Cws Investments v. Dydo

Vermont Superior Court

Filed 11/21/25
Rutland Unit

VERMONT SUPERIOR COURT

Rutland Unit

83 Center St

Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

CIVIL DIVISION
Case No. 24-CV-01714

CWS Investments, Inc. v. William Dydo, Jr.

RULING ON DEFENDANT?’S OBJECTION TO
PLAINTIFF’S MOTION FOR CONFIRMATION OF FORECLOSURE SALE

Defendant William Dydo, Jr., objects to a motion filed on July 16, 2025, by Plainuff CWS
Investments, Inc. seeking an order confirming a foreclosure sale of Defendant’s real property
located on Grove Street in Rutland. Defendant objects on two grounds: (1) the applicable statute,
12 V.S.A. § 4952, requires that a notice of foreclosure sale accurately state the amount to be paid by
the purchaser to the auctioneer at the time of the scheduled sale, and Plaintiffs notice breached that
requirement by stating that only $5,000 was due, rather than $10,000, as expressly ordered in the
Court’s Judgment and Decree of Foreclosure; and (2) the report of foreclosure sale was legally
deficient since although it indicated the amount for which the subject property sold, it did not by
way of an accounting indicate whether the sale proceeds were then distributed in accordance with
the law and the court’s Decree.

Plaintiff responds to the objections by arguing, first, that while the notice of sale incorrectly
indicated a lesser amount of cash due from buyer at time of sale ($5,000, rather than $10,000), the
statute does not require avy notice of the terms of sale (including the deposit amount due at time of
sale). Moreover, Plaintiff asserts that the erroneous amount, being too low 1n this instance, would
only tend to entice more potential buyers or bids, and thus is no grounds for refusal to confirm the
sale. Second, regarding the report of sale, the Plaintiff argues that the statute requires no more than
what was given here by the auctioneer who conducted the sale—that is, a sworn statement of what
happened at the sale (including the sale price). Further, an accounting of the sale proceeds is due
from the Plaintiff when it files its motion for confirmation, and Plaintiff maintains that it duly
provided such to the Court. For reasons that follow, the Court overrules and denies Defendant’s
objections.

“Confirmation of a foreclosure sale is a discretionary judicial action, the purpose of which is
to ensure fairness in the judicial process.” HSBC Bank USA N.A. v. McAlister, 2018 VT 9, § 7, 206
Vt. 445 (citing 12 V.S.A. § 4954(a)); see a/so Reporter’s Notes—1982 Amendment, V.R.C.P. 80.1 (“A
foreclosure action, even when by sale, remains an equity action, and the court has the power to
refuse to confirm a sale where the result would be inequitable.”). Since the governing statute “does
not list specific criterla to be considered for a confirmation order ... . [it is within the superior
court’s discretion to consider all factors that it finds relevant and necessary to fulfill the purpose of
confirmation orders—ensuring a court reviews the sale and finds it was conducted with fairness and
in accordance with legal requirements.” HSBC Bank, 2018 VT 9, 4 10. If the court “finds that the
sale was not conducted according to statutory requirements or the foreclosure judgment’s
requirements—or if it finds that there is another reason to be concerned about the integrity of the
sale—it has the authority, in its discretion, to refuse to confirm the sale and order another one.” Id.

q7.

Here, the Plaintiff's mistake in the notice of sale—indicating that the deposit due at time of a
sale was $5,000, rather than $10,000—is an insufficient ground for refusing to grant an order of
confirmation of sale.

To be sure, a notice of foreclosure sale is defective if it entirely fails to identify the terms of
the sale, such as the amount due at the time of sale and the schedule for payment of the balance of
the purchase price. Contrary to Plaintiff's reading of the statute, a notice of sale is not adequate if it
merely lists the date, time, and location of the sale, and leaves out a description of the property at
issue and the terms of sale. Otherwise, the notice would merely say something to the effect of
“there will be a sale of some real estate, held on at 9:00 a.m., on November 21, 2025, at 1234 Main
Street in Rutland.” Such a notice would skip the “what” (4¢., a description of the property to be up
for sale) and the “how” (z¢., by what terms or conditions must the successful bidder carry out its
payment obligations). Without that information, a prospective purchaser will be unable to
reasonably determine whether to pursue placing a bid, or not. The terms of sale may greatly impact
buyers’ motivations and interest in buying; thus, the omission of the terms of sale from a notice of
sale is material. As explained in a major legal encyclopedia:

The object of a notice of sale is to inform the public of the nature and condition of
the property to be sold, and of the time, place, and serms of the sale. Notices are
given for the purpose of securing bidders, and to prevent a sacrifice of the property.

55 Am. Jur. 2d Mortgages § 611 (Nov. 2025 update) (emphasis added).

Further, if the terms of sale were purely optional and entirely within the foreclosing party’s
discretion, then the phrase in 12 V.S.A. § 4952(e), stating that “[t]he following form of notice of sale
may be used and may be altered as cercumstances require’ (emphasis added), would have no meaning or
effect. If the foreclosing party has no obligation whatsoever to include any terms of sale in any
notice of sale, then why would the statute give the foreclosing party discretion to use and alter the
form only “as circumstances require”? The Court therefore concludes that the statutory form
language is not purely optional or entirely suggestive. This conclusion is reinforced by 12 V.S.A.

§ 4953(a), which provides that “[a]t the sale, the mortgaged property shall be sold to the highest
bidder in conformance with the terms of sale set forth in the notice of sale.” That provision clearly
implies that a notice of sale that does not contain the terms of sale would lack sufficient guidance for
the bidders, if not the auctioneer as well, as to how the sale is to transpire. In short, the terms of
sale are fundamental to a notice of sale.

Additionally, the statute, at 12 V.S.A. § 4952(e), provides that the form language set forth in
12 V.S.A. § 4952(e) “shall not be construed to prevent the use of other forms.” The Court
construes that provision as merely permitting alterations of the statutory form language, so that the
notice of sale can include alternate or “other” language, to fit the applicable circumstances. This
provision does not permit a notice of sale that would, for example, entirely omit the terms of sale, as
well as any description of the property that is up for sale. At least not unless “circumstances
require” such omissions.
Here, the circumstances do not require the omission of the terms of sale from the notice of
sale. To the contrary, and as Plaintiff concedes, the Court’s Decree indicated that the cash due at
time of sale was $10,000. Therefore, Plaintiff was obligated to include, in the notice of sale, an
indication that the successful bidder would be required to pay $10,000 in cash at the time of sale.
Plaintiff failed to do so accurately.

However, as noted above, whether to order confirmation of a foreclosure sale is a
discretionary act, a determination based on equity and fairness. Thus, a foreclosure sale “may be set
aside for material errors in the exercise of the power, or for fraud, unfairness, misconduct, or the
like; but mere irregularities not affecting substantial rights of the parties will not suffice.” 59A CS.
Morigages § 861 (May 2025 update); see also New Penn Fin. LLC v. Burke, No. 21-AP-252, 2022 WL
2763112, at *2 (Vt. Jul. 14, 2022) (unpub. mem.) (assuming foreclosure plaintiff failed to serve notice
of sale in conformance with V.R.C.P. 5, trial court’s order confirming foreclosure sale is affirmed
since “defendant failed to demonstrate that he was prejudiced by the alleged violation”); 55 Am. Jur.
2d Mortgages § 611 (“immaterial errors and mistakes will not affect the sufficiency of the notice”).

Here, Defendant has not even argued, much less suggested, that his interests have been
harmed of prejudiced as a result of the defect in the notice of sale. Nor has Defendant suggested
that Plaintiff benefitted in some way from the defect. There is also no allegation here that the error
in the notice of sale was willful or deliberate, or in bad faith or the like. Defendant has also not
alleged how the defect adversely impacted the bidding process, or that it likely chilled interest within
the buying public with regard to the subject ptoperty.! Defendant does not suggest that he ot the
public were materially misled by the mistake in the notice. Defendant has not shown that the sale
price obtained ($100,000) was not commercially reasonable, of Bank of Am, N.A. v. O'Kelly, 2018 VT
71, Gf] 14-15, 208 Vt. 20, or that it was significantly out of step with reasonable appraisals or
assessments of the property’s fair market value. Finally, a refusal to confirm the sale for an
immaterial defect in the notice of sale would likely harm the Plaintiff, as its expenses and time spent
toward the foreclosure sale would be wasted, and would cause further delay, costing more money.

Accordingly, the Court does not find that the error in the Plaintiff’s notice of sale a sufficient
reason or ground to refuse to confirm the foreclosure sale.

Turning to the issue of the report of sale, Plaintiff is correct that the auctioneer or other
person in charge of conducting the sale does not owe the court an accounting of the sale proceeds.
Rather, the auctioneer must furnish a sworn report of sale, see 12 V.S.A. § 4954(a). which he did in
this instance, see Report of Sale (filed Jul. 7, 2025). The report was satisfactory. Separately, the
Plaintiff, when filing its motion for confirmation, must include “an accounting of the sale proceeds.”
Plaintiff did so here. Plaintiff's motion indicated that: the property was sold to CWS Investments,
Inc. for $100,000; the Defendant’s indebtedness, owed to Plaintiff, including all costs incurred in
conducting the sale is $431,333.28; the total indebtedness was comprised of the judgment amount

' Plaintiff suggests that the erroneously low statement of the amount of cash due at time of sale could only
have enticed more interest in the sale. That seems a reasonable conclusion, but the burden here is on the
objecting party to make the case that the sale lacked integrity and/or was inequitable. Thus, the Court need
not and will not make any findings or conclusions as to the “favorable” impact of the error in the notice. It is
enough that Defendant has not even alleged or reasonably explained how this error adversely impacted the
bidding process or sale, or how his interests were affected.
($406,228.51), interest accrued through sale date ($22,860.45); auctioneet’s fees ($750.00); Plaintiff's
agent fees, to personally attend the sale on Plaintiffs behalf ($350.00); and publication costs
($1,144.32). That information satisfied Plaintiff's burden under 12 V.S.A. § 4954(a).?

Lastly, although the Court does not construe Defendant’s Objection to include a clear and
cogent argument that he lacked proper notice of any pleadings or process in this case or the
underlying case—No. 23-CV-00046, through which Plaintiff obtained its jadgment on the
property—the Court has reviewed the statements and supporting exhibits filed by Plaintiff in its
Response to Defendant’s Objection, and is satisfied that Defendant obtained sufficient notice in all
events.

Conclusion

Wherefore, Defendant’s Objections to the Plaintiff's Motion for Confirmation of Sale are
overruled and denied. Plaintiff's Motion for Confirmation, filed July 16, 2025, is GRANTED. An
order of confirmation will issue separately.

Electronically Signed on: Friday, November 21, 2025 pursuant to V.R.E.F. 9(d).

—1

Susan A. McManus
Superior Court Judge

? The Court also infers, as expressly stated in the Proposed Confirmation Order filed by Plaintiff pursuant to
12 V.S.A. § 4954(a), that the sale proceeds will be paid to Plaintiff, since it is due such sale proceeds under the
Court’s Decree. Further, from those proceeds, Plaintiff will pay the auctioneer his fee of $750.00.