### 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 cross

appellant. 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, J r.

In the above

- entitled cause, the Clerk will enter:

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

defendant Bank o f 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 owner ship

. Plaintiff and Tyler then moved for permission to take an interlocutory appeal, which this Court denied in February 2022 because the request w as 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 declar atory 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; B ONY improperly gave a reverse mortgage to Tyler; and plaintiff was deni ed due process becaus e 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 transac tion 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 int erest in the mor tgage to another

company

. Insofar as the alleged sale does not affe ct the merits of this appeal, t he motion is

denied.2

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

a venue for relief was a direct appeal from the foreclosure action when th at 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 plaint iff’s first five claims assert

defenses to the foreclosure action personal to Tyler, not to plaintiff. Regardless of whether plaintiff’s a fter

- a cquired interest in the property was sufficient to make him an indispensable party to the fo reclosure proceeding, it does not give hi m the right to separately assert claims that

m ay 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 BON Y

, nor does he claim t o be a third

party be ne ficiary of that contract. Accordin g ly

, he cannot challenge the validity of th e contract in a declaratory judgment action

. See Bi schoff v. Bletz , 2008 VT 16, ¶ 16, 183 Vt. 235 (holding

that purc h asers 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 righ t o f first re fu sal)

. W e therefore affirm the dismissal of plai ntiff’s claims concerning Tyler for lack of standing.

Plaintiff also conte nds that the trial court err ed in characterizing his due

- process claim as an impermissible collateral attack o n the forecl osure procee ding, bec ause 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 grou nd that h is proper avenue for seeking relief was in the foreclosure pr oceeding

. “A declarato ry judgment action is not necessarily barred by the existence of another remedy. However, where an alternate form of relief is available, the co urt, in the exercise of its discretion, may determine that the granting of declaratory relie f is inappropriate. ” Levinsky v. State , 146 Vt. 316, 31 7 (1985). As plaintif f points out, the foreclosure proceeding is ongoing and has not yet resulted in a decision on the merits. The proper place to litigate the q uestion of plaintiff ’ s party stat us
, and any cogni zable foreclosure

defenses

, is in that case

. I f unsatisfied, plai ntiff 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