In 2014, Michael Messier and Kay Bushman were involved in an auto accident. Both were the drivers of their respective vehicles and were then-alleged to be Vermont residents. In 2017, shortly before the statute of limitations was to expire, Messier filed suit against Bushman and her auto insurer, Travelers, for damages he claimed to have sustained in the accident. The claim against Bushman sounded in negligence, the claim against Travelers asserted breach of the Vermont Consumer Protection Act (CPA). The trial court granted a motion for judgment on the pleadings filed by Bushman and a motion to dismiss filed by Travelers. Messier appeals both decisions. The Vermont Supreme Court determined the motion filed by Bushman was one that challenged the sufficiency of service of process: the trial court, without holding an evidentiary hearing, found that Messier did not send a copy of the return of service on the Commissioner to Bushman as required by 12 V.S.A. 892(a). The Supreme Court reversed as to Bushman's motion because the issues concerning what was included in the mailing and whether the affidavit contained sufficient specificity to comply with section 892(a) were contested and needed to be resolved through factual determination by the trial court. Regarding Messier's claim against Travelers, the Supreme Court found his claim was brought under the CPA, but references unfair claims settlement practices which were part of Vermont Insurance Trade Practices Acts (ITPA). The Court found Messier did not purchase anything from Travelers- his only connection was that Bushman was insured by Travelers. Thus, Messier was not a consumer with respect to Bushman's Travelers insurance policy, and therefore had to CPA claim against them. The case was remanded for further proceedings with respect to the claim against Bushman; dismissal of the claim against Travelers was affirmed. View "Messier v. Bushman" on Justia Law
Unifund CCR Partners, a debt buyer, was in the business of purchasing large portfolios of charged-off debts from original debt holders in the hope of eventually collecting from the original debtors. Unifund asserted the right to judgment against defendant David Zimmer for charged-off debt in the amount of $2453.22, plus costs and statutory pre-judgment interest of 12% under 12 V.S.A. 2903, for a credit card account opened in defendant's name with Citibank. Unifund also alleged that defendant was unjustly enriched in that amount “by virtue of non-payment on an account.” At trial, Unifund asserted that it was authorized to collect the debt by a series of limited assignments, from Citibank to Pilot Receivables Management, LLC (Pilot) on June 18, 2012, and from Pilot to Unifund CCR LLC (UCL) and UCL to Unifund, both on June 1, 2013. To establish standing to enforce the underlying debt, Unifund offered testimony of Brian Billings, who spoke in support of the assignment from Citibank to Pilot, and Elizabeth Andres, who spoke in support of the assignments from Pilot to UCL and UCL to Unifund. The trial court found these documents to be inadmissible as hearsay because Unifund had failed to establish the necessary foundation for their admission. The trial court also found that, even if the assignments were admissible as a business record under Rule 803(6), Unifund had failed to establish standing. Unifund raised four arguments on appeal: (1) that documents proffered to establish the assignment of defendant’s debt were not admissible as business records; (2) that the assignment of the right to collect is itself sufficient for standing; (3) that Unifund sufficiently established the terms of the contract between defendant and Citibank, including the contractual interest rate; and (4) that Unifund demonstrated a basis to recover for unjust enrichment. Finding no reversible error in the trial court's analysis and judgment, the Supreme Court affirmed. View "Unifund CCR Partners v. Zimmer" on Justia Law
Appellants Warren and Wynne Kirschbaum appealed a trial court's ruling in favor of Appellee First Quality Carpets, Inc. arising from a dispute they had over carpet installed in 2007. The Kirschbaums argued that the civil division erred in awarding First Quality attorney's fees under 9 V.S.A. 4007(c) of the Prompt Pay Act because that section of the statute authorizing attorney's fees recovery effectively expired in 1996 pursuant to a sunset provision included in the Act. Alternatively, the Kirschbaums argued that because they withheld payment to First Quality in good faith, they were entitled to a directed verdict and that First Quality should not have been awarded attorney's fees under 4007(c). Finally, the Kirschbaums argued that the court erred in denying their counterclaim under the Consumer Fraud Act. Upon review, the Supreme Court affirmed the trial court in all respects. View "First Quality Carpets, Inc. v. Kirschbaum" on Justia Law
Defendant Poulin Auto Sales appealed a trial court judgment that awarded attorney's fees under the Vermont Consumer Fraud Act (VCFA). Poulin argued that the court erred in holding it liable under the VCFA and refusing to reconsider evidence that a vehicle was sold "as is." In September 2006, Poulin purchased a 2001 Audi for $4800 at auction, where it received a clean document of title and an odometer disclosure form. Poulin brought the car to auction in January 2007 and sold it to Plaintiff Crawford Gregory. Plaintiff received a clean document of title, and Poulin certified that the odometer reading was correct at the time of sale. At resale, however, the odometer reading did not reflect the car’s actual mileage, the passenger side airbag was inoperable, and the title documents did not reflect the fact that the vehicle was previously salvaged and rebuilt. Plaintiff filed suit, and the trial court granted his motion for summary judgment. The Supreme Court reversed in part and remanded for further findings on liability under the VCFA. On remand, both parties moved for summary judgment on the consumer fraud claim. After making further findings of fact and conclusions of law, the court granted summary judgment in favor of Plaintiff. In so doing, the court stated that it relied in part on the prior pleadings filed by the parties at the time of Plaintiff's original motion for summary judgment, filed in 2008, in addition to the parties' statements of undisputed facts in support of Plaintiff's renewed motion for summary judgment and Poulin's new cross-motion for summary judgment filed after remand. Upon review, the Supreme Court affirmed, finding that certain proffered documents were not before the trial court at either the pre- or post-remand summary judgment stages because Poulin did not attach them to either its 2008 or 2010 pleadings. Only later, when Poulin filed a motion to reconsider, were the documents attached. The court's refusal to reconsider this evidence was not an abuse of discretion, "for it was not the court's mistake that Poulin sought to correct - the court properly noted that Poulin had moved for summary judgment and could have submitted additional documents with the pleadings." View "Gregory v. Poulin Auto Sales, Inc." on Justia Law
Following a jury trial, Defendants R. Brown & Sons, Inc., a scrap metal hauling company, and its principal, Robert Brown were found liable for breach of contract, common law fraud, trespass, breach of the implied covenant of good faith and fair dealing, and consumer fraud. Each of these claims stemmed from Defendants' commercial dealings with Plaintiff Rathe Salvage, Inc., a scrap metal salvage yard where Defendant would crush cars and transport the scrap for sale to steel mills. Defendant was later granted judgment as a matter of law by the trial court overturning the jury's finding of a consumer fraud violation. Defendant appealed, arguing that: (1) the trial court erred in denying judgment in its favor on the remaining claims because the verdicts were based on insufficient evidence; (2) it was entitled to a new trial because Rathe Salvage's attorney improperly argued to the jury that opposing counsel was implicated in withholding evidence; and (3) the case should be remanded due to the trial court's refusal to conduct a Daubert hearing on the admissibility of hauler's polygraph, or lie detector, testing before excluding such evidence from trial. Rathe Salvage cross-appealed the trial court's judgment in favor of Defendant on the consumer fraud claim. Upon careful consideration of the trial court record, the Supreme Court affirmed the judgment of the trial court on all four issues. View "Rathe Salvage, Inc. v. R. Brown & Sons, Inc." on Justia Law
Plaintiffs James and Heidi Glassford, who brought suit to obtain compensation for an allegedly negligent home inspection, appealed a superior court’s order granting summary judgment in favor of home inspector Defendants The BrickKicker and GDM Home Services, Inc. (a franchisee of BrickKicker) based on the terms of a binding arbitration agreement in the parties' contract. In this appeal, the issue before the Supreme Court was whether the superior court erred in rejecting Plaintiffs' contention that the terms of the home inspection contract were unconscionable under the common law and unfair and deceptive under Vermont’s Consumer Fraud Act (CFA). Upon review of the contract in question, as well as the superior court record, the Supreme Court found the contractual provisions limiting liability to the cost of the inspection and yet requiring arbitration that would necessarily cost more than the amount of the liability limit unconscionable. Accordingly, the Court reversed the superior court’s decision and remanded the matter for further proceedings.
Posted in: Arbitration & Mediation, Consumer Law, Contracts, Real Estate & Property Law, Vermont Supreme Court
This case was an interlocutory appeal from the trial court's denial of Appellant RBS Citizens, N.A.'s motion for a writ of attachment to Appellee Jan Ouhrabka's property, which Appellee owned jointly with his wife as tenants by entirety. The trial court held that a creditor like RBS cannot attach property owned jointly by a debtor and a nondebtor when they hold that property as tenants by entirety. RBS contended on appeal that the estate of tenancy by entirety is an anachronism whose continuing utility should be reconsidered. In the alternative, RBS argued that Vermont law did not explicitly preclude granting a creditor prejudgment attachment where the property is held jointly by the debtor and a nondebtor in a tenancy by entirety. Upon review of the applicable legal authority, the Supreme Court disagreed with RBS' argument and affirmed the lower court's decision.
Plaintiff US Bank National Association appealed a trial court order that granted summary judgment to Defendant Homeowner Christine Kimball and dismissed with prejudice US Bank’s foreclosure complaint for lack of standing. On appeal, US Bank argued that it had standing to prosecute the foreclosure claim and that the court’s dismissal with prejudice was in error. Homeowner cross-appealed, arguing that the court erred in not addressing her claim for attorney’s fees. Homeowner purchased the property in question in June 2005. To finance the purchase, she executed an adjustable rate promissory note in favor of Accredited Home Lenders, Inc. (Accredited). The note was secured by a mortgage deed to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Accredited. In 2009, US Bank filed a foreclosure complaint for Homeowner’s failure to make required payments. The complaint alleged that the mortgage and note were assigned to US Bank by MERS, as nominee for Accredited. Attached to the complaint was a copy of the instrument signed by a "Duly Authorized Agent" of MERS. The promissory note was also attached to the complaint and appended to it was an undated allonge signed by a corporate officer of Accredited, endorsing the note in blank. Homeowner moved for summary judgment claiming, among other things, that US Bank failed to present sufficient evidence that it held homeowner’s note and corresponding mortgage. Because neither note submitted by US Bank was dated, the court concluded that there was no evidence that the note was endorsed to US Bank before the complaint was filed. Therefore, the court held that US Bank lacked standing to bring the foreclosure action. Following a hearing, the court denied the motions for reconsideration and to amend the complaint. The court concluded that US Bank had submitted a defective complaint and the deficiencies were not mere technicalities, but essential items, without which the case could not proceed. The court held that US Bank lacked standing when the complaint was filed, and dismissed the complaint “with prejudice.” Upon review of the trial record and briefs submitted by the parties, the Supreme Court affirmed the trial court's decision in all respects but for the 'with prejudice': "this may be but an ephemeral victory for homeowner. Absent adjudication on the underlying indebtedness, the dismissal cannot cancel her obligation arising from an authenticated note, or insulate her from foreclosure proceedings based on proven delinquency." The Court dismissed the foreclosure complaint and remanded the case for consideration of the parties' fees dispute.