very vermonty v. schwenk

• Court: Vermont Superior Court
• Decided: March 15, 2024
• Docket: 23-cv-4254
• Status: Published

Opinion

Vermont Superior Court Filed 01 08/24 Lamo' e Unit

VERMONT SUPERIOR COURT 1 fl4 CIVIL DIVISION Lamoille Unit Case N0. 23-CV-04254 154 Main Street Hyde Park VT 05655 802-888—3887 fifi wwwvermontjudjciaryorg

Very Vermonty Corp. v. Yvonne Schwank

ENTRY REGARDING MOTION Title: Motion to Continue (Motion: 4) Filer: Yvonne M. Schwank Filed Date: January O4, 2024

The motion is GRANTED IN PART.

Defendant Schwank seeks to postpone the rent escrow hearing presently scheduled for

January 9, 2024 due to a serious myocardial infarction that she suffered on December 24, 2023, and which has her on bed rest for 8 weeks. Plaintiff opposes the extension noting that nothing about bed rest precludes Defendant Schwank from attending the hearing remotely or having her caregiver

drop off any payments due under a proposed order at the courthouse.

The Court finds, based on the note from Defendant Schwank’s treating physician, Shawn Ahmad, that she is currently in a condition warranting a partial delay of the rent escrow hearing. First, Dr. Ahmad’s note confirms that Defendant had a serious medical event for which she was hospitalized from December 24, 2023 until January 2, 2024. Second, Defendant is currently on 8- weeks of bed rest and may not drive, work, or attend school during this time. Third, Defendant is on new medications that are likely to cause her to be sleepy and confused.

It is this third point that concerns the Court most. A rent escrow hearing is a preliminary

hearing and does not involve resolving the ultimate merits of the case. By statute, it is limited to

questions of whether the rent is currently unpaid and due and the amounts of rent due each month. 12 V.S.A. § 4853a. Such a hearing can easily be done remotely, and the Court has conducted

numerous such hearings on a remote basis. But even a hearing conducted in the comfort of one’s

home cannot suffice for due process purposes if the individual against whom the order is sought is

in a medically-induced state of confusion or unconsciousness.

Entry Regarding Motion Page 1 of 2 23—CV—04254 Very Vermonty Corp. v. Yvonne Schwank While Dr. Ahmad’s note does not indicate the degree 0f confusion or sleepiness that Defendant is experiencing, the Court finds that this initial two-week period following Defendant’s

hospitalization is a critical time as she recovers, settles into her bed rest, and adjusts to her medication.

After this two-week period, Defendant Will still be on bed rest, but she Will have adjusted to her medication, begun her recovery, and will have settled into her bedrest. In this respect, the Court

is conscious to balance the need for Defendant to physically recover with Plaintiffs right to a

summary proceeding. The Court is also conscious that a rent escrow order becomes more difficult the further into the case it is made. Particularly, a rent escrow order requires, in part, that a tenant

pay all rent due from the date that the ejectment was filed until the date of the hearing. The longer that period is, the more unpaid rent may be at issue, and the harder for an individual to make this

payment in one, two, or even three installments while keeping the prospective rent paid. Given the

consequences for not complying with a rent escrow, the Court is cognizant that a delay today makes tomorrow’s compliance all the more difficult.

Nothing about Defendant’s bed rest will prevent her from testifying about whether or not the rent is unpaid and if it is unpaid, what schedule she could follow to bring such rent payments

current. Such hearings, by their nature, are short, not intended to be exhaustive of the issues, and do

not get to the underlying merits.

Based on these reasons, the Court cancels the January 9, 2024 hearing. It will reschedule the

hearing for a date afterJanuary l6, 2024. This will give Defendant time to adjust but will not unreasonably

delay the escrow process. Defendant may attend this and any other hearing by Webex or

phone.

Electronically signed on 1/8/2024 2:59 PM pursuant to V.R.E.F. 9(d)

05“.. Daniel Richardson Superior Court Judge

Entry Regarding Motion Page 2 of 2 23—CV—04254 Very Vermonty Corp. v. Yvonne Schwank