Particular Proceedings

V.S.A. tit. 12, ch. 121, subch. 3

in effect

12 V.S.A. § 3121 Specific property—Delivery to officer; sale; application of proceeds

3121. Specific property—Delivery to officer; sale; application of proceeds When a person is charged as trustee by reason of personal property, other than money, which he or she holds or is bound to deliver to the defendant, he or she shall deliver the same, or so much thereof as is necessary, to the officer who holds the execution, and it shall be sold and the proceeds thereof applied and accounted for as if taken on execution in common form.

12 V.S.A. § 3122 Value as between trustee and defendant

3122. Value as between trustee and defendant The value of such personal property so delivered shall be ascertained, as between the trustee and defendant, as if it had been delivered to the defendant. Upon the application of either party, the court may determine such value and make an order as to such property and the expense of keeping and delivering the same, proper to protect the rights of the trustee and the defendant.

12 V.S.A. § 3123 Contract as to delivery; tender

3123. Contract as to delivery; tender A person summoned as trustee, who has contracted to deliver specific personal property to the defendant at a certain time and place, shall not be compelled thereby to deliver it at any other time or place. He or she may tender it at the time and place mentioned in the contract, and shall retain possession thereof, subject to the order of the court in the trustee process, unless he or she has been previously adjudged a trustee on account thereof.

12 V.S.A. § 3124 Delivery of tendered property to officer

3124. Delivery of tendered property to officer The property so tendered shall be held to respond to the judgment in the trustee process as if the same had been attached, and the trustee shall deliver it to the officer holding the execution, on receiving a reasonable compensation for keeping the same after such tender. The tender shall have the same effect as if it had been made to the defendant and he or she had refused to receive the property.

12 V.S.A. § 3125 Payment of trustee’s claim by creditor

3125. Payment of trustee’s claim by creditor When it appears that personal property in the hands of a person summoned as a trustee is mortgaged, pledged, or liable for the payment of a debt due to him or her, the court may allow the attaching creditor to pay or tender the amount due to the trustee, and he or she shall thereupon deliver such property, as provided in this subchapter, to the officer holding the execution. Amended 2018, No. 8 (Sp. Sess.), § 5, eff. June 28, 2018.

12 V.S.A. § 3126 Performance of contract or condition by creditor

3126. Performance of contract or condition by creditor When such property is held for a purpose other than to secure the payment of money, and the contract, condition, or other thing to be performed is such as can be performed by the attaching creditor without damage to the other parties, the court may order the performance thereof by him or her. Upon such performance or tender thereof, the trustee shall deliver the property, as hereinbefore provided, to the officer holding the execution.

12 V.S.A. § 3127 Reimbursement of creditor from proceeds of sale

3127. Reimbursement of creditor from proceeds of sale Personal property received by the officer under sections 3124-3126 of this title shall be sold as if it had been taken on execution in the common form, except that out of the proceeds of the sale the officer shall repay to the attaching creditor the amount paid by him or her to the trustee for keeping or redeeming the same, with interest thereon, or shall indemnify the creditor for such other act or thing as he or she has done pursuant to the order of the court for the redemption of such property.

12 V.S.A. § 3128 Disposal of property by trustee before payment or tender

3128. Disposal of property by trustee before payment or tender The provisions of this chapter shall not prevent the trustee from selling personal property in his or her hands for the payment of the demand for which it is mortgaged, pledged, or otherwise liable, before the amount due him or her is paid or tendered, as before provided, if such sale is authorized by the terms of the contract between him or her and the defendant.

12 V.S.A. § 3129 Trustee’s liability on refusal to deliver property

3129. Trustee’s liability on refusal to deliver property When a trustee does not deliver personal property in his or her hands, when lawfully required by the officer serving the execution, he or she shall be liable to the plaintiff in the action for the value thereof, after deducting the amount, if any, of his or her lien, to be recovered in an action of tort on this statute.

12 V.S.A. § 3130 Trustee not liable for destruction of property without his or her fault

3130. Trustee not liable for destruction of property without his or her fault When a person is adjudged a trustee on account of personal property in his or her hands, and the same is destroyed without his or her negligence or default after the judgment and before demand therefor by the officer holding the execution, the trustee shall be discharged from liability to the plaintiff for not delivering the same. When a suit is commenced against him or her for not delivering the property, the destruction shall constitute a defense. Amended 1971, No. 185 (Adj. Sess.), § 84, eff. March 29, 1972.

12 V.S.A. § 3131 Defense of trustee sued for not delivering property

3131. Defense of trustee sued for not delivering property If a trustee is sued for not delivering to the officer personal property in his or her hands, any matter of discharge occurring after he or she was adjudged trustee shall constitute a defense, if that matter would be a good discharge in an action brought against a sheriff if he or she had attached the property. Amended 1971, No. 185 (Adj. Sess.), § 85, eff. March 29, 1972.

12 V.S.A. § 3132 Claims of third persons—Appearance; notice

3132. Claims of third persons—Appearance; notice When it appears that goods, effects, or credits in the hands of an alleged trustee are claimed by another person, the court may permit such claimant to appear and maintain his or her right. If he or she does not appear, notice for that purpose may be issued and served on him or her in such manner as the court directs.

12 V.S.A. § 3133 Third person as party; recognizance; trial of title

3133. Third person as party; recognizance; trial of title When the claimant appears, he or she may be admitted as party to the action for the purpose of maintaining his or her title to the goods, effects, or credits in question, and the title shall be tried and determined in the same manner as the liability of the trustee. Amended 1971, No. 185 (Adj. Sess.), § 86, eff. March 29, 1972.

12 V.S.A. § 3134 Costs

3134. Costs When such claimant is so admitted, the court, in its discretion, may award costs between such claimant and the attaching creditor and the alleged trustee, or either such creditor or trustee, as justice may require.

12 V.S.A. § 3135 Death of trustee—Attachment not discharged; liability of representative

3135. Death of trustee—Attachment not discharged; liability of representative When a person summoned as trustee in his or her own right dies before the judgment recovered by the plaintiff is satisfied, the goods, effects, and credits in his or her hands at the time of the attachment shall remain bound thereby, and his or her executor or administrator shall be liable therefor, as if the process had been originally served on him or her.

12 V.S.A. § 3136 Representative may appear or be cited

3136. Representative may appear or be cited When the person so summoned dies before judgment in the original action, his or her executor or administrator may appear voluntarily or may be cited to appear, and the proceedings shall then be conducted as if the executor or administrator, in that capacity, had been originally summoned as trustee, except that the examination of the deceased, if any had been taken, shall have the same effect as if he or she were living.

12 V.S.A. § 3137 Default for nonappearance after notice

3137. Default for nonappearance after notice When, after notice, such executor or administrator does not appear, the plaintiff may take judgment against him or her by default, as if he or she had been summoned as trustee by an original process.

12 V.S.A. § 3138 Representative to pay on execution if trustee dies after judgment

3138. Representative to pay on execution if trustee dies after judgment When the person originally summoned as trustee dies after judgment in the original action, his or her executor or administrator shall pay on the execution such sum as he or she would have been required to pay, if the amount for which such deceased person was adjudged trustee had been a legal debt against his or her estate.

12 V.S.A. § 3139 Plaintiff’s remedy when representative does not pay

3139. Plaintiff’s remedy when representative does not pay When an executor or administrator does not deliver or pay on execution what he or she is required by the provisions of this chapter to deliver or pay, the plaintiff in the trustee process shall have the same remedy against him or her, or upon his or her administration bond, as the defendant in the trustee process would have had.

12 V.S.A. § 3140 Pending action against trustee—Action to proceed; continuance for judgment

3140. Pending action against trustee—Action to proceed; continuance for judgment When the defendant is summoned as trustee of the plaintiff, during the pendency of an action, the first action may proceed so far as to ascertain by a verdict, award, or otherwise, what sum is due from the defendant. Such action shall not be delayed by the trustee process unless the court, for cause shown, continues the same for judgment until the termination of such trustee process or until the trustee is discharged.

12 V.S.A. § 3141 Application for continuance; effect of denial

3141. Application for continuance; effect of denial On application of the plaintiff in the trustee process the court may continue the first action on reasonable terms. If such action is not continued and judgment is rendered against the defendant, he or she shall not afterwards be adjudged a trustee on account of the demand so recovered against him or her, while he or she is liable to an execution on such judgment.

12 V.S.A. § 3142 Payment made on judgment in trustee action allowed

3142. Payment made on judgment in trustee action allowed When, before final judgment in the first action, the defendant therein is adjudged a trustee in the other and pays thereon the money demanded in the first action, or a part thereof, the fact shall be stated on the record of such action, and judgment shall be rendered thereon for the costs due to the plaintiff, and for such part of the debt or damages as remains due and unpaid.

12 V.S.A. § 3143 Fraudulent conveyance and assignment—Trustee with title void as to creditors; examination

3143. Fraudulent conveyance and assignment—Trustee with title void as to creditors; examination When a person summoned as a trustee has in his or her possession goods, effects, or credits of the defendant, which he or she holds by a conveyance or title void as to the creditors of the defendant, he or she may be adjudged a trustee on account thereof, although the defendant could not have maintained an action therefor against him or her; and, in its discretion, the court may order a person so summoned to appear personally before the court and submit to an oral examination.

12 V.S.A. § 3144 Execution against trustee; arrest

3144. Execution against trustee; arrest An execution shall issue against the goods, chattels, or estate of the trustee, unless the court, upon motion and hearing, finds that the trustee did not act in good faith in taking the conveyance or title. If the court so finds, a certificate thereof shall be indorsed by the clerk upon the writ of execution, and the writ shall be directed against the body, as well as the goods, chattels, or estate of the trustee. Amended 1971, No. 185 (Adj. Sess.), § 87, eff. March 29, 1972.

12 V.S.A. § 3145 Validity of sale or assignment may be inquired into

3145. Validity of sale or assignment may be inquired into When it appears that a trustee had been notified of the sale or assignment of a demand for which he or she would otherwise be adjudged trustee, either of the parties to the trustee process may raise the question of the validity of such sale or assignment, and the person giving notice to the trustee may be summoned as a witness and compelled to testify to the consideration upon which such sale or assignment was made. When it is found upon the evidence that such sale or assignment was not made in good faith, the trustee shall be adjudged liable as though the pretended sale or assignment had not been made.

12 V.S.A. § 3146 Mortgagor of personal property summoned as trustee of mortgagee—Mortgagee defined

3146. Mortgagor of personal property summoned as trustee of mortgagee—Mortgagee defined The word “mortgagee” as used in sections 3147-3152 of this title shall be construed to mean the mortgagee, assignee of the mortgagee, or other person holding his or her interest.

12 V.S.A. § 3147 Attachment of mortgagee’s interest

3147. Attachment of mortgagee’s interest When a mortgagor of personal property is summoned as trustee of the mortgagee, the plaintiff may direct the officer serving the writ to attach the mortgagee’s interest in such property. The officer when so directed shall attach such interest by leaving a copy of the writ in the town clerk’s office where the mortgage is recorded, with his or her return thereon describing the property and the interest of the mortgagee therein. The town clerk shall enter upon the margin of the record of such mortgage, a statement that the interest of the mortgagee is attached, and make such other record and entry as is required by law to be made where property is attached by copy.

12 V.S.A. § 3148 Held to satisfy execution against trustee

3148. Held to satisfy execution against trustee The property so attached shall be holden to satisfy any execution issuing upon or in action on a judgment rendered against the trustee in the original action, in the same manner and to the same extent that property attached as the property of the defendant in an action and taken into the actual possession of the officer making the attachment is held to satisfy an execution against such defendant.

12 V.S.A. § 3149 Mortgagee not to sell attached property

3149. Mortgagee not to sell attached property The mortgagee whose interest is so attached shall not sell or dispose of such property while the attachment is in force or while the liability of the trustee is undetermined or continues.

12 V.S.A. § 3150 Purchaser’s title in property sold on execution

3150. Purchaser’s title in property sold on execution Property so attached may be sold upon an execution issuing by reason of a judgment rendered against the trustee, either in the original action or in an action on a judgment rendered in the original action, and the title and interest of the mortgagor, mortgagee, or other person to and in such property shall pass to the purchaser of the property as such sale.

12 V.S.A. § 3151 Trustee may file bond and sell property

3151. Trustee may file bond and sell property When such action is pending in the Supreme or Superior Court, the trustee may sell the property, and the purchaser shall hold the same released from the mortgage and attachment, if such trustee files with the clerk of the court: (1) a bond to the plaintiff in a sum equal to the amount for which attachment is directed in the writ, with sufficient sureties, approved by such clerk or judge, conditioned that such trustee will pay the judgment rendered against him or her in the action; and (2) a bond to the defendant in a penal sum double the amount of the mortgage debt, with sureties approved as aforesaid, conditioned that he or she will pay the balance due upon the mortgage after paying such judgment and that, if discharged as trustee, he or she will pay the amount secured by the mortgage. Amended 1965, No. 194, § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 79.

12 V.S.A. § 3152 Mortgagee may file bond and release property

3152. Mortgagee may file bond and release property When such action is pending in such a court, the trustees shall be discharged and the attachment dissolved if the mortgagee, in the manner provided in section 3151 of this title, files a bond in a sum equal to the amount for which attachment is directed in the writ, with sufficient sureties approved by such clerk or judge, conditioned that he or she will pay the judgment that may be rendered against him or her.

12 V.S.A. § 3153 Action by assignee of negotiable paper after judgment against maker—Pleading judgment in bar; citation of plaintiff in trustee action

3153. Action by assignee of negotiable paper after judgment against maker—Pleading judgment in bar; citation of plaintiff in trustee action When a person is held as trustee upon a negotiable paper in an action in which a claimant does not appear or is not cited in, and an action is afterwards brought against the trustee upon such paper by an assignee thereof, the trustee may plead the former judgment against himself or herself in bar. The court shall thereupon issue a citation, and such assignee shall cause it to be served on the plaintiff in the trustee process or his or her attorney of record.

12 V.S.A. § 3154 Court to decide to whom judgment belongs

3154. Court to decide to whom judgment belongs The court shall try the action upon such negotiable paper between the assignee and plaintiff in the trustee process, as though the assignee had been cited to appear as claimant in such process. The judgment in such action against the trustee shall not be conclusive of the rights of the assignee and of such plaintiff, but the court shall decide to which of the parties such judgment belongs.

12 V.S.A. § 3155 Proceedings if judgment belongs to assignee

3155. Proceedings if judgment belongs to assignee When the court decides in favor of the assignee, it shall adjudge such judgment against the trustee to be the property of the assignee, and it may be enforced by him or her at his or her expense in the name of the plaintiff in the first action, if it has not been previously paid. When the trustee has paid it in whole or in part to the plaintiff in the trustee process, the assignee shall have judgment against such plaintiff for the sum so paid, and may enforce against the trustee any part of the judgment not paid.

12 V.S.A. § 3156 Mode of trial; costs

3156. Mode of trial; costs Either party may have the facts tried by jury or commissioner, as in other causes. Costs shall be allowed between the parties as the court deems just.

12 V.S.A. § 3166 Compensation assignments, employer acceptance required

3166. Compensation assignments, employer acceptance required (a) If the compensation of a person due him or her for work and labor performed is attached under this chapter, the employer of the person shall, upon the request of the employee, accept a compensation assignment in an amount not in excess of 10 percent of the employee’s compensation, payable to the attaching creditor or his or her agent. (b) If the employer fails to accept the assignment within 10 days from the date that it is presented to him or her, he or she shall be liable to the creditor in the same manner as if the assignment had been formally accepted. Added 1967, No. 323 (Adj. Sess.), § 2, eff. March 22, 1968.

12 V.S.A. § 3167 Enforcement of money judgments; trustee process against earnings

3167. Enforcement of money judgments; trustee process against earnings Trustee process against earnings may not be used in connection with the enforcement of a money judgment in any civil action until the judgment becomes final, and then only in accordance with sections 3168-3171 of this title. Added 1979, No. 67, § 2, eff. date, see note set out below.

12 V.S.A. § 3168 Motion for issuance of trustee process; scheduling and notice of hearing

3168. Motion for issuance of trustee process; scheduling and notice of hearing (a) Whenever a judgment debtor has neglected or refused to pay or make reasonable arrangements to pay a money judgment in any civil action, the judgment creditor may move the court which rendered the judgment to issue trustee process against the earnings of the judgment debtor. The motion shall describe in detail the grounds for requesting issuance of trustee process, the amount of judgment alleged to be unpaid, and the source of earnings of the judgment debtor. (b) Upon receipt of the motion of the judgment creditor, the court shall give notice thereof to the trustee and to the judgment debtor as provided by Rule 4.2 of the Rules of Civil Procedure and shall hold a hearing on the motion. Added 1979, No. 67, § 2, eff. date, see note set out below.

12 V.S.A. § 3169 Hearing on motion; findings; order

3169. Hearing on motion; findings; order (a) At the hearing on the motion the court shall determine on the basis of the motion and any affidavit of the judgment creditor, the record in the civil action and any testimony offered by either party, and by the trustee whether the judgment debtor has neglected or refused to pay or make reasonable arrangements to pay the money judgment in question. If the court so finds, it shall also determine: (1) the amount of the judgment unpaid; (2) the amount of the judgment debtor’s weekly disposable earnings; (3) whether the judgment debtor has been a recipient of assistance from the Vermont Department for Children and Families or the Department of Vermont Health Access within the two months preceding the date of the hearing; and (4) the weekly expenses reasonably incurred for maintenance of the debtor and dependents, and it shall enter an order approving the issuance of trustee process against earnings in accordance with, and subject to the provisions of section 3170 of this title. (b) For the purposes of sections 3167-3172 of this title: (1) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. (2) The term “earnings” also means proceeds from the sale of milk with respect to an individual engaged in the occupation of dairy farming. (3) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld. Added 1979, No. 67, § 2, eff. date, see note set out below; amended 1981, No. 58; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 17; 2009, No. 156 (Adj. Sess.), § I.16.

12 V.S.A. § 3170 Exemptions; issuance of order

3170. Exemptions; issuance of order (a) No order approving the issuance of trustee process against earnings shall be entered against a judgment debtor who was, within the two-month period preceding the hearing provided in section 3169 of this title, a recipient of assistance from the Vermont Department for Children and Families or the Department of Vermont Health Access. The judgment debtor must establish this exemption at the time of hearing. (b) The earnings of a judgment debtor shall be exempt as follows: (1) 75 percent of the debtor’s weekly disposable earnings, or 30 times the federal minimum hourly wage, whichever is greater; or (2) if the judgment debt arose from a consumer credit transaction, as that term is defined by 15 U.S.C. § 1602 and implementing regulations of the Federal Reserve Board, 85 percent of the debtor’s weekly disposable earnings, or 40 times the federal minimum hourly wage, whichever is greater; or (3) if the court finds that the weekly expenses reasonably incurred by the debtor for his or her maintenance and that of dependents exceed the amounts exempted by subdivisions (1) and (2) of this subsection, such greater amount of earnings as the court shall order. (c) After hearing, the court shall enter an appropriate order, which may provide for repetitive withholding from earnings, and which may, upon motion, be modified from time to time. The order shall state that section 3172 of this title prohibits discharge of the employee subject to the order because of the exercise of trustee process against the employee. (d) Any waiver of the provisions of subsection (b) of this section shall be void. Added 1979, No. 67, § 2, eff. date, see note set out below; amended 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 18; 2009, No. 156 (Adj. Sess.), § I.17.

12 V.S.A. § 3171 Service of order; liability of trustee

3171. Service of order; liability of trustee (a) The order shall be served on the trustee at the request of the judgment creditor, and shall state the address of the judgment creditor to which amounts withheld are to be delivered, and the following warnings: (1) no employee may be discharged from employment on account of trustee process issued against earnings; (2) failure to withhold and deliver non-exempt earnings as directed herein may make you liable to the judgment creditor for the amounts you fail to withhold and deliver together with any costs, interest, and reasonable attorneys’ fees incurred in their collection. (b) Any employer who fails to honor the order of the court shall be liable to the judgment creditor in the amounts that employer has failed to withhold and deliver together with any costs, interest, and reasonable attorneys’ fees incurred in their collection. The judgment debtor shall have no additional liability for those costs, interest, or attorneys’ fees. (c) As soon as reasonably practicable, the trustee shall notify the court and the judgment creditor of termination of the judgment debtor’s employment. (d) Upon full satisfaction or payment of the debt upon which the judgment is based, the judgment creditor forthwith shall notify the employer of the judgment debtor, in writing, and the employer shall thereafter cease withholding from the earnings of the judgment debtor. Added 1979, No. 67, § 2, eff. date, see note set out below.

12 V.S.A. § 3172 Employee protected

3172. Employee protected No employee may be discharged from employment on account of trustee process issued to an employer against earnings. Discharge of an employee from employment within 60 days of service of a trustee process summons upon an employer shall be rebuttably presumed to be on account of the issuance of trustee process. Any employee discharged in violation of this section may sue in Superior Court for reinstatement of employment, back wages, and damages and, if that employee prevails, the court shall award costs and may award reasonable attorneys’ fees to the employee. Added 1979, No. 67, § 2, eff. date, see note set out below.

Source: Vermont General Assembly (legislature.vermont.gov)URL: https://legislature.vermont.gov/statutes/chapter/12/121Fetched: 10/21/2026