Cole v. Bank of America, 2022 OK 96

Opinion:Cole v. Bank of America, 2022 OK 96
Subject Matter:Civil Procedure
Date Decided:December 6, 2022
Trial Court:District Court of Oklahoma County; Judge Andrews
Route to this Court:Former homeowner, against whom foreclosure action was dismissed after he succeeded on appeal, brought suit against bank, his former adversary and its attorneys for malicious prosecution. The claims were dismissed by the trial court and former homeowner appealed. The Court of Civil Appeals affirmed the trial court’s ruling. Certiorari was granted.
Facts:Cole alleged that Bank and Attorneys acted with malice and without probable cause when they filed a foreclosure action against him and obtained judgment for a loan modification agreement defendants knew he had not signed. Cole alleged that Bank and Attorneys made false and misleading statements in their summary judgment motion when they withheld their knowledge of the loan modification and provided only a copy of the original note which Cole and his former wife had signed. Cole pointed out that Bank and Attorneys repeatedly misled him as well as the trial court to believe that there was only a single operative note. On the same day the trial court vacated judgment, Bank filed a dismissal without prejudice stating that the defendant was not a necessary party to the action.

Bank and Attorneys filed motions to dismiss the malicious prosecution claims asserting that Cole could not meet one of the threshold requirements of this tort, successful termination of the original action in his favor. Defendants argued because Bank filed a dismissal without prejudice as to Cole, there had not been a favorable termination as to him. Glasgow v. Fox, 1988 OK 71. Defendants did not deny Cole prevailed on appeal or that the Court of Civil Appeals described the judgment against Cole as “inherently defective.”
The Court of Civil Appeals, Division III, affirmed and concluded that under Glasgow, Bank’s “dismissal of the foreclosure action without prejudice was not a termination of that suit in Cole’s favor which will support his action for malicious prosecution.”
Standard of Review:The Court reviewed the trial court’s grant of a motion to dismiss under a de novo standard. Wells v. Oklahoma Roofing and Sheet Metal, LLC, 2019 OK 45, ¶ 7. Motions to dismiss are generally disfavored unless there are no facts consistent with the allegations under any cognizable legal theory. Id.
Analysis:The sole issue before us is whether there is sufficient evidence that Cole can meet this element of a malicious prosecution claim: successful termination as to the prior foreclosure action. We apply a case-by-case determination as to whether the dismissal in the original action is a “successful termination” and shows the plaintiff to be without fault.

In this case, there was a determination on the merits by an appellate court as to the sufficiency of evidence to support the foreclosure judgment against Cole, and there was no evidence that Cole authorized the modification, which would be required to hold him liable on the modification. 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 of America 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.

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. Cole was vindicated on every issue raised in the prior action.
Outcome:Court of Civil Appeals Opinion Vacated; Trial Court Reversed and Remanded. 
Vote:7-2; Concur: Darby, C.J., Kauger, Winchester, Edmondson (author), Combs, Guirich, and Kuehn, JJ. Concur in Part, Dissent in Part: Rowe, J.; Dissent: Kane, V.C.J. (by separate writing).