Vt. Memo to the Bar, Oct. 14, 2021

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone (802) 828-3278

FAX: 802 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, Esq., State Court Administrator

RE: Promulgated and Proposed Rules, E-Filing in the Supreme Court and Related

Education Session, Odyssey File and Serve and Public Portal Information, Filing of

Exhibits & Other Miscellaneous Info

DATE: October 15, 2021

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

and JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.

For your information, please find:

• AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 10-14-21

• Proposed Order Amending Rule 66 of the Vermont Rules of Probate Procedure

• Proposed Amendment to V.R.C.P. 50(b)

• E-filing in the Supreme Court and Related Education Session

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 10-14-21

This Order was promulgated on October 14, 2021, effective immediately.

Paragraph ¶ 2 is amended to extend the effective date of AO 49 until January 1, 2022, to allow

for continued flexibility in court operations to respond to the course of the COVID-19 pandemic.

Paragraph 22 is amended to add pleading provisions regarding foreclosure proceedings

affecting one-to-four-unit residential properties filed between August 31, and December 31, 2021.

These provisions are required to satisfy amendments of Regulation X promulgated by the Federal

Consumer Financial Protection Bureau (CFPB) requiring foreclosure plaintiffs in these cases to

attest to compliance with CFPB requirements prior to filing for foreclosure. The CFPB

amendments were designed to assist mortgage borrowers affected by the COVID-19 emergency.

The final regulation establishes temporary procedural safeguards to help ensure that borrowers

have a meaningful opportunity to be reviewed for loss mitigation before the servicer can make the

first notice or filing required for foreclosure on certain mortgages. 12 C.F.R. § 1024.41 (eff. Aug.

31, 2021).

There is a new form, Appendix C, which tracks the language of the amended rule and has boxes

to check specifically indicating compliance with, or exemption from, the requirements. Because

of the need for uniformity, the required certification must be in the form reflected in Appendix C.

The full Order and other updates regarding COVID-19 and court operations are available at

[https://www.vermontjudiciary.org/about-vermont-judiciary/covid-19-and-court-operations]

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND

HAVE NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending Rule 66 of the Vermont Rules of Probate Procedure

The proposed amendments to Rule 66 reflect and clarify current practice regarding inventories

and accounts.

Proposed Rule 66(b) is new. Rule 66(b)(1) contains a general requirement that an estate

inventory must contain a description and value of the decedent’s assets and sets forth specific

requirements for the content of inventories in the areas of real property, mobile homes, motor

vehicles, firearms, and financial institution accounts. Former Rules 66(b) and (c) are redesignated

(c) and (d) without change. New Rule 66(e) provides accounting standards consistent with 14

V.S.A. §§ 1055, 1057. Former Rules 66(d)-(f) are redesignated (f)-(h) without change. Rule 66(i)

is new. It spells out a process that enables a judge to deal with an inadequately prepared or

presented inventory or account or other failure to comply with the provisions of Rule 66(a)-(h) by

providing for their preparation “by a licensed professional with experience in fiduciary

accounting.”

Comments on these proposed amendments should be sent by December 15, 2021, to Hon.

Jeffrey Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the

following address:

Hon. Jeffrey Kilgore

Advisory Committee on the Rules of Probate Procedure

Jeffrey.Kilgore@vermont.gov

b. Proposed Amendment to V.R.C.P. 50(b)

The proposed amendment to V.R.C.P. 50(b) is in response to the Vermont Supreme Court’s

request in Blondin v. Milton Town School District, 2021 VT 2, ¶ 26 n. 10, that the Civil Rules

Committee consider whether that rule “should be amended to be consistent with the federal rule

and potentially to allow consideration of pure questions of law on appeal absent renewal

following judgment.”

V.R.C.P. 50(b) as originally adopted in 1971 was identical to F.R.C.P. 50(b) as it then stood. In

1988 the Vermont Rule was amended to add a renewal requirement. The Reporter’s Notes

indicated that this renewal requirement was implicit in Federal Rule 50(b). The U.S. Supreme

Court in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006), held that

failure to renew a pre-verdict motion for judgment as a matter of law under Rule 50(b) prevented

appellate review of a sufficiency of evidence challenge. The proposed amendment of V.R.C.P.

50(b) adopts an interpretation of Unitherm advanced by several U.S. Courts of Appeals by

limiting the requirement to renew the motion to sufficiency-of-the-evidence questions. The effect

of the amendment is to allow case-by-case development of the line between sufficiency-of-the-evidence questions and pure questions of law.

Comments on these proposed amendments should be sent by December 15, 2021, to Allan

Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following

address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

III. E-FILING IN THE SUPREME COURT AND RELATED EDUCATION SESSION

The Supreme Court is live with the Odyssey case management system and electronic filing

through Odyssey File & Serve (OFS). There was a remote education session on e-filing at the

Supreme Court on Tuesday, August 31, 2021, from 12:00-1:30 p.m. A recording of the session

and a link to the power point presentation used during the presentation is available on the

judiciary website https://www.vermontjudiciary.org/news/e-filing-supreme-court-and-related-

education-session

IV. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

As of April 1, 2021, there is a new efiling use fee structure for users of Odyssey File & Serve

(OFS). The new per case fee is $14 per filer or firm, payable upon a party’s first filing after April

1, 2021. This replaces the previous $5.25 fee per envelope model. The Judiciary encourages all

practitioners and others interested to learn more at www.vermontjudiciary.org/efiling

Currently, all trial courts, the Environmental Division, and the Judicial Bureau are using Odyssey

and accepting electronic filings through Odyssey File & Serve. Please use the following links to

access Odyssey electronic filing and portal systems and for more information.

Odyssey File & Serve. Odyssey File & Serve (OFS) is the platform through which you will

electronically file with the courts. To access OFS, please visit

https://vermont.tylerhost.net/ofsweb You can access user guides through the “User Guides” link

in the “Self Help” window. You can also access docket-specific user guides and a new Frequently

Asked Questions on the judiciary’s website at https://www.vermontjudiciary.org/about-vermontjudiciary/electronic-access/electronic-filing For technical support regarding Odyssey File &

Serve, please contact Tyler Technologies at 800-297-5377 or efiling.support@tylertech.com

If you have procedural questions about OFS, please email the judiciary at

JUD.EFileSupport@vermont.gov

Odyssey Public Portal. The Odyssey Public Portal allows you to view your case files. To access

the portal, please visit https://publicportal.courts.vt.gov/Portal/ Before you can view your case

files, you must first register in the portal and then request elevated access. The Public Portal User

Guide contains instructions on how to register and request elevated access. You can read the user

guide on our website at https://www.vermontjudiciary.org/about-vermont-judiciary/public-portal

For technical support regarding the Public Portal, please contact the Vermont Judiciary’s

HelpDesk at Jud.helpdesk@vermont.gov When emailing, please write “Public Portal” in the

subject line.

Efiling Training Opportunities

Watch a pre-recorded efiling training webinar from the Vermont Judiciary. The judiciary’s

NG-CMS project team recorded a demonstration of how to use Odyssey File & Serve that you

can view here: https://www.youtube.com/watch?v=ke2ouMDK4VQ&feature=emb_title

Practice setting up your firm and submitting filings. For hands on practice, you can create

your firm, register users, and begin filing practice cases in the Vermont “Stage” environment. Be

sure that the web address includes the word “stage” (https://vermont-stage.tylerhost.net/ofsweb).

The Stage environment is available any time. Please note that submissions will only be reviewed

periodically, so you may not get a timely response on whether your practice submissions have

been accepted. The Stage environment is available now only for familiarity and direct hands-on

experience and is not a substitute for registering on the actual efiling site when you are ready.

V. FILING OF EXHIBITS

Per the 2020 Vermont Rules for Electronic Filing, all electronically filed documents (including

exhibit lists and exhibits) must be submitted in PDF format. It is recommended that the exhibit list

be filed in Odyssey File & Serve (OFS) as a “Lead Document” and that any PDF exhibits be filed

as attachments to that exhibit list.

Multimedia files that cannot be converted to PDF format should be submitted by nonelectronic

means on a CD, DVD, or USB flash drive (aka thumb drive) and can be mailed or delivered to the

court. It is recommended that filers indicate this on the exhibit list being filed in OFS. Please note

that while the courts are equipped to view common multimedia formats (such as .mp3, .mp4,

.mpeg, .mov, .wmv files), the filer will have to provide compatible player software if an exhibit is

in a proprietary multimedia format.

Finally, please remember that regardless of how an exhibit is filed, it is the filer’s responsibility

during a hearing to present the exhibits. During remote hearings, this means the filer must either

assure that all witnesses have been provided with the marked exhibits in advance and have them

available to view; or be able to share his or her screen to allow all participants to view the exhibit.

If the exhibit is a video or audio file, the litigant must be prepared to play it during the hearing.

VI. MISCELLANEOUS

a. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most up-to-date forms, https://www.vermontjudiciary.org/court-forms

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page.

b. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within

thirty days any change of the office mailing or electronic mail address” and that “[n]otice sent to a

reported address is sufficient even if not received by the attorney because of failure to report the

proper address or failure of delivery not caused by the court.” A.O. 41, § 4(c). To update changes

in your contact information, please access your attorney account with the Attorney Portal

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

and JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.

c. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email

addresses in eCabinet for purposes of receiving notices of hearing and other documents. You may

include staff email addresses in the three email addresses that you specify.

If you have already registered in eCabinet, the email address(es) you provided as part of that

process will be used.

If you have not already registered in eCabinet, please go to

https://efiling.eservices.crt.state.vt.us/ click Register Now, and follow the simple prompts. This

website works best with Explorer. Attorneys will need their attorney license numbers to register.

Helpful information about the Attorney Email Registration process is also available on the

Electronic Filing page of the judiciary website at https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing Please contact jud.helpdesk@vermont.gov

or call the Helpdesk at 802-828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff email

addresses you may have included with your registration. To revise the information, please go to

https://efiling.eservices.crt.state.vt.us/ log into eCabinet, click “Account,” choose “My

Profile,” and make the necessary changes to your contact information.

Updating information in the Attorney Portal or in eCabinet does not automatically notify the

other. It is your responsibility to update both. If you are a member of the Vermont Bar

Association, you will also need to separately notify the VBA.