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Vermont Federal Credit Union v. Richter

Supreme Court of Vermont

February 20, 2014

Vermont Federal Credit Union
v.
Drew Richter and Russell Richter

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic 2nd Reporter

Appeal from: Superior Court, Chit. Civ. Division. DOCKET NO. 30-1-13 Cncv. Trial Judge: Geoffrey W. Crawford.

John A. Dooley, Associate Justice, Marilyn S. Skoglund, Justice, Beth Robinson, Associate Justice.

OPINION

ENTRY ORDER

[¶ 1] In the above-entitled cause, the Clerk will enter:

[¶ 2] Plaintiff bank filed this suit to collect a deficiency judgment on a promissory note. The court granted a prejudgment writ of attachment and summary judgment on the merits to plaintiff. Defendant Drew Richter [1] appeals, arguing that the court erred in granting the writ of attachment because there was no evidentiary hearing, and summary judgment was in error because there are disputed questions of fact. We affirm.

[¶ 3] In January 2013, plaintiff filed this collection action. The complaint recited that in September 2008 defendants borrowed $74,746.10 from plaintiff, and secured the debt with a mortgage on real estate in Barre, Vermont. In July 2011, defendants were in default on the loan and entered an agreement for a deed in lieu of foreclosure with plaintiff to sell the real estate and apply the net proceeds to defendants' loan balance. The property was sold in December 2012, and, after applying the proceeds to the loan balance, a deficiency balance of $55,754.49 remained.

[¶ 4] After defendants failed to satisfy the deficiency, plaintiff filed suit. Plaintiff sought a prejudgment writ of attachment on real estate owned, at least in part, by defendant Drew Richter in Jeffersonville, Vermont. In support, plaintiff attached an affidavit from a credit union manager, averring that there was a reasonable likelihood plaintiff would prevail, that defendants' only asset available to satisfy the judgment was the real property in Jeffersonville, and that there was no insurance or bond available to satisfy the judgment. The court approved a prejudgment writ of attachment in February 2013.

[¶ 5] Plaintiff then filed for summary judgment. Plaintiff included a statement of undisputed facts, stating that defendants owed $55,754.49 plus interest and had failed to pay. In support, plaintiff attached the original note, the agreement for deed in lieu of foreclosure, and defendants' admissions to plaintiff's interrogatories. In July 2013, the court ordered plaintiff to answer three questions concerning its request for summary judgment.

[¶ 6] Defendant Drew Richter, referred to hereafter as appellant, then filed a supplemental affidavit opposing plaintiff's motion for summary judgment. She stated that there was a dispute of material fact as to the value of the property on the date of the deed in lieu of foreclosure and that plaintiff had failed to mitigate damages by selling the property at a reasonable market value. The filing stated that defendant had submitted sworn testimony and proof to this Court of the actual value of the real property based upon the property appraiser's own information regarding the value of the property, but there was no additional evidence attached to the filing to support the claims regarding the value of the property. Appellant did not submit a statement of disputed facts.

[¶ 7] Plaintiff responded to the court's inquiry and appellant's opposition. Plaintiff stated that it had made reasonable efforts to mitigate damages by selling the property for a reasonable price. In support, plaintiff filed a supplemental affidavit of a collections officer employed by plaintiff, who described the efforts made to sell the property. She averred that although the tax value of the Barre property in 2008 was $96,710, the fair market value had decreased by 2012. After the agreement for sale in lieu of foreclosure, plaintiff had a market analysis and later an appraisal of the property completed, which valued the property at $46,000 and $16,000, respectively. Those appraisals were attached to the motion and explained that the property value decreased due to a need for significant repairs, and the limited neighborhood market appeal. The affidavit further recited that plaintiff had marketed the property through a realtor, and two unsuccessful contracts for sale were entered before a sale of the property was completed for $30,000.

[¶ 8] The court granted plaintiff summary judgment. The court concluded that plaintiff had provided enough evidence to support the elements of its claim. The court noted that although appellant claimed the sale was for less than fair market value,[2] she had failed to provide any support for that contention or for the claim that the sale was otherwise invalid or was conducted improperly.

[¶ 9] On appeal, appellant argues that the court erred in granting the writ of attachment because there was insufficient evidence. She also claims that summary judgment was in error ...


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