IN THE DISTRICT COURT OF TULSA COUNTY

STATE OF OKLAHOMA

FINANCE OF AMERICA FINANCIAL, LLC )

)
Plaintiff. )
)
)
v. ) Case No. CJ-20-1931
) Docket D
VELOCITY INNOVATIONS, LLC; )
et al., )
Defendants. )
)

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Comes now, the Defendant Adam XXXX Pro Se and submits his Motion for Summary

Judgment. Because no dispute exists as to the material facts of the legality of Plaintiff to conduct

business in the State of Oklahoma, Defendant submits his Motion for Summary Judgment on the

following causes:

1. Plaintiff is a Foreign Corporation.

2. Plaintiff must be licensed in Oklahoma to originate mortgages.

3. Plaintiff has lack of standing.

THEREFORE, pursuant to 12 O.S. §2056 and Rule 13 of the District Courts of

Oklahoma, Defendant moves the court to grant Summary Judgment in favor of Defendant. In

support of his Motion, the Defendant respectfully submits the following Motion, Brief, Exhibits

and Authorities.

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 BRIEF STATEMENT OF THE CASE

In early 2017, Defendant was interested in a commercial mortgage for an investment

property in Tulsa, Oklahoma. Defendant searched the internet to find corporations that funded

commercial mortgages. Defendant found Plaintiff Finance of America Commercial, LLC and

inquired into the possibility of obtaining a commercial mortgage. On April 10, 2017, Defendant

received a Conditional Quote from Plaintiff via email with Plaintiffs’ physical address of 4201

Congress Street, Suite 475, Charlotte, NC 28209. EXHIBIT 1. Also, on April 10, 2017,

Defendant received an email from Steve Parks a representative and mortgage loan originator for

Plaintiff in Charlotte, NC explaining how he could assist Defendant with financing. EXHIBIT 2.

Defendant eventually entered into a mortgage agreement with Plaintiff on January 10,

2018. EXHIBIT “A”-Petition CJ-20-1931.

MATERIAL FACTS NOT AT ISSUE

(Plaintiff is a Foreign Corporation)

The material fact to Plaintiffs cause of action, which is not in dispute and not

controverted by any evidence is as follows:

1. Plaintiff is a Foreign Corporation. Foreign Corporations are to be registered.

18 O.S. §1130 (2019) provides:

FOREIGN CORPORATIONS; DEFINITION; QUALIFICATION TO DO BUSINESIN

STATE; PROCEDURE

A. As used in the Oklahoma General Corporation Act, the words "foreign corporation"
mean a corporation organized pursuant to the laws of any jurisdiction other than this
state.

B. No foreign corporation shall do any business in this state, through or by branch

offices, agents or representatives located in this state, until it shall have paid to the
Secretary of State of this state the fees prescribed in Section 1142 of this title and shall
have filed with the Secretary of State: 1. A certificate as of a date not earlier than six (6)
months prior to the filing date issued by an authorized officer of the jurisdiction of its

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incorporation evidencing its corporate existence. If such certificate is in a foreign
language, a translation thereof, under oath of the translator, shall be attached thereto;

1. A certificate as of a date not earlier than six (6) months prior to the filing date issued
by an authorized officer of the jurisdiction of its incorporation evidencing its corporate
existence. If such certificate is in a foreign language, a translation thereof, under oath of
the translator, shall be attached thereto;

2. A statement executed by an authorized officer of the corporation and acknowledged in

accordance with the provisions of Section 1007 of this title, setting forth:

a.the mailing address of the corporation's principal place of business, wherever located,

b.the name and street address of its additional registered agent in this state, if any, which
agent may be an individual resident in this state, a domestic corporation, a domestic
partnership whether general or limited and including a limited liability partnership or a
limited liability limited partnership, a domestic limited liability company, a domestic
statutory trust, a foreign corporation other than a foreign partnership whether general or
limited and including a limited liability partnership or a limited liability limited
partnership, a foreign limited liability company or a foreign statutory trust, if authorized
to transact business in this state,

c.the aggregate number of its authorized shares itemized by classes, par value of shares,
shares without par value, and series, if any, within any classes authorized, unless it has no
authorized capital,

d.a statement, as of a date not earlier than six (6) months prior to the filing date, of the
assets and liabilities of the corporation,

e.the business it proposes to do in this state and a statement that it is authorized to do that
business in the jurisdiction of its incorporation, and

f.a statement of the maximum amount of capital such corporation intends and expects to
invest in the state at any time during the current fiscal year. "Invested capital" is defined
as the value of the maximum amount of funds, credits, securities and property of
whatever kind existing at any time during the fiscal year in the State of Oklahoma and
used or employed by such corporation in its business carried on in this state.

C. The Secretary of State, upon payment to the Secretary of State of the fees prescribed in
Section 1142 of this title, shall issue a sufficient number of certificates under the hand
and official seal of the Secretary of State, evidencing the filing of the statement required
by the provisions of subsection B of this section. The certificate of the Secretary of State
shall be prima facie evidence of the right of the corporation to do business in this state;
provided that the Secretary of State shall not issue such certificate unless the name of the
corporation is such as to distinguish it upon the records of the Office of the Secretary of
State in accordance with the provisions of Section 1141 of this title.

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 D. A foreign corporation, upon receiving a certificate from the Secretary of State, shall
enjoy the same rights and privileges as, but not greater than, a corporation organized
under the laws of this state for the purposes set forth in the statement filed by the
corporation with the Secretary of State pursuant to which such certificate is issued and,
except as otherwise provided in the Oklahoma General Corporation Act, shall be subject
to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a
corporation organized under the laws of this state with like purpose and of like character.

Plaintiff has not met any of the foregoing statutes’ requirements to conduct business in

Oklahoma as a foreign corporation. Secretary of State entity search EXHIBIT 3.

MATERIAL FACTS NOT AT ISSUE

(Plaintiff Must be Licensed in Oklahoma to Originate Mortgages)

1. Plaintiff must be licensed to originate mortgages in Oklahoma.

59 O.S. §2095.5(1) (2019) provides:

1. An entity or individual, unless specifically exempted from the Oklahoma Secure and
Fair Enforcement for Mortgage Licensing Act, as provided in Section 2095.3 of this
title, shall not engage in the business of a mortgage broker, mortgage lender or
mortgage loan originator with respect to any dwelling located in this state without
first obtaining and maintaining annually a license under the Oklahoma Secure and
Fair Enforcement for Mortgage Licensing Act. Each licensed mortgage broker,
mortgage lender and mortgage loan originator must register with and maintain a valid
unique identifier issued by the Nationwide Mortgage Licensing System and Registry.

Plaintiff nor Steve Parks are registered in Oklahoma as a mortgage lender or a mortgage

loan originator by the Nationwide Mortgage Licensing System and Registry as required by

statute. EXHIBIT 4. Therefore, neither one is authorized to perform mortgage services in

Oklahoma. In Bunch v. Terpenning, 229 P.3d 574, 580 (Okla. Civ. App. 2009) (“Code section 3-

502(2) provides that a supervised loan made by an unlicensed lender is void. Terpenning could

not "rehabilitate" the void loan by assigning it to another unlicensed lender. ”) Although

Plaintiff did not provide a supervised loan, Plaintiff is still an unlicensed lender (emphasis

added) and the loan should be ruled void as in Bunch v. Terpenning.

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 Pursuant to 59 O.S. §2095.18 (2) (2019), It is a violation of this act for an entity or

individual subject to this act to: 2. Engage in any unfair or deceptive practice toward any entity

or individual. Plaintiff did engage in deceptive practice against the Defendant by knowing they

were not licensed in Oklahoma to originate mortgages. Had Defendant known at the time that

Plaintiff was not licensed, Defendant would not have entered into a mortgage agreement.

Pursuant to 59 O.S. §2095.18 (6) (2019), It is a violation of this act for an entity or

individual subject to this act to: 6. Conduct any business covered by this act without holding a

valid license as required under this act or assist or aide and abet any entity or individual in the

conduct of business under this act without a valid license as required under this act. Plaintiff and

Steve Parks knowingly and willfully conducted business in Oklahoma without a valid license as

required.

Pursuant to 59 O.S. §2095.18 (8) (2019), It is a violation of this act for an entity or

individual subject to this act to: 8. Fail to comply with this act or rules promulgated under this

act or fail to comply with any other state or federal law, including any rules thereunder,

applicable to any business authorized or conducted under this act. Plaintiff knowingly and

willingly failed to comply with this act causing for themselves “unclean hands”. In Canfield v.

Jack, 78 Okla. 127, 188 P. 1040, the court held: "The maxim that one who comes into equity

must come with clean hands is based on conscience and good faith. The maxim is confined to

misconduct in regard to, or at all events in connection with, the matter in litigation, so that it in

some way affects the equitable relations subsisting between the two parties and arising out of the

same transaction. 'Clean hands means a clean record with respect to the transaction with

defendant, and not with respect to any third person." See also Tulsa Torpedo Co. v. Kennedy,

1928 OK 383, 268 P. 205, 206. ” “Those who "come into this court of equity with unclean hands

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. . . should not be heard." Mortgage Elec. Registration Sys. v. U.S., 134 P.3d 913, 917 (Okla. Civ.

App. 2006). By creating these “unclean hands” Plaintiff lacks the capacity to sue.

MATERIAL FACTS NOT AT ISSUE

(Plaintiff Has Lack of Standing to Sue)

1. Plaintiff has lack of standing.

Defendant asserts that the Plaintiff is not the holder of the Note and Mortgage. A

claim which is supported by the letter received from BSI Financial Services. EXHIBIT 5.

The mere filing of a copy of a promissory note with the initial complaint is not evidence

that Plaintiff was the holder of the note at the time of the filing of the lawsuit. “A promissory note

is a negotiable instrument and a negotiable instrument is a contract”. Wells Fargo Bank, N.A. v.

Heath, 2012 OK 54, ¶ 12, 280 P.3d 328. Subject to statutory exceptions, contracts are to be

construed as written. Since Plaintiff has failed to present any evidence that it retained possession

and is still the holder of the note prior to the filing of the complaint in this case, the Plaintiff does

not have not standing to bring this lawsuit based on the position that it is the holder of the note.

Defendant executed a Promissory Note with Plaintiff on January 10, 2018. Defendants loan

was sold or assigned to Titan Loan Funding Trust and is longer owned by Plaintiff.

Several decisions of this Court have been adopted subsequent to COCA's opinion. In

these opinions we reviewed the Division I decision, BAC Home Loans Servicing, L.P. v.

White,2011 OK CIV APP 35, 256 P.3d 1014, and have agreed with the analysis. We hold, once

again, in Oklahoma it is not possible to bifurcate the security interest from the note and proof of

ownership of the note carries with it ownership of the mortgage. To foreclose the mortgage one

must be a person entitled to enforce the note which is secured by the mortgage. The mortgage is

merely incidental to the note and without the note there could be no default of an obligation, and

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thus, no basis for a foreclosure action. COCA's statement that the appellants must prove appellee

owns neither the note nor the mortgage in order to prevail suggests that if the note was found to

be invalid, i.e., because of the challenged indorsements, appellee could still foreclose if it had a

valid assignment of mortgage. This is incorrect. To prevail, appellants need only show that

appellee is not a person entitled to enforce the note Residential Funding Real Estate Holdings,

LLC v. Adams, 279 P.3d 788, 796 (Okla. 2012).

ARGUMENT AND AUTHORITIES

1. STANDARDS OF SUMMARY JUDGMENT

Summary judgment should be granted when it appears one party is entitled to summary

judgment as a matter of law because there exist no substantial controversy as to any material fact

represented in the affidavit and discovery materials. Hamilton v Allen, 1993 OK 46, 852 P.2d

697. "When on motion for summary judgment it appears from pleadings, affidavits, depositions,

admissions, answers to interrogatories or other instruments properly before the Court that there

are no genuine issues as to material facts or that admitted facts justify but a single inference

therefrom, it is not error to grant summary judgment." Perry v. Green, 1970 OK 70, ¶ 0, 468

P.2d 483. "On motion for summary judgment there can be no trial of fact issues since its function

is to determine whether there are any genuine issues as to material facts. Such motion should

therefore be denied if under the evidence reasonable men might reach different conclusions from

undisputed facts." Id. 27, 488-89. (Citation omitted.)

CONCLUSION

There are no material facts at issue in this cause of action. For the reasons and

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authorities cited in the preceding Motion and Brief, the Defendant respectfully requests the

Court to grant summary judgment in favor of the Defendant.

Respectfully Submitted,

Adam James
1506 S. Florence Place
Tulsa, OK 74104
(419) 329-0947
PRO SE

CERTIFICATE OF MAILING

This is to certify that a full, true and correct copy of the above forgoing was mailed this

______ day of _______________________, addressed to the following with sufficient postage

prepaid thereon:

Chad T. Hantak, OBA #33651

The Mortgage Law Firm, PLLC
421 NW 13th Street, Suite 300
Oklahoma City, OK 73103
(405) 246-0602

_________________________________
Adam XXXXXXXXXXXXXXX