Follow Court Procedure or Face Foreclosure in Vermont

A Case Study: Appeal correctly or face foreclosure in Vermont

Woodbine Condominium Association v. Charles R. and Debra M. Lowe
SUPREME COURT DOCKET NO. 02-151
SUPREME COURT OF VERMONT

174 Vt. 457; 806 A.2d 1001; 2002 Vt. LEXIS 143
June 24, 2002, Filed

Facts: Homeowners A and B had fallen behind on their condominium association assessments, prompting the Condominium Association (the Association) to file a complaint requesting foreclosure on homeowners' property. Homeowners did not file anything in response to the complaint. Nearly a month later, the court issued a default judgment and signed a decree of foreclosure. After the redemption period had expired, the court issued the Association a certificate of nonredemption and a writ of possession. More than a month later A and B filed a motion for relief from the default judgment and the decree of foreclosure, arguing that they should be granted relief because the Association failed to join Chittenden Bank, a junior lienholder, in the foreclosure proceedings and because of other equitable considerations. The court denied the motion; homeowners filed a motion to reconsider in response. The court denied the motion to reconsider. On March 22, 2002, homeowners filed a notice of appeal from both the December 12 and February 21 judgments of the trial court. Shortly thereafter, the Association filed this motion to dismiss and a motion for Rule 25(d) sanctions against homeowners' attorney. The Association argued that homeowners had failed to seek permission to appeal from the judgment of foreclosure.

Issue: Whether permission to appeal from the judgment of foreclosure was necessary in the appeal of homeowners.

Ruling: Yes. The Court held that foreclosures based on condominium assessment liens were subject to the same 10-day permission-to-appeal requirement as mortgage foreclosures. Additionally, the argument that the foreclosure judgment should have been opened because the association failed to join the junior lienholder does not have any merit. Such fact did not affect the parties and could not circumvent the legislature's policy of promoting the finality of foreclosure judgments. As the homeowners failed to request the trial court's permission to appeal the foreclosure within the required 10 days, the supreme court did not have jurisdiction over the appeal.

Lesson Learned: Homeowners whose property had been foreclosed by the Association should observe the requirements in appeal so as not to suffer from a procedural defect. Just like an appeal in mortgage foreclosure, homeowners should have sought trial court's permission to appeal within the mandatory ten day period.

Written by Kevin Levonas and Giselle G.