Case Information
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T HE U TAH C OURT OF A PPEALS
S TEVEN R. K EMP , Plaintiff Appellant, W ELLS F ARGO B ANK NA AND HSBC B ANK USA, N ATIONAL A SSOCIATION ,
Defendants Appellees. Memorandum Decision No.
Filed April
Second District, Farmington Department Honorable John R. Morris
No.
E. Craig Smay, Attorney for Appellant
James D. Gardner Stewart O. Peay, Attorneys for Appellee
J UDGE J. F REDERIC V OROS J R . authored Memorandum Decision, which J UDGES J AMES Z. D AVIS M ICHELE M. C HRISTIANSEN concurred.
VOROS, Judge: Steven R. appeals dismissal his failure state claim which relief can granted. See
generally Utah R. Civ. P. 12(b)(6). We appeal. ¶2 According facts alleged complaint, Kemp financed purchase home two loans from Fargo
Kemp Wells Fargo Trust Deeds). Later, the Notes were pooled with other notes transferred a securitized trust, HSBC Bank USA, National Association, the trustee. The trustee issued certificates to investors (the Investors), giving them interest in the trust assets in the form of mortgage ‐ backed securities.
¶3 Kemp brought seeking a declaratory judgment and HSBC Bank (collectively, Appellees) no interest the Notes Trust Deeds thus right collect payments, engage loan modification negotiations, foreclose on the Trust Deeds the event default. also sought a
Kemp v.
relief must have a legally protectible interest in the controversy;
and (4) the issues between the parties ripe for judicial
determination.”
Jenkins v. Swan
,
“On appeal, party whose standing is challenged show that he or she had under the traditional test original proceeding before district court. addition, an appellant generally show both that he or she party or privy below he she aggrieved by judgment.” Chen v. Stewart , 2005 ¶ 50, 123 416 (quoting Society of Prof’l Journalists, Utah Chapter Bullock (Utah 1987)); see also Brown (stating party invoking jurisdiction bears burden establishing standing); State Robison (“It falls squarely upon appellant surmount filing, briefing, persuasion burdens associated appeal.”).
¶9 We express opinion whether fact has But remaining silent face plausible challenge standing, has failed carry burden of establishing he has invoke our jurisdiction address merits appeal. Consequently, we appeal. [2]
Because Kemp’s lack served independent alternative ground trial ruling, see supra n.1, failure address would fatal appeal even if our jurisdiction had been properly invoked. Salt Lake County Butler, Crockett & Walsh Dev. Corp. App (“This court will reverse ruling court rests on independent alternative grounds where appellant challenges only one those grounds.”). Bank, NA. loans were evidenced by two promissory notes (the Notes), each secured trust deed encumbering home (the
Notes
declaration identifying rightful holders Notes Trust Deeds. To extent Investors are rightful holders but do appear assert their interests, asked court quiet title property him, unencumbered by Trust Deeds. The trial court dismissed complaint on multiple grounds, including lack standing.
[1] ¶4 Again on appeal, argue lacks standing. “‘[S]tanding a jurisdictional requirement must be satisfied’ before court may entertain controversy between two parties.” Jones Barlow (alteration in original) (quoting Washington County Water Conservancy Dist. v. Morgan n.2, 1125). Standing seek declaratory judgment requires four elements: “(1) there be justiciable controversy; (2) interests parties adverse; (3) parties seeking trial court dismissed “based arguments presented by both parties.” addition arguing suit foreclosed by Commonwealth Property Advocates, LLC Mortgage Electronic Registration System, Inc. App Defendants, now Appellees, supported their motion arguing lacked court apparently agreed.
Notes stated complaint that he “will continue to do so.” loans have not been accelerated no foreclosure proceedings are pending or imminent. Appellees argue that Kemp lacks standing another reason as well: Despite Kemp’s characterization of claim effort determine whom he pay, Appellees argue essence seeking challenge securitization of Notes. argue lacks bring such a challenge because he not a party assignment of Notes. City of Grantsville Redevelopment Agency Tooele City (“[W]ith exception those who are third ‐ party beneficiaries or assignees, only those who are party contract have a legally protectable interest contract.”); Breus McGriff S.E.2d (Ga. Ct. App. 1991) (holding guarantors note were “strangers assignment contract” between lender assignee “and thus no challenge its validity”). ¶7 Appellees thus make plausible lacks Yet makes response reply brief. He does cite any authority addressing requirements standing, nor does he identify discuss those requirements how they may