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[W] Vermont Trotter v. Bank of New York Mellon

January 25, 2012; withdrawn and opinion filed March 23, 2012

VERMONT TROTTER, PLAINTIFF-APPELLANT,
v.
BANK OF NEW YORK MELLON, F/K/A BANK OF NEW YORK AS TRUSTEES FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-28CB MORTGAGE PASS- THROUGH CERTIFICATES 2005-28CB; MORTGAGE ELECTRONIC REGISTRATON SYSTEMS, INC.; RECONTRUST COMPANY, N.A., DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. Lansing L. Haynes, District Judge.

The opinion of the court was delivered by: Horton, Justice

2012 Opinion No. 22

Stephen Kenyon, Clerk

The district court's orders granting the motion to dismiss and denying the motion to compel are affirmed.

Vermont Trotter (Trotter) is a homeowner in default on his home loan. ReconTrust, the trustee appointed by the beneficiary of the deed of trust, notified Trotter of the default and initiated a non-judicial foreclosure on the deed of trust pursuant to I.C. § 45-1505. Upon receiving notice of the trustee's sale, Trotter sued ReconTrust, Mortgage Electronic Registration Systems, Inc. (MERS), and Bank of New York Mellon. Trotter's complaint alleged that none of the defendants*fn1 had standing to initiate a foreclosure under I.C. § 45-1505. Bank of New York filed a motion to dismiss for failure to state a claim pursuant to I.R.C.P. 12(b)(6) on the grounds that it had complied with all statutory requirements to foreclose and that standing is not a requirement of non-judicial foreclosures under I.C. § 45-1505. The district court granted the motion.

On appeal, Trotter argues that before any party may initiate a non-judicial foreclosure under I.C. § 45-1505, it must affirmatively demonstrate its standing to foreclose by proving it has an interest in both the deed of trust and the promissory note it secures. Additionally, Trotter asserts that MERS was never the true beneficiary of the deed of trust and therefore lacked the authority to assign it to Bank of New York. Consequently, he argues, Bank of New York's appointment of ReconTrust as successor trustee was invalid, and neither ReconTrust nor Bank of New York has standing to foreclose. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June of 2005, Vermont Trotter executed a Note and a Deed of Trust in which MERS was the named beneficiary as nominee for the lender, Countrywide Home Loans, Inc. The deed of trust was recorded on June 24, 2005. The deed of trust encumbers real property located at 512 South 14th Street in Coeur d'Alene. This is Trotter's primary personal residence.

According to the district court, MERS executed a Corporation Assignment of Deed of Trust that was recorded in Kootenai County on August 24, 2009. The effect of this assignment was to name Bank of New York Mellon as the beneficiary under the deed of trust. Bank of New York Mellon then recorded an Appointment of Successor Trustee naming ReconTrust as the successor trustee. The same day, ReconTrust also recorded a Notice of Default. ReconTrust executed a Notice of Trustee's Sale on or about September 2, 2009, which set the date of the trustee's sale as January 11, 2010. Trotter acknowledged receipt of the Appointment of

Successor Trustee, Notice of Default, and Notice of Trustee's Sale.

Prior to the scheduled trustee's sale, Trotter filed a complaint requesting declaratory and injunctive relief, asserting that Bank of New York may not foreclose until it demonstrates it has legal standing to do so and alleging that he has not been provided with any document showing how Bank of New York became the beneficiary on the deed of trust or whether it owns his loan. Additionally, Trotter alleged in the complaint that his loan was placed in a loan trust that may have been insured against borrower default. He contends that if the trust received payment on an insurance policy, there may not be a default that would permit foreclosure. The district court issued a temporary restraining order (TRO), which cancelled the sale scheduled for January 11, 2010, and enjoined any sale of the property through January 22, 2010. The district court issued a second TRO on February 5, 2010, canceling the rescheduled trustee's sale and ordering Bank of New York not to reschedule the sale without further order of the court.

Bank of New York then filed a 12(b)(6) motion to dismiss. Trotter opposed the motion and moved the court for an order to compel Bank of New York to fully comply with his discovery requests. The district court denied Trotter's motion to compel and granted the motion to dismiss. The court found that MERS was the beneficiary under the deed of trust and that MERS had properly assigned its rights as beneficiary to Bank of New York, pursuant to I.C. § 45-1502(1). The court thus found Bank of New York's appointment of ReconTrust as successor trustee valid under I.C. § 45-1504(2) and therefore, as a matter of law, that ReconTrust was vested with the powers of the original trustee. The court denied Trotter's motion to compel as moot and vacated the restraining orders. Final judgment was entered for Bank of New York, and Trotter timely appealed. Trotter was represented by counsel in the district court, but on appeal, he has proceeded pro se. Trotter requests a declaratory judgment that Bank of New York and ReconTrust lack standing to foreclose. Both parties request attorney fees.

II. STANDARD OF REVIEW

Appeals from an order of summary judgment*fn2 are reviewed de novo, "and this Court's standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment." Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 394, 224 P.3d 458, 461 (2008) (citations omitted). Summary judgment is appropriate if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). Under this standard, "disputed facts are construed in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are drawn in favor of the non-moving party." Curlee, 148 Idaho at 394, 224 P.3d at 461. Where "the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review." Lockheed Martin Corp. v. Idaho State Tax Comm'n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006). However, the adverse party "may not rest upon the mere allegations or denials" in the pleadings, but "must set forth specific facts showing there is a genuine issue for trial." I.R.C.P. 56(e). Therefore, when this Court reviews an order ...


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