Billewicz v. Estate of Fanelli, No. 2017-028 (Vt. Mar. 1, 2017) (mem.)
Pursuant to stipulation, the superior court issued a judgment order and decree of foreclosure. More than one year after issuance of a writ of possession, plaintiff filed a complaint alleging that the defendant had fraudulently mispresented the fair market value of the property. The court entered summary judgment in favor of defendant, noting the foreclosure judgment was final, that plaintiff had failed to follow the procedures for appealing the judgment pursuant to V.R.C.P. 80.1(m), and that nothing in the complaint showed that plaintiff could not have challenged the earlier stipulated value during the foreclosure proceedings. We dismiss plaintiff’s appeal.
A request for relief pursuant to V.R.C.P. 60(b) cannot be used to circumvent the strong legislative policy favoring finality of foreclosure judgments. Woodbine Condo. Ass'n v. Lowe, 174 Vt. 457, 458 (2002) (mem.) Although structured as a collateral action, plaintiff's complaint is essentially a request for relief from the foreclosure judgment pursuant to Rule 60(b). Therefore the appeal must be dismissed for lack of jurisdiction.
NOTE; The strong legislative policy favoring the finality of foreclosure judgments: See V.R.C.P. 80.1(m). (a party seeking to appeal a foreclosure judgment must seek permission to appeal within ten days "of the date of the entry of the judgment or order to be appealed from."); Mortg. Lenders Network, USA v. Sensenich, 2004 VT 107, ¶ 7, 177 Vt. 592, 873 A.2d 892 (mem.).( a foreclosure decree is a final judgment even if a right to redeem exists, and even if further proceedings ancillary to the foreclosure itself are contemplated.);Woodbine Condo. Ass'n v. Lowe, 174 Vt. 457, 458, 806 A.2d 1001, 1003 (2002) (mem.) (Rule 60(b) cannot be used to circumvent requirement of seeking permission to appeal foreclosure decree);.Citibank, N.A. v. Groshens, 171 Vt. 639, 640, 768 A.2d 1272, 1273 (2000) (mem.) (dismissing appeal from court's denial of motion to reopen foreclosure judgment because of legislative policy promoting finality of foreclosure judgments).