01-1058 Associated/F&M Bank v. Johnson, et al.

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This appeal arises from a summary judgment dismissing Donna Walker’s action to foreclose a lien based upon a money judgment she obtained against Ray Johnson. At the time Walker’s judgment was docketed, Johnson owned the real estate upon which Walker seeks foreclosure. Walker’s judgment was later ordered satisfied. Walker argues she is entitled to collaterally attack the order satisfying the judgment. She contends that Johnson’s bankruptcy did not discharge her judgment lien and, due to Johnson’s fraud on the court, the order satisfying the judgment should be set aside. In addition, Walker claims that the lis pendens filed in her foreclosure action nullifies the effect of the satisfaction of judgment.

Because Walker grounds her attack on allegations of fraud on the court, we conclude she is entitled to collaterally attack the order satisfying Walker’s judgment against Johnson. We further conclude that whether the order satisfying the judgment should be set aside raises issues of fact that must be addressed to the trial court. Summary judgment disposition is not appropriate. Because the issues concerning the effect of the lis pendens were not addressed by the trial court, we do not address them for the first time on appeal.

Therefore, we sustain the circuit court’s decision to permit intervention and to reopen the foreclosure judgment. These rulings were not directly challenged on appeal.

However, we reverse the judgment dismissing Walker’s foreclosure action and remand for further proceedings consistent with this opinion.

This opinion will not be published.

Dist III, Oconto County, Myse, J., Per Curiam

Attorneys:

For Appellant: Frank M. Calvert, Oconto

For Respondent: Andrew H. Morgan, Milwaukee; Paul P. Umentum, Green Bay