Standing in Private Mortgage Foreclosures: The Vermont Supreme Court Reaffirms Kimball and Confirms Jurisdictional Limits in Bank of New York Mellon v. Quinn

I. Introduction

The Vermont Supreme Court’s decision in The Bank of New York Mellon v. Quinn, 2025 VT 60, is a major reaffirmation and clarification of Vermont’s standing requirements in mortgage-foreclosure actions. Although the opinion does not announce a brand-new doctrinal rule, it firmly cements and elaborates the principles first articulated in U.S. Bank Nat’l Ass’n v. Kimball, 2011 VT 81, and clarifies how those principles operate in the context of private disputes over mortgage enforcement.

At the heart of the case lies a seemingly technical question with large practical stakes:

Must a foreclosing lender prove that it was entitled to enforce the promissory note at the time it filed the foreclosure complaint, or can defects be cured later?
Is this requirement truly a matter of “standing” (and thus jurisdictional), or merely a “real party in interest” problem that can be fixed by substitution under V.R.C.P. 17?
Does the landmark decision in Kimball apply to foreclosure actions that were filed before it was issued?
And finally, does a standing-based disposition operate “with prejudice” or “without prejudice” for purposes of refiling and claim preclusion?

The plaintiff, The Bank of New York Mellon (BNYM), sought to foreclose on defendant Daniel Quinn’s home mortgage. The case has an “unusually long and complicated procedural path,” stretching back to a 2009 complaint and involving mediation, bankruptcy, multiple summary-judgment motions, a full trial, an earlier appeal, and a remand. Throughout, the central dispute remained whether BNYM could demonstrate that it had a legal right to enforce Quinn’s note when it commenced the action.

In this opinion, the Vermont Supreme Court:

Refuses to overrule or limit Kimball, holding that a foreclosure plaintiff must have, and must be able to prove, a right to enforce the promissory note at the time of filing in order to have standing.
Confirms that the concept of standing, rooted in the Vermont Constitution’s “case or controversy” requirement, applies fully to private disputes, including mortgage foreclosures, and is not limited to public-law or separation-of-powers settings.
Rejects the argument that Kimball should apply only prospectively and not to cases already pending when it was decided.
Declines to decide whether V.R.C.P. 17(a) (real party in interest) can ever cure an initial lack of standing, in part because the issue was not preserved below.
Affirms the judgment for the homeowner, and declines to dictate whether that judgment operates “with” or “without prejudice,” leaving the preclusion consequences to any future court that may hear a subsequent action.

This commentary examines the case’s facts, holdings, reasoning, interaction with prior precedent, and likely impact on Vermont foreclosure practice and standing doctrine more broadly.

II. Summary of the Opinion

A. Factual Background

In August 2007, Daniel Quinn borrowed $365,000 from Countrywide Home Loans, Inc. The debt was evidenced by a promissory note payable to Countrywide and secured by a mortgage on Quinn’s home in Woodstock, Vermont. The mortgage named Mortgage Electronic Registration Systems, Inc. (MERS) as mortgagee “as nominee” for the lender. The mortgage was recorded in the land records.

In October 2009, The Bank of New York Mellon filed a foreclosure complaint against Quinn, alleging default on the note. The complaint asserted:

BNYM was the holder of Quinn’s promissory note.
MERS had assigned the mortgage to BNYM.

Attached to the complaint were:

A copy of the mortgage assignment from MERS to BNYM.
A copy of the note made out to Countrywide, but without any indorsements.

That last point turned out to be critical: the copy of the note showed no indorsement to BNYM or in blank, and thus, on its face, did not establish BNYM as a “holder” under the Uniform Commercial Code (UCC).

B. Procedural History

The litigation spanned many years:

2010: BNYM moved for summary judgment, asserting it held the original note endorsed in blank and that the mortgage had been assigned. The civil division denied summary judgment, concluding BNYM had not yet established standing to enforce the note under 9A V.S.A. § 3-301, and declared it would not consider further dispositive motions.
2012–2013: BNYM filed another summary-judgment motion, with counsel’s certification that BNYM’s documents were “complete and accurate.” The civil division initially granted summary judgment, then vacated that ruling, finding it contrary to the 2010 ruling and unsupported by personal-knowledge evidence in the affidavit.
The court held a merits hearing and entered judgment for Quinn, concluding BNYM had not met its burden of proof. On appeal in 2022, the Supreme Court reversed and remanded for a new trial due to evidentiary errors. See Bank of N.Y. Mellon v. Quinn, No. 22-AP-049, 2022 WL 16848166 (Vt. Nov. 10, 2022) (unpublished).
Post-remand trial (May 2024): On remand, BNYM produced the original note, now bearing an undated indorsement in blank by an executive vice president of Countrywide. This differed from the unindorsed copy attached to the original complaint. BNYM also produced “bailee letters” showing where the note was held at various times, but not tracing possession all the way back to October 2009 when the complaint was filed.

The trial court:

Found BNYM had produced the original “wet-ink” note and was therefore then a holder entitled to enforce it.
Found Quinn had defaulted on his repayment obligations and that the lender had properly noticed acceleration.
Nevertheless concluded that under Kimball, BNYM had to show a right to enforce the note at the time the complaint was filed, and that it had not done so because the indorsement was undated and the chain of custody did not go back to 2009.
Held BNYM lacked standing at filing and entered judgment for Quinn.

The trial court also wrote an extensive critique of Kimball, expressing the view that “standing” doctrine is about separation of powers and should not control private foreclosure disputes; it suggested instead that V.R.C.P. 17’s “real party in interest” mechanism could cure any defect in initial entitlement to enforce the note. But the court ultimately recognized it was bound by Supreme Court precedent.

BNYM then moved to amend the judgment to specify that it was “without prejudice,” arguing that a dismissal for lack of standing is jurisdictional, not on the merits. The trial court denied the motion, reasoning that any later court considering a second action would be best placed to determine the preclusive effect of the judgment.

BNYM appealed, raising four main issues:

Whether the trial court erred in treating the failure to prove enforcement rights at filing as a standing defect (and thus jurisdictional), and in applying Kimball.
Whether Kimball, decided while this case was pending, should apply retroactively to this action.
Whether any defect in standing could be cured by substituting the “real party in interest” under V.R.C.P. 17(a).
Whether the Supreme Court should declare the judgment to be “without prejudice” to refiling.

C. The Supreme Court’s Disposition

The Vermont Supreme Court:

Affirmed the judgment for Quinn.
Declined to overrule or narrow Kimball, expressly reaffirming its core holding that a foreclosure plaintiff must demonstrate a right to enforce the note at the time the complaint is filed in order to have standing.
Held that standing requirements in Vermont apply to private disputes as well as to cases involving government defendants.
Rejected BNYM’s claim that Kimball should be applied only prospectively, holding that the decision was foreshadowed and that retroactive application was not inequitable.
Held that any argument about curing standing via Rule 17 was not preserved, and thus declined to address whether such a cure is ever possible.
Refused to modify the judgment to specify that it was “without prejudice,” citing Cenlar FSB v. Malenfant, 2016 VT 93, for the principle that courts in the first action should not pre-ordain the preclusion effects of their judgments.

III. Detailed Analysis

A. Precedents Cited and Their Role in the Court’s Reasoning

1. U.S. Bank Nat’l Ass’n v. Kimball, 2011 VT 81

Kimball is the cornerstone of the Court’s analysis. There, the Vermont Supreme Court held:

“[T]o foreclose a mortgage, a plaintiff must demonstrate that it has a right to enforce the note, and without such ownership, the plaintiff lacks standing.” (Kimball, ¶ 13.)

Kimball ties standing directly to UCC Article 3’s concept of a “person entitled to enforce” a negotiable instrument (9A V.S.A. § 3-301). The plaintiff bank in that case failed to show it held the note at the time it filed the foreclosure complaint. The Court concluded that because standing was lacking at the outset of the case, the court lacked subject-matter jurisdiction and the action had to be dismissed.

Kimball also:

Characterized the requirement of demonstrating enforcement rights at filing as “not irrationally demanding,” but a minimal threshold to avoid multiple claims on the same debt (¶ 20).
Considered, but ultimately declined to require, substitution under Rule 17 where the plaintiff had waited until late in the case to raise that theory (¶¶ 19–20).
Stated that dismissal for lack of standing is not an adjudication on the merits and thus, under V.R.C.P. 41(b)(3), is ordinarily “without prejudice” (¶ 22).

In Quinn, the Supreme Court reaffirms all of these core propositions and explicitly rejects the trial court’s suggestion that Kimball was wrongly decided or inapplicable to private foreclosure disputes.

2. Article 3 of the UCC: 9A V.S.A. §§ 3-201 and 3-301

The opinion relies on the UCC’s definition of who may enforce a note:

Under § 3-301, a “person entitled to enforce” an instrument includes (among others) the holder of the instrument.
Under § 3-201(a), when a note is “negotiated,” it becomes payable to the transferee.
Under § 3-201(b), for a note payable “to order,” negotiation requires both transfer of possession and a proper indorsement; when indorsed “in blank,” it becomes payable to bearer, and possession alone is sufficient.

The Court has previously linked foreclosure standing to these UCC concepts:

Wells Fargo Bank Minn., N.A. v. Rouleau, 2012 VT 19, ¶ 13, reaffirmed that to enforce a note the plaintiff must be in possession of the instrument, payable to it or indorsed in blank, at the time the enforcement action is filed.
Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950 (2002), held that “the mortgage is an incident to the note,” meaning the mortgage follows the note; thus, the ability to foreclose depends on the right to enforce the underlying debt.

These cases, along with the UCC text, form the legal backbone for the Court’s insistence that “standing” in a foreclosure context means being a person entitled to enforce the note when the action commences.

3. Vermont’s General Standing Jurisprudence

The Court situates Kimball within a broader line of Vermont cases articulating a constitutional case-or-controversy requirement:

In re Constitutionality of House Bill 88, 115 Vt. 524, 529 (1949): The Court described its constitutional power as “the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.”
Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337 (1997): Identified standing as grounded in separation of powers and articulated the familiar federal-style tripartite test: injury-in-fact, causation, and redressability (citing Northeast Florida Chapter of Associated General Contractors v. City of Jacksonville, 508 U.S. 656 (1993)).
In re Faignant, 2019 VT 29, and Ferry v. City of Montpelier, 2023 VT 4: Reiterate that plaintiffs must show a real, non-theoretical controversy and a threat of actual injury to a protected legal interest.

Importantly, the Court emphasizes that Vermont’s standing doctrine is not limited to public-law or administrative-law contexts:

Unifund CCR Partners v. Zimmer, 2016 VT 33, ¶ 19: In a private debt-collection case, the Court defined standing as requiring a “particular injury” attributable to the defendant and redressable by the court.
Dernier v. Mortgage Network, Inc., 2013 VT 96, and Bischoff v. Bletz, 2008 VT 16: Denied standing to private plaintiffs who were strangers to the contracts they sought to enforce or challenge.
Ihinger v. Ihinger, 2003 VT 38 (mem.): Held that children lacked standing to appeal in a divorce proceeding; they had no legal interest as parties.

These decisions all share a core theme: the Court will not exercise jurisdiction unless the plaintiff has a concrete, legally cognizable interest in the claim it asserts. Quinn treats foreclosure plaintiffs in exactly the same way.

4. Retroactivity and Preclusion: American Trucking Ass’ns v. Conway & Cenlar FSB v. Malenfant

On retroactivity, the Court relies on:

American Trucking Ass’ns, Inc. v. Conway, 152 Vt. 363 (1989), which sets the general rule that judicial decisions are applied retroactively, with limited exceptions where:
- The decision establishes a “new rule of law” by overruling clear precedent or resolving an issue of first impression in a way “not clearly foreshadowed,” and
- Retroactive application would be inequitable.
The Court concludes that Kimball neither overruled prior precedent nor surprised the bar; rather, it was foreshadowed by existing standing doctrine, including Bischoff.

On preclusion, the Court leans on:

Cenlar FSB v. Malenfant, 2016 VT 93, ¶ 42, which states that courts deciding a first action should generally avoid pronouncing on “preclusion consequences” in advance. Instead, a second court, if and when a new action is brought, should determine what res judicata or collateral-estoppel effect to give the earlier judgment.

This principle directly supports the Court’s refusal in Quinn to modify the judgment to say “without prejudice.”

5. Out-of-State and Federal Authorities

The opinion situates Vermont’s approach within a broader national context by citing several decisions:

Standing in foreclosure nationwide: The Court points to decisions from Connecticut, Florida, Hawaii, Kansas, Maine, New Mexico, Ohio, Oklahoma, and the Second Circuit, all requiring foreclosure plaintiffs to demonstrate that they are holders or assignees of the note when the action is commenced. Examples include:
- U.S. Bank, N.A. v. Ugrin, 91 A.3d 924 (Conn. App. Ct. 2014).
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. Dist. Ct. App. 2012).
- Bank of Am., N.A. v. Reyes-Toledo, 390 P.3d 1248 (Haw. 2017).
- FV-I, Inc. v. Kallevig, 392 P.3d 1248 (Kan. 2017).
- MERS v. Saunders, 2010 ME 79, 2 A.3d 289.
- Deutsche Bank Nat’l Tr. Co. v. Johnston, 2016-NMSC-013, 369 P.3d 1046.
- Bank of N.Y. Mellon v. Grund, 2015-Ohio-466, 27 N.E.3d 555.
- Deutsche Bank Nat’l Tr. v. Brumbaugh, 2012 OK 3, 270 P.3d 151.
- E. Sav. Bank, FSB v. Thompson, 631 F. App’x 13 (2d Cir. 2015).
Rule 17 and curing standing: The Court notes that other jurisdictions, including Ohio and Illinois, have held that misjoinder or substitution of the real party in interest under something like Rule 17 cannot cure an initial lack of standing:
- Fed. Home Loan Mortg. Corp. v. Schwartzwald, 2012-Ohio-5017, 979 N.E.2d 1214.
- Deutsche Bank Nat’l Tr. Co. v. Gilbert, 2012 IL App (2d) 120164, 982 N.E.2d 815.
Standing between private parties: The Court references Thole v. U.S. Bank N.A., 590 U.S. 538 (2020), where the U.S. Supreme Court held defined-benefit pension plan participants lacked standing to sue their plan because they would receive the same benefits regardless of alleged fiduciary breaches. This illustrates that federal standing requirements also apply to disputes wholly between private actors.
Academic commentary: The Court cites T. Schmidt, Standing Between Private Parties, 2024 Wis. L. Rev. 1, to highlight the historical development of standing doctrine as primarily about limiting judicial intervention against the political branches, but now also applied to private disputes.

These citations support the Court’s conclusion that Vermont’s approach in Kimball is consistent with a broad contemporary consensus: to prevent double liability and ensure that courts adjudicate only real disputes between parties with actual legal stakes, foreclosure plaintiffs must have enforceable rights in the note at filing.

B. The Court’s Legal Reasoning

1. Standing Applies Fully to Private Mortgage Foreclosure Disputes

BNYM’s core argument was conceptual: that “standing” is a separation-of-powers doctrine meant to regulate when private citizens may sue the government, and that it has no proper role in a private foreclosure action between two non-governmental parties. On this view, the only relevant procedural question was whether the named plaintiff was the “real party in interest” under V.R.C.P. 17, something that could supposedly be corrected midstream by substitution rather than by dismissal.

The Court firmly rejects this distinction. It emphasizes that:

Vermont’s constitutional grant of judicial power is limited to actual controversies between adverse litigants. That limitation applies regardless of whether the defendant is the State or a private individual or entity.
Standing in Vermont has always applied in private litigation; the Court cites numerous private cases where standing was dispositive (Unifund, Dernier, Bischoff, Ihinger).
The requirement that plaintiffs show they have suffered a particularized injury traceable to the defendant and redressable by the court is not a mere technicality, but an expression of the court’s limited jurisdiction.

In the foreclosure context, the “injury” is the borrower’s alleged nonpayment of a debt. But the Court points out that to have standing, the plaintiff must show that it is the party actually injured by that nonpayment—that is, the party entitled to enforce the note. If some other entity is the actual creditor, then the named plaintiff has no actual stake, and the court lacks jurisdiction to decide the case in its favor.

2. Application of UCC Article 3: Holder Status at the Time of Filing

Under the UCC, a “holder” is generally the person in physical possession of a negotiable instrument that is payable either to that person or to bearer (which includes instruments indorsed in blank). Thus, to show it had standing at filing, BNYM needed to demonstrate that as of October 2009:

It possessed the original note; and
The note was payable to BNYM or properly indorsed (e.g., in blank) by the former holder.

BNYM’s problem was evidentiary and temporal:

The complaint attached a copy of the note made payable to Countrywide only, with no indorsements at all.
At trial, BNYM produced the original note, now bearing an undated indorsement in blank from Countrywide’s executive vice president.
BNYM presented “bailee letters” to trace the note’s custody, but the chain of custody did not reach back to October 2009.

The trial court found—and the Supreme Court accepted—that BNYM was a current holder by the time of trial. But the Court agreed that BNYM had not proven it was a holder when it filed the complaint. Because the indorsement was undated and the chain of custody incomplete, BNYM could not show that the note was already indorsed in blank and in its possession at that critical moment.

Under Kimball and Rouleau, that failure is fatal to standing:

“[T]o enforce promissory note person must be in possession at time enforcement action is filed and therefore at that time instrument must be payable to person or indorsed in blank.” (Rouleau, ¶ 13.)

Thus, even though BNYM ultimately proved it was entitled to enforce the note at the time of trial and that Quinn was in default, the standing defect at the outset deprived the court of jurisdiction, and the case could not proceed on the merits.

3. Rejection of the “Real Party in Interest Only” Approach

The trial court had suggested that the only real issue was whether the named plaintiff was the “real party in interest,” governed by V.R.C.P. 17(a). Rule 17(a) requires that an action be prosecuted in the name of the real party in interest, but allows substitution where the wrong plaintiff has been named, sometimes with relation-back effect.

On this view, if a foreclosure complaint was brought by a plaintiff that did not hold the note at filing, the defect could be remedied by substituting the entity that later became the note holder. This would transform what Kimball treated as a jurisdictional defect into a curable procedural misstep.

The Supreme Court, however:

Notes that in Kimball the bank made a similar argument for substitution under Rule 17(a), which the trial court rejected and the Supreme Court affirmed, emphasizing that the bank’s delay made substitution improper.
States that Kimball did not decide “whether Rule 17 could ever be used to cure a defect in standing when the suit was filed,” because it was unnecessary to reach that question then—and, due to lack of preservation, unnecessary again in Quinn (¶¶ 21–23).
Highlights that BNYM never actually sought substitution under Rule 17 in the trial court; its consistent position was that it had always been the holder, not that it became holder later.
Observes that other jurisdictions have held that Rule 17 cannot “cure the lack of standing after commencement of the action” (quoting Schwartzwald and citing Gilbert).

Because BNYM failed to raise a proper Rule 17 argument in the trial court, the Supreme Court deems the issue unpreserved and declines to resolve it. However, its heavy reliance on Kimball and its favorable citation of Schwartzwald and Gilbert suggest skepticism toward the idea that a party can bootstrap standing after the fact via substitution once the court’s lack of jurisdiction at filing is established.

4. Stare Decisis: Why Kimball Stands

BNYM invited the Court to overrule or confine Kimball, arguing that:

Kimball misinterpreted standing doctrine and mistakenly applied a public-law concept to a private dispute.
The requirement of holder-status at filing is unduly rigid and punitive, especially in securitized or large-volume mortgage portfolios where documentation is complex.

The Court rejects these arguments and applies its standard stare decisis analysis:

“This Court does not ‘lightly overturn recent precedent’” (Quinn, ¶ 17, quoting In re Barber and O’Connor).
Existing law will be modified “only when plainly justified by evolving common standards” (Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14).

The Court concludes:

Kimball is not an outlier; it is in harmony with both Vermont’s standing jurisprudence and the majority rule in other state and federal courts concerning foreclosure standing (see the long list of out-of-state foreclosure cases at ¶ 16).
Requiring a foreclosing party to have, and be able to document, a real legal interest in the debt at the moment it seeks judicial relief promotes “certainty, stability, and predictability” for lenders, borrowers, and courts.
The requirement is not punitive but rather the “long-held” minimum condition for invoking judicial power: the plaintiff must actually own the claim at issue.

Because BNYM fails to show any compelling reason why experience since 2011 has made Kimball unworkable or unjust, stare decisis mandates adherence to that precedent.

5. Retroactivity: Kimball Applied to a Case Filed Before 2011

BNYM argued that even if Kimball is correct, it should not apply retroactively to a case filed in 2009, before Kimball was decided in 2011. The Court applies the American Trucking framework:

Did Kimball establish a “new rule of law” by overruling clear past precedent or deciding an issue in a way not clearly foreshadowed?
If so, would retroactive application be inequitable?

The Court answers “no” at step one, so it never needs to reach step two:

Kimball did not overrule any prior Vermont case.
Although Kimball was formally a case of first impression on foreclosure standing, its result was “foreshadowed” by existing cases like Bischoff, which demanded actual legal interest from plaintiffs in private contract disputes.
The trial court itself used the language of “standing” in its 2010 order denying BNYM’s motion for summary judgment for failure to prove it was a holder—before Kimball was decided. This undercuts any claim of unfair surprise.
It was entirely within BNYM’s control to gather and present proof of its status as holder; any failure to do so cannot be blamed on a lack of doctrinal clarity.

Thus, Kimball applied to this case even though the complaint pre-dated that decision.

6. Dismissal, Prejudice, and Future Preclusion

Finally, BNYM asked the Supreme Court to declare expressly that the judgment in Quinn’s favor is “without prejudice,” so that BNYM (or another party) could refile foreclosure once it could sufficiently prove its holder status.

Under V.R.C.P. 41(b)(3):

“[A] dismissal other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party … operates as an adjudication upon the merits.”

In Kimball, the Supreme Court had held that a dismissal for lack of standing is a dismissal for lack of jurisdiction and “therefore” is without prejudice under Rule 41(b)(3) (¶ 22).

In Quinn, the Court takes a more circumspect approach, invoking Cenlar:

Cenlar recommends that courts avoid trying to determine the res judicata effect of their own judgments in the abstract, because preclusion issues are context-specific and better resolved if and when a later action is actually filed.
Following that guidance, the Court declines to modify the judgment to say “without prejudice” or to issue any ruling about its preclusive effect.
Instead, it affirms the judgment and leaves it to any future court, confronted with a subsequent foreclosure action, to decide what preclusive effect to give this decision under general preclusion principles.

The Court does not contradict Kimball’s characterization of standing dismissals as typically non-merits dispositions under Rule 41(b)(3); it simply refuses to anticipate or dictate how that characterization will interact with any future pleadings, facts, or defenses in hypothetical later litigation.

C. Impact and Implications

1. Practical Effects on Lenders and Foreclosure Practice

For lenders, servicers, and foreclosure counsel operating in Vermont, Quinn sends several clear signals:

Verification before filing is mandatory, not optional. Plaintiffs must be prepared to prove that they were “persons entitled to enforce” the note as of the complaint date. That means:
- Maintaining and producing a clear chain of indorsements.
- Keeping robust records of the timing of transfers and indorsements.
- Documenting possession (including custody by agents or bailees) at the time of filing.
Attaching the right documents at filing matters. Although V.R.C.P. 80.1(b)(1) (as amended in 2010) imposes pleading and attachment requirements independent of standing, compliance with that rule—and going beyond it where necessary—will be critical to evidencing holder status.
Undated indorsements create risk. An undated blank indorsement may suffice to prove current holder status, but not the timing of negotiation. Without additional documentary or testimonial evidence, it will be difficult to prove that the note was already in the plaintiff’s hands when the action commenced.
Protracted litigation cannot cure initial jurisdictional defects. Even after years of mediation, motions, and trials, if the plaintiff cannot establish it had standing when it first sued, the case must end in dismissal (or judgment for the defendant) without reaching the merits.

These requirements may press institutional lenders and servicers to improve their internal tracking systems and documentation regarding note transfers and custody, particularly in complex, securitized portfolios.

2. Implications for Borrowers and Consumer Protection

From a borrower’s or consumer-protection perspective, Quinn reinforces important safeguards:

Protection against double liability. The Court explicitly notes that the standing requirement “protects homeowners against double liability” (¶ 16). If any entity could sue on a note without having a present right to enforce it, borrowers could face multiple foreclosure suits on the same debt.
Transparency and accountability in securitized lending. Requiring the foreclosing party to show a complete and timely chain of negotiations and assignments helps ensure that the real creditor—not a stray servicer or trust lacking rights—is the party invoking the court’s coercive powers.
Meaningful jurisdictional review. Homeowners can raise standing as a threshold, jurisdictional objection, and courts must address it before adjudicating default or granting strict foreclosure or sale orders.

Amici Vermont Legal Aid and the National Consumer Law Center, representing borrower interests, supported retention of Kimball, and the Court’s opinion effectively aligns Vermont with jurisdictions that enforce robust proof-of-enforcement requirements in foreclosure.

3. Guidance for Trial Courts

Trial courts in Vermont receive several practical directives:

Standing is threshold and jurisdictional. Courts must ensure, before moving to the merits, that the plaintiff has standing as of the complaint date. This may require evidentiary hearings or careful scrutiny of affidavits and documentary evidence.
Real-party-in-interest motions must be timely and clearly framed. If a plaintiff seeks substitution under Rule 17, it must clearly articulate that request and provide a factual basis, including when the real party acquired the claim. Courts remain free to deny late or prejudicial substitutions, as in Kimball.
Preclusion is not to be forecast in the first action. Following Cenlar, trial courts should enter their substantive or jurisdictional judgments and leave res judicata and collateral estoppel issues to any subsequent court confronting a new lawsuit.

4. Broader Doctrinal Significance

Doctrinally, Quinn clarifies that:

Vermont standing is a unified doctrine. It is not bifurcated into public-law and private-law variants; the same injury-causation-redressability framework governs all cases, albeit applied to the specific legal interests at stake.
Foreclosure standing is not a mere pleading nicety. It is anchored in UCC concepts of negotiable instruments and “persons entitled to enforce,” and thus grounded in substantive commercial law as well as constitutional justiciability.
Stare decisis has real teeth. The Court’s reluctance to reconsider a 14-year-old precedent absent clear injustice or doctrinal drift sends a message of stability to litigants, particularly in high-volume areas like foreclosure where predictable rules are important.

The decision will likely influence how Vermont courts and practitioners conceptualize standing in other private contexts, especially where claims are frequently assigned or securitized (e.g., consumer debt, medical bills, or auto loans).

IV. Key Concepts Simplified

1. “Standing” in Plain Terms

In Vermont, “standing” means that a person asking a court for relief must:

Have suffered (or be about to suffer) a concrete, real-world harm (injury-in-fact).
Be able to trace that harm to the defendant’s conduct (causation).
Be likely to have their harm remedied by a favorable court decision (redressability).

In a foreclosure case:

The “harm” is the borrower’s alleged default on the note.
The question is whether the named plaintiff is the creditor (or otherwise legally entitled to enforce the debt) so that it is actually suffering that harm.

If someone else is actually owed the money, the named plaintiff has no real injury and no standing, and the court lacks power to grant that plaintiff relief.

2. “Person Entitled to Enforce” Under the UCC

Under 9A V.S.A. § 3-301, a “person entitled to enforce” a promissory note can include:

The “holder” of the note (generally, the person in possession of the original note, where the note is payable to that person or to bearer);
A non-holder in possession of the note who has the rights of a holder; or
Certain others (e.g., persons with rights under lost-note provisions).

To be a “holder,” two things usually must coincide:

Possession: The plaintiff (or its agent/bailee) must physically hold the original note.
Payability: The note must be made payable to the plaintiff (or a predecessor that has indorsed it) or indorsed “in blank,” making it payable to whoever holds it.

The key timing requirement, per Kimball and Quinn, is that these conditions must exist when the complaint is filed, not just by the time of trial.

3. Negotiation, Indorsements, and Blank Indorsements

In simple terms:

A note payable “to the order of Countrywide” is payable only to Countrywide unless Countrywide indorses it or assigns it.
If Countrywide stamps or signs an indorsement “Pay to the order of Bank X,” Bank X becomes the new payee and can enforce the note if it has possession.
If Countrywide indorses the note “in blank” (essentially signing without naming a new payee), the note becomes payable to whoever holds it—bearer paper. Any person in possession is a holder.

Because the indorsement in Quinn was undated, BNYM could not prove when the note became bearer paper in its hands, and thus could not show holder status at the time of filing.

4. “Real Party in Interest” vs. Standing

V.R.C.P. 17(a) requires that every civil action be prosecuted in the name of the “real party in interest”—the person who actually owns the claim. If the wrong plaintiff brings suit (for example, an insurer sues instead of the insured), the rule allows substitution of the right party, often without dismissing the action.

However:

Standing is jurisdictional and rooted in the constitution’s case-or-controversy requirement: if the court lacks standing at the outset, it lacks power to act.
Real-party-in-interest is a procedural rule designed to protect defendants from multiple suits and ensure the correct claimant is before the court.

They are related but distinct. Quinn suggests that while Rule 17 may be able to fix some misjoinders, it cannot simply override the constitutional requirement that standing exist when the case begins—though the Supreme Court expressly leaves that question open for a properly preserved case.

5. Retroactive vs. Prospective Application of Judicial Decisions

When a court announces a new rule, the question arises: Does that rule apply to:

The case at hand and all pending/future cases (retroactively)?
Only to future cases filed after the decision (purely prospectively)?

American Trucking sets a high bar for purely prospective application. Only if a case creates a “new rule of law” that was not clearly foreshadowed, and if retroactivity would be unfair, will the court limit the rule to future cases.

In Quinn, the Court finds that Kimball did not meet this test and thus applies it retroactively to a case filed before 2011.

6. Dismissal “With Prejudice” vs. “Without Prejudice” and Preclusion

When a case is dismissed:

With prejudice generally means the plaintiff cannot bring the same claim again; the judgment has full res judicata effect.
Without prejudice means the plaintiff is free to file a new case on the same claim (subject to statutes of limitation and other procedural rules).

V.R.C.P. 41(b)(3) says that a dismissal for lack of jurisdiction (including lack of standing) is not “on the merits” and thus does not automatically count as a with-prejudice adjudication.

However, whether a prior jurisdictional dismissal precludes some issues or claims in a later case can depend on the details. That is why, per Cenlar and now Quinn, courts in the first action should not attempt to describe in advance the preclusion effects of their judgments. Instead, they simply enter judgment, and a later court addresses any res judicata or collateral-estoppel arguments in the specific context of a new action.

V. Conclusion: Key Takeaways and Significance

The Bank of New York Mellon v. Quinn solidifies Vermont’s approach to standing in mortgage-foreclosure cases and, more broadly, in private litigation. Its main implications can be summarized as follows:

Standing requirement reaffirmed: A foreclosure plaintiff must prove it was a “person entitled to enforce” the note—typically a holder—at the time the complaint was filed. Subsequent acquisition of the note cannot retroactively confer standing to support jurisdiction that was absent at the outset.
Standing applies to private disputes: The Court squarely rejects the notion that standing is restricted to public-law or separation-of-powers contexts. The constitutional requirement of an actual controversy between adverse litigants governs all cases, including foreclosure.
Stare decisis and national consensus: Kimball remains good law, and Vermont’s position is in line with national trends requiring foreclosure plaintiffs to prove their enforcement rights at filing to avoid double liability and ensure judicial integrity.
Real party in interest vs. standing: While Rule 17 may address some mispleading of parties, it is no panacea for a fundamental absence of standing at filing. The Court leaves open, for a future and properly preserved case, whether Rule 17 can ever cure such a defect—but indicates skepticism.
Retroactivity affirmed: Kimball applies to cases filed before 2011, as its rule was foreshadowed by Vermont’s prior case law and not inequitable to apply retroactively.
Preclusion left to future courts: Although dismissals for lack of standing are typically non-merits dispositions under Rule 41(b)(3), the Supreme Court declines to label this judgment as “without prejudice,” leaving the specific preclusive effect to be determined in any subsequent action.

For Vermont practitioners, the decision underscores the necessity of meticulous attention to note ownership, indorsements, and custody at the time of filing foreclosure complaints. For borrowers and consumer advocates, it confirms a robust protection against foreclosures initiated by entities that cannot demonstrate a lawful right to enforce the debt. Doctrinally, it reinforces a unitary vision of standing as a constitutional limit on judicial power, fully applicable to private as well as public disputes.

In short, Quinn does not radically change Vermont law; instead, it consolidates, clarifies, and powerfully reaffirms a framework that demands that those who invoke the courts’ authority in foreclosure actions truly hold the rights they seek to enforce—and can prove it from day one.