Marcuzzo v. Bank of the W.
| Decision Date | 01 May 2015 |
| Docket Number | No. S–14–367,S–14–367 |
| Citation | 862 N.W.2d 281 |
| Parties | Brian Marcuzzo and Donna Marcuzzo, appellants, v. Bank of the West et al., appellees. |
| Court | Nebraska Supreme Court |
Douglas W. Ruge for appellants.
Ryan K. Forrest, Omaha, of Kozeny & McCubbin, L.C., for appellee Erika Knapstein.
Jennifer L. Andrews and Alison M. Gutierrez, of Kutak Rock, L.L.P., Omaha, for appellees Wells Fargo Bank, N.A., and Federal National Mortgage Association.
1. Summary Judgment: Appeal and Error.An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2 Courts: Dismissal and Nonsuit: Appeal and Error.The exercise of the power to dismiss a matter for lack of prosecution rests in the sound discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion.
3. Appeal and Error.Appellants are required to point out the factual and legal bases that support their assignments of error.
4. Appeal and Error.An argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it.
5. Appeal and Error.An appellate court will not address arguments that are too generalized or vague to be understood.
6. Actions: Parties: Standing: Jurisdiction.Before a party is entitled to invoke a court's jurisdiction, that party must have standing to sue, which involves having some real interest in the cause of action.
7. Actions: Parties: Standing.To have standing to sue, a plaintiff must have some legal or equitable right, title, or interest in the subject matter of the controversy.
8. Actions: Parties: Standing.The purpose of an inquiry as to standing is to determine whether one has a legally protectable interest or right in the controversy that would benefit by the relief to be granted.
9. Declaratory Judgments.Where declaratory relief is sought, an actual controversy must be present.
10. Standing: Claims: Parties.Standing requires that a plaintiff show his or her claim is premised on his or her own legal rights as opposed to rights of a third party.
11. Contracts: Parties.Only a party (actual or alleged) to a contract can challenge its validity.
12. Contracts: Parties: Standing.The fact that a third party would be better off if a contract were unenforceable does not give him or her standing to sue to void the contract.
13. Contracts: Parties. Parties can recover as third-party beneficiaries of a contract only if it appears that the rights and interest of the third parties were contemplated and that provision was being made for them.
14. Mortgages: Assignments: Parties: Standing.A borrower who is not a party to a mortgage assignment, or a party intended to benefit from the assignment, lacks standing to challenge the assignment.
15. Actions: Parties.The plaintiff bears the responsibility to prosecute a case with reasonable diligence.
16. Actions: Dismissal and Nonsuit: Rules of the Supreme Court.In the absence of a showing of good cause, a litigant's failure to prosecute a civil action, resulting in noncompliance with the Nebraska Supreme Court's progression standards for civil actions in district courts, is a basis to dismiss an action on account of a lack of diligent prosecution.
17. Courts: Dismissal and Nonsuit.The district court has the inherent power to dismiss a case for failure to prosecute with due diligence.
Brian Marcuzzo and Donna Marcuzzo asserted causes of action against Wells Fargo Bank, N.A. (Wells Fargo), the Federal National Mortgage Association (Fannie Mae), Erika Knapstein, Bank of the West, and Jeff T. Courtney (collectively the defendants), relating to the foreclosure and subsequent sale of their residence. All causes of action are premised on
the assertion that the assignment of the Marcuzzos' mortgage was improper. The district court granted summary judgment to Wells Fargo, Fannie Mae, and Knapstein, and dismissed Bank of the West and Courtney. The Marcuzzos appeal.
The Marcuzzos asserted six causes of action against the defendants. All causes of action arose out of the sale of the Marcuzzos' residence, pledged as collateral for a mortgage loan on which the Marcuzzos defaulted. Actions for quiet title, declaratory judgment, and injunctive relief were asserted against all of the defendants. The Marcuzzos sought actions for accounting, conversion, and slander of title against Wells Fargo. The Marcuzzos sought an action for wrongful foreclosure against Wells Fargo, Fannie Mae, and Knapstein, the successor trustee of the deed of trust. In the district court, the actions against Wells Fargo, Fannie Mae, and Knapstein were dismissed in summary judgment and the remaining causes against Bank of the West and Courtney were dismissed for failure to prosecute. The Marcuzzos appeal.
On February 6, 2004, the Marcuzzos executed and delivered a promissory note in the principal amount of $214,949 to AdvantageMortgage Service, Inc. (Advantage Mortgage). To secure payment of the note, the Marcuzzos executed and delivered a deed of trust to Mortgage Electronic Registration Systems, Inc. (MERS). The deed of trust granted Advantage Mortgage a secured interest in the Marcuzzos' residential property located in Sarpy County, Nebraska. The deed of trust was duly recorded in the office of the Sarpy County register of deeds.
The note executed in the Marcuzzos' names was negotiated from Advantage Mortgage to Commercial Federal Bank (Commercial Federal). Wells Fargo purchased Commercial Federal's loan portfolio, including the note and deed of trust. Commercial Federal endorsed the note in blank and transferred possession of it to Wells Fargo in July 2005. Commercial Federal was acquired by Bank of the West.
On July 27, 2011, MERS, as nominee for Advantage Mortgage, assigned all of its rights, title, and interest in the deed of trust to Wells Fargo by a corporate assignment of deed of trust. The corporate assignment of deed of trust was recorded in the office of the Sarpy County register of deeds.
Wells Fargo has had possession of the note and deed of trust since it was delivered to it in July 2005. No other entity has claimed ownership of the note and deed of trust or has demanded payment. When the Marcuzzos made payment on their note, the payments were made to and received by Wells Fargo.
In May 2011, the Marcuzzos instituted bankruptcy proceedings under chapter 7 of the U.S. Bankruptcy Code. The Marcuzzos identified Wells Fargo on their bankruptcy schedules as a creditor holding a secured claim on their residence.
The Marcuzzos also began to default on their mortgage loan payments in May 2011. Wells Fargo sent the Marcuzzos multiple notices of default and then accelerated the Marcuzzos' loan balance that was due. The notices provided the Marcuzzos with the opportunity to cure the default.
The Marcuzzos stated that they voluntarily decided to stop making payments until they received adequate answers from Wells Fargo in regard to claimed issues in the paperwork of their mortgage assignment. The Marcuzzos claimed that they are ready and able to pay the past due principal and interest amounts to the proper beneficiary of the loan.
After obtaining relief from the stay in the bankruptcy court, Wells Fargo instituted foreclosure proceedings against the Marcuzzos' residential property. In November 2011, Wells Fargo appointed a successor trustee, Knapstein, in place of the original trustee, Courtney, by recording a substitution of trustee in the office of the Sarpy County register of deeds. Knapstein filed a notice of default in that office on November 9, 2011. Knapstein further sent a notice of default and letter of default to the Marcuzzos.
Notice of sale of the property was published in a local newspaper once a week for 5 weeks beginning on December
14, 2011, and ending on January 11, 2012. This notice provided that the sale was scheduled to take place on January 23. An agreement was reached between Wells Fargo and the Marcuzzos to postpone the sale of the property until February 7. At the sale on February 7, Fannie Mae was the highest bidder, and the property was sold to Fannie Mae for $196,350.47. Knapstein executed a trustee's deed, conveying the property to Fannie Mae, which was filed in the office of the Sarpy County register of deeds.
The Marcuzzos filed an amended complaint alleging six causes of action regarding their foreclosed residence.
The first cause of action asked for the court to quiet title in the name of the Marcuzzos. The second cause of action asked for declaratory judgment setting forth the “rights and status of the respective parties in the real property, for a temporary and permanent injunction.” The third cause of action alleged conversion and asked for an accounting against Wells Fargo based on the mortgage payments Wells Fargo received “when it had not obtained a proper Assignment of the Deed of Trust and Promissory Note.” The fourth cause of action alleged slander of title against Wells Fargo. The fifth cause of action asked for “a Temporary Restraining Order and Temporary and Permanent Injunction preventing the sale of the property.” Finally, the sixth cause of action alleged a wrongful foreclosure suit against Wells Fargo, Fannie Mae, and Knapstein. As a premise for all causes of action, the Marcuzzos allege that the assignment of their mortgage was defective.
The Marcuzzos averred that Wells Fargo supplied the Marcuzzos copies of the assignment, deed of trust, and promissory note that had been altered from the original documents. At the hearing on the motion for summary judgment, counsel for the...
To continue reading
Request your trial
-
Houser v. Am. Paving Asphalt, Inc.
...of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016) ; Carrel v. Serco Inc., 291 Neb. 61, 864 N.W.2d 236 (2015) ; Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).16 In re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 288, 275 N.W. 265, 267 (1937).17 Smeal Fire Apparat......
-
Homebuyers Inc. v. Watkins
...Appellants are required to point out the factual and legal bases that support their assignments of error. Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). Wells Fargo asserts that the Watkinses' brief merely restates the allegations in their third amended third-party compl......
-
State v. Terrell E. Newman
..., 558 F. Supp. 2d 444 (S.D.N.Y. 2008).39 See, Strickland, supra note 12. See, also, Gavin, supra note 31.40 Marcuzzo v. Bank of the West , 290 Neb. 809, 862 N.W.2d 281 (2015).41 See State v. Glover , 276 Neb. 622, 756 N.W.2d 157 (2008).42 Id.43 Id.44 Russell, supra note ...
-
Voboril v. Vanosdall (In re Estate of Shell)
... ... Sidner, supra note 7; Naffziger v. Cook, supra note 14; In re Estate of Smatlan, supra note 11.17 See, Wondra v. Platte Valley State Bank & Trust Co., 194 Neb. 41, 230 N.W.2d 182 (1975) ; Gretchen Swanson Family Foundation, Inc. v. Johnson, 193 Neb. 641, 228 N.W.2d 608 (1975). See, ... ...