## Facts

- Momodu Ahmed Kabba and Humu Hawah Kabba executed a residential promissory note and mortgage in favor of BNC Mortgage, Inc.
- On March 11, 2010, Bank of America, N.A. filed a foreclosure petition in Oklahoma district court against the Kabbas, alleging it was the present holder of the note and seeking to foreclose the mortgage.
- Bank of America alleged it held the note and mortgage as successor by merger to LaSalle Bank National Association, as trustee for a securitized trust.
- The petition did not include evidence establishing how or when Bank of America obtained the right to enforce the promissory note at the time the suit commenced.
- On January 17, 2011, during the litigation, Bank of America filed an “Assignment of Real Estate Mortgage” showing an assignment of the mortgage interest from BNC to Bank of America effective February 9, 2010.
- The recorded assignment addressed the mortgage but did not mention transfer of the promissory note.
- Bank of America moved for summary judgment and, with that motion, filed the promissory note; the note was payable to the bearer (a blank indorsement appeared in the summary-judgment materials).
- The Kabbas opposed summary judgment, arguing Bank of America lacked standing because it had not shown it was entitled to enforce the note when it filed the foreclosure action.
- The trial court granted summary judgment to Bank of America and entered a foreclosure judgment.
- The Kabbas appealed to the Oklahoma Supreme Court.

## Issues

1. Must a foreclosure plaintiff show it was entitled to enforce the promissory note at the time the foreclosure petition was filed to establish standing?
2. Do a bearer (blank-indorsed) note produced during summary-judgment proceedings and a mortgage assignment that does not reference the note establish standing and support summary judgment?

## Decision

- The Oklahoma Supreme Court reversed the summary judgment and remanded.
- The court held that standing must exist when the action is commenced, and Bank of America did not meet its burden to show it was a person entitled to enforce the note at filing.
- The court concluded that presenting only a bearer note and an assignment of mortgage—without evidence showing the history and timing of the note’s transfer and Bank of America’s right to enforce at the start of the case—was insufficient for summary judgment.

## Legal Principles

- Standing is a jurisdictional requirement and is determined as of the commencement of the lawsuit; a plaintiff must have a legally cognizable interest when it invokes the court’s authority.
- In a note-based foreclosure, the plaintiff must show it is a “person entitled to enforce” the promissory note under U.C.C. principles (such as being the holder or otherwise having enforcement rights).
- A note payable to bearer (including by blank indorsement) can be enforced by the party in possession, but the foreclosing plaintiff must show possession and enforcement rights existed when the petition was filed.
- An assignment of mortgage, by itself—especially one that does not mention the note—does not prove the right to enforce the underlying debt obligation.
- On summary judgment, the movant must present competent evidentiary materials establishing the absence of a genuine issue of material fact; allegations in the petition are not evidence.
- Foreclosure plaintiffs are expected to have supporting documentation in hand when filing suit that shows the history of the note sufficient to inform defendants of the plaintiff’s claimed rights.

## Conclusion

Bank of America, N.A. v. Kabba holds that a foreclosure plaintiff must prove it had standing—meaning it was entitled to enforce the promissory note—when the foreclosure action was filed; because Bank of America relied on a bearer note produced during summary-judgment proceedings and a mortgage assignment that did not establish note-enforcement rights at filing, the Oklahoma Supreme Court reversed the foreclosure summary judgment and remanded.


Bank of America, N.A. v. Kabba, 276 P.3d 1006 (2012)