Bank of New York v. Lenge (2001-337); 172 Vt. 609; 779 A.2d 76

[Filed 23-Aug-2001]



                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-337

                              AUGUST TERM, 2001


The Bank of New York	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Windsor Superior Court
                                       }	
Nicholas J. Lenge, Leonard's           }
Gas & Electric Service and             }
Nicholas Lenge, Jr.	               }	DOCKET NO. 532-12-98 Wrcv
                                       }
     v.	                               }
                                       }
                                       }
TMS Mortgage, Inc. d/b/a The Money     }
Store	                               }



             In the above-entitled cause, the Clerk will enter:


       Appellee Bank of New York moves to dismiss Appellant Nicholas J.
  Lenge's pro  se appeal for lack of jurisdiction.  The Bank argues that
  because Lenge failed to  seek the permission of the trial court to appeal
  from the judgment of  foreclosure, which included judgment on Lenge's
  counterclaims and third-party  claims, this Court is without jurisdiction
  to hear his appeal.  We agree and  dismiss the appeal for lack of
  jurisdiction.

       Before an individual can appeal to this Court from a judgment of 
  foreclosure, the individual must seek permission from the trial court
  within ten  days of judgment under 12 V.S.A. § 4601 and V.R.C.P. 80.1(m). 
  This rule promotes  finality of foreclosures judgments.  See Citibank v.
  Groshens, ___ Vt. ___, ___,  768 A.2d 1272, 1273 (2000) (mem.) (dismissing
  appeal from denial of motion to  reopen foreclosure judgment where
  appellant had failed to seek permission to  appeal original foreclosure
  judgment, and noting that allowing such appeals would  circumvent rule
  designed to promote finality); see also Reporter's Notes,  V.R.C.P. 80.1
  (1985 amendment) (noting that ten-day time limit was established to 
  promote finality of foreclosure judgments).

       Given that this action was initiated as a foreclosure action, compare 
  Denlinger v. Mudgett, 151 Vt. 208, 210-11, 559 A.2d 661, ___ (1989)
  (addressing  merits of sellers' appeal concerning initial action against
  them for  misrepresentation by broker, but dismissing sellers' appeal
  concerning their  counterclaim seeking judgment of foreclosure based on
  failure to seek permission  to appeal from 

 <Page 2>

  trial court), and that the counterclaims and third-party claims are
  factually  intertwined with Lenge's asserted defenses to the foreclosure
  action, we see no  reason why Lenge's appeal should present an exception to
  the rule.  We find  unavailing Lenge's argument that the foreclosure can
  proceed pending his appeal  on his counterclaims and third-party claims
  despite the fact that they proceeded  to judgment together. Cf. Century
  Indem. Co. v. Mead, 121 Vt. 435, 436, 159 A.2d  325, ___ (1960) (noting
  that notice of appeal "brings the whole case, including  all questions
  litigated in the court below which affect the final decree, if they  are
  briefed, to this Court for review"); see also V.R.C.P. 80.1(m) (providing 
  that judgments of foreclosure are stayed pending either the denial of
  permission  to appeal or resolution of the appeal).  Accordingly, the
  appeal is dismissed.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice