Wells Fargo v. Ndibalema

'ermont Superior Court
Filed 25
Washington Unit

SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 22-CV-01936
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR SOUNDVIEW
HOME LOAN TRUST 2007-OPT1, ASSET-BACKED CERTIFICATES, SERIES 2007-OPT1
v. Fuad Ndibalema et al

Opinion and Order on Pending Motions

Plaintiff has filed suit seeking to foreclose a mortgage and recover on a

promissory note from Defendants. Defendants have denied those claims and

submitted counterclaims, which Plaintiff has opposed. Before the Court are

Plaintiff's motions for summary judgment and an accounting, foreclosure by judicial

sale, and attorney's fees. Defendants have opposed the motion for summary

judgment. The Court makes the following determinations.

Summary judgment procedure is properly regarded as "an integral part of the

... Rules as a whole, which are designed 'to secure the just, speedy and inexpensive
determination of every action." Morrisseau v. Fayette, 164 Vt. 358, 363 (1995)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). Summary judgment is

appropriate if the evidence in the record, referred to in the statements required by

Vt. R. Civ. P. 56(c), shows 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. Vt. R. Civ. P.

56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994).

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A party opposing summary judgment may not simply rely on allegations in

the pleadings to establish a genuine issue of material fact. Instead, it must come

forward with deposition excerpts or affidavits to establish such a dispute. Murray

v. White, 155 Vt. 621, 628, (1991). If the non-moving party will bear the burden of

proof at trial, the moving party may be entitled to summary judgment if the non-

moving party is unable to come forward with evidence supporting its case. Poplaski

v. Lamphere, 152 Vt. 251, 254–55 (1989). In assessing a motion for summary

judgment, the Court views all facts and indulges all inference in favor of the non-

moving party. Price v. Leland, 149 Vt. 518, 521 (1988).

The Court derives the undisputed facts from the parties’ statements of fact

submitted under Vt. R. Civ. P. 56(c) and any supporting documents and affidavits.

Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. In

this instance, Plaintiff has submitted a statement of undisputed facts, along with

supporting materials, as required by the Rule. Defendants have not, however,

submitted an opposing statement as Rule 56 requires. Despite receiving special

notice of the need to comply with the Rule, Defendants filed only a one-page

opposition accompanied by hundreds of pages of exhibits. Such a submission does

not come close to meeting the demands of Rule 56. As the United States Court of

Appeals for the Second Circuit has noted: “We surely cannot approve a practice … of

dumping an extensive record on a busy District Judge without guidance from

counsel, expecting him to ferret out facts which might conceivably be relevant on a

motion for summary judgment.” Am. Standard, Inc. v. Crane Co., 510 F.2d 1043,

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1056 (2d Cir. 1974). While a Court must indulge all reasonable inferences in favor

of the party opposing summary judgment, it may not conjure evidence that was not

properly submitted under the Rule or hypothesize about whether improperly

submitted materials might support one claim or defense or another.

Here, based on Defendants’ failure to follow the requirements of Rule 56,

pursuant to Vt. R. Civ. P. 56(e)(2) and (3), the Court deems Plaintiff’s Statement of

Undisputed Facts as being unopposed. Based on those facts, Plaintiff is entitled to

judgment as a matter of law on its affirmative claims. Specifically, those facts

establish that Defendants executed a note in the original amount of $252,700.00;

that the note was secured with a mortgage on the subject premises; that Plaintiff is

the current holder of the note and mortgage; that Defendants failed to make

payments due on the note; that as of June 17, 2024, the amount due and owing on

the note was $315,773.05; and that the note and mortgage permit Plaintiff also to

claim reasonable attorney’s fees and costs. Additionally, Defendants have failed to

come forward with any admissible evidence to support their Counterclaims, a

matter on which they have the burden of proof. Poplaski, 152 Vt. at 254–55.

Plaintiff is also entitled to judgment as a matter of law as to those claims.

Based on the submissions, Plaintiff has established that a foreclosure by

judicial sale is warranted.

Plaintiff’s motion for attorney’s fees seeks significant sums beyond the 2%

figure anticipated by our Civil Rules. Further, it appears to seek compensation for

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matters related to an earlier proceeding. For those reasons, a hearing is needed as

to the reasonableness and appropriateness of such fees.

WHEREFORE, the motion for summary judgment and a clerk’s accounting is

granted in favor of Plaintiff. The motion for summary judgment in favor of Plaintiff

as to the Counterclaims is also granted. The motion for judicial sale is granted.

The motion for attorney’s fees will be set for hearing.

Electronically signed on Tuesday, March 11, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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