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Ayer v. Hemingway

Supreme Court of Vermont

May 24, 2013

Patrick Ayer and Terese Ayer
Louis Hemingway, III, Individually and d/b/a Hemingway Construction and Frances Harris, et al.

On Appeal from Superior Court, Grand Isle Unit, Civil Division Martin A. Maley, J. Civil Division

George E. Spear, II, Swanton, and Michael Rose, St. Albans, for Plaintiffs-Appellants.

Timothy G. Hurlbut, St. Albans, for Defendant- Appellee.

PRESENT: Reiber, C.J., Dooley, Burgess and Robinson, JJ., and Crawford, Supr. J. Specially Assigned


¶ 1. Plaintiffs Patrick and Terese Ayer appeal from the trial court’s order granting summary judgment to defendants Frances Harris and Louis Hemingway, III, in this foreclosure case. The Ayers argue that the court erred in concluding that their judgment lien had expired. We affirm.

¶ 2. This case involves plaintiffs’ longstanding attempts to collect a debt from defendant Hemingway, individually and d/b/a Hemingway Construction. Plaintiffs obtained a default judgment against Hemingway in February 2001 for $6830 plus costs of $179.66, with interest accruing at 12% per year (“the 2001 judgment”). The 2001 judgment order did not specify a payment schedule. Plaintiffs subsequently secured a nonpossessory writ of attachment against Hemingway’s nonexempt goods and estate.

¶ 3. In November 2004, plaintiffs filed a motion for a possessory writ of attachment. After Hemingway failed to appear at a hearing on the motion, and with court approval, plaintiffs made service by publication pursuant to Vermont Rule of Civil Procedure 4(g). Hemingway subsequently objected to the motion, filing an answer with the court stating, “I did pay my payments until my checks were forged into larger ones.” Prior to the contested hearing on these issues, the parties reached an agreement and the trial court issued a stipulated amended order in January 2006 (the “2006 order”). In that order the court recounted that Hemingway had paid only $1150 toward his debt and that, as of September 8, 2005, he owed plaintiffs $11, 400. The court wrote: “An amended judgment in this matter is granted for the Plaintiffs against the Defendants as of September 8, 2005 in the amount of $11, 400.” The order included the parties’ stipulated payment plan, with interest accruing at 6% rather than 12%, but stated that if Hemingway defaulted on the payment plan, plaintiffs would be entitled to interest at the rate of 12%, as well as all remedies available to them under Vermont law. [1]

¶ 4. In July 2008, plaintiffs recorded a “Notice of Judgment Lien” in the Alburgh Town Clerk’s Office on “all real property held by [Hemingway] in Alburgh ” in the amount of $11, 400. The notice stated that the lien had been perfected by recording a certified copy of a judgment obtained against Hemingway. [2]

¶ 5. In 2010, Frances Harris brought an unrelated action against Hemingway for damages. In connection with that action, on August 25, 2010, Hemingway conveyed to Harris two lots in Alburgh that Hemingway had acquired in 2006. At the same time, the trial court issued a stipulated judgment order that, among other things, awarded Harris judgment against Hemingway in the amount of $11, 400 plus interest at 12% from September 8, 2005 until the release of the lien in favor of plaintiffs, required Hemingway to keep current on payments to plaintiffs pursuant to a written payment agreement signed by Hemingway and plaintiff Terese Ayer, and provided that if Hemingway defaulted on the lien, he would be liable to Harris for any costs, including attorney’s fees, to obtain a release of the lien.

¶ 6. The agreement signed by plaintiff Terese Ayer and Hemingway on August 23, 2010, providing that Hemingway would pay Ayer $7050 over thirty-nine months to settle his debt, was filed with the Harris-Hemingway stipulation. In this agreement, Hemingway stated that he would pay Ayer $201.02 per month for 3.25 years to pay the outstanding debt of $7050, agreed that a lien would remain on his property in Alburgh until the judgment was paid in full, and acknowledged that if he defaulted on his payments, the interest rate would revert to 12% and be recalculated based on the adjusted amount of $11, 400 as reflected in the January 2006 order.

¶ 7. In May 2011, plaintiffs filed a complaint seeking to foreclose on their judgment lien. Plaintiffs alleged that Hemingway defaulted on his agreement and violated the 2006 order by failing to make any payments after January 2008. Based on the terms of the 2010 payment modification agreement and the 2006 order, plaintiffs asserted that Hemingway owed them $8597 in principal and $3312 in interest at 12% per annum. Plaintiffs cited the 2006 order as the controlling order and asked the court to renew or revive this order.

¶ 8. Plaintiffs named Harris as a defendant in this action because she had acquired the real property upon which they sought to foreclose from Hemingway after plaintiffs’ judgment lien was filed, as noted above.

¶ 9. Hemingway filed an unverified answer to plaintiffs’ complaint, acknowledging his debt to plaintiffs and offering to make immediate payments pursuant to the 2010 agreement. Harris also filed an unverified answer. Plaintiffs moved for a default judgment, but the court denied their request, granting defendants additional time to file answers that were verified or supported by affidavits. Harris responded to this order; Hemingway did ...

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