portfolio recovery v. boutilier

fete
: no a

STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Addison Unit Docket No. 37-2-20 Ancv
PORTFOLIO RECOVERY ASSOCIATES on appeal from
Plaintiff-A ppellee Small Claims
Docket No. 76-3-14 Ancy
v.
JEFFREY BOUTILIER
Defendant—Appellant
DECISION ON APPEAL

Jeffrey Boutilier has appealed from a small claims Financial Disclosure Hearing Findings
and Order issued on November 1, 2019.

An appeal from a small claims judgment is heard and decided “based on the record made
in the small claims court.” 12 V.S.A. § 5538. The “appeal is limited to questions of law.”
V.R.S.C.P. 10(d). If the small claims court has applied the correct law, this court will affirm its
“conclusions if they are reasonably supported by the findings.” Maciejko v. Lunenburg Fire
Dist. No. 2,171 Vt. 542, 543 (2000) (mem.). The court has listened to the recording of the small
claims hearing and reviewed the entire record of this case.

The case first came to court on July 18, 2014. On that day, the parties reached agreement
for a stipulated judgment in the amount of $3,846.17. The Order further stated, “The Parties
agree that there shall be no post-judgment interest. The court so orders.” In Mr. Boutilier’s
Answer, he had claimed no ability to make payment due to his financial circumstances.

In July of 2019, approximately 5 years later, Plaintiff filed a motion requesting a financial
disclosure hearing and claimed that the full amount was still due. The purpose of such a hearing
is to find out whether a debtor has the present ability to make payments on a debt. The record
shows that a copy of the motion was mailed to Mr. Boutilier. The court scheduled a hearing for
November 1, 2019, and notices of the hearing were sent to both parties..

The hearing was scheduled for 3:30 pm, but did not start until 3:40 pm. Plaintiff's:
attorney was present. Mr. Boutilier was not present. Plaintiff's attorney stated that no payments
had been made, and requested an updated judgment in the original amount plus $66.00 in costs.
The judge questioned the basis for the $66.00 and determined that $65.00 was proper because
that was the amount the Plaintiff had had to pay for the filing fee, but she disallowed $1.00
because that was for a discretionary copy that Plaintiff had ordered. Thus, the Financial
Disclosure Hearing Findings and Order issued in the total amount of $3,911.17, consisting of the
original $3,846.17 plus the $65.00 filing fee. Mr. Boutilier has appealed on the grounds that he
cannot afford to pay due to his current level of income and other debt obligations.
The debt arising from the judgment of 2014 continues to be an enforceable debt, and was
so on the date of hearing, November 1, 2019. A judgment debt is enforceable for eight years (and
longer if the creditor brings a new case to renew it), even if no payments are made. Mr. Boutilier
is fortunate that his judgment provided for no post-judgment interest. If it had, the debt would
have grown by an additional $2,307.70. As it is, although he still owes the original amount plus
the filing fee for the motion, no interest has been or will be added to increase the debt.

Mr. Boutilier’s appeal is based on an inability to make payments. The outcome of the
hearing is exactly the same as it would have been if he had appeared at the hearing and
demonstrated that he had no ability to make payments. That is, he was not and is not ordered to
make periodic (monthly) payments on the debt. Rather, the debt remains in place but he is not
required to make payments on it, and it will not increase due to interest.

The only basis on which it might increase is if the Plaintiff files another motion to find
out what Mr. Boutilier’s updated financial circumstances are. A creditor is allowed by law to file
such a motion when payments are not made on a debt. In that event, if Mr. Boutilier’s financial
circumstances have improved to the point where he has the ability to make payments and is not
receiving any government financial assistance, he may then be required to make periodic
payments toward the debt even though he is not required to do so now. He is also likely to
become responsible for the filing fee for such a motion. He may be able to avoid the addition of
future filing fees by contacting the Plaintiffs attorney directly from time to time to provide an
update about his financial ability to pay.

The Small Claims Court Judge who issued the November 1, 2019 Order made no errors
of law. She was not permitted by law to go back and reopen the basis for the 2014 judgment, and
she did not do so. All she did was add the filing fee to the amount of the 2014 debt, and
determine the updated amount due, without ordering any periodic payments to be made. This
was correct procedure under the law.

ORDER

For the foregoing reasons, the November 1, 2019 Findings and Order is affirmed.

Dated this 28" day of February 2020.

Mary Miles Teachout
Superior Judge