October 01, 2020 Top Story

The Dead Cannot Join Litigation

Absent an open estate, courts must dismiss actions against deceased parties

By Josephine M. Bahn

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit has held that when a person is deceased and no estate is opened, there is no Article III standing to name him or her as a party. The court in LN Mgmt., LLC Series 5664 Divot v. JPMorgan Chase Bank, N.A. held that the dead lack the required capacities a litigant must have to establish a case or controversy. ABA Section of Litigation leaders observe that the court was concerned about a paper adversary and the impact suing a dead person would have on the living.

When the homeowner died, her mortgage was sold in foreclosure to a management company

When the homeowner died, her mortgage was sold in foreclosure to a management company

Credit: fstop123 | iStockphoto by Getty Images

Court Denies Plaintiff Right to Name Deceased Party, Dismisses Claim

Kit Dansker bought a home in 2003 with an $83,000 mortgage. The mortgage was then sold to Fannie Mae. Dansker died in 2009, and in 2011 her property was sold in foreclosure to a management company. The mortgage holders then challenged that foreclosure arguing that it violated federal foreclosure rules. In 2013, the management company filed a quiet title action in state court against Dankser and the successor to the original mortgage holder. A few months after it filed that action, the management company filed a suggestion of death. It also moved to name the Estate of Dansker as a defendant, even though “no one had effectuated any probate action.”

The case was removed to federal court. The district court held that Dansker had been fraudulently joined, and it denied a request to substitute Dansker’s estate, reasoning that the foreclosure had removed her right to the property.

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