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.”
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