Marcuzzo v. Bank of the West
290 Neb. 809
| Neb. | 2015Background
- Brian and Donna Marcuzzo defaulted on a residential mortgage; Wells Fargo held the promissory note and deed of trust since 2005 and received their payments until default.
- In 2011 MERS (as nominee for the original lender) recorded a corporate assignment of the deed of trust to Wells Fargo; Wells Fargo later initiated foreclosure, appointed successor trustee Knapstein, and the property was sold to Fannie Mae at trustee’s sale.
- The Marcuzzos filed suit asserting six claims (quiet title, declaratory judgment, injunctive relief, accounting/conversion, slander of title, wrongful foreclosure) alleging the mortgage assignment was defective.
- District court granted summary judgment for Wells Fargo, Fannie Mae, and Knapstein on all claims after renewed motions, finding Wells Fargo was the proper holder of the note; Courtney and Bank of the West were dismissed (district court cited failure to prosecute; Bank of the West had filed a disclaimer of interest).
- On appeal the Marcuzzos argued material factual disputes about the assignment paperwork and that dismissal of Courtney and Bank of the West for lack of prosecution was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge assignment | Marcuzzos: assignment paperwork shows discrepancies; they can challenge validity | Defendants: Marcuzzos are not parties to the assignment and suffered no injury from it | Held: Marcuzzos lack standing to attack the assignment; no injury traceable to assignment |
| Appropriateness of summary judgment on remaining claims | Marcuzzos: genuine issues of material fact preclude summary judgment | Defendants: evidence shows Wells Fargo was holder and entitled to judgment as a matter of law | Held: summary judgment affirmed because standing failure is dispositive |
| Dismissal of Courtney for failure to prosecute | Marcuzzos: dismissal improper because court already ruled substitution and sale resolved issues | Defendants: Marcuzzos failed to diligently prosecute; Courtney made no appearance | Held: dismissal of Courtney for failure to prosecute affirmed (no abuse of discretion) |
| Dismissal of Bank of the West for failure to prosecute | Marcuzzos: dismissal improper; Bank should be dismissed based on disclaimer or prior rulings | Defendants: moved dismissal for lack of prosecution | Held: dismissal affirmed but on different ground—Bank of the West should have been dismissed for lack of standing due to its disclaimer of interest (district court’s reason was an abuse of discretion) |
Key Cases Cited
- Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795 (trial court dismissal for lack of prosecution reviewed for abuse of discretion)
- Schaeffer v. Hunter, 200 Neb. 221 (standard for dismissal for lack of prosecution)
- Pantano v. McGowan, 247 Neb. 894 (standing principles; party must show legal interest to invoke court jurisdiction)
- Spanish Oaks v. Hy-Vee, 265 Neb. 133 (only a party to a contract may challenge its validity)
- Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir.) (narrow holding on borrower standing to challenge assignments that are void ab initio)