Wells Fargo v. Ndibalema

Termont Superior Court
Filed 10/06/25
Washington Unit

VERMONT 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

ENTRY REGARDING MOTION
Title: Motion for Relief From Judgment; Motion; Motion to Amend; Motion for
Extension of Time ; Motion For: for leave to file reconstruction pleading; to amend pleading and
add parties; (Motion: 17; 18; 19; 20)
Filer: Fuad Ndibalema; Fatu Kankolongo; Fuad Ndibalema; Fatu Kankolongo; Fuad
Ndibalema; Fatu Kankolongo; Fuad Ndibalema; Fatu Kankolongo
Filed Date: September 10, 2025; September 19, 2025; September 19, 2025; September 24, 2025

The motions are DENIED.

Defendants Fuad Ndibalema, Fatu Kankolongo, and Snffreshstart, LLC have filed several

post-judgment motions seeking to set aside the March 14, 2025 decision granting summary
judgment to Plaintiff Wells Fargo Bank, NA as Trustee for Soundview Home Loan Trust 2007-
OPT1 on its foreclosure claims and the August 25, 2025 final amended judgment. The Court will
address each of the motions briefly.

1. Motion for Leave to File Reconstruction Pleading

Defendants have filed a motion that seeks to file what they characterize as "reconstructed

pleadings." It is not clear which documents Defendants' motion considers to be the "reconstructed

pleadings" as the motion refers to a response to the motion for summary judgment, but the Rule
cited in the motion is V.R.C.P. 10(c), which refers to initial pleadings in a case. To the extent that

Defendants wish the Court to consider their 200-page filing and their 86-page filings, the Court will
allow these documents as attachments to the pending motions. Since neither of these sets of

documents consist of either motions or pleadings, the Court's consideration of them as part of the

pending motions does not require a separate motion. To the extent that Defendants wish the Court

Entry Regarding Motion Page 1 of 7
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LOAN TRUST 2007-OPT1, ASSET-BACKED CERTIFICATES, SERIES 2007-OPT1 v. Fuad Ndibalema et al
to consider their 40-page Motion to Amend, the Court will deal with that filing separately below as it
is label a Motion to Amend. As such, the Court Denies this Motion as Moot since the relief sought
is neither necessary nor consistent with V.R.C.P. 10, but the Court to consider the documents as
part of Defendants’ Motion to Reconsider, Motion for a New Trial, and Motion for an Appeal.

2. Motion for Relief from Judgment

Defendants, as a preliminary matter, seek to set aside the Court’s March 14, 2025 Order
granting Plaintiff’s Motion for Summary Judgment and the Court’s Amended Final Judgment
entered on August 25, 2025. A motion to reconsider must specify the grounds on which it is based,
and the moving party is obligated to put forward specific facts or legal analysis of “a strongly
convincing nature.” 11 C. WRIGHT & A.MILLER, FED. PRAC. & PROCED. CIVIL, at § 2817, n.1. A
motion to reconsider falls within the broad discretion of the trial court. Sandgate Sch. Dist. v. Cate,
2005 VT 88, ¶ 6.

In their motion, Defendants first assert that they did not realize that their “Cross Judgment
and Joint Memorandum of Authorities Pleading of 6 and 40 and 9 pages” might not have been filed
with the Court or opposing party, in part, because they did not have access to the Court’s on-line
filing system to check or confirm their filings. To rectify this oversight, they have filed their missing
pleadings and request the Court set aside the summary judgment motion to consider and accept
them.

None of Defendants’ new filings, however, respond to Plaintiff’s Motion for Summary
Judgment. Under Rule 56(c), a party seeking to oppose a Motion for Summary Judgment must
respond to the moving party’s statement of undisputed material facts and “must file a paragraph-by-
paragraph response, with specific citations to particular parts of materials in the record that the
responding party asserts demonstrate a dispute . . . .” V.R.C.P. 56(c)(2). This is in addition to any
legal argument or briefing that they seek to file to respond to the moving party’s motion for
summary judgment. Caldwell v. Champlain College Incorporated, 2025 VT 17, ¶ 8 (noting that a
determination of the factual records comes before an analysis of the motion).

Defendants have filed three packets of documents along with their various motions. The
first is an 86-page packet of various documents related to the foreclosure and some of Defendants’
research (including the history of a FOIA request that the Defendants made to the federal Securities

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and Exchange Commission). The second is a 200-page packet that contains a copy of Plaintiff’s
Motion for Summary Judgment and supporting documents (copies of the mortgage, promissory
notes, closing documents, property appraisal, loan servicing documents, and other foreclosure-
related documents) but no responsive filings or opposition briefs. The third is a 40-page filing that
contains a new set of counterclaims, a Motion for Judgment on the Pleadings, and a jury demand.1

A failure to properly respond to a motion for summary judgment, particularly the statement
of undisputed facts, means that the Court need not consider any facts outside of Plaintiff’s
statement of undisputed material facts. Caldwell, 2025 VT 17, at ¶ 9 (citing V.R.C.P. 56(c)(5)). Thus,
even if the Court were inclined to revisit the motion for summary judgment, Defendants’ filings do
not respond to the motion in the manner established by Rule 56 and do not constitute, even under a
more lenient standard, a sufficient reply to Plaintiff’s straightforward motion for summary judgment.
Zorn v. Smith, 2011 VT 10, ¶ 22 (noting that while a court will grant pro se litigants leeway, they are
still “bound by the ordinary rules of civil procedure.”) (quoting Vahlteich v. Knott, 139 Vt. 588, 591
(1981)).

Thus, the Court is not compelled, in this case, to grant Defendants’ motion for relief on the
basis that the filings sought to be added do not respond to the motion for which Defendants seek
relief. Therefore, the Motion to re-open under V.R.C.P. 60(b)(1) is Denied.

Defendants also contend that the judgment should be set aside under Rule 60(b)(5) because
of a Truth in Lending Act Recission Notice that Defendants purport to have sent to Plaintiffs on
January 24, 2025. The letter, which the Court has located on the 10th page of their 86-page packet
states that they are rescinding the “unconsummated transaction” involving their mortgage pursuant
to 15 U.S.C. §§ 1635, 1640 and 12 C.F.R. § 1026.23.

Defendants’ letter does not, in and of itself, provide a basis to set aside a judgment under
Rule 60(b)(5) because it seeks to undo a past action, that is the underlying loan secured by the note
and mortgage. Rule 60(b)(5) applies to judgments that have a prospective effect and not to
judgments that secure a remedy for a past wrong. 11 C.Wright & A.Miller, Fed. Prac. & Proc. Civil
§ 2863 (ed. ed. 2025 update); see also Tapper v. Hearn, 833 F.3d 166, 170–72 (2d Cir. 2016).

1 Notwithstanding the different headings, this filing appears to be a single integrated document as the

paragraphs are continuously numbered and the Motion for Judgment on the Pleadings is placed between
the preliminary pleadings concerning parties, jurisdiction, and venue and the latter pleading of
Defendants’ seven counterclaims.
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LOAN TRUST 2007-OPT1, ASSET-BACKED CERTIFICATES, SERIES 2007-OPT1 v. Fuad Ndibalema et al
Even if the Court were to consider the letter, there is no equitable relief available under the
Truth in Lending Act’s provisions that Defendants’ letter seeks to invoke. As Rule 1026.23 notes,
the right to recission expires no later than three years after consummation of the transaction. 12
C.F.R. § 1026.23(a)(3)(i). The term “consummation” is defined as the time that a consumer
becomes contractually obligated on a credit transaction. 12 C.F.R. § 1026.2(a)(13). The present note
was created and consummated in 2007 when it was executed and when Defendants began making
payments on the loan. They defaulted on their November 2017 payment and all payments
thereafter. As such, Defendants’ ability to rescind under the provisions of 15 U.S.C. § 1635 ended
over a decade before the January letter, and the relief sought is unavailable as a matter of law.

For these reasons, Defendants’ motion for relief under Rule 60(b)(5) is Denied.

Finally, Defendants seek to set aside the judgment based on Rule 60(b)(6) because of their
January 24, 2025 letter and the provisions of 15 U.S.C. § 1635 regarding recission. This portion of
the motion is unavailing on two grounds. First, it seeks to raise arguments that could have but were
not raised in their original opposition to summary judgment. See One West Bank, FSB v. Hazlett,
2014 WL 5795273, at *2 (May 12, 2014) (Wesley, J) (noting that a party may not generally use Rule
60(B)(6) to raise “arguments that may have been defenses to Plaintiff’s motion for summary
judgment.”). Second, as noted above, even if the Court were to consider this argument, it is
unavailable on its face. A party may not seek to rescind a mortgage and loan 18 years after it was
executed. As such, there are no grounds under Rule 60(b)(6) to set aside the judgment. Therefore,
Defendants’ motion for relief under Rule 60(b)(6) is Denied.

3. Motion for a New Trial

As Plaintiff notes, a motion for a new trial under Rule 59 is improper when challenging the
grant of a motion for summary judgment. See Jackson v. Hartford Life & Acc. Ins. Co., 543 F. App’x
977, 979 (11th Cir. 2013) (noting that the Rules of Civil Procedure “only permit the grant of a new
trial if there aw a trial in first place . . . .”).2 Furthermore, Defendants cannot use this motion to do
an end-run around their failure to timely or properly file an opposition to the motion for summary
judgment as required under Rule 56. For these reasons, the Motion for a New Trial is Denied.

2 The Court may cite to federal court decisions interpreting and implementing the Federal Rules of Civil

Procedure when the federal rule is analogous to Vermont’s rule. Belter v. City of Burlington, 2025 VT 35,
¶ 11. In this case, Vermont’s Rule 59 is sufficiently similar to federal Rule 59 for the Court to look to
federal cases for guidance.
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LOAN TRUST 2007-OPT1, ASSET-BACKED CERTIFICATES, SERIES 2007-OPT1 v. Fuad Ndibalema et al
4. Motion to Appeal.

A motion to appeal must be filed within 14 days of the judgment order from which the
appeal is sought to be taken. V.R.C.P. 80.1(m). In this case, Court entered judgment on August 25,
2025. Defendants filed their Motion to take an Appeal on September 10, 2025, two days after the
period for an appeal expired. The deadline for a motion to appeal is a jurisdictional consideration,
and a late filing must be denied unless there is a showing of excusable neglect. In re Lund, 2004 VT
55, ¶ 4 (“Appellate Rules 3 and 4 make clear that the timely filing of the notice of appeal is a
jurisdictional requirement.”) (quoting In re L.B., 147 Vt. 82, 84 (1986)); see also In re von Turkovich,
2018 VT 57, ¶ 5, 6 (noting that the failure to file a timely appeal due to party’s actions does not give
rise to excusable neglect). In this case, the facts show that the Motion was filed in an untimely
manner, and Defendants’ motion provides no basis for this delay or grounds for an extension. In
reviewing the record, the Court find such grounds, and the motion to appeal is Denied.

5. Motion to Extend Time to File an Appeal

The analysis for Defendant’s motion for an extension of time to appeal is similar to the prior
analysis. Under 12 V.S.A. § 4601, a party must seek permission from the Court file a notice of
appeal in a foreclosure action from a mortgage. Darden v. O’Keefe, 171 Vt. 571 (2000) (mem.). Under
Rule 80.1(m), the time to request an appeal is within 14 days of the entry of judgment. As the
Vermont Supreme Court has noted, the purpose of this limited window is to promote finality.
Woodbine Condominium Ass’n v. Lowe, 174 Vt. 457, 458 (2002) (mem.). In this case, the time for appeal
has ended, and Defendants did not request review or permission to appeal in a timely manner. As
such, the Court finds no basis to extend the time for appeal as there has been no showing of
excusable neglect that would be needed to extend the time for permission to take an appeal. See In
re von Turkovich, 2018 VT 57, ¶ 6. For these reasons, Defendants’ Motion to Extend the Time to File
an Appeal is Denied.

6. Motion to Amend and Motion for Judgment on the Pleadings

The Court will take up the last pending Motion before the Court, which Defendants
characterize as a Motion to Amend their answer to include seven counterclaims and seeking
judgment on the pleadings. Since the Motion on the Pleadings is dependent on taking up the
Motion to Amend, the Court will look to that Motion first.

Entry Regarding Motion Page 5 of 7
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Under Rule 15(a), a party may only amend its pleadings with permission of the Court after
the time for responsive pleadings has passed. Such amendments are generally granted, unless one of
four factors are triggered by the filings. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4 (describing the four
factors as (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing
party).

In this case, Defendants seek to add seven counterclaims nearly a month after final judgment
in this matter has been entered. This late filing raises two of the four factors, undue delay and
prejudice to the opposing party. To begin, there is no explanation as to why Defendants waited
until after judgment was entered to bring these amended counterclaims, and there is nothing in the
pleadings that would indicate that the claims are based on new or recently discovered information.
As noted above, this is a 2007 loan that has been the subject of at least one prior civil case (Docket
No. 207-14-18 Wncv) and two Vermont Supreme Court appeals (22-AP-024 and 20-AP-153).
Defendants have been involved in foreclosure litigation on this property since 2018. The present
complaint was filed in June of 2022. It is unreasonable at this late date to allow further amendment.
See Hickory v. Morland, 2005 VT 73, ¶ 6 (mem.) (holding undue delay exists when a party had an
opportunity to bring forward a claim or amendment at an earlier time but did not); see also 6
C.Wright & A. Miller,Fed. Prac. & Proc. Civil § 1488 (3d ed. 2025 update) (collecting cases showing
that late filed amendments, particularly where the amendment would be unduly burdensome).

In this case, Defendants seek to set aside the judgment and re-open the case three years into
the litigation. Their motion effectively seeks to raise entirely new claims that would require
response, discovery, and additional motion practice to Plaintiffs. In effect, Defendants’ motion
looks to turn back the clock three years and re-start the litigation. Such an action is unduly
burdensome. Based on these facts and analysis, the Court finds that an amendment to the pleadings
at this late date would constitute an undue delay, and therefore, the Motion to Amend is Denied.

In addition to the undue delay, the Court finds that the circumstances would create prejudice
to the opposing party. As noted, an amendment would require Plaintiffs to respond and effectively
re-do the case. Such an amendment has been found by at least one court to be manifest prejudice.
Laber v. Long View R.V., Inc., 454 F.Supp.3d 158, 172–73 (D. Conn. 2020) (finding that a motion to
amend claims three-years into litigation constituted a manifest prejudice to the non-moving party).
In this case, Defendants have had more than sufficient time to raise these claims or amend the
Entry Regarding Motion Page 6 of 7
22-CV-01936 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
pleadings in a timely manner. Allowing them at this time would constitute substantial prejudice to
Plaintiffs. For this additional reason, the Motion to Amend is Denied.

ORDER

Based on the foregoing, Defendants Motions are Denied. The present Order and Judgment
of Foreclosure remain in place and the period of redemption under 12 V.S.A. § 4947 shall continue
to run in this matter.

Electronically signed on 10/3/2025 7:22 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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