Ed White Law Secures Second Appellate Victory Against Bank of America
Ed White Law has secured a second appellate victory on behalf of our client against Bank of America and its collection law firm, Shapiro & Cejda and its lawyers Kirk J. Cejda, and Lesli Peterson. On February 2, 2017, Bank of America sued our client and his ex-wife, seeking foreclosure of a mortgage.
Bank of America, by and through collection law firm, Shapiro & Cejda, made willful false and misleading statements to the Cleveland County Court in a scheme to fraudulently force payment from our client. After they secured judgment against our client, their false statements came to light. When their fraud was uncovered, they refused to admit their error and take corrective action. Instead, they forced us to appeal their wrongful action, and that first appeal, decided March 4, 2019, established that they secured an “inherently defective judgement” against our client. (Ct. of Civil App., Case No. 116,943) The judgment was defective because, while our client signed a first note during his earlier marriage, he had not signed a new note which had been signed solely by his ex-wife. Bank of America and its counsel had failed to disclose the new unsigned note prior to securing an inherently defective judgment against our client.
Even after the first appeal came down against them, Bank of America and its lawyers refused to take any actions to mitigate the damage they had caused. Instead, they attempted to escape responsibility on a technicality.
On April 24, 2019, we filed suit on behalf of our client against Bank of America, Shapiro & Cejda, and its lawyers Kirk Cejda and Lesli Peterson. Bank of America and its counsel secured a bogus dismissal of our case, and another appellate journey began.
On August 19, 2021, the Court of Civil Appeals affirmed the dismissal. However, the Oklahoma Supreme Court took up the matter on a petition for certiorari and, on December 6, 2022, reversed. 2022 OK 96. The Supreme Court described the history of the case as follows:
¶ 7 Three months after the motion [to vacate the original judgment] was filed, Bank for the first time provided a copy of the loan modification to the trial court. Although Bank admitted that Cole had not signed this newly produced note, it argued there was no basis to vacate judgment. In fact, Bank suggested that somehow its own failure to disclose this modified note was actually the fault of Cole for failing to conduct discovery. Bank maintained that "Cole was a proper party to this action and properly named and served" and disputed that Cole could be harmed in any way by its actions. In fact, Bank boasted that "Plaintiff has gone above and beyond what it was legally obligated to in order to resolve the issues amicably without incurring additional attorney's fees and costs." Bank resisted all efforts of Cole to vacate judgment. Bank even continued to argue that Cole was liable under the original note, in spite of the fact that the actual note it sought to foreclose was the modified note….
¶13 [Bank of America’s]…surface analysis is legally flawed and ignores the following critical differences in the matter before us: 1) there was no dismissal of an action on procedural grounds under 12 O.S. § 683; 2) there was a determination on the merits by an appellate court as to the sufficiency of evidence to support the foreclosure judgment against Cole, no evidence that Cole authorized the modification, which would be required to hold him liable on the modification; 3) Cole was vindicated on appeal as the judgment against him was vacated. Further, Cole's dismissal as a party and the subsequent amended petition, effectively extinguished the claim against Cole as to the loan modification foreclosure action. At the time the dismissal was filed, Bank knew that Cole could not be held liable for a subsequent loan modification he did not authorize, and the only evidence produced established that Cole never signed or authorized the modification.
¶14 We find Cole's dismissal in the prior foreclosure action was based on a decision on the merits, and it was not a dismissal on procedural grounds as in Glasgow. We further find that Cole was vindicated on every issue raised in the prior action. We therefore hold that the original action was terminated in favor of Cole where (1) Cole succeeded on appeal in vacating judgment; (2) the law of the case established that foreclosure judgment against him was inherently defective; and (3) on remand, Bank dismissed former homeowner from foreclosure action, then amended its petition continuing the action against a different party. The trial court dismissed the action as to the malicious prosecution claim solely on the basis of the termination issue. The opinion of the Court of Civil Appeals is vacated and the case is remanded to the trial court for further consideration of the other elements of this cause of action and for such other proceedings as are warranted.
On behalf of our client, we look forward to prosecuting this action seeking justice on behalf of our client. It has been nearly five years since Bank of America and its counsel wrongfully sued our clients, and they have thus-far evaded justice for nearly five years, but we will not stop advocating for our client until justice is served.
We look forward to discovery and trial.