Hueckel v. Hardy , No. 149

- 5

- 11 Bncv (Wesley, J., July 2 3 , 2014).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the

accompanying data included in the Vermont trial court opinion database is not guarante ed.]



### Hueckel et al vs. Hardy

ENTRY REGARDING MOTION

Title : Motion discharge of trustee (Motion 7 )

Motion to dismiss trustee process (Motion 8)

Filer : Vermont Country Properties

Attorney: Thomas F. Heilmann (Motion 7); James Dingley (Motion 8)

Filed Date : June 19, 2014

Response filed on 06/20/2014 by Attorney Alexander D. Ramsvig for Plaintiff Glen Hueckel

Decision Denying Trustee ’s M otion for Discharge &

Denying Defendant’s Motion to Dismiss Trustee Process Proceedings

Plaintiffs sue d Paul Hardy for back rent , and secured a judgment for $12,962.50 on Aug.

11, 2011

. On April 30, 2014, Plaintiffs filed a motion for trustee process to garnish earnings

against Mr. Hardy’s employer, Vermont Country Properties. Through counsel, Vermont Country

Properties filed a motion for discharge of trustee, supported by an affidavit from its business

manager, Tiffany Johnson. Vermont Country Propert ies is a real estate company. Vermont

Country Properties indicated it pays Mr. Hardy by commission and Mr. Hardy had no pending

sales. Although Ms. Johnson’s affidavit purports to be a trustee’s disclosure, Vermont Country

Properties did not fill out Form No. 508, and thus has not provided all the relevant information

necessary for a proper response to a trustee process request.

In its motion for discharge as a trustee, Vermont Country Properties indicates it has no

property of Mr. Hardy. Fo r the same r eason, Defendant has also moved for dismissal of the

trustee process proceedings . Plaintiffs opposed the motions because trustees can be required

to rem it future payments, even if the exact amounts of such payments are presently uncertain.

Plaintiffs also requested Vermont Country Properties fill out Form No. 508.

The Court denies Ve rmont Country Properties ’ motion for discharge and Defendant’s

motion for dismissal. See V.R.C.P. 4.2(j). A plaintiff may seek trustee process against a

defendant’s earnings. Under V.R.C.P. 4.2(j)(5), the definition of earnings inc ludes commissions,

s ee also 12 V.S.A. § 3169(b)(1). A plaintiff may seek trustee process against a defendant’s future

earnings , even if those earnings are not precisely foreseeable at the time of the trustee process

hearing . See Winey v. Culter , 165 Vt. 566, 567 (199 6) (mem.). Accordingly, neither the trustee

nor Defendant is entitled to discharge or dismissal based on the claim that Vermont Country

Properties does not currently hold any commissions for Mr. Hardy. 

## S TATE OF 

## V ERMONT

SUPERIOR COURT CIVIL DIVISION

Bennington Unit Docket No. 149

- 5

- 11 BncvThe trustee process hearing was initially scheduled for June 23, 2014. By entry issued

June 17, the Court granted Defendant’s motion to continue the hearing, which has been

rescheduled to Aug. 4, 2 014 at 2:00 p.m. The Court requires Vermont Country Properties to

submit it s trustee’s disclosure on Form No. 508 no later than July 31, 2014, or risk adjudication

as trustee. See Form No. 508: Trustee Disclosure of Earnings , State of Vermont Judiciary

ava ilable at h ttps://www.vermontjudi ciary.org/eforms/Form%20508.pdf . V.R.C.P. 4.2(j)(3)

requires a plaintiff to submit a request for trustee process accompanied by the court’s form.

The requirement and form would be meaningless if trustees could ignore it. Mo reover,

Vermont Country Properties’ affidavit does not contain the information requested by Form No.

508.

WHEREFORE, it is hereby ORDERED :

The Court DENIES Vermont Country Propert ies’ motion for discharge . The Court DENIES

Defendant ’ s motion to dismis s

. Vermont Country Properties shall make its trustee disclosure on

Form No. 508 no later than July 31, 2014

.

Electronically signed on July 23, 2014 at 10:28 AM pursuant to V.R.E.F. 7(d).

______________________________________ John P. Wesley

Superior Court Judge

N otifications :

James M. Dingley (ERN 1944), Attorney for Defendant Paul Hardy

Trustee Berkshire Bank

Thomas F. Heilmann (ERN 3294), Attorney for Trustee Vermont Country Properties

Alexander D. Ramsvig (ERN 6332), Attorney for Plaintiff Linda Hueckel

Alexander D. Ramsvig (ERN 6332), Attorney for Plaintiff Glen Hueckel

wesley