DML Corp. v. Washington, No. 97-3-11 Bncv (Carroll, J., August 2, 2013)

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                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 97-3-11 Bncv


DML Corp.
Plaintiff,

v.

Richard Washington and
Kimberley Washington,
Defendants.



       Entry Order on Plaintiff’s Request for Trustee Process on Post-Judgment Interest

        Defendants are former tenants of Plaintiff. On August 12, 2011, this Court entered
judgment in favor of Plaintiff on his claim for payment of back rent. On May 30, 2012, this
Court granted trustee process in favor of Plaintiff and directed Ms. Washington’s employer,
Martin’s Minimart, to withhold her wages at a rate of $50.00 per week to pay off Plaintiff’s
judgment. On May 30, 2012, Defendants owed Plaintiff $1,761.07. Between August 2012 and
April 2013, Ms. Robinson made a series of payments, through wage withholding, to Plaintiff that
totaled $1,761.07. Plaintiff returns to this Court to ask for payment of additional post-judgment
interest and payment for the fees of serving the trustee with trustee process order.

        Plaintiff requests the Court grant trustee process because he asserts he is entitled to the
interest that accrued on the remaining principal during the term of the trustee process. Plaintiff
requests $132.60 in post-judgment interest and $56.20 for serving the trustee. Plaintiff cites no
law for his argument other than that the statutory rate for post-judgment interest is twelve
percent. See 9A V.S.A. 41a(a).

        The main issue in this case is whether interest continues to accrue during the term of a
trustee process. V.R.C.P. 4.2 sets up the process by which a judgment creditor may request
trustee process. The Reporter’s Notes to the 1984 amendments indicate a change to V.R.C.P.
4.2(k) and allows trustee process to include post-judgment interest, as provided by V.R.C.P. 69.
The 1984 Reporter’s Notes to V.R.C.P. 4.2 reference the 1981 Reporter’s Notes to V.R.C.P. 69.
V.R.C.P. 69 specifies how a judgment creditor may enforce a judgment. The Reporter’s Notes to
the 1981 Amendment indicate the intent was to clarify how to calculate post-judgment interest.
At the end, the notes indicate: “The amendment also provides that in the event of partial
satisfaction, all interest due to date on the full amount of the judgment shall be a charge against
the amount collected. The unsatisfied portion of the judgment shall bear interest in the same
manner on any subsequent levy.”

        Combining the Reporter’s notes to the 1984 Amendment of V.R.C.P. 4.2 and the 1981
Amendment to V.R.C.P. 69, a judgment creditor may collect interest during the trustee process
period. Once the Court orders trustee process, the debtor’s employer makes a series of partial
payments to the judgment creditor on the judgment. Each of these payments is a partial
satisfaction, which leaves some principal. The remaining principle bares the statutory interest
rate of 12%. A judgment debtor would not be entitled to any interest on the interest. V.R.C.P. 69
also provides that partial payments shall be applied first toward accumulated interest.

        Kimberley Robinson argues she can no longer afford to pay $50.00 per week. To change
a court order, Defendant must show a change in circumstances. On July 15, 2013, Kimberly
Robinson submitted a financial statement. Ms. Robinson claims total monthly income of
$1,825.56 and total monthly expenses of $1,819.00. The Court previously determined Ms.
Robinson had an average weekly disposal income of $354.14, which translates to $1,538.73 per
month.1 It remains unclear to the Court whether $1,538.73 per month represented a gross or net
income. Nevertheless, it appears Ms. Robinson’s income has improved and Ms. Robinson has
shown that her reasonable and necessary expenses have also increased. Thus, the Court will not
modify the payment plan because it does not see a change of circumstances.

        The only remaining question is how to structure a trustee process order to avoid this
problem in the future. At the time of the last payment, on April 25, 2013, Defendants owed
Plaintiff $129.32. Interest of $4.21 has accumulated between April 25, 2013 and August 2, 2013.
Plaintiff is entitled to continued interest at the statutory rate on this sum, plus payment for
serving the trustee at $56.50, for a total of $190.03. The Court will now set a schedule for
payments starting on August 16, 2013 that includes payment of the interest that accrues during
the term of the trustee process. The trustee will take $50.00 per week, on each Friday, from
Kimberly Robinson’s paycheck. To avoid the problem of giving Plaintiff interest on interest, the
Court must subtract $0.02 from the August 16, 2013, payment.2

           The schedule for payments will be:

           August 16, 2013 – Payment of $50.00, to leave a balance of $140.88

           August 23, 2013 – Payment of $50.00, to leave a balance of $91.21

           August 30, 2013 – Payment of $50.00, to leave a balance of $41.42

           September 6, 2013 – Payment of $41.51, to leave a balance of $0.00


1
    The average month has 30.42 days; there are 4.35 weeks in the average month.
2
    See attached calculation of principal and interest.

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Failure to make the specified payments on the listed dates may result in additional accumulation
of post-judgment interest, so it is important for Defendant to ensure that her employer follows
the above schedule in an effort to avoid accumulation of additional interest.

                                             Order

       The Court grants Plaintiff’s petition for trustee process. Ms. Robinson’s employer shall
withhold $50.00 per week until she repays her debt of $190.03. To account for the accrual of
post-judgment interest during the term of the trustee process, her employer must follow the plan
described above.

       Dated at Bennington, Vermont on August 2, 2013




                                                     Karen R. Carroll
                                                     Superior Court Judge




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