Asset Acceptance, LLC v. Kroll, No. 528-6-15 Cnsc (Toor, J., July 7, 2015)

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                                                     VERMONT SUPERIOR COURT
                                                        CHITTENDEN UNIT
                                                         CIVIL DIVISION
                                                         SMALL CLAIMS

                                                                         │
ASSET ACCEPTANCE, LLC                                                    │
 Plaintiff                                                               │
                                                                         │
 v.                                                                      │                 Docket No. 528-6-15 Cnsc
                                                                         │
                                                                         │
LISA KROLL                                                               │
 Defendant                                                               │
                                                                         │


                                        RULING ON MOTION TO RECONSIDER

           This is an action to renew a judgment. The judgment was issued on April17, 2007, so the

statute of limitations for its renewal expired April 17, 2015. 12 V.S.A. § 506. The complaint in

this case was not filed until June 9. Plaintiff filed a motion on that date seeking to “amend the

complaint,” arguing that a complaint had been filed on an earlier date (two days before the

expiration of the limitations period). In fact, that earlier attempted filing had been rejected by the

clerk’s office because the filing fee was not paid in full (the fee was $80 and only $25 was

proffered). No complaint was docketed until the correct fee was received on June 9. Thus, the

court denied the motion to amend because there was no earlier complaint to amend. Plaintiff now

seeks reconsideration or clarification, arguing that it was improper for the clerk’s office to reject

the earlier filing.

           Plaintiff’s argument rests on a rule stating that the clerk’s office “shall not refuse to

accept for filing any document presented for that purpose solely because it is not presented in

proper form as required by these rules.” V.R.C.P. 5(e). However, this is not an issue of form, it is
an issue of a missing filing fee. That contingency is addressed separately by statute. Title 32

states that “prior to the entry of a small claims action, there shall be paid to the clerk . . . a fee of

$80.00 if the claim is for more than $1,000 and $55.00 if the claim is for $1,000 or less.” 32

V.S.A. § 1431(c)(1) (emphasis added).1 Thus, the clerk is not empowered to docket a new

complaint as filed until the fee is paid.

           As noted before, there was nothing for the court to “amend,” as no complaint was

accepted for filing until June 9 when the proper fee was paid.

                                                           Order

           The motion to reconsider is denied. This case is dismissed with prejudice for failure to

file prior to expiration of the statute of limitations.

Dated at Burlington this 7th day of July, 2015.



                                                                            _____________________________
                                                                            Helen M. Toor
                                                                            Superior Court Judge




1
    As of July 1 the fees have gone up, but this case relates to the April-June time period.


                                                             2
