US Bank v. Kelsey

7ermont Superior Court
Filed 08/28/25
Orange Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orange Unit Case No. 172-10-17 Oecv
5 Court Street
Chelsea VT 05038
802-685-4610
www.vermontjudiciary.org

U.S. Bank Trust, N.A. vs. Kelsey

ENTRY REGARDING MOTION
Title: Response (Motion: )
Filer: Clare E Kelsey
Filed Date: August 27, 2025

The motion is DENIED.

Defendant Clare Kelsey has filed a Motion for Relief under V.R.C.P. 60(b)(3) and (6).
Defendant seeks to set aside the judgment of foreclosure in this matter based on alleged

discrepancies between the certification of counsel form filed by Attorney Sheldon Katz in this
matter and the model certification form as printed in V.R.C.P. 80.1(g). The Court has reviewed the

form at issue, and it finds no basis for Defendant's motion. The Court also finds that Defendant

has not raised this issue within the reasonable time allowed under Rule 60.

Background

Plaintiff filed the certification document at issue on July 30, 2024 as part of its motion for

summary judgment. The certification complies with V.R.C.P. 80.1(g), except that instead of the

phrase "I communicated with Karen Dunalp, a representative of plaintiff," it says, "I communicated

by affidavit with Karen Dunalp, a representative of plaintiff."

On September 9, 2024, the Court conducted a status conference and took up the issue of
Plaintiffs motion for summary judgment. Defendant sought, and the Court gave her, 30 days to file
an opposition to the motion. The Court also gave Plaintiff 30 days after that to file a reply.

Neither Defendant, nor Plaintiff filed any additional motion, and on November 15, 2024,
the Court took up the pending and unopposed motion for summary judgment. The Court granted

Plaintiff's motion and ordered an accounting. The Court also granted the motion for foreclosure by

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judicial sale under 12 V.S.A. § 4945(a). On December 18, 2024, the Court issued a Final Judgment
and Decree by Foreclosure. Defendant did not file any objections to these entries.

After the expiration of the 6-month redemption period, Plaintiff advertised the property for
a judicial sale through the Journal Opinion a newspaper of general circulation in Thetford, Vermont.
The judicial sale of the property occurred on July 30, 2025. Plaintiff filed a motion for approval of
the sale on August 4, 2025.

On August 27, 2025, Defendant filed, for the first time, an objection to the certification, and
through her motion seeks to set aside the November 15, 2024 judgment based on these objections
to the Certification form. Defendant offers no explanation in her motion for the lateness of the
motion or why the Court should consider the motion timely.

Legal Analysis

Relief under Rule 60 is only available in exceptional circumstances. Penland v, Warren, 2018
VT 70, ¶ 10. Under V.R.C.P. 60(b), a motion to set aside the judgment must be filed “within a
reasonable time.” V.R.C.P. 60(b). The measure of what time is “reasonable” depends on the facts
and circumstances of each case. 11 C.WRIGHT & A.MILLER, FED. PRAC. & PROCED. § 2866 (3d. ed.
2025 update). A party seeking to set aside a judgment under Rule 60(b) bears the burden of showing
timeliness and a “satisfactory explanation” for any delay. Clayton v. Ameriquest Mortg. Co., 388
F.Supp.2d 601, 606 (M.D.N.C. 2005). In foreclosure cases, failure to raise a challenge to an earlier
motion can be untimely once the Plaintiff has acted in accordance with the judgment. Wells Fargo
Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 300 (4th Cir. 2017) (denying party’s Rule 60
motion where the record showed it had “slept on its rights” to challenge a judgment); Trade Well
International v. United Central Bank, 825 F.3d 854, 861 (7th Cir. 2016) (denying Rule 60 relief where
Defendant had “failed to take quick action to set aside the default judgments”); Federal Land Bank of
St. Louis v. Cupples Bros., 889 F.2d 764, 767 (8th Cir. 1989) (finding that a party that waited 10 weeks
after a judgment and 12 days before a judicial sale in a foreclosure case to file a Rule 60(b) motion
was untimely).

In this case, Defendant was aware of the July 2024 filings for over a year, but she did not file
an objection until over a year after the certification was filed and nine months after judgment was
entered. Defendant also waited until the period of redemption closed, and nearly a month after the
judicial sale was completed. There is no explanation in Defendant’s motion for the delay.
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Given that Defendant’s challenge is to the face of the Certification, this information has
been in Defendant’s possession since she received the filing in July of 2024. Based on the foregoing,
the Court finds that Defendant’s motion is untimely under Rule 60, and the motion is Denied.

Even if the Court were to consider Defendant’s motion, the substance of the claims does
not support vacating the judgement. Defendant’s sole issue is that Attorney Katz communicated
with his client by affidavit rather than phone call or other method. Defendant cites no precedent or
case law that finds such method of communication inappropriate as a matter of law. For this
reason, the Court finds that Defendant’s argument regarding the Certification would not require the
Court to set aside the judgment. For these further reasons, Defendant’s motion is Denied.

ORDER

Based on the foregoing, Defendant’s motion to for relief from judgment is Denied.

Electronically signed on 8/28/2025 7:50 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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