Mortgages – Discharge – Mistake

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Where a bank filed suit seeking to have a mortgage discharge declared void because the discharge was the result of “inadvertence and error,” a grant of summary judgment in the bank’s favor must be vacated because the bank did not meet its burden of proving the discharge was a mistake by “full, clear, and decisive” proof.

“The evidence put in to the summary judgment record is slight. The plaintiff placed in the record an affidavit by a vice president of Bank of America, Glenda Oakley, stating that the discharge was recorded ‘due to mistake and/or inadvertence.’ It also submitted an affidavit from the plaintiff’s counsel, which is not disputed by the defendants for purposes of this appeal, stating that Bank of America retains the original note and that it is not marked ‘cancelled.’

“In this context, whether there was a ‘mistake’ in discharging the mortgage is a legal conclusion. In order to demonstrate mistake, the party with the burden must put in admissible evidence that explains what exactly happened so that the judge can assess whether, in fact, those circumstances amount to a mistake. Thus, merely asserting that it was a mistake is to assert a legal conclusion and is insufficient to carry the plaintiff’s burden.

“In the case of the affidavit of Oakley, this insufficiency in the plaintiff’s evidence is particularly obvious. To begin with, though, the affidavit says nothing about the discharge at all. …

“In any event, reading the affidavit as the judge did to refer to the execution of the discharge, it was inadequate to establish Bank of America’s entitlement to summary judgment. First, the affiant does not say whether the discharge was executed by mistake or as the result of inadvertence; only that it was one ‘and/or’ the other. The affidavit not only fails to articulate any facts that might support the plaintiff’s claim; it also fails to state with adequate precision the legal conclusion it purports to convey.

“Additionally, we are not persuaded that the affidavit was adequate to demonstrate ‘mistake or inadvertence.’ At best, it states only a legal conclusion; standing alone, it is insufficient. We do not agree that the uncontested additional facts that (1) the underlying debt had not been paid, and (2) Bank of America retained the note, which was not marked ‘cancelled,’ mean the evidence is sufficient to meet the plaintiff’s burden.

“Neither of these additional facts, even taken together, demonstrate that the mortgage was discharged by mistake. …

“Finally, the judge took judicial notice of a number of other cases before her in which Bank of America claimed that mortgages had been mistakenly discharged. But a series of claims by Bank of America that it has been mistakenly discharging mortgages is not the same as evidence of what mistake was made in any particular case, including this one.

“The summary judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.”

Bank of America, N.A. v. Druker, et al. (Lawyers Weekly No. 81-099-25) (6 pages) (Docket No. 24-P-593) (June 27, 2025).

Click here to read the full text of the opinion.