VERMONT SUPREME COURT Case No. 23-AP-189

109 State Street

Montpelier VT 05609-0801

802-828-4774

www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a crossappellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

DECEMBER TERM, 2023

Michael Bandler* v. Bank of New York 

Mellon Trust

}

}

APPEALED FROM:

} Superior Court, Windsor Unit, Civil Division

} CASE NO. 22-CV-01710

Trial Judge: Samuel Hoar, Jr.

In the above-entitled cause, the Clerk will enter:

Plaintiff Michael Bandler appeals the dismissal of his declaratory judgment action against 

defendant Bank of New York Mellon Trust (BONY).

*

 We affirm. 

In 2019, BONY filed an action against plaintiff’s partner, Debra Tyler, to foreclose on a 

mortgage secured by property that she owned in Benson, Vermont. Plaintiff sought to intervene 

in that action, asserting that he had purchased an interest in the property. The trial court denied 

plaintiff’s motion to intervene because he had not filed a recorded deed to prove his ownership. 

Plaintiff and Tyler then moved for permission to take an interlocutory appeal, which this Court 

denied in February 2022 because the request was untimely. See Bank of N.Y. Mellon Tr. v. 

Tyler, No. 22-AP-030 (Vt. Feb. 15, 2022) (unpub. mem.).

In May 2022, plaintiff filed this declaratory judgment action against BONY. Plaintiff 

asserted in his complaint that he was a record owner of an interest in the Benson property. He 

claimed that BONY’s foreclosure action against Tyler was barred by the statute of limitations; 

Tyler was fraudulently induced to sign the mortgage agreement; BONY failed to give the 

required notices to Tyler before commencing the mortgage or assigning it; BONY improperly 

gave a reverse mortgage to Tyler; and plaintiff was denied due process because he was not 

allowed to intervene in the foreclosure action. Plaintiff sought a declaration that the foreclosure 

action “may not conclude in [d]efendant’s favor.”

The court granted BONY’s motion to dismiss plaintiff’s complaint, concluding that 

plaintiff lacked standing to assert his claims regarding Tyler because he was not a party to the

original loan transaction or the foreclosure action, and all his claims were effectively an 

*

 At oral argument, plaintiff orally moved to dismiss the appeal without prejudice

because he had received word that BONY had sold its interest in the mortgage to another 

company. Insofar as the alleged sale does not affect the merits of this appeal, the motion is 

denied. 
2

impermissible collateral attack on the foreclosure action. It reasoned that plaintiff’s proper 

avenue for relief was a direct appeal from the foreclosure action when that action concluded. 

This appeal followed.

On appeal, plaintiff argues that he has standing to bring his declaratory judgment claims 

regarding Tyler because his ownership interest in the Benson property will be injured if BONY

is allowed to foreclose upon the property. However, each of plaintiff’s first five claims assert 

defenses to the foreclosure action personal to Tyler, not to plaintiff. Regardless of whether 

plaintiff’s after-acquired interest in the property was sufficient to make him an indispensable 

party to the foreclosure proceeding, it does not give him the right to separately assert claims that 

may arise from the contract between Tyler and BONY. “Like the federal courts, we generally do 

not allow third-party standing.” Baird v. City of Burlington, 2016 VT 6, ¶ 15, 201 Vt. 112. 

Plaintiff is not a party to the mortgage between Tyler and BONY, nor does he claim to be a thirdparty beneficiary of that contract. Accordingly, he cannot challenge the validity of the contract

in a declaratory judgment action. See Bischoff v. Bletz, 2008 VT 16, ¶ 16, 183 Vt. 235 (holding 

that purchasers of property had no standing to seek declaration against owner of deeded right of 

first refusal because they were strangers to contract between sellers of property and owner of 

right of first refusal). We therefore affirm the dismissal of plaintiff’s claims concerning Tyler for 

lack of standing.

Plaintiff also contends that the trial court erred in characterizing his due-process claim as 

an impermissible collateral attack on the foreclosure proceeding, because there has not yet been a 

final judgment in that case. We conclude that the court properly exercised its discretion to 

dismiss plaintiff’s claim on the ground that his proper avenue for seeking relief was in the

foreclosure proceeding. “A declaratory judgment action is not necessarily barred by the 

existence of another remedy. However, where an alternate form of relief is available, the court, 

in the exercise of its discretion, may determine that the granting of declaratory relief is 

inappropriate.” Levinsky v. State, 146 Vt. 316, 317 (1985). As plaintiff points out, the 

foreclosure proceeding is ongoing and has not yet resulted in a decision on the merits. The 

proper place to litigate the question of plaintiff’s party status, and any cognizable foreclosure 

defenses, is in that case. If unsatisfied, plaintiff can appeal from that case. See In re D.A. 

Assocs., 150 Vt. 18, 19 (1988) (explaining that “declaratory rulings are not appellate in nature, 

and cannot be resorted to as a substitute for, or in lieu of, proper appellate remedies”). We 

therefore decline to disturb the decision below.

Affirmed. 

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice