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BANK OF AMERICA, N.A. v. MURZELLO2014 OK CIV APP 52326 P.3d 1146Case Number: 111115Decided: 05/01/2014Mandate Issued: 05/28/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 52, 326 P.3d 1146
BANK OF AMERICA, N.A., Plaintiff/Appellee,v.CARMELINA S. 
MURZELLO, Defendant/Appellant,andTHE HEIRS, PERSONAL REPRESENTATIVES, 
DEVISEES, TRUSTEES, SUCCESSORS AND ASSIGNS OF RAYMOND J. MURZELLO, DECEASED, THE 
UNKNOWN SUCCESSORS; JOHN DOE, SPOUSE OF CARMELINA A. MURZELLO, IF MARRIED; 
OCCUPANTS OF THE PREMISES; and STATE OF OKLAHOMA, ex rel OKLAHOMA TAX 
COMMISSION, Defendants.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA
HONORABLE REBECCA B. NIGHTINGALE, TRIAL JUDGE

AFFIRMED

Brian J. Rayment, A. Grant Schwabe, Kivell, Rayment & Francis, P.C., 
Tulsa, Oklahoma, for Plaintiff/Appellee,Robert G. Green, Tulsa, Oklahoma, 
for Defendant/Appellant.


Wm. C. Hetherington, Jr., Vice-Chief Judge:
¶1 Defendant Carmelina S. Murzello (Appellant) appeals only that part of the 
trial court's judgment which grants summary adjudication in favor of Plaintiff 
Bank of America, N.A. (BANA) on its mortgage foreclosure petition.1 Appellant 
contends BANA's motion and foreclosure action should have been dismissed for 
lack of standing. We disagree based on the evidentiary materials submitted to 
the trial court, and the order is AFFIRMED.
STANDARD OF REVIEW
¶2 Appellant appeals without appellate briefs in conformance with the 
procedures for the appellate accelerated docket, Okla.Sup.Ct.R. 1.36, 12 
O.S.Supp.2003, Ch. 15, App. 1. An appeal on summary judgment comes to this court 
as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. All inferences and 
conclusions are to be drawn from the underlying facts contained in the record 
and are to be considered in the light most favorable to the party opposing the 
summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary 
judgment is improper if, under the evidentiary materials, reasonable individuals 
could reach different factual conclusions. Gaines v. Comanche County Medical 
Hospital, 2006 OK 39, ¶4, 143 P.3d 203.
FACTS
¶3 On February 23, 2010, BANA filed its foreclosure petition against numerous 
defendants, including Appellant and the heirs, devisees, unknown successors, 
etc. of Appellant's deceased husband, Raymond J. Murzello (Deceased). The 
original petition is not included in the accelerated record. However, BANA's 
Amended Petition for Foreclosure of Mortgage filed April 13, 2010, alleges, 
inter alia, that Appellant and Deceased did not make the September 1, 
2009 payment or any subsequent payments due on a promissory note which they both 
executed on or about July 7, 2006 and promised to pay to "the order of the 
Lender," expressly identified therein as "Bank of America, N.A.," the principal 
sum of $182,000.00, with interest at the rate of 6.125% per annum, until paid. 
BANA further alleges that as part of the same transaction, Appellant and 
Deceased executed a real estate mortgage with power of sale executed to secure 
payment of the July 7, 2006 promissory note. In relevant part, the mortgage 
describes certain real property in the City of Tulsa, Oklahoma (subject 
property), identifies BANA as "Lender" and "mortgagee under this security 
instrument," and was electronically filed with the Tulsa County Clerk on July 
17, 2006. Attached to BANA's Amended Petition are copies of the July 7, 2006 
note and mortgage, which BANA alleges therein are "now held by [it]."
¶4 Appellant filed an answer, denying, inter alia, her remarriage and 
the amount BANA claimed was owing. She also alleges as a counterclaim the 
negligence of BANA personnel "in not advising" she and Deceased that the home 
was not being transferred to "Raymond Murzello and Carmelina Murzello, husband 
and wife, as joint tenants" and "in not preparing the deed" which would have 
conveyed the home to them as joint tenants, as they had requested on the loan 
application. Attached to Appellant's Answer and Counterclaim is 1) a copy of an 
unsigned, four-page Uniform Residential Loan Application submitted by telephone 
call between the Murzellos and a BANA interviewer on June 14, 2005; and 2) a 
letter dated July 6, 2006 to the Murzellos from a "Loan Specialist/HSS" for 
BANA's subsidiary, HomeFocus, LLC, which references certain enclosures, 
i.e., "Refinance Closing Documents" and "Important Instructions List."2 Only the latter 
two-page list of instructions is attached to the Answer and Counterclaim. 
Appellee replied, specifically denying each of Appellant's allegations, 
demanding strict proof thereof, and asserting various affirmative defenses.
¶5 Some twenty-one months later,3 BANA moved for "summary judgment," alleging as 
undisputed facts: 1) the execution of the note and mortgage by the Murzellos and 
the delivery of both to BANA, 2) the description of the mortgaged property, 3) 
BANA's status as "the holder of the Note sued upon, and of the Mortgage which is 
security therefore," 4) the Murzellos' failure to pay the September 9, 2009 and 
subsequent installments, 5) the principal amount due and owing with interest 
with adjustments for preservation and other costs, reasonable attorney's fee as 
provided in the Note and Mortgage, and costs of the action, 6) the filing of the 
mortgage with the County Clerk of Tulsa County and its superior lien status 
above the rights and interests of all defendants, 7) no extension or renewal of 
the Note, 8) the genuineness, authenticity or execution of the Note and 
Mortgage. To support the motion, BANA attached an Affidavit, which first 
paragraph states "Affiant is the officer of Bank of America, N.A., Successor by 
Merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, 
L.P. and has personal knowledge of the contents of Plaintiff's file and the 
facts set forth herein." Following the facts stated in the Affidavit, Ms. 
Sweazen signed the Affidavit as Assistant Vice President under the corporate 
name, "Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, 
L.P. f/k/a Countrywide Home Loans Servicing, L.P."
¶6 Appellant opposed BANA's motion for summary judgment arguing the latter 
"did not include any documents from Countrywide Home Loans Servicing, BAC Home 
Loans Servicing or Merger documents from Bank of America" and the "affidavit 
attached to the Motion injects other parties into the ownership chain or control 
of the note. There is no documentation which proves up the chain of ownership of 
the note and mortgage, being exclusively in plaintiff." BANA responded, arguing 
Appellant did not deny or dispute the material facts which support foreclosure4 and maintained 
it is the "person entitled to enforce the note" as the "holder," pointing out 
the latter recites Appellant "promise[s] to pay . . . to order of the Lender," 
and refers to "the Lender" as "[BANA]." As a result, BANA argued it is the 
proper party to enforce the Note.
ANALYSIS
¶7 The only issue Appellant raises in her Petition in Error is that the trial 
court declined to follow Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151 and progeny, which 
cases hold to have standing a foreclosing plaintiff must be in possession and 
own the promissory note sued on. She argues "the affidavit in support of [BANA's 
summary adjudication] motion puts into issue whether plaintiff had possession of 
the note when suit was filed" and because BANA elected not to provide 
this important history of the note, the case should have been dismissed for lack 
of standing.5
¶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." (Emphasis added.) Bank of America, 
N.A. v. Kabba, 2012 OK 23, ¶ 
5, 276 P.3d 1006. "A foreclosing 
entity has the burden of proving it is a 'person entitled to enforce an 
instrument'6 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 [§] 3-309 or 3-418(d) of [Title 
12A].'" (Emphasis added.) Id. "To demonstrate you are the 'holder' of the 
note you must establish 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)."7 (Emphasis 
added.) Id., ¶ 6.
¶9 We find no error with the trial court's summary adjudication. There is 
nothing in the allegations of BANA's Amended Petition or shown by the attached 
exhibits to that petition or the motion for summary judgment from which a 
reasonable person might infer any other entity other than BANA has had 
possession of the Note and Mortgage between execution and delivery to BANA on 
July 7, 2006 and the filing date of BANA's foreclosure on February 23, 2010. 
Unlike in Deutsche Bank and progeny, the plaintiff who filed this 
foreclosure proceeding claiming to be the "holder" of the note and mortgage is 
one and the same entity as that identified in the copy of the Note attached to 
BANA's Amended Petition and to its motion for summary judgment. Further, 
for purposes of determining whether BANA is the "holder" or "person 
entitled to enforce note," the Note specifically identifies BANA as the 
"person"8 to 
whom the note is payable.
¶10 Appellant's sole argument below and on appeal for BANA's lack of 
"possession" is the Affidavit attached to support BANA's summary judgment 
motion. The first paragraph of the Affidavit, which was notarized on December 3, 
2011, simply explains the affiant's then-current title/status with 
"[BANA], Successor by Merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide 
Home Loans Servicing, L.P." and her personal knowledge of 
"Plaintiff's file," which from the inception of the foreclosure action 
has always been BANA. There are no facts stated in the remaining paragraphs of 
the Affidavit and nothing in the evidentiary material submitted to the trial 
court, which even remotely links the possession of the Note and/or Mortgage or 
the acquisition by sale or merger of the same with either of the two merged 
companies.9 
Because the undisputed evidentiary material demonstrates BANA was the "holder" 
of the note and mortgage before it filed this foreclosure proceeding, we 
find no error with the court's implied finding that the Affidavit neither 
injects the merged companies into the history of the note nor requires any 
merger documents. The only reasonable inference from the evidentiary material in 
this record is that BANA, as the original lender and payee of the note, has had 
continued possession of the promissory note and mortgage since execution in 2006 
by Appellant and Deceased, and therefore had standing when it filed this 
foreclosure proceeding.
¶11 In the present case, the trial court properly granted BANA's motion for 
summary judgment based on the undisputed facts that BANA was the current holder 
of the note when it filed the foreclosure proceedings, Appellant and Deceased 
had failed to pay any installments since September 2009, there was no 
reinstatement, extension or renewal of the note, and the parties had made no 
agreement to delay entry of judgment. Further, Appellant neither disputed the 
validity of the mortgage and BANA's lien upon the subject property nor the 
genuineness, authenticity and execution of the Note and Mortgage. See HSBC 
Bank USA v. Lyon, 2012 OK 
10, 276 P.3d 1002. The trial 
court's judgment is AFFIRMED.

JOPLIN, P.J., and BUETTNER, J., concur.

FOOTNOTES

1 In 
addition to this appealed ruling, the court's Final Journal Entry of Judgment 
filed September 4, 2012 finds the Oklahoma Tax Commission had disclaimed any 
right, title or interest in the real property and grants Lender default judgment 
against the remaining defendants which the court found had either been lawfully 
served by publication after due diligence and meaningful search by Plaintiff 
Bank or personally served with summons.

2 The 
abbreviation "HHS" is explained on the second page of the attached "Important 
Instructions" which gives a toll-free telephone number for their contact "Loan 
Specialist/Home Services Specialist." The same Instructions simply identifies 
"HomeFocus, LLC" as "a subsidiary of Bank of America."

3 In the 
interim, according to the certified appearance docket included in the 
accelerated record, 1) the trial court entered default judgment when no one 
appeared for Appellant at the March 31, 2011 "Scheduling/Status Conference"; 2) 
a final journal entry of judgment in the foreclosure action was filed April 19, 
2011, 3) the court issued special execution and order of sale, 4) Appellant 
moved to vacate the default judgment against her, 5) the court granted her 
motion, ordering the "final journal entry of judgment signed 4-13-11 and filed 
4-19-11 be vacated in its entirety" and recalled the sheriff sale set for June 
2011.

4 BANA 
specifically argued Appellant did not deny or dispute, and therefor admitted for 
purposes of summary judgment, the following facts: 1) "the installment due on 
September 1, 2009, and subsequent installments were not paid by the Defendant 
and Plaintiff elected to declare the entire sum due and payable"; 2) "there 
remains due and owing on the Note the principal amount of $157,557.21, with 
interest from August 1, 2009, at the rate of 6.125% per annum, as adjusted. . . 
[for costs. . .and attorney's fee as provided in the Note and Mortgage"; 3) the 
Mortgage securing the payment of said Note was recorded on July 17, 2006. . . 
County Clerk of Tulsa County, Oklahoma, or that the Mortgage is a valid, first, 
prior and superior lien against the [subject property]"; 4) Appellant "has not 
tendered sufficient monies to reinstate the Note"; 5) "the Note has not been 
extended or renewed"; 6) "[BANA] and [Appellant] have not made any arrangements 
or agreements to delay the entry of judgment in this foreclosure action"; 7) "no 
Defendant has contested the genuineness, authenticity or execution of the Note 
and Mortgage"; and that 8) the Note and Mortgage are in full force and 
effect.

5 We do 
not address the trial court's dismissal of Appellant's negligence counterclaim. 
Appellant only generally refers to the latter ruling in Exhibit "B" of her 
Petition in error, and at the end in the one issue raised on appeal listed in 
Exhibit C, she makes a general statement "The dismissal of [Appellant's] 
counter-claim was a nullity." Especially in an accelerated appeal where the lack 
of briefs precludes amendment to allegations raised in a petition in error as 
permitted in other appeals, this "shotgun allegation of trial court error . . . 
is too vague and general to meaningfully apprise this Court of the reasons for 
which appellate relief is sought." Siemens Financial Services, Inc., v. MTG 
Guarnieri Manufacturing, Inc., 2012 OK CIV APP 1, ¶11, 269 P.3d 36. See also Vanguard 
Environmental Inc. v. Curler, 2008 OK CIV APP 57, ¶¶ 5-6, 190 P.3d 1158.

6 For the 
definition of "Person entitled to enforce" an instrument, the Court in Bank 
of America, N.A. v. Kabba relied on 12A O.S.2001 § 3-301 which has not 
since been amended. See 12A 
O.S.2011 § 3-301.

7 In 
2005, the Legislature amended the term used in § 3-301, "holder," which is still 
defined by 12A O.S. 2011 
§1-201(b)(21) as:
(A) the person in possession of a negotiable instrument that is payable 
either to bearer or to an identified person that is the person in 
possession;(B) the person in possession of a document of title if the goods 
are deliverable either to bearer or to the order of the person in possession; 
or(C) the person in control of a negotiable electronic document of 
title.

8 As 
defined in 12A O.S.Supp 2005 § 
1-201(b)(27), the term, "Person," means "an individual, corporation, 
business trust, estate, trust, partnership, limited liability company, 
association, joint venture, government, governmental subdivision, agency, or 
instrumentality, public corporation, or any other legal or commercial 
entity."

9 The 
facts of this case are distinguishable from J.P.Morgan Chase Bank N.A. v. 
Eldridge, 2012 OK 24, 273 P.3d 62. In Eldridge, 
the promissory note and mortgage was executed in favor of the "J.P. Morgan Chase 
Bank N.A." (original lender); 2) "Chase Home Finance Milwaukee" (original 
plaintiff) filed the foreclosure action claiming to be the present holder of the 
note and mortgage and amended its petition without amending its name, 3) the 
original lender did not assign the mortgage to the original plaintiff until six 
weeks after the original foreclosure action was filed, 4) the mortgage 
assignment purported to transfer for value the mortgage "together with the note, 
debts and claims secured thereby"; and 5) the trial court granted the summary 
judgment to the original plaintiff, but in its final judgment, the court 
referred to "Plaintiff J.P. Morgan Chase Bank N.A." as the "successor by 
merger to Chase Home Finance LLC." As noted by the Supreme Court, the 
latter reference to Chase Home Finance LLC, was "the first mention of that 
entity. Previously, the entire litigation had been in the name of Chase Home 
Finance Milwaukee. We are unable to determine if Chase Home Finance LLC, is the 
same as Chase Home Finance Milwaukee or when the merger occurred." Id., ¶ 
4. The Court reversed and remanded the judgment, finding there was no evidence 
in the record supporting Appellee Chase Home Finance Milwaukee was the "holder" 
of the note because the note was not indorsed. The Court also found Appellee had 
failed to establish it was a "nonholder in possession who has the rights of a 
holder" because the purported assignment of mortgage was filed after the 
filing of the foreclosure proceeding and the same did not establish delivery of 
the Note and the purpose of that delivery.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2008 OK CIV APP 57, 190 P.3d 1158, VANGUARD ENVIRONMENTAL INC. v. CURLERDiscussed 2012 OK CIV APP 1, 269 P.3d 36, SIEMENS FINANCIAL SERVICES, INC. v. MTG GUARNIERI MANUFACTURING, INC.DiscussedOklahoma Supreme Court Cases CiteNameLevel 2006 OK 39, 143 P.3d 203, GAINES v. COMANCHE COUNTY MEDICAL HOSPITALDiscussed 1996 OK 48, 914 P.2d 1051, 67 OBJ        1173, Carmichael v. BellerDiscussed 2012 OK 3, 270 P.3d 151, DEUTSCHE BANK NATIONAL TRUST v. BRUMBAUGHDiscussed 2012 OK 10, 276 P.3d 1002, HSBC BANK USA v. LYONDiscussed 2012 OK 23, 276 P.3d 1006, BANK OF AMERICA, NA v. KABBADiscussed 2012 OK 24, 273 P.3d 62, J.P. MORGAN CHASE BANK N.A. v. ELDRIDGEDiscussed 1981 OK 85, 631 P.2d 752, Rose v. Sapulpa Rural Water Co.CitedTitle 12A. Uniform Commercial Code CiteNameLevel 12A O.S. 1-201, General Definitions and Principles of InterpretationDiscussed 12A O.S. 3-301, Person Entitled to Enforce InstrumentDiscussed










