The Bank of New York Mellon v. Marjorie Johnston and Kamberleigh Johnston
2016-143
| Vt. | Feb 9, 2017Background
- Bank of New York Mellon filed a foreclosure complaint in May 2015; service was required within 60 days under V.R.C.P. 3.
- Bank requested and received court-ordered extensions of time to serve; it also moved for alternative service (denied).
- Court ordered that proof of service showing service accomplished by March 1, 2016 be filed or the case would be dismissed without prejudice.
- Bank failed to file proof of service by the deadline; on March 28, 2016 the court dismissed the action without prejudice for failure to complete service and denied as moot defendants’ motion to dismiss with prejudice.
- Defendants appealed, arguing the court should have dismissed with prejudice (given two prior foreclosure actions) and should have held a hearing on their motion to dismiss with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to timely serve should be without prejudice | Bank maintained dismissal for lack of service means case should be dismissed without prejudice | Johnston argued equity and prior dismissed foreclosures justified dismissal with prejudice | Dismissal without prejudice affirmed because failure to effect service deprived the court of jurisdiction; dismissals for lack of jurisdiction are without prejudice |
| Whether court abused discretion by not holding a hearing on motion to dismiss with prejudice | Bank (and court) treated motion as moot once case dismissed for lack of jurisdiction; court may dispose of motions without oral argument | Johnston sought a hearing to present equitable reasons for dismissal with prejudice | No abuse of discretion: court may decline oral argument under V.R.C.P. 78(b)(2); motion was moot after jurisdictional dismissal |
Key Cases Cited
- Smith v. Brattleboro Reformer, 147 Vt. 303 (explaining failure to complete service means plaintiff does not invoke court's jurisdiction)
- U.S. Bank Nat’l Ass’n v. Kimball, 190 Vt. 210 (dismissing case for lack of jurisdiction cannot be characterized as a dismissal with prejudice)
- Bandler v. Cohen Rosenthal & Kramer, LLP, 200 Vt. 333 (court has discretion to decide motions without oral argument)