Dartmouth College v. Kozaczek, 2010 VT 113 (mem.).
What’s an Ivy-league-educated pro se to do when Dartmouth comes knocking to get its Big Green back? Fight, fight, fight (against) Dartmouth! In this debt collection appeal, a Dartmouth College alum allegedly owed the institution $17,743 plus interest on three student loans. The aspiring young Daniel Webster, says Dartmouth “misrepresented” its financial aid package, but this young orator never got to make his closing speech to the jury. Instead, Dartmouth landed summary judgment when "Webster" failed to adequately respond not once, but twice, to Dartmouth’s requests to admit, and the trial court deemed them all admitted. On appeal, Webster put up a decent fight, latching onto some clever (and some not-so-clever) procedural-defect arguments. Ultimately, however, the Big Green prevailed and received $950 in attorney’s fees.
The opinion is a must-read for all Civil Procedure students daydreaming about ways to avoid paying back their student loans. We call it: The Pro Se’s Guide to Never, Ever, Ever Escaping Your Higher Education Debt. See also "No Bankruptcy Discharge, Either!" It is your standard three-act drama with a twist and apologies to Stephen Vincent Benet at the end.
Act I.: If the Institution doesn’t file the complaint within 20 days after serving you, you must move to dismiss. Apparently, Dartmouth filed the complaint twenty-nine days after serving Webster—nine days late under V.R.C.P. 3’s commencement by service standard. (Take note: as SCOV explains, there is a difference between commencement by service and commencement by filing! Serve, then file . . . or file, then serve.) Webster cited the defect in his appeal, but he waived the claim by never moving to dismiss the action at trial.
Act II: Arguing lack of state court jurisdiction won’t succeed if jurisdiction does, indeed, exist, and the Institution eventually amends its complaint to invoke it. Dartmouth’s initial complaint “failed to identify the plaintiff or the jurisdiction in which plaintiff resides.” (Odd.) Dartmouth quickly cottoned onto the defect and moved to amend at the same time that it filed its original complaint, taking advantage of V.R.C.P. 15(a)’s “once as a matter of course” rule. Webster also tried to argue that the decision to grant leave to amend was improperly based on the fact that Dartmouth’s “original complaint overstated the amount due,” but SCOV aptly pointed out that the trial court made this decision in favor of Webster and let it stand.
Act III: (the important denouement) When the Institution sends you Rule 36 Requests to Admit, you must send back more than, “[t]his is not a request to admit,” especially after the trial court gives you a second chance. This is how Webster responded to Dartmouth’s requests to admit—apparently on the basis that these so-called “requests” did not begin with a phrase such as “do you admit?” Webster persisted with this tactic even after the trial court kindly recognized that Webster was appearing pro se, denied Dartmouth’s first motion for summary judgment, explained the possible choices for responding to each request to admit, gave him more time, and attached a copy of the relevant rules. On appeal, Webster argued that the trial court never gave him the option of objecting amid its list of possible responses. Once again, very clever . . . but Denied. “Responses” and “objections” are not one and the same; the list did not foreclose “objections.”
Additionally, when given the second chance to respond to the Requests to Admit, Webster did in fact add the word “OBJECTION” to each of his “this is not a request to admit” responses. The SCOV declared that these “objections,” however, failed to provide the requisite specificity and clarity to allow the trial court to actually respond to the objection. And given the fact that the trial court used its discretion to extend additional time and instructions, Webster’s bias argument fails as well. “[A]dverse rulings alone do not show bias.”
The final tip: don’t wait until the appeal to object to the Institution’s fees claim. Dartmouth made a claim for attorney’s fees based on provisions in its promissory notes, but again, Webster never objected at the trial court level. SCOV not only found that Webster had waived any objection to the fees award, but also that the fees were proper and definitely not excessive at a slim $950. So our Webster not only loses to the devil in this tale but has to front the attorney's fees of the damned.
Those of us at SCOV Law Blog and our readers are perhaps having a bit of a chuckle at young Webster’s failings here in dealing with the court process. But if a Dartmouth College grad gets so tangled in procedure that he never gets a chance to proffer his defense, what befalls the less-well-educated? Is our knowledge of how to properly navigate the Civil Rules worth the extra $100,000+ in student loan debt that we have incurred? Maybe we would be happier if we didn’t understand the Rules and instead owed a mere $17,000 and change on our loans. It seems to us that Webster was just educated enough to get himself into trouble, but at the end of the day, he may be the one still having the last laugh.