Capital One Bank (USA), N.A. v. Polchies ( 2017 )

Capital One Bank (USA), N.A. v. Polchies, 527-9-17 Wncv (Teachout, J., Oct. 30, 2017)
[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 guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 527-9-17 Wncv
CAPITAL ONE BANK (USA), N.A.
Plaintiff
v.
ROGER T. POLCHIES
Defendant
Defendant’s Motion to Dismiss, filed September 14, 2017
This is a credit card collection case. Defendant Roger T. Polchies seeks dismissal,
arguing that the complaint fails to comply with the minimum pleading requirements of V.R.C.P.
Rule 9.1. Specifically, he claims that Plaintiff Capital One Bank (USA), N.A., failed to
expressly allege in the complaint the date of default per Rule 9.1(d), and the amount of any post-
default interest claimed per Rule 9.1(e). He speculates that these pleading deficiencies were
specifically intended to undermine his argument about what interest rate (the credit card rate
versus the statutory rate) applies between the default and charge off. He asserts without citation
to any authority that “[d]ismissal is required because there is no other way to enforce the
pleading requirement.”
Capital One’s failure to expressly set forth the date of default and post-default interest
sought is technical only. The date of default may be inferred from the date of the last payment
and payment interval. The amount of interest claimed between the default and charge off can be
calculated by subtracting the amount due at default from the amount charged off. The rate and
specific calculations can be clarified through discovery.
A complaint that does not reflect a good faith attempt at complying with Rule 9.1 or
undermines its purpose may warrant dismissal or an amendment, depending on the
circumstances. The facts Defendant claims are missing are reasonably inferable from other facts
included. They do not affect issues of “standing” or limitations, nor do they cause Mr. Polchies
prejudice through failure to sufficiently identify the basis for the claim in the manner required by
Rule 9.1. Generally, “the law favors disposition of cases on their merits.” Ying Ji v. Heide, 2013
VT 81, ¶ 6, 194 Vt. 546. Here, neither dismissal nor amendment is warranted.
For the foregoing reasons, Mr. Polchies’ motion to dismiss is denied.
Dated at Montpelier, Vermont this ____ day of October 2017.
_____________________________
Mary Miles Teachout
Superior Judge