NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.


                                         2016 VT 71

                                        No. 2015-214

Deutsche Bank                                                Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Caledonia Unit,
                                                             Civil Division

Kevin Pinette                                                October Term, 2015


Robert R. Bent, J.

Jeffrey J. Hardiman and Douglas A. Giron of Schechtman Halperin Savage, LLP, Pawtucket,
 Rhode Island, for Lender-Appellant.

Grace B. Pazdan, Vermont Legal Aid, Inc., Montpelier, for Borrower-Appellee.

Thomas A. Cox, Portland, Maine, and Geoff Walsh, National Consumer Law Center, Boston,
 Massachusetts, for Amicus Curiae National Consumer Law Center.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.    DOOLEY, J.      Plaintiff Deutsche Bank National Trust Company (lender), as

trustee appeals from the decision of the Caledonia Superior Court granting defendant Kevin

Pinette’s (borrower) motion to dismiss.      The superior court dismissed lender’s claims for

mortgage foreclosure, the unpaid balance on a promissory note, and a deficiency judgment on the

ground that they were barred by claim preclusion, as lender had previously instituted an identical

action against borrower in 2013, which had been dismissed for failure to prosecute. On appeal,

lender argues that because the 2013 action did not actually adjudge the enforceability of the note

and mortgage, the dismissal did not have preclusive effect. Further, lender urges us to hold that,
in the mortgage foreclosure context, dismissals with prejudice do not bar subsequent actions

based upon new defaults occurring after dismissal of the prior action. We affirm.

       ¶ 2.    Borrower is the owner of real property located at 23 Railroad Street n/k/a 127

Railroad Street in Groton, Vermont. On March 18, 2005, borrower executed a promissory note

to Option One Mortgage Corporation for $54,400.00, secured by a mortgage on the real property

on Railroad Street. The note and mortgage are now held by lender pursuant to an endorsement in

blank contained in an allonge to the note and an assignment of mortgage from American Home

Mortgage Servicing, Inc. (AHMSI), successor-in-interest to Option One. In July 2010, following

a payment default by borrower, borrower and AHMSI entered into a loan modification

agreement under which the principal loan amount was increased to $77,270.65. When borrower

continued to default on his payments, lender filed a complaint for judgment on the promissory

note, mortgage foreclosure, and a deficiency judgment in October 2011.

       ¶ 3.    We examine the complaint in some detail because, as we explain below, lender

filed virtually the exact same complaint1 three times and the nature of the complaint is central to

the resolution of the main issue in this appeal. The complaint has three counts: (1) Count I for

mortgage foreclosure; Count II for judgment on the promissory note of $54,400.00; and (3) a

deficiency judgment if the amounts owing to lender “exceed the value of the mortgaged

premises.” Lender also listed a number of elements of the relief it sought, including foreclosure

of the mortgaged property by sale or strict foreclosure and a “finding by the court of no

substantial value in excess of the mortgage debt,” and a deficiency judgment after “disposition of

the mortgaged premises and application of the proceeds from that disposition to the debt of the

borrower.” With respect to the note balance, lender sought a court order that “borrowers pay to

       1
         The first complaint did not allege the modification or the new amount of the principal,
even though it occurred before the complaint was filed. The latter two did allege the
modification and increased amount of principal to $77,270.65. However, each of the three
contained the identical count on the note that stated that the principal amount was $54,400 and
borrower defaulted on his obligations under the note.
                                                2
the clerk of the court for the benefit of lender all amounts due and to become due on the note and

mortgage, with interest thereon, together with sums expended, reasonable attorney’s fees and

costs.”

          ¶ 4.   Borrower did not enter an appearance or file an answer. Following borrower’s

default, lender filed two motions seeking extensions of time to obtain a judgment because the

parties were involved in settlement discussions.     These were granted, but after the second

extension expired, the superior court dismissed the action without prejudice on November 26,

2012.

          ¶ 5.   In March 2013, lender filed a second action in the Caledonia Superior Court

against borrower, utilizing an identical complaint with the addition of an allegation of the

modification and increased principal amount. Borrower once again did not answer or appear. In

January 2014, some eight months after borrower defaulted, the superior court notified lender that

borrower had not entered an appearance and directed lender to file a motion for default judgment

within two weeks. Lender failed to do so, and on March 31, 2014, the court dismissed the action

without a specific statement indicating whether dismissal was with or without prejudice.

          ¶ 6.   Apparently, borrower made no further payments on the note. In September 2014,

lender filed the instant action, again using a complaint identical to the 2013 complaint. The

complaint was served on September 29, 2014. This time, borrower filed a pro se appearance and

answer on October 31, 2014; a lawyer employed by Vermont Legal Aid filed a limited

appearance for borrower on the same date and moved to dismiss on the basis of claim preclusion.

Based on that motion, the superior court dismissed the action, but reopened when lender

eventually responded in February, 2015. After briefing, the court again granted the motion to

dismiss, ruling that this third action was barred by the dismissal of the second action with

prejudice.



                                                3
       ¶ 7.    In its decision, the superior court concluded that under V.R.C.P. 41(b), an

involuntary dismissal that does not specify whether it is with or without prejudice is assumed to

be with prejudice. The court saw no reason to depart from this established principle of Vermont

law in the case at bar; lender “willfully fail[ed] to heed the court’s warning after having a prior

case dismissed,” despite being a “sophisticated user of the court system” with approximately

seventy-five foreclosure cases currently pending in the state. The court noted that it was within

lender’s power to seek an enlargement of time in the dismissed case, file a Rule 60 motion

concerning the dismissal, or appeal the previous dismissal. The court recognized that the result

of lender’s failure to perform any of the above actions was a “windfall” for borrower, but

stressed that such an outcome was fair in light of lender’s multiple squandered opportunities “to

avail itself of the benefits of Vermont’s judicial process” and the necessity of the finality of

judgments to sound judicial administration. This appeal followed.

       ¶ 8.    On appeal, lender asks us to consider the following issues: 1) whether the superior

court abused its discretion in considering an untimely motion to dismiss over lender’s objection;

2) whether a dismissal for failure to apply for default judgment operates as adjudication “on the

merits” which precludes a subsequent action based upon a new default; 3) whether the superior

court misapplied our holding in U.S. Bank National Association v. Kimball, 2011 VT 81, 190

Vt. 210, 27 A.3d 1087; 4) whether, in the context of a foreclosure, a dismissal under V.R.C.P.

41(b)(3) constitutes a permanent bar to foreclose based upon a future default; and 5) whether, to

the extent that the prior dismissal was a sanction, the superior court abused its discretion or

committed an error of law in precluding lender from enforcing the note and/or mortgage. We

hold that in this case, where a mortgagee who has exercised the option to accelerate the amount

due on a promissory note has an action dismissed under V.R.C.P. 41(b)(3), and lender does not

allege a new default after the dismissal, that dismissal functions as an adjudication on the merits



                                                4
which precludes further litigation on the underlying note. Because borrower does not owe on the

underlying note, the mortgage security cannot be foreclosed.

       ¶ 9.       We review motions to dismiss de novo. Prive v. Vermont Asbestos Group, 2010

VT 2, ¶ 14, 187 Vt. 280, 992 A.2d 1035 (citation omitted). In rendering our decision, “we must

assume as true all factual allegations pleaded by the nonmoving party.” Id. ¶ 2 (quotation

omitted).

       ¶ 10.      We begin by addressing lender’s claim that the case should be reinstated because

borrower’s answer and motion to dismiss were untimely. There are two grounds to reject

lender’s claim.

       ¶ 11.      Under V.R.C.P. 12(a)(1)(A), borrower’s answer was due 20 days after borrower

was served. In fact, it was filed over 30 days after service.2 It included the defense of res

judicata based on the dismissal of the second action. Under V.R.C.P. 12(b), borrower’s motion

to dismiss was due at the same time as his answer. Such a motion was generally required to be

made “before pleading” or with a “responsive pleading.” Id. at 12(b).3 The untimeliness of both

is the basis for lender’s appeal issue.

       ¶ 12.      Irrespective of the timeliness of the answer and motion to dismiss, lender was

required to answer a motion to dismiss within fifteen days or risk that the trial court would

decide the motion without argument at any time thereafter. V.R.C.P. 78(b). Lender did not

timely respond to the motion to dismiss, which the trial court granted on December 2nd. By that

time, lender had waived any opportunity to contest the timeliness of the answer and motion to



       2
            The record indicates borrower was an incarcerated prisoner in a Connecticut prison.
       3
          The motion was essentially one for failure to state a claim on which relief could be
granted. See V.R.C.P. 12(b)(6). Although borrower’s counsel attached matters outside the
pleadings, these were court orders of which the court could take judicial notice. See In re Russo,
2013 VT 35, ¶ 16 n.4, 193 Vt. 594, 72 A.3d 900. These did not convert the motion into one for
summary judgment. See V.R.C.P. 12(b).
                                                5
dismiss. This is the first ground to reject lender’s claim that the motion to dismiss had to be

denied as untimely.

       ¶ 13.   On December 9, lender filed a motion to vacate the dismissal, but failed to assert

at that time that the answer or motion to dismiss was untimely. On February 4, 2015, the court

vacated the dismissal and gave lender an opportunity to address the substance of the motion. On

February 24, lender claimed for the first time that the answer and motion to dismiss were

untimely and should be rejected on that basis. Borrower responded by explaining that the reason

for the delay in filing the answer was due to his inability to communicate with his lawyer in a

timely fashion because he was incarcerated in a Connecticut state prison. Borrower’s lawyer

filed an affidavit confirming the reason for the late filing of the answer and motion, and

requested an enlargement of time to file the answer. The court ruled that it would consider the

motion to dismiss although it was untimely. We consider this ruling to be a grant of borrower’s

motion to extend the time for an answer.

       ¶ 14.   Under V.R.C.P. 6(b)(2), the superior court may grant a motion to enlarge the time

to answer, even after the expiration of the time limit for answer, on a finding of excusable

neglect. V.R.C.P. 6(b)(2). Here, the court acted within its discretion in finding excusable

neglect because the cause of the delay was circumstances beyond the immediate control of

borrower, rather than neglect by the borrower or his lawyer; the delay was relatively short; and

there was no prejudice to lender. See Ji v. Heide, 2013 VT 81, ¶ 14, 194 Vt. 546, 82 A.3d 1160.

Even if the motion for extension could not be granted, the next step would be the entry of a

default judgment pursuant to V.R.C.P. 55(a). At that point, borrower could move to set aside the

default for “good cause shown.” Id. 55(c). Given the absence of any demonstrated prejudice to

lender from the delay, and our liberal standard favoring adjudication on the merits and not by

default, see Dougherty v. Surgen, 147 Vt. 365, 366, 518 A.2d 364, 365 (1986), the court would



                                               6
act well within its discretion in setting aside the default judgment. This is the second reason for

rejecting lender’s argument that the motion to dismiss should have been rejected as untimely.

       ¶ 15.    We add an additional point from the history of the proceeding. Lender responded

to the motion to dismiss solely with a legal argument. It did not argue that the motion could not

be decided because the record was inadequate or provide relevant evidence to turn the motion to

dismiss into one for summary judgment pursuant to V.R.C.P. 12(b). Lender did file the April

2014 notice of default in this Court as part of its printed case, although it did not file the notice in

the superior court. Unsurprisingly, borrower moved to strike the default letter as outside the

record below. We agree that because the letter was not presented below, it is not properly before

us and should be struck from the record on appeal. Consequently, without any evidence of a

fourth default, we decline to address lender’s argument that a new foreclosure action could be

based on a new default.

       ¶ 16.    Lender’s second argument is that because the trial court did not actually

adjudicate the foreclosure claim in its dismissal of the 2013 action, claim preclusion cannot be

applied to bar the instant case. Lender argues that under Pennconn Enterprises v. Huntington,

148 Vt. 603, 609-610, 538 A.2d 673, 678 (1987), a Rule 41(b)(3) dismissal operates to resolve

“only the merits of what was actually adjudged.” To that end, lender contends that because the

superior court did not adjudge the enforceability of the note and mortgage in the 2013 action, but

dismissed based entirely on lender’s failure to file a motion for default judgment, the court below

in this case committed an error of law in holding that lender’s foreclosure action was barred. We

disagree and affirm on this issue.

       ¶ 17.    Under Rule 41(b)(1)(ii), a court may, by its own motion, dismiss any action where

“all parties against whom a judgment for affirmative relief is sought have failed to plead or

otherwise defend as provided by these rules and the lender has failed to request or apply for a

default judgment within six months of the filing of the action.” Rule 41(b)(3) states that

                                                   7
“[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this

subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of

jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an

adjudication on the merits.” (emphasis added).         When interpreting a statute or rule, our

overriding goal is to effectuate the drafter’s intent; “[i]n reaching this goal, we first look at the

[rule’s] plain language.” Dep’t of Taxes v. Murphy, 2005 VT 84, ¶ 5, 178 Vt. 269, 883 A.2d

779. If the language can resolve a dispute without betraying a larger legislative scheme, “we are

bound to follow it,” id. (quotation omitted), and indeed, there is “no need to go further.” Nichols

v. Hofmann, 2010 VT 36, ¶ 7, 188 Vt. 1, 988 A.2d 1040 (quotation omitted).

          ¶ 18.   The plain language of Rule 41(b) is therefore exceedingly clear—by its express

terms, unless a trial court specifically says otherwise in its order, a dismissal predicated on a

lender’s failure to seek a default judgment operates as an adjudication on the merits. There is

nothing in the broader context of Rule 41 to indicate the drafters intended otherwise. Although

lender views this result as imposing a sanction that is unnecessarily harsh for the nature of

lender’s default, we note our rule is consistent with that in the federal courts, as well as many

states.    Rule 41(b)(3) is essentially identical to F.R.C.P. 41(b).      See Cintron-Lorenzo v.

Departmento de Asuntos del Consumidor, 312 F.3d 522, 525-26 (1st Cir. 2002); Davis v.

Operation Amigo, Inc., 378 F.2d 101, 103 (10th Cir. 1967) (noting that there is “no dispute” that

case may be dismissed “with prejudice” for want of prosecution). State courts have adopted the

same policy. Samber v. Chris Berg, Inc., 394 P.2d 81, 81 (Alaska 1964) (holding dismissal for

failure to prosecute “operates as an adjudication upon the merits, unless specified otherwise in

the order of dismissal”); Battle v. Jackson, 476 A.2d 1143, 1145 (D.C. 1984) (concluding a

dismissal for failure to prosecute is “committed to the sound discretion of the trial court” and

functions as “an adjudication on the merits”); Taylor v. General Motors Corp., 717 So. 2d 747,

748 (Miss. 1998) (stating involuntary dismissal under Rule 41(b) “ordinarily operates as an

                                                 8
adjudication upon the merits and is with prejudice”) (citation omitted); Eischen v. Wayne Twp.,

2008 S.D. 2, ¶ 12, 744 N.W.2d 788 (finding dismissal for failure to prosecute “operates as

dismissal with prejudice as an adjudication on the merits unless the circuit court expressly states

otherwise”); Wagner v. McDonald, 516 P.2d 1051, 1053-54 (Wash. App. 1973) (noting that it is

logical that a dismissal for failure to prosecute “should, unless the court otherwise specifies, bar

a subsequent action”); Caruso v. Pearce, 678 S.E.2d 50, 54 (W.Va. 2009) (“It is well settled that

a dismissal by a circuit court under Rule 41(b) for failure to prosecute operates as an adjudication

on the merits and, unless reinstated by subsequent court order, such a dismissal is with

prejudice” (quotation omitted)).

       ¶ 19.   Lender’s reliance on the narrow holding of Pennconn Enterprises is unavailing.

In Pennconn Enterprises, the lender was unable to proceed on a breach of contract claim under

11 V.S.A. § 2101(a) because he did not have a certificate of authority to transact business in

Vermont at the time of contract formation. He argued that because the underlying contract

remained valid, the suit should not have been dismissed with prejudice. Pennconn Enters, 148

Vt. at 609, 538 A.2d at 677. We agreed that adjudication should be seen as having resolved only

the merits of what was actually adjudged: the availability of a remedy “within this state”. Id.

We went on to specify that the lender’s judgment would not be on the merits for the purposes of

res judicata “in a case such as this”— that is, where the lender retained the option to bring an

action in another state or federal court that could find jurisdiction over the borrower. Id. at 609,

538 A.2d at 678 (emphasis added). The instant suit is not a case like Pennconn Enterprises; here,

the lender’s claim cannot be reinstated because of its own negligence, rather than because of any

state- or claim-specific statute. Id. If Pennconn Enterprises has any application here, it is to

permit lender to seek redress in the courts of another state or the federal system, not to revive a

lost remedy in Vermont. Such an application is of no use in the instant appeal.



                                                 9
        ¶ 20.   Lender’s third argument relies on our decision in U.S. Bank National Ass’n v.

Kimball, 2011 VT 81, 190 Vt. 210, 27 A.3d 1087 for the proposition that anything other than an

adjudication on the underlying indebtedness “cannot cancel [a homeowner’s] obligation arising

from an authenticated note, or insulate her from foreclosure proceedings based on proven

delinquency.” Id. at ¶ 23. While this is a quote from Kimball, it is not applicable here. The

controversy in Kimball arose over whether the bank seeking to collect on the mortgage had

standing for jurisdictional purposes. The court’s dismissal on jurisdictional grounds is not an

adjudication upon the merits. Kimball, 2011 VT 81, ¶ 22; see also V.R.C.P. 41(b)(3) (an

involuntary dismissal, other than one for lack of jurisdiction, operates as an adjudication upon

the merits). The dismissal here was not based on lack of jurisdiction.

        ¶ 21.   Lender’s next argument is that a Rule 41(b)(3) dismissal does not preclude a

subsequent foreclosure action based upon a new default. This argument goes to the merits of this

case and addresses what claim preclusion means in a note collection and mortgage foreclosure

case.

        ¶ 22.   The main difficulty with this argument is that it is raised for the first time on

appeal to this Court. In response to borrower’s motion to dismiss in the superior court, lender

filed a memorandum based primarily on the arguments we have disposed of above. At the very

end of the memorandum, lender added “[a]t the very least, if the court does not allow lender’s

current complaint as it contains the same date of default as the last complaint, the lender should

surely be able to pursue a new foreclosure action for later defaults.”          Thereafter, in the

conclusion to the memo, the lender added “should the court grant the borrower’s motion to

dismiss, lender asks that the court issue specific findings of facts that the lender is not barred

from pursuing a subsequent foreclosure action for a later default.” In summary, lender argued

not that there was a new default but instead that there could be a default later than that for which

the 2014 complaint was filed, and that in such a case lender should be allowed to file a new

                                                10
(fourth) foreclosure complaint. Not surprisingly, because this was a request for an advisory

opinion about future conduct, the superior court did not address it.

       ¶ 23.   Lender has not appealed the failure of the superior court to authorize the filing of

a fourth mortgage foreclosure complaint. Instead, lender has significantly changed its objection

to the dismissal, and done so based on a document not properly before the trial court. Alleging

that it sent a new notice of default on April 5, 2014 setting forth the amount due on that day

“which included payment defaults that occurred after . . . [the] dismissal [of the 2013

complaint],” lender attached this notice to its printed case. This triggered a motion by borrower

to strike the part of the printed case containing the notice because it was not in the record below.

See V.R.A.P. 10(a); State v. Brown, 165 Vt. 79, 82, 676 A.2d 350, 352 (1996) (stating that

documents which were not part of the file in the trial court cannot be considered part of the

record on appeal). We conclude that lender failed to present its theory of a new default, and the

supporting document, in the trial court and therefore has not preserved it for appellate review.

See Ainsworth v. Chandler, 2014 VT 107, ¶ 16, 197 Vt. 541, 107 A.3d 905. We grant the motion

to strike. We cannot, therefore, rely on the new default theory.

       ¶ 24.   Finally, we address lender’s contention that the superior court abused its

discretion or committed an error of law in precluding lender from enforcing the note by holding

that the dismissal of the second action was with prejudice. In its brief to this Court, lender notes

that our case law favors disposition of cases on their merits and that the sanction of dismissal

should be exercised sparingly, reserved for circumstances where, unlike in the present case,

lender has engaged in “opprobrious or offensive conduct.” Lender argues that “to the extent that

the superior court dismissed the instant case on equitable grounds, the court “plainly” abused its

discretion. Lender also warns that barring subsequent foreclosure actions in cases like those at

bar would result in a “significant and unjustified windfall for mortgagors.”



                                                11
       ¶ 25.   We reiterate our holding above that lender was not subjected to a special penalty

or sanction; the decision that dismissal was with prejudice is explicitly part of Rule 41, and

lender was on notice of it. Even if equitable considerations played some part in the superior

court’s decision, the principles of claim preclusion compelled a grant of borrower’s motion to

dismiss. Lender’s argument that the “sole reason” for the dismissal of the 2013 action was the

“relatively benign” failure to file a motion for default judgment is unavailing. As the Maine

Supreme Court noted, the consequence of a procedural default is usually a windfall to the other

side. Johnson v. Samson Const. Corp., 1997 ME 220, 704 A.2d 866, 869 n.1 (Me. 1997). While

borrower in this instance is enriched, and has kept a benefit he would otherwise be bound to

relinquish, we cannot override settled procedural rules, essential to the swift and efficient

administration of justice, in order to force a contrary result. See In re Verizon Wireless Barton

Permit, 2010 VT 62, ¶ 21, 188 Vt. 262, 6 A.3d 713 (“[P]rocedural rules are devices to ensure

fairness, uniformity and regularity of treatment to all litigants appearing before the courts, and to

be meaningful, they must be enforced” (citation omitted)); Bloomer v. Gibson, 2006 VT 104,

¶ 14, 180 Vt. 397, 912 A.2d 424 (“The court does not abuse its discretion where it enforces the

rules of civil procedure equitably, even against a pro se litigant.” (emphasis added)).

       ¶ 26.   As the trial court determined, at the time of the order on appeal, lender had

seventy five pending cases in the Vermont courts; as a repeat player, it must be familiar with our

procedural rules and its obligations under them. Yet, it has acted in this case and the earlier ones

as if it is oblivious to those rules. Lender had numerous opportunities to avoid the “windfall”

created by the dismissal with prejudice, either by moving for default judgment, appealing the

dismissal or moving to reopen the dismissal. It would have been in a stronger position if the

third complaint, the one in this case, reflected the earlier dismissal and the requested

consequences of that dismissal; instead its filing of the virtually identical complaint in each



                                                 12
action transmits a message that it expected no consequences from its default. The trial court

acted well within the law, and we must uphold its decision.

       Affirmed.

                                              FOR THE COURT:



                                              Associate Justice




                                               13
