In The District Court of Tulsa County State of Oklahoma
In The District Court of Tulsa County State of Oklahoma
STATE OF OKLAHOMA
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:
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
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,
The material fact to Plaintiffs cause of action, which is not in dispute and not
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.
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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;
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
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
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
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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.
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,
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
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
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
prepaid thereon:
_________________________________
Adam XXXXXXXXXXXXXXX