NTex Realty, LP v. Tacker

Appellants Cindy and Theron Tacker appealed the grant of summary judgment in favor of NTex Realty, LP. In 2007, Appellants executed a promissory note payable to Home Funds Direct, Inc. Appellants executed a mortgage and delivered it to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Home Funds. Appellants defaulted on the note in 2010, and NTex initiated foreclosure proceedings against them several months later. In their answer, Appellants denied that Appellee owned any interest in the Note and Mortgage, and challenged the authenticity of the documents included in the petition. Appellants then demanded production of the original Note and Mortgage. Appellee moved for summary judgment. In an attached affidavit, Appellee asserted that it currently held both the Note and Mortgage at issue, and again produced a copy of both the unindorsed Note and Mortgage. In response, Appellants argued that Appellee's motion for summary judgment was improper because the Note had never been negotiated. Appellants also asserted that because the copy of the Note was purportedly a "full, true, and correct copy of said Note," the original must also not be indorsed. Based on these reasons, Appellants concluded Appellee could not be the holder of the Note and, therefore, was not the proper party to bring a foreclosure proceeding. Appellee thereafter moved the district court by supplement to its motion, to view the original Note and Mortgage at the hearing for summary judgment. The supplemented motion incorporated an undated allonge, which transferred the Note from Lender to Appellee. The allonge was not included in the original petition for foreclosure. The motion also included a document entitled "Assignment of Mortgage," which transferred the "described mortgage together with the certain note(s) described therein," to Appellee from MERS. The Assignment was acknowledged on November 19, 2009, and recorded by the County Clerk of Rogers County, Oklahoma, on June 8, 2011. The district court granted Appellee's Motion for Summary Judgment and entered an order for the sale of the real property located in Rogers County, Oklahoma. The Appellants now appeal the trial court's order granting summary judgment, arguing NTex Realty, LP, failed to demonstrate standing. After review, the Supreme Court reversed and remanded the case, finding that NTex indeed failed to show "if and when NTex became a person entitled to enforce the note." View "NTex Realty, LP v. Tacker" on Justia Law