concurring in part and
dissenting as to award of attorney fees:
¶ 11 dissent. I would hold that this is not an action in which attorney fees may be awarded. The Oklahoma Supreme Court restated that in Oklahoma strict adherence to the American Rule as to the recovery of attorney fees in litigation remains the law. Fulsom v. Fulsom, 2003 OK 96, ¶ 8, 81 P.3d 652, 655. Thus, there must be a specific statute or contract allowing for recovery. Neither Section 936 nor Section 176 applies to the facts of this case.5
¶ 2 The Statons’ above action shows clearly that this was an action in contract and tort. Had the Statons initially counter-sued or defended the Bank’s action in State Court prior to filing its action in Bankruptcy Court and succeeded, then they might have been entitled to an attorney fee award for successful defense of Bank’s lien. However, here this was not done. The Statons chose to seek federal bankruptcy protection and under that umbrella unsuccessfully launched their suit against the Bank, but they were required by the Bankruptcy Court to prosecute their action in a different jurisdiction-the State Court. The Statons, in bringing their action here in State Court, sought relief on two basic grounds-Breach of Contract and Tort. Neither of these grounds has a statutory basis for an attorney fee award, nor have the Statons shown any contract basis for the award.
¶ 3 Again, the gist of the Statons’ action, as stated, claims a breach of the contractual relationship, in addition to fraud and unfair dealing.
*191¶ 4 In Borst v. Bright Mortgage Co., 1991 OK 121, 824 P.2d 1102 n. 5, the Oklahoma Supreme Court, in a strict application of the American Rule, held that attorney fees were not to be awarded in an action to rescind a promissory note because cancelling a promissory note is not the same as recovering on a promissory note. In an instructive footnote, the Court stated:
While we offer no justification as to why the legislature would afford a successful litigant attorney fees for “recovering” on a note while denying them to one who succeeds in having a note “cancelled,” the fact remains, the statute is not applicable.
Id. at n. 5.
¶ 5 Here, the Statons did not defend on the mortgage but sought other relief. The Sta-tons’ action is not covered by the statutes they cite. Thus, I would hold that the Sta-tons’ counter-appeal is moot.
. Title 12 O.S. § 835 provides:
"In any civil action to recover on a ... note ... the prevailing party shall be allowed a reasonable attorney fee to be set by the court.” In this case, the Bank initiated the action by suing the Statons to recover what it claimed was due on the notes. The Statons asserted claims that the Bank breached the terms of the notes by wrongfully claiming that the Statons were in default on the notes. 42 O.S. § 176 provides: "In an action brought to enforce any lien, the party for whom judgment is rendered shall be entitled to recover a reasonable attorney’s fee, to be fixed by the court, which shall be taxed as costs in the action.” Again, the Bank initiated this action to foreclose on mortgages given by the Statons. The Statons prevailed on their claim that the bank wrongfully declared them in default and wrongfully sought to foreclose their mortgages. Both statutes provide authority for the recovery of attorney fees hy the Statons.