Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-122

OCTOBER TERM, 2013

Deutsche Bank National Trust } APPEALED FROM:

}

} Superior Court, Windsor Unit,

 v. } Civil Division

}

Bruce E. Merritt, Gloria King Merritt and 

Indymac Bank

}

}

DOCKET NO. 525-7-09 Wrcv

Trial Judge: Robert P. Gerety, Jr.

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

Defendant homeowners seek to appeal the trial court’s order granting substitute plaintiff 

bank’s motion to dismiss this foreclosure action without prejudice. Homeowners raise several 

arguments regarding bank’s standing to enforce homeowners’ promissory note, and seek an 

order dismissing the case without prejudice specifying bank’s lack of standing as the basis for 

the dismissal, ordering that any legal charges, assessments and fees assessed by a bank against 

homeowners in connection with this action be removed from their mortgage debt, and ordering 

that initial plaintiff OneWest return all mortgage payments received from homeowners with 

statutory interest. We conclude that following the court’s order dismissing the case without 

prejudice there are no live issues in the present case and the appeal is moot. To the extent 

defendants seek additional relief, they cannot now pursue those claims in the context of an 

appeal of the now-dismissed foreclosure action.

OneWest Bank, FSB filed a complaint for foreclosure in July 2009, alleging that 

homeowners had failed to make scheduled payments due under a note executed by homeowners 

in favor of IndyMac Bank, F.S.B. Attached to the complaint was a purported copy of the note. 

Homeowners answered, agreed that they were behind on their payments, and requested six 

months to redeem. Homeowners did not make any counterclaims against OneWest. In 

December 2009, the court denied without prejudice OneWest’s initial motion for summary 

judgment, explaining that the bank needed to provide documents by an officer with corporate 

authority to show the chain of conveyances between IndyMac and OneWest.

OneWest promptly refiled for summary judgment and attached a bill of sale documenting 

the transfer of IndyMac’s assets to OneWest as well as an affidavit from a corporate officer 

averring that the bank held the original note. By entry order in February 2010, the court granted 

OneWest’s motion and requested the bank prepare a judgment order after the clerk prepared an 

accounting. Shortly thereafter, homeowners objected to the clerk’s proposed accounting and 

moved to dismiss the foreclosure on the ground that OneWest did not have standing to foreclose 

on the note in question. In March 2010, the court held a status hearing and ordered the parties to 
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mediate before judgment issued. In June 2010, the court held another hearing at which the 

parties represented that they had reached an agreement. The court put the case on hold pending 

negotiation of the settlement.

In October 2010, while the case was still essentially “on hold” pending settlement 

negotiations, OneWest filed a motion to strike its request for judgment, stating that it was 

conducting “a national review of all paperwork filed relative to all pending foreclosure actions” 

and would “re-file, as necessary.” The trial court granted the motion.

In June 2012, OneWest filed a motion to substitute parties explaining that Deutsche Bank 

National Trust Company owned the note homeowners gave to IndyMac and that OneWest had 

assigned its mortgage interest to Deutsch Bank, such that Deutsch Bank was the proper party in 

interest. Homeowners opposed the motion and moved to dismiss for lack of standing. They 

essentially argued that Deutsche Bank had owned the note and mortgage all along, and that at the 

time the foreclosure action was filed, OneWest did not own the original note and mortgage and 

did not have standing to initiate a foreclosure. Homeowners argued that the case should

therefore be dismissed, and that OneWest could not remedy its lack of standing when it filed the 

complaint by substituting the proper party three years later. See U.S. Bank Nat’l Ass’n v. 

Kimball, 2011 VT 81, ¶ 10, 190 Vt. 210. Homeowners also requested that the court 

preemptively rule that any legal fees and costs billed or anticipated to be billed to homeowners 

on account of the “false filing of foreclosure” be ruled inapplicable, and asserted that monies it 

had paid to OneWest pursuant to a forbearance agreement had not been properly accounted for.

In November 2012, the court granted OneWest’s motion to substitute parties, and denied

homeowners’ motion to dismiss for lack of standing. With respect to homeowners’ motion, the 

court explained that the complaint on its face made allegations sufficient to support standing, so 

the court could not dismiss the case pursuant to a motion to dismiss. If homeowners wanted to 

present evidence to disprove OneWest’s allegations supporting its claim that it had standing to 

file the foreclosure, then they could file a motion for summary judgment. The court made it 

clear that it was not ruling either way on the question of whether OneWest actually did have the

original promissory note and authority to foreclose on the mortgage when it filed the foreclosure 

action.

In January 2013, Deutsch Bank, as substitute plaintiff, moved to dismiss the action 

without prejudice, explaining that homeowners had executed a loan modification and were now

current on their loan. On February 20, 2013, the court granted Deutsch Bank’s motion to dismiss 

without prejudice. On the same day, the court denied as moot homeowners’ pending motions for 

discovery. Homeowners subsequently filed a motion for summary judgment, and on March 13, 

2013 the court denied it as moot. On March 20, 2013, homeowners filed this appeal.

On appeal, homeowners argue that the court erred in several ways, most importantly in 

not dismissing this action specifically on account of OneWest’s lack of standing. Homeowners 

request that this Court dismiss the complaint for lack of standing, preclude the bank from 

assessing any fees or legal charges against homeowners on account of this action, order OneWest 

to pay them back the payments homeowners made to OneWest with interest, and remand the 

case to the superior court “for a damages hearing.”
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Deutsch Bank argues that this Court cannot consider the merits of homeowners’ appeal 

because a voluntary dismissal order is not a final order subject to appeal; homeowners failed to 

file a request to appeal within ten days following judgment, which it asserts is required by 

Vermont Rule of Civil Procedure 80.1; homeowners’ claims are moot; and, homeowners did not 

preserve their claims for appeal. On the merits, the Deutsch Bank argues that OneWest had 

standing at the time it filed the foreclosure action.

Because we conclude that homeowners’ claims are moot in the context of this case, we 

need not address the question of whether a voluntary dismissal without prejudice is an appealable 

order, and need not reach the substantive arguments raised by either bank or homeowners.1 This 

Court’s authority is limited to deciding only “actual controversies arising between adverse 

litigants.” Chase v. State, 2008 VT 107, ¶ 11, 184 Vt. 430 (quotation omitted). To have 

jurisdiction over an appeal, the case “must present a live controversy at all stages of the appeal, 

and the parties must have a legally cognizable interest in the outcome.” Id. (quotation omitted). 

An action “becomes moot when the issues presented are no longer live or the parties lack a 

legally cognizable interest in the outcome.” State v. Lee, 2007 VT 7, ¶ 10, 181 Vt. 605 (mem.) 

(quotation omitted).

Here, the matter is moot because there is no live controversy between the parties and this 

Court is unable to grant homeowners any further relief. The only claims pending before the 

superior court were the bank’s foreclosure claims. The bank voluntarily dismissed its claims. 

Homeowners had no counterclaims that kept a live issue in front of the court once the bank 

voluntarily dismissed. Therefore, the controversy between the parties that was before the 

superior court was extinguished, and is no longer a live legal controversy. In addition, there is 

no further relief that this Court can grant to homeowners in connection with this case. In 

response to the banks’ claims, homeowners sought dismissal without prejudice. That is exactly

the remedy granted by the superior court. This Court can grant no further relief than that already 

granted by the trial court and therefore the case is moot. See In re Young’s Tuttle Street Row, 

2007 VT 118, ¶ 4, 182 Vt. 631 (mem.) (“[W]hen a tribunal has already granted the relief 

requested, the appellate case is moot, because the reviewing court can no longer grant effective 

relief.” (quotation omitted)).

To the extent that homeowners seek an advisory opinion from this court to the effect that 

OneWest did not have standing when it filed the foreclosure action, we cannot oblige. 

Homeowners did not file their motion for summary judgment on this issue until after the case 

was dismissed, and so the trial court, properly, never ruled on the question. Homeowners’ other 

requests—for an order precluding the banks from assessing legal fees against them in connection 

with what they allege to have been a wrongful foreclosure action, and for return of the 

unaccounted-for monies they paid to OneWest—were not squarely before the court in this action 

once the case was dismissed. We express no opinion on the merits of these additional claims, 

but also note that nothing about this decision precludes homeowners from seeking, in a separate 

legal action, relief concerning monies they believe they can show to have been improperly 

 

1 We do squarely reject Deutsch Bank’s argument that if a voluntary dismissal of a 

foreclosure action is appealable, V.R.C.P. 80.1(m) requires that a party appeal within 10 days. 

The ten-day appeal requirement in the rule is expressly directed at judgments “for foreclosure of 

the mortgage.” V.R.C.P. 80.1(m).
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accounted for, or from fees and legal charges they believe to have been wrongly assessed against 

them by a bank. 

Appeal dismissed.

BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Beth Robinson, Associate Justice