SCOVT vacates default judgment for failure to appear at jury draw, holding at least 7 days’ written notice was required under V.R.C.P. 55(c)(4)

 

1  Default;  Rule 55(c)(6) 

    Westwardhos LLC v. Anatoly Glass LLC , 2026 VT 19 [5/29/2026]

COHEN, J. (Ret.), Specially Assigned.   Tenant Anatoly Kishinevski appeals pro se from the trial court’s order granting landlord Westwardhos LLC a default judgment under Vermont Rule of Civil Procedure 55(c)(6) following tenant’s failure to appear at jury draw. Tenant argues, among other things, that the trial court erred in entering default judgment without holding a hearing on seven-days’ notice as required under Rules 55(c)(6) and 55(c)(4).  We vacate and remand for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Rule 55(c)(4) and conduct further proceedings as necessary.  The rule’s plain language makes it clear that holding a hearing on the default judgment motion is mandatory.  The rule states that “[i]f the party against whom judgment by default is sought has appeared in the action judgment may be entered by the judge after hearing, upon at least 7 days’ written notice.”  V.R.C.P. 55(c)(4) (emphasis added). In this case, tenant did not appear for jury draw, but he had otherwise appeared in the matter, and landlord moved for a default judgment.  The trial court was therefore required to provide tenant with a hearing on seven days’ written notice under Rule 55(c)(4) before deciding the motion.  The court abused its discretion when it failed to do so, granting the motion for default judgment the same day.  When the trial court entered default judgment against tenant, it did not cite to Rule 55(c)(4), instead relying on Rule 55(c)(6).  Rule 55(c)(6) states: “In those cases in which a party has appeared in the action but has failed to appear at a duly noticed trial on the merits, any other party seeking affirmative relief may either waive trial and move for a default judgment or proceed to trial.”  The rule goes on to explain that “[i]f the party seeking affirmative relief chooses to file a motion for default judgment, a hearing shall be scheduled on the motion pursuant to” Rule 55(c)(4).  V.R.C.P. 55(c)(6).  If the jury draw is part of a duly noticed trial on the merits for the purposes of this rule, Rule 55(c)(6) requires a notice and hearing under Rule 55(c)(4) if the nondefaulting party moves for default judgment. Accordingly, we conclude that the trial court did not satisfy the hearing requirement of Rule 55(c)(4) when it held the hearing on landlord’s request for default judgment the same day and without notice to tenant. Finally, landlord argues that even if an additional default judgment hearing was required, the failure to hold such a hearing was harmless error because tenant did not demonstrate prejudice.  We conclude that tenant was not required to make such a showing under the circumstances here.  Entry of default judgment against a party who has appeared in a case without first providing notice and an opportunity to be heard implicates that party’s due-process rights.  See Reuther, 146 Vt. at 542, 507 A.2d at 973 (explaining that because defendant was not given notice before court entered default judgment, “ ‘[t]o get such a judgment without evidence and without notice is not in our opinion due process of law’ ” (quoting Bass, 172 F.2d at 210)); see also Dougherty, 147 Vt. at 366, 518 A.2d at 365 (“Due process favors the rights of the defendants to be heard in their own defense.  Denial of that right, and rejection of the remedies for default, 7 must have strong support.” (alteration and quotation omitted)).  Accordingly, “[a] failure to give the required notice generally is considered a serious procedural error that justifies the reversal or the setting aside of a default judgment.”6  10A M. Kane & A. Steinman, Federal Practice and Procedure § 2687 (4th ed. 2026); see, e.g., Bass, 172 F.2d at 210 (concluding that failure to provide notice under Federal Rule 55 to defaulting party was error and “[t]o get such a judgment without evidence and without notice is not in our opinion due process of law”); In re Roxford Foods, Inc., 12 F.3d 875, 881-82 (9th Cir. 1993) (holding that failure to provide notice of motion for entry of default judgment violated defaulting party’s due-process rights); Press v. Forest Lab’ys, Inc., 45 F.R.D. 354, 357 (S.D.N.Y. 1968) (“Where notice of a motion for a default judgment is required, but not given, such a judgment entered without notice must be vacated as a matter of law.”).  For this reason, we conclude that the judgment must be vacated and remanded for the trial court to provide tenant with the required notice and hearing.    Vacated and remanded for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Vermont Rule of Civil Procedure 55(c)(4) and conduct further proceedings as necessary.

SCOVT affirms denial of motion to set aside default judgment of foreclosure. Does not decide whether permission is required to appeal a judgments of foreclosure based on a judgment lien

Cramer v. Billado, 2017 VT 38

ROBINSON, J. Defendant James Billado appeals the trial court’s denial of his motion to set aside a default judgment of foreclosure on the grounds that the trial court erred in allowing service of the foreclosure complaint by tack order and in declining to set aside the default foreclosure judgment in light of his defenses. Plaintiff Laura Cramer argues that defendant’s appeal was untimely and we thus need not consider the merits of his appeal. We conclude that the trial court’s orders were within its discretion and accordingly affirm.

While this case was pending, this Court on its own initiative issued an order requesting defendant to show cause why his appeal should not be dismissed for failure to file a timely motion for permission to appeal pursuant to 12. V.S.A. § 4601 (requiring court permission for appeal of judgment "for the foreclosure of a mortgage") and Vermont Rule of Civil Procedure 80.1(m) (requiring that request for permission to appeal be filed within ten days of entry of judgment or order appealed from "[w]hen the judgment is for foreclosure of the mortgage"). Defendant argues that by their plain terms, the above requirements apply only to judgments foreclosing a mortgage, and not to judgments of foreclosure based on a judgment lien. Plaintiff argues that pursuant to 12 V.S.A. § 2903(d), the foreclosure of judgment liens is subject to the same requirements as the foreclosure of a mortgage. We decline to decide this jurisdictional question because we conclude that even if defendant's appeal was timely, his claims on appeal fail on the merits.

We review the trial court's denial of the motion to set aside the judgment for abuse of discretion. LaFrance Architect, 2013 VT 115, ¶ 9.  A trial court "should give substantial weight to a meritorious defense when determining whether to vacate a default judgment." Id. ¶ 11.

The trial court’s conclusion that defendant did not present meritorious defenses was within its discretion. Defendant does not deny that plaintiff had a judgment against him for $50,000 from 2007, that plaintiff duly perfected her judgment lien, or that he paid any amounts toward that judgment. Instead, he essentially argues that he was entitled to an offset of plaintiff’s judgment on account of her prior misappropriation of funds from his business. As the trial court noted, collateral estoppel and the statute of limitations are both obstacles to his set-off claims in response to plaintiff’s foreclosure action. Given these considerations, and the absence of any substantial defense to plaintiff’s action for foreclosure, the trial court’s denial of defendant’s motion to set aside the default judgment in this case was within the trial court’s discretion.


SCOVT NOTE: The statute of limitations does not bar a "setoff" claim, which "shall be allowed, to the extent of plaintiff's demand" if it arises out of the transaction or occurrence that is the subject matter of plaintiff's claim.

A cross-claim or counterclaim shall not be brought if an independent action upon the same claim would have been barred under the provisions of this chapter at the time of commencement of the plaintiff's action, except that a counterclaim arising out of the transaction or occurrence that is the subject matter of plaintiff's claim shall be allowed, to the extent of plaintiff's demand, at any time.

12 V.S.A. § 463 .

Rule 13(c), in permitting recovery exceeding the opposing claim, states what was previously the practice in set-off. See 12 V.S.A. § 5469 (now superseded); Franklin Co. Realty Corp. v. Cunnius, 127 Vt. 452, 252 A.2d 524 (1969). Previously, defendant could, in a contract action at law, set off an opposing contract claim, 12 V.S.A. §§ 5461-5478 (now superseded), but such set-off was not compulsory.  Thus, under former practice, at least, a default judgment did not preclude a party from bringing  a later suit for indebtedness which existed before rendition of  the default judgment, Hutchins v. George, 92 Vt. 371, 104 Atl. 108 (1918).

Now, the failure to plead setoff as an affirmative defense results in a waiver of this defense. Wursthaus, Inc. v. Cerreta  149 Vt. 54, 539 A.2d 534 (1987).  Whether the claim is compulsory is determined by Rule 13.

Trustee process. Divided SCOVT affirms denial of motion to default trustee for late disclosure.

Stroup v. Doran, 2014 VT 92 (01-Aug-2014)

CRAWFORD, J. Plaintiffs appeal from an order of the superior court denying their motion for default judgment against trustee Brattleboro Savings and Loan Association (BSL). We affirm.

On July 22, 2013, plaintiffs served BSL with a trustee summons. BSL did not reply within thirty days, and on August 27 plaintiffs moved for default against BSL and entry of judgment against it as trustee for $24,155.12, the balance due under the judgment. On September 16, BSL filed a trustee disclosure indicating that it did not have any of defendants’ property in its possession. The court denied plaintiffs’ motion for default judgment against BSL. The court stated that “[a]lthough Trustee failed to make a timely disclosure, its disclosure now made in response to Plaintiff[s’] motion for default shows that it holds no assets for the benefit of Defendant[s]. Default judgment under these circumstances would be inequitable.”

Plaintiffs argue that the trial court erred in denying their motion for default because applicable Vermont law makes default mandatory when a trustee fails to serve a disclosure within thirty days.

 Vermont’s trustee process statute provides that “[w]hen a person summoned as trustee does not serve his disclosure within such time as the supreme court may by rule provide, he shall be defaulted, and adjudged a trustee.” 12 V.S.A. § 3062. Civil Rule 4.2(f) requires a trustee to serve a disclosure “within 30 days after the service of the trustee summons upon the trustee, unless the court otherwise directs.” A person who is adjudged trustee by default is liable “for the amount of damages and costs recovered by the plaintiff in the action, and payable in money at the time the judgment is rendered against the principal defendant.” 12 V.S.A. § 3063.

Under the plain language of Rule 4.2(f), the court has discretion to extend the thirty-day deadline for service of a trustee disclosure. Here, the trial court effectively extended the deadline in Rule 4.2(f) by accepting BSL’s late disclosure. This was not an abuse of discretion.

In this case, neither an entry of default nor a default judgment against the trustee ever issued. For this reason, the remedy proposed by the dissent of a motion under Civil Rules 55 or 60 would be premature. Instead, the trial court exercised its separate authority under Rule 4.2(f) to extend the time for the trustee’s response prior to entry of judgment.

DOOLEY, J., dissenting. I fully endorse the desirability of resolving litigation on the merits and of avoiding default judgments. But the discretion we grant to the trial court to give relief from a default judgment must have some limits and be governed by some standards; otherwise, we simply create injustice under the guise of preventing it. I cannot go along with the standardless, unlimited discretion the majority creates, and therefore dissent. I agree that the bank should have the opportunity to seek relief from the default trustee judgment, but the opportunity should occur through a motion to set aside the judgment under Rule 55(c), and the bank should have to demonstrate good cause or compliance with Rule 60. By letting this bank off with no demonstrated showing that it has a system to respond in the future, we are sending the signal that compliance is unimportant. I am authorized to state that Justice Skoglund joins this dissent.

SCOVT reverses denial of Rule 60(b) motion after case dismissed for failure of plaintiff’s lawyer to attend status conference.

Ying v. Heide, 2013 VT 81 (13-Sep-2013)

ROBINSON, J.   The question in this case is whether the trial court’s dismissal of plaintiff’s eviction action on account of her lawyer’s failure to attend a scheduled status conference can withstand a motion to set aside the judgment pursuant to Vermont Rule of Civil Procedure 60(b) on the facts of this case.  We conclude that it cannot and reverse.

 Rule 60(b)(1) allows the court to relieve a party of a final judgment order for “mistake, inadvertence, surprise, or excusable neglect.”  The trial court has discretion in deciding a Rule 60(b) motion and we will affirm “unless the record indicates that such discretion was abused.”  Lyddy v. Lyddy, 173 Vt. 493, 497, 787 A.2d 506, 513 (2001) (mem.).  The question before us now is whether plaintiff has established the requisite “excusable neglect” to warrant reopening a final judgment.

In the context of a late filing, the U.S. Supreme Court has described “excusable neglect” as an equitable determination, “taking account of all relevant circumstances surrounding the party’s omission.”  Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).  The excusable neglect standard is intended to encompass acts of negligence, but does not reach “every instance of an inadvertent or negligent omission.”  Id. at 394.  This Court has incorporated the Pioneer factors to define excusable neglect for purposes of extending the appeal period under Vermont Rule of Appellate Procedure 4.  In re Town of Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60, 838 A.2d 98

We acknowledge that, as the trial court concluded, plaintiff’s explanation for not appearing at the status conference was not compelling.  Plaintiff’s lawyer failed to properly calendar the hearing and instead relied on an online calendar that expressly excluded the court in which this case was pending.  This error is not the kind of “excusable neglect” that would warrant extension of a missed appeal deadline. 

Given the law’s preference for adjudication on the merits, we conclude that the trial court’s denial of plaintiff’s motion to set aside the judgment exceeded its discretion.    Plaintiff's counsel sought to remedy the situation relatively quickly and defendant would not have suffered significant prejudice through the reinstatement of plaintiff’s claims and defendant’s counterclaims within weeks of the court’s dismissal.  There is no suggestion here that plaintiff or her lawyer acted in bad faith.  There is no evidence that plaintiff herself, as opposed to her lawyer, was responsible for the failure.See Pioneer Inv. Servs., 507 U.S. at 395 (explaining that relevant factors in determining “excusable neglect” include danger of prejudice, length of delay, and good faith of party claiming excusable neglect).   Given these factors, we cannot conclude that the trial court acted within its discretion in declining to reopen the case for consideration on its merits.

 REIBER, C.J., dissenting.   Though plaintiff may have suffered as a result of her attorney’s deficient performance, calling into question the trial court’s necessary and reasonable exercise of discretion is not the appropriate response or remedy.  In my view, this Court ought to affirm the trial court’s decision to deny plaintiff’s motion for relief from judgment.    I am authorized to state that Justice Burgess joins this dissent.

A motion to set aside a default must establish a meritorious defense “with particularity.”

LaFrance Architect v. Point Five Development South Burlington, LLC , 2013 VT 115 (20-Dec-2013)

REIBER, C.J. Defendant appeals the trial court’s refusal to vacate a default judgment against defendant. In light of its conclusion that an internal law office failure like that claimed here did not amount to excusable neglect, the trial court declined to exercise its discretion to consider defendant’s claimed defenses. We hold that the trial court improperly declined to consider the strength of defendant’s proffered defenses to the underlying action in reviewing defendant’s motion to vacate the default judgment, but that defendant’s Rule 60(b) motion did not establish a prima facie case with sufficient particularity to support a meritorious defense. We therefore affirm the trial court.

A trial court should consider the following factors when conducting the Rule 60(b) analysis: whether the failure to answer was the result of mistake or inadvertence, whether the neglect was excusable under the circumstances, and whether the defendant has demonstrated any good or meritorious defense to the plaintiff’s claims.” With respect to the “excusable neglect” factor, courts should be particularly circumspect “when the initial fault, at least, appears to be that of a defendant’s attorney. Concerning the “meritorious defenses” factor, the trial court should give substantial weight to a meritorious defense when determining whether to vacate a default judgment.

One of the “meritorious defenses” defendant raised is a counterclaim based on alleged deficiencies in the services provided by plaintiff. Given that compulsory counterclaims are conclusively adjudicated by a default judgment, we conclude that a counterclaim arising from the same transaction as the underlying complaint, can constitute a “meritorious defense.” Defendant’s counterclaim satisfies the requirements of notice pleading under Rule 8(a), but is not detailed enough to satisfy the more exacting standards of a motion to set aside a judgment under Rule 60(b). We conclude that defendant’s Rule 60(b) motion did not plead a prima facie case of a meritorious defense arising from plaintiff’s allegedly deficient performance with sufficient particularity to warrant remand for the trial court’s consideration.

Defendant also points to the mandatory mediation and arbitration clauses in the contract between the parties as a defense to the trial court’s judgment. Given defendant’s delay in asserting its arbitration rights, however, we hold that defendant’s conduct amounted to an implicit waiver and thus does not constitute a meritorious defense for purposes of Rule 60(b).

Therefore, it is unnecessary to remand the case to the trial court, since defendant has no meritorious defenses and cannot prevail under Rule 60(b) as a matter of law.

ROBINSON, J., concurring in part, dissenting in part. I respectfully dissent from that part of the majority’s opinion relating to the question of whether we should remand this case to the trial court for consideration of the requisite factors, including the prejudice to plaintiff of setting aside the default judgment, the nature of defendant’s neglect, and the strength of defendant’s defense based on the mandatory mediation and arbitration clauses in the contract between the parties.

How cited

Time limit for relief from default not waived by agreement that preserved rights.

Pierce v. Vaughan, 2012 VT 5 (mem.)

This case raises the question of whether a court may grant a motion for relief from a default judgment  for mistake or inadvertence beyond the one-year limitations period of Vermont Rule of Civil Procedure 60(b), where the parties reached an agreement after the default judgment had entered.  Because the  agreement was -- as plaintiffs’ attorney admitted -- specifically designed to allow defendants to make a motion to set aside the default judgment, the trial  court considered the present case to involve  equitable considerations not covered by the one year limit for clause (1), (2), or (3).  However, the default judgment was entered due to mistake or inadvertence, and the subsequent agreement did not relieve the moving party of the burden to seek timely relief from the judgment.  Therefore, we conclude that the trial court’s grant of relief was in error.

Here, defendants rely on Rule 60(b)(6), which is an omnibus clause providing that “the court may relieve a party . . . from a final judgment, order, or proceeding for . . . any other reason justifying relief from the operation of the judgment.”  Rule 60(b)(6) is not to be used as a substitute for one of the first five subsections of V.R.C.P. 60(b).  Motions seeking relief under clauses (1), (2), and (3) require that the motion be filed “not more than one year after the judgment, order, or proceeding was entered or taken.”  V.R.C.P. 60(b).  If clause (6) were permitted to encompass grounds for relief that fall under clause (1), (2), or (3), then it would supply a backdoor to circumvent the one-year time limit.

In this case, defendants’ basis for relief from the judgment  was that they had attempted to respond to the claims brought against them, but  the default was entered  due to the failure to file this response with the court.  This most naturally falls within clause (1), which covers “mistake, inadvertence, surprise, or excusable neglect.”V.R.C.P. 60(b). Plaintiff’s later agreement that defendants were not precluded “from being able to raise whatever defenses they may have to plaintiffs[’] claims in any other actions between the parties” was not an agreement to relieve defendants of the default judgment against them; nor was it an agreement to excuse the limitations period for seeking relief from that judgment. Consequently, we find no support for the trial court’s decision to grant defendant’s motion under Rule 60(b)(6).