J.P. MORGAN CHASE BANK N.A. v. ELDRIDGE 2012 OK 24 – HAMP citation

States the usual recent stuff:

“¶8 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the Note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181159 P.2d 717.
4 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of ownership of the note carried with it ownership of the mortgage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(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 pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title.” 12A O.S. 2001 §3-301.¶9 To show you are the “holder” of the note you must prove you are in possession of the note and the note is either “payable to bearer” (blank indorsement) or to an identified person that is the person in possession (special indorsement).5 Therefore, both possession of the note and an indorsement on the note or attached allonge6 are required in order for one to be a “holder” of the note.¶10 To be a “nonholder in possession who has the rights of a holder” you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. The record in this case reflects the Note has not been indorsed. No negotiation has occurred because the person now in possession did not become a holder by lack of the Note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held, without holder status and, therefore, the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203.”

But also gives us what I think is our first cite to what the OK Supremes have to say about HAMP:  

2 HAMP is a federal loan modification program provided for under the scope of the Troubled Asset Relief Program (TARP). 12 U.S.C. § 5211. Pursuant to a Supplemental Directive 10-02 of HAMP, passed on March 25, 2010, mortgage servicers are required to (i) check Borrower eligibility for HAMP program protections and (ii) if the Borrower is determined to be eligible, make reasonable attempts to modify the terms of the loan prior to seeking foreclosure. HAMP applies to the Lender pursuant to a Servicer Participation Agreement entered into between the Lender and the Federal National Mortgage Association in March of 2010.

Share

Comments are closed.

  • Categories

  • Archives