Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-262

                                          MAY TERM, 2016

 US Bank National Association                          }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Marjorie Johnston                                     }    DOCKET NO. 174-2-10 Rdcv

                                                            Trial Judge: Cortland Corsones

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

        Defendant seeks this Court’s review of two post-judgment orders in this foreclosure
action, which has been pending before the Rutland Superior Court since February 2010. We
affirm.

         The original decree of foreclosure was issued in August 2010 after defendant failed to
answer the complaint. She filed for bankruptcy on two occasions before the redemption period
expired, however, and the matter was stayed. In August 2012, after plaintiff was granted relief
from the bankruptcy stay, the superior court denied defendant’s motion to reopen the matter
pursuant to V.R.C.P. 60(b) and issued an amended decree of foreclosure that reset the
redemption date. Shortly before this new redemption date expired, defendant filed for
bankruptcy a third time. Two months later, the bankruptcy petition was dismissed and the
foreclosure case was reopened. Following a hearing, the superior court denied defendant’s
motion to amend the foreclosure judgment and issued a second amended decree of foreclosure in
April 2014 with a new redemption date. After the redemption period expired, defendant filed
motions to halt the judicial sale of the foreclosed property and for permission to appeal from the
decree of foreclosure. The superior court denied both motions, stating that it had already
addressed the underlying merits of defendant’s various motions, that defendant continued to
repeat old arguments, and that there were no factual or legal questions that warranted granting an
appeal. Defendant did not seek review of the superior court’s denial of her motion for
permission to appeal, but three weeks later, filed for bankruptcy a fourth time. In January 2015,
after the bankruptcy case was dismissed, plaintiff purchased the subject property at a foreclosure
sale. A hearing was held on plaintiff’s motions, pursuant to Rule 60(b), to halt the judicial sale
of the property and to amend or vacate the April 2014 foreclosure decree. The ensuing orders
filed in response to those motions are the subject of this appeal.

        In the first order, the superior court rejected defendant’s claims that the property was a
protected homestead, noting that there was no newly discovered evidence on this point, that the
issue had already been considered, that the property had been treated as a primary residence with
respect to the redemption period, and that, in any event, defendant failed to appeal the superior
court’s previous decision denying her motion for permission to appeal. However, the court
scheduled an evidentiary hearing on defendant’s claim of fraud, which was based principally on
her reference to articles from the internet indicating that the person who signed the affidavit
regarding possession of the promissory note for plaintiff was a “robo-signer” who signed
affidavits without checking for accuracy.

        Defendant did not appear at the hearing, but her son participated as an interested person
representing her interests. Based on what defendant had seen on the internet and in a deposition
from an out-of-state case, none of which was admissible according to the superior court,
defendant’s son took the position that plaintiff’s affiant was a “robo-signer” who had no personal
knowledge of the facts contained in the affidavit. In its order rejecting defendant’s fraud claim,
the superior court noted that defendant had never contested the allegations in the affidavit that
she now claimed to be fraudulent, and that, because of her erroneous belief that plaintiff had the
burden to disprove her claim of fraud, she failed to present any evidence at the hearing to support
the claim. The superior court further noted that plaintiff had presented evidence at the hearing
demonstrating that: (1) the promissory note was in the possession of its agent at the time of the
filing of the complaint; (2) the note was currently in plaintiff’s possession and was shown to the
superior court and defendant at the hearing; and (3) the affidavit in question was accurate. The
superior court ruled that defendant failed to establish the elements of fraud in that she presented
no evidence that an intentional misrepresentation affected the essence of the transaction, that the
misrepresentation was false when made or known to be false by the maker, or that defendant
relied on the misrepresentation to her detriment. See Silva v. Stevens, 156 Vt. 94, 102 (1991)
(setting forth elements of fraud or intentional misrepresentation). The superior court noted that,
other than filing bankruptcy petitions, defendant had not previously challenged the accuracy of
the affidavit in support of the complaint for foreclosure. Cf. Bank of Am. v. McLaughlin, No. E-
11-057, 2012 WL 1900534, at *3 (Ohio Ct. App. May 25, 2012) (rejecting Rule 60(b) motion
seeking to reopen foreclosure judgment where plaintiff presented evidence that it was holder of
promissory note and defendant presented only “several news articles and cases where the affiant
allegedly robo-signed affidavits in other cases”).

        The superior court also ruled that defendant’s Rule 60(b) motion to set aside a judgment
based on fraud was untimely because it was not filed within one year of the first amended decree
of foreclosure, which should be considered the final order from which to assess the timeliness of
the motion to reopen—as opposed to the second amended order, which merely adjusted the
redemption date. See V.R.C.P. 60(b) (stating that motions to reopen for first three reasons noted
in rule, including fraud, must be filed within one year after judgment); see also TBF Financial,
LLC v. Gregoire, 2015 VT 36, ¶ 20, 118 A.3d 511 (noting “strong legislative policy favoring
finality of foreclosure judgments” and stating that “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”). Finally, the superior court ruled that even if defendant’s claim could be
considered under the Rule 60(b)(6) “catch-all” provision, the claim was not filed within a
reasonable period of time.

        Defendant sought permission to appeal from the superior court’s two orders. The
superior court denied permission to appeal with respect to defendant’s challenge to confirmation
of the judicial sale, but granted permission to appeal from its refusal to amend or vacate the
second amendment decree of foreclosure.

        Defendant’s principal brief on appeal lists no less than forty issues for review but her
one-page argument is devoid of any claim of error or any argument on the merits, other than
allegations that plaintiff has used its power and resources to destroy her homestead, that the City
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of Rutland has forced an unsustainable tax bill upon her, and that plaintiff’s law firm has
attempted to demonize those who support her.* On this record, given defendant’s failure to
present evidence at the hearing below or to demonstrate how the superior court abused its
discretion denying her Rule 60(b) motion, we discern no basis to overturn the superior court’s
denial of that motion seeking to amend or vacate the April 2014 decree of foreclosure. See R.
Brown & Sons, Inc. v. Internat’l Harvester Corp., 142 Vt. 140, 143 (1982) (stating that “burden
of proving an abuse of discretion” is on the party seeking review of decision on Rule 60(b)
motion, which “is not subject to appellate review unless it clearly and affirmatively appears from
the record” that trial court “withheld or otherwise abused” its discretion in deciding motion)
(quotation omitted); Merchant’s Nat’l Bank v. Considine, 135 Vt. 416, 418 (1977) (“The burden
of proof in a Rule 60(b) motion is upon the moving party.”).

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




       *
           Defendant later filed an untimely “reply” brief that, in addition to responding in part to
plaintiff’s brief, lists the same forty issues cited in her principal brief, but this time provides a
short “answer” to each issue raised. Defendant has moved for permission to file the reply brief
beyond the time allowed by our entry order. Plaintiff opposes the motion. We grant defendant’s
motion to file an untimely reply brief, but only to the extent that defendant is responding to
plaintiff’s brief and not making arguments not made in her principal brief. In re Paynter 2-lot
Subdivision, 187 Vt. 637, 641 (2010) (mem.) (“We need not consider arguments raised for first
time in a reply brief.”).
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