Foreclosure Defense-Legal Theories in Oklahoma

Posted almost 2 years ago. Applies to Oklahoma, 2 helpful votes

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State Law claims to consider in response to a foreclosure filing:

A.Invasion of Privacy

“Oklahoma recognizes the common-law tort of invasion of privacy by intrusion upon one's seclusion. In order to prevail on this claim, [Plaintiff] had to prove the two elements of that tort: (a) a nonconsensual intrusion (b) which was highly offensive to a reasonable person." [10] When privacy is invaded while seeking to collect a debt that is not owed, the level of conduct necessary to be “highly offensive to a reasonable person" is greatly reduced. Oklahoma, along with multiple other states, has held that whether or not the individual alleging invasion of privacy owed the debt is a factor in considering whether behavior was highly offensive to a reasonable person. [11]

The Supreme Court of Oklahoma cited with approval to other courts holding:

“a creditor has a right to take reasonable action to pursue his debtor and persuade payment, although the steps taken may result to a certain degree in the invasion of the debtor's right of privacy,‘but that the debtor has a cause of action for injurious conduct on the part of the creditor which exceeds the bounds of reasonableness' ". The Alabama court went on to point out that what constitutes “reasonable" action must depend largely on the facts of the particular case. [12]

In the case now under review, the telephone calls were all the more disturbing because plaintiff was not the debtor from whom the Bank wished to collect nor was she secondarily liable on the debt. We hold defendant's intrusion into her home by use of the telephone, as revealed by the evidence in this case, was unwarranted, unreasonable, and constituted an invasion of her right to privacy and was, therefore, an actionable wrong. Assuming arguendo appellees' contention that a “single" telephone call would not afford appellant a cause of action in trespass or invasion of privacy, appellant's petition sufficiently alleges an action against appellees “for outrageous conduct." [13]

Oklahoma has further recognized that a creditor can invade a person’s “privacy by harassing phone calls in an effort to collect the debt. The Court found that defendant had initiated a campaign of harassment by calling plaintiff every day both at work and at home for three weeks and had called her employers, all resulting in an invasion of plaintiff's right of privacy for which she was allowed to recover for mental anguish which resulted." [14]

A borrower’s obligation under the note and mortgage is to make each monthly payment in full in a timely manner.If such payments are made, either under the original note or any modification or forbearance agreement, there is not consent by the borrower to contact from the lender or its servicer in an attempt to collect payments that have already been made.

The automated collection process of loan servicers, including continuous phone calls, threats of foreclosure, threats to report them as delinquent to the credit reporting agencies, and threats to send “doorknockers" to the property to photograph and inspect it, are generally intended to be highly offensive and to motivate the borrower to pay whatever is demanded.Collection calls are by their nature disturbing and, as the Bennett Court found, collection efforts are even more disturbing and an invasion of privacy because the debt was not owed. [15]

B.Negligence

Lenders and servicers often argue lack of an existence of any duty to use reasonable care, which the Oklahoma Supreme Court has not specifically addressed the issue in the contract of mortgage servicing, such duty has been found to exist in debtor-creditor relationships.In Oklahoma, the duty of ordinary care and diligence is provided for in 25 O.S. § 5. A loan servicer has a duty to borrowers to use ordinary care and diligence in servicing loans based upon the concept of duty as defined by the Oklahoma Supreme Court explained in Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318, 1320 -1321 (Okla. 1996).

As this Court reviewed in Wofford v. Eastern State Hospital, 795 P.2d 516, 519 (Okla.1990), whether or not a duty exists depends on the relationship between the parties and the general risks involved in the common undertaking. Duty of care is a question of law. The court decides whether a defendant stands in such a relationship to a plaintiff that the defendant owes an obligation of reasonable conduct for the benefit of the plaintiff. “[D]uty is ... only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Wofford, 795 P.2d at 519, quoting Prosser, Law on Torts (3d ed. 1964) at pp. 332-333. The most important consideration in establishing duty is foreseeability. Wofford, 795 P.2d at 519. [16]

“‘Whenever a person is placed in such a position with regard to another that it is obvious that if he did not use due care in his own conduct he will cause injury to the other, the duty at once arises to exercise care commensurate with the situation in order to avoid such injury.’" [17]

The Oklahoma Supreme Court has found a creditor to be grossly negligent in its action in servicing and collecting a debt, including conversion of collateral. [18]Such a finding by the Oklahoma Supreme Court in Mitchell makes it clear that a duty of reasonable care exists.

III.DAMAGES

Most cases present minimal or no out of pocket loss.Our experience is that the stress and emotional suffering caused by intentionally oppressive collection practices is significant.Lenders and their servicers often argue that borrowers’ claims should fail for lack of damages.In particular, they allege that a negligence theory of recovery for emotional distress requires proof of physical injury.Citing to Worsham v. Nix, 2004 OK CIV APP 2 and Ellington v. Coca Cola Bottling, 1986 OK 11 in support of this premise. Both Worsham and Ellington actually stand for the proposition that “the plaintiff may recover for mental anguish where it is caused by physical suffering and may also recover for mental anguish which inflicts physical suffering." [19]

In Ellington, the discovery of a foreign substance in her Coke made the plaintiff physically ill, including diarrhea, fever, nausea, and dehydration resulting in a kidney infection.The foreign substance was not actually toxic.The physical illness was all caused by her mental distress at finding the foreign object in her beverage.This was sufficient for damages under a negligence theory.

In Worsham, the claim was legal negligence in an attorney-client relationship. There is no mention of physical injury to Mrs. Worsham while Mr. Worsham committed suicide. The defendant was not liable for wrongful death. The emotional distress damages inWorsham were allowed to proceed without physical injury because it was the result of willful actionable tort. “A willful wrong of such character that mental suffering is recognized as an ordinary, natural and proximate result of such a wrong." [20] In addition, the Worsham Court cited to Ellington and stated that emotional distress damages for legal negligence may also be recovered if the plaintiff could show the emotional distress was foreseeable and caused physical injury. [21]

If there is a willful actionable tort where mental suffering is the ordinary natural and proximate result of the tort, then damages for mental suffering can be collected even absent physical injury.In Cleveland v. Dyna-Mite Pest Control, Inc., [22] the Court held that emotional distress absent physical injury was compensable in a claim for deceit where emotional distress is undoubtedly a natural and probable consequence of purchasing and living in a home damaged by and infested by termites; Coble v. Bowers, 1990 OK CIV APP 109 (holding that emotional distress damages are recoverable for willful actionable tort even absent physical injury.); Timmons v. Royal Globe Insurance Co., 1982 OK 97 (holding that where mental suffering is an element of damages resulting from a tort neither severe mental distress or outrageous conduct is required.); Mashunkashey v. Mashunkashey, 1941 OK 113 (holding that in a case for deceit, mental pain and suffering constituted a ground for recovery).

IV.CONCLUSION

Evaluating the available evidence supporting affirmative defenses and counter claims against a foreclosing party takes a great deal of time and patience. The same is true for evaluation of potential claims against the loan servicer, if it is not the foreclosing party. Accurate payment records and a solid chronology is a key first step. You can expect a tenacious, well-funded opposition, but with the right evidence and trial strategy, you can make a tremendous difference in your client’s life.

[9] http://www.occ.gov/topics/consumer-protection/foreclosure-prevention/financial-remediation-framework.pdf(accessed July 18, 2012)

[10] Gilmore v. Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994)

[11] Munley v. ISC Financial House, Inc., 584 P.2d 1336, 1339 -1340 (Okla. 1978); Bennett v. City Nat. Bank & Trust Co., 549 P.2d 393, 397 (Okla. App. 1975).

[12] Munley v. ISC Financial House, Inc., 584 P.2d 1336, 1339 -1340 (Okla. 1978).

[13] Id.

[14] Bennett v. City Nat. Bank & Trust Co., 549 P.2d 393, 397 (Okla. App. 1975)(cited with approval by Munley v. ISC Financial House, Inc., 584 P.2d 1336, 1339 -1340 (Okla. 1978)).

[15] Bennett v. City Nat. Bank & Trust Co., 549 P.2d at 393, 397 (Okla. App. 1975).

[16] Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318, 1320 -1321 (Okla. 1996).

[17] Wofford v. Eastern State Hosp., 795 P.2d 516, 519 (Okla. 1990)(quoting, Union Bank of Tucson v. Griffin, 771 P.2d 219, 222 (Okla. 1989))(emphasis added).

[18] Mitchell v. Ford Motor Credit, Co., 688 P2d 42, 46 (Okla. 1984).

[19] Worsham at ¶ 25; Ellington at ¶ 8.

[20] Worsham at ¶ 25.

[21] Id at ¶ 28.

[22] 2002 OK CIV APP 95

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