U.S. Bank National Ass'n v. Kimball
190 Vt. 210
| Vt. | 2011Background
- U.S. Bank appeals a summary-judgment dismissal with prejudice for lack of standing in homeowner’s foreclosure action.
- Homeowner cross-appeals, seeking attorney’s fees for allegedly bad-faith affidavits supporting the bank’s filings.
- Foreclosure was grounded on an assignment by MERS as nominee for Accredited; bank claimed possession of the note with endorsements supporting enforcement.
- The trial court found no evidence that U.S. Bank held the note at the time the complaint was filed, thus lacking standing to sue.
- Bank sought reconsideration and attempted to cure standing via new endorsements and Rule 17(a) substitution, which the court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did U.S. Bank have standing to foreclose as of filing? | Bank asserts it held the note and was entitled to enforce it. | Homeowner contends the bank failed to prove possession/endorsement timing at filing. | No standing shown at filing; dismissal upheld. |
| Whether substitution as real party in interest was appropriate | Bank contends later endorsements justify substitution under Rule 17(a). | Homeowner argues no proper, timely proof of ownership; substitution improper. | Substitution denied; no timely, credible evidence of pre-filing ownership. |
| Whether dismissal with prejudice was appropriate | Bank argues dismissal was error only as to standing, not merits; seeks relief on merits later. | Homeowner argues dismissal with prejudice bars later foreclosure action. | Dismissal was for lack of standing, not on merits; no final adjudication on the merits. |
| Whether homeowner may recover attorney’s fees on appeal | Remand to consider homeowner’s Rule 56(g) attorney’s-fees request. |
Key Cases Cited
- Samplid Enters., Inc. v. First Vermont Bank, 165 Vt. 22, 676 A.2d 774 (1996) (standards for reviewing summary judgment)
- Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950 (2002) (note is central to enforcement; mortgage as incident to note)
- Raftogianis, 13 A.3d 435 (2010) (standing; dismissal with prejudice not final on merits)
- Korda v. Chicago Insurance Co., 2006 VT 81 (2006) (acquisition of capacity after filing relates back for limitations)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury, causation, redressability; timing at filing)
- Wells Fargo Bank, N.A. v. Ford, 15 A.3d 327 (2011) (note ownership requirements; mortgage as incident to note)
- Indymac Bank, F.S.B. v. Yano-Horoski, 912 N.Y.S.2d 239 (2010) (foreclosure standing and debt validity considerations)