Portfolio Recovery v. Wagner ( 2021 )

03/30/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0573 DA 20-0573 PORTFOLIO RECOVERY ASSOCIATES,LLC, MAR 3 0 2021 r.:•• • _ . . _mvood Plaintiff and Appellee, Clem oi Supreme Court State of Montana v. ORDER ROBERT L. WAGNER, Defendant and Appellant. Through counsel, Appellee Portfolio Recovery Associates, LLC (hereinafter "PRA") moves this Court for dismissal of this appeal concerning a debt collection in the Cascade County District Court. Self-represented Appellant Robert L. Wagner has not filed a response. PRA contends that Wagner appeals an interlocutory decision. PRA provides the background of the underlying civil action in District Court and that PRA filed suit to recover the balance of more than $17,000 that Wagner owes on his credit card account to PRA. PRA states that Wagner moved the District Court for dismissal ofthe action and for a hearing. PRA offers that the District Court denied Wagner's motions because he had not met the requirements pursuant to M. R. Civ. P. 12(b)(6). PRA explains that Wagner attached a copy of this judgment to his Notice of Appeal and that the court's October 23, 2020 Order Denying Motions is not final. M.R. App. P. 6(3). PRA concludes that dismissal is appropriate here because this Court lacks subject matter jurisdiction over such an interlocutory, non-appealable Order. We find counsel's argument persuasive that a final judgment does not exist for this appeal. M. R. App. P. 4(1)(a). Upon review of the court record on file here, we observe that on November 9, 2020, the Clerk of the District Court filed an Entry of Default, after PRA filed an Application for Default Judgment, noting Wagner's failure to Answer. M. R. Civ. P. 55(b)(1). However, no judgment has yet been entered by the District Court from which an appeal may be taken. This Court concludes that Wagner's appeal is premature. Wagner may seek another appeal once the underlying proceeding has concluded in District Court. Therefore, IT IS ORDERED that PRA's Motion to Dismiss Appeal is GRANTED and this appeal is DISMISSED without prejudice. The Clerk of the Supreme Court is directed to close this case as of today's Order and to return the record. The Clerk is also directed to provide a copy of this Order to counsel of record and to Robert L. Wagner personally. DATED this DZday of March,2021.