet title.”).
For the foregoing reasons, Defendant BANA’s Motion to Dismiss (Doc. 9) is granted.
Defendant Wilmington’s Motion to Dismiss (Doc. 18) is granted as to Plaintiffs’ first and third
The Court has not had occasion to determine, as a matter of law, whether the debt was accelerated
in 2011. The Court has only rejected Defendants’ argument that the alleged acceleration of the
debt in 2011 would not cause the statute of limitations to begin to run because the note and
mortgage are in the nature of installment contracts. (See Doc. 9 at 7; Doc. 18 at 6; Doc. 30 at 4-6)
claims and denied as to the second claim. Because the Court finds that the six-year statute of
limitations applies to the note and mortgage, Plaintiffs’ motion for leave to amend their complaint
(Doc. 32) is denied.
ORDERED this 19th day of April, 2018.
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