Wells Fargo Bank v. Sweet et al, no. 123-3-13 Bncv (Wesley, J., Jul. 17, 2014)

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### Wells Fargo Bank vs. Sweet et al

ENTRY REGARDING MOTION

Count 1, Foreclosure (123-3-13 Bncv) Count 2, Foreclosure (123-3-13 Bncv)

Title: Motion for Reconsideration for Writ of Poss ession (Motion 3) Filer: Wells Fargo Bank, N.A. Attorney: Joshua B. Lobe Filed Date: June 30, 2014

No response filed

**The motion is DENIED.**

**Order Denying Plaintiff’s Motion for Reconsideratio n** 

Plaintiff sued Defendants to foreclose on its mort gage. On September 2, 2013, the Court granted judgment in favor of Plaintiff issuing a de cree of foreclosure and order for judicial sale. On June 4, 2014, the Court confirmed the sale. Plai ntiff was the high bidder at the sale and now owns the property according to the order of confirm ation of sale. On June 19, 2014, Plaintiff sought a writ of possession to remove Defendants fr om the property. Plaintiff did not proceed by motion, with points and authorities. Rather, it submitted a proposed writ to the Clerk, apparently expecting that it would be executed as a matter of course. The Court denied the request on June 24, 2014 because the order of confi rmation concluded the proceedings, and Plaintiff had offered no basis for reopening the ca se.

Plaintiff filed a motion for reconsideration on Ju ne 30, 2014. Plaintiff argues the Court

should amend its confirmation order under V.R.C.P. 59. Plaintiff further argues it is entitled to a writ of possession under 12 V.S.A. § 4946(d), which provides: In the case of farmland or a dwelling house curren tly occupied by the owner as his or her principal residence when the pe riod of redemption in the decree expires, the clerk shall issue a writ of pos session at the plaintiff's request and upon approval of the court. Such writ shall hav e the same force and effect

and be executed in the same manner as similar writs issued after judgment by a court of law in ejectment proceedings.



## S TATE OF 

## V ERMONT

SUPERIOR COURT CIVIL DIVISION Bennington Unit Docket No. 123-3-13 BncvUnquestionably, had Plaintiff invoked the statute p rior to the Court’s order confirming

its purchase at the sale, and concluding the forecl osure action, it would have been entitled to the writ of possession it now seeks. As discussed below, however, in failing to seek the relief to

which it was entitled before confirmation of the sa le, Plaintiff effectively waived the right to such relief in this action, since it can establish no procedural basis for re-opening the case.

Plaintiff is not entitled to an amended order unde r V.R.C.P. 59. “A motion to amend judgment allows the trial court to revise its initi al judgment if necessary to relieve a party against the unjust operation of the record resultin g from the mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v. Sterling Enters. Inc. , 164 Vt. 582, 588 (1996). In this case, Plaintiff can point to no err or by the Court. Rather, Plaintiff failed to reques t a writ of possession while this case was active. Th e neglect lies with Plaintiff and not the Court, which makes V.R.C.P. 59 inapplicable.

Other than Rule 59, which is inapplicable, Plainti ff offers no other procedural mechanism which might justify reopening the case, o nce it had been concluded by confirmation of the sale required by final judgment of foreclosu re and decree of judicial sale. While, Plaintiff might have requested relief under V.R.C.P. 60(b)(1) , which allows for relief for mistake, inadvertence, or excusable neglect, s ee Sandgate Sch. Dist. v. Cate , 2005 VT 88, ¶ 7, 178 Vt. 625, it would not have prevailed under that provisi on, either. The Court would not grant relief for an ill-advised tactical decision, which does no t rise to the level of excusable neglect. See id.

The Court acknowledges that other judges have trea ted similar requests differently, apparently granting them as a matter of pragmatic e fficiency, without strict consideration as to the requirements for reopening a case in which fina l judgment has issued. Plaintiff has cited no written decisions in such cases, and the Court is u naware of any. 1 For whatever reason, this Court recently has seen a number of requests simila r to Plaintiff’s (although this is the first request to reconsider the Court’s consistent practi ce of denying relief in reliance on principles of finality). After considering Plaintiff’s argume nts, the Court is not persuaded that its rulings in these matters are unduly rigid, or in contravention of the Rules of Civil Procedure or the

foreclosure statutes.

Since 2007, the management of the foreclosure docke t has posed unique challenges, unimagined when V.R.C.P. 80.1 was first adopted, or throughout its several modifications, except for the most recent ones. Despite a procedur al scheme designed to provide mortgagees with a summary remedy, foreclosure actions involvin g any note sold as part of a mortgagebacked security almost never conclude in less than a year – including those in which the mortgagor never files an answer! Delays now inhere nt in the process are, with very rare exceptions, entirely attributable to the mystifying inability of mortgage holders to assemble the

1 To the extent such decisions may have claimed some reliance on the doctrine of nunc pro tunc , the Court declines to apply it here. Nunc pro tunc means “[h]aving retroactive legal effect through t he court’s inherent authority.” Black’s Law Dictionary 1100 (8th Ed.). “The purpose of a nunc pro tunc order is ‘to set the effective date of a present order at a particular and appropriate time in the past, on the basis that the correct ent ry was inadvertently or mistakenly departed from by the co urt involved.’” Estate of Ladd v. Estate of Ladd , 161 Vt. 270, 274 (1994) (quoting In re Parizo , 137 Vt. 365, 67 (1979)). The doctrine does not all ow retroactive orders that change the substance of past orders. See id.rudimentary proofs necessary to perfect a claim for judgment. This mystery only deepens with

a plaintiff’s motion for substitution of the real p arty with interest, when counsel learns that the note has been sold, which in numerous cases has occ urred after judgment has been entered,

and even after a date for a judicial sale has been noticed. The judiciary’s efforts to manage the docket, which is continuously impacted by the busin ess practices of enormous financial institutions that appear incapable of keeping track of something as insignificant as a single mortgage foreclosure action, now require a signific ant increase in docketing tasks, careful attention to ticklers, ongoing reminders to counsel to move the case or risk dismissal, and a disheartening number of pleas for relief after dism issals are granted because the prior notices and warnings have been ignored. 2 As here, these requests almost never rest on a cl aim to a remedy recognized procedurally; instead, the courts are implored to consider the pragmatics involved, the implicit query never directly stated being: “How will your job be any easier if you make us start over?” The implicit assumption behin d that implicit query is, of course, that the courts ought simply to capitulate to the inefficien cies of the recovering mortgage market.

For years, the large institutions holding notes sol d into securities rarely sought the writs of possession to which they were entitled under 12 V.S.A. § 4946(d). If the issue of the borrower’s continuing possession was raised at the hearing on the confirmation of sale, often by the Court, typically the response was that recov ery of possession was not a form of relief counsel had been authorized to seek. In response, the Court informed the borrower that any question of the right of continued occupancy would not be resolved in the foreclosure action, which was then concluded by the approval of the ord er of confirmation. Again, the business practice appears to have changed. Nonetheless, as to those cases, like this one, caught at a point in the shift such that the confirmation order issued before the request for the writ was presented, no relief is justified which would requi re reopening a foreclosure that has been finally concluded consistently with the statutes an d the Rules of Civil Procedure.

**ORDER**

The Court **DENIES** Plaintiff’s Motion for Reconsideration .

Electronically signed on July 17, 2014 at 11:23 AM pursuant to V.R.E.F. 7(d).

______________________________________ John P. Wesley Superior Court Judge

Notifications: Joshua B. Lobe (ERN 2066), Attorney for Plaintiff W ells Fargo Bank, N.A.

Defendant David G. Sweet

Defendant Teresa I. Sweet

2 These general observations, included here to expla in the Court’s insistence on a consistent construct ion of the rules of finality, should NOT be read to specifically imp ugn the practices of Plaintiff’s counsel in this ma tter, an experienced foreclosure litigator whose diligence i n the face of the challenges of the mortgage meltdo wn has been decidedly above-average.