N.C. Court of Appeals: In re Vogler- Rule 60(b) does not redress errors of law


Dorothy Vogler died testate, with her debts exceeding the value of her real and personal property. Chris Vogler, the executor of her estate, initiated a special proceeding for the purpose of obtaining authorization to sell the real estate that Ms. Vogler had owned at the time of her death and to use the proceeds to pay her debts. Such sale was authorized and subsequently confirmed on January 12, 2011, with the Clerk authorizing payment of the costs of the proceeding and the remaining balance on the mortgage owed to Bank of America (“BOA”) on the real property. On January 18, 2011, however, BOA commenced its own foreclosure against the property. Chris Vogler then sought and obtained and order enjoining the foreclosure to allow Ms. Vogler’s estate to use the proceeds derived from the sale of the real property to satisfy the cost of administering her estate. BOA did not appeal the order enjoining the foreclosure, instead bring a motion pursuant to Rule 60(b) to set aside the order. The trial court denied this motion and BOA appealed.

First the Court of Appeals noted that while N.C.G.S. § 45-21.34 authorizes appeal of an order enjoining foreclosure, BOA did not appeal such order. Instead, it merely appealed the Order denying its Motion to Set Aside. As such, only that Motion was subject to appeal, not the original order enjoining the foreclosure. The standard of review for denial of a Rule 60(b) motion is abuse of discretion. BOA argued that it had established clear and controlling law regarding the superiority of its perfected lien on the property over the debts of the estate. The Court of Appeals rejected this, finding that “the well-established rule that a motion lodged pursuant to … Rule 60 is not the proper procedural vehicle with which to obtain redress for errors of law.”

For a copy of the opinion, please see:

Vogler- Rule 60(b) does not redress errors of law.pdf


1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

Tagged with: , ,

Leave a Reply