## Facts

- Caroline and Gary Marini purchased a home in Middlebury, Vermont in 2005.
- In 2009, Gary sought a loan secured by the home; Caroline opposed additional borrowing and told the loan source she did not want the loan.
- A \$311,200 note was executed in 2009; the recorded mortgage listed both spouses as borrowers and was later assigned to Bank of America and then to EverBank.
- Caroline asserted she signed the mortgage only after Gary threatened her in the presence of their children by berating her and waving scissors, causing her to fear for safety.
- When the notary asked if her signing was her free act and deed, Caroline responded “it is what it is” and signed.
- The Marinis stopped making payments in 2011, and the lender filed a foreclosure action; Caroline raised duress as a defense to enforcement against her.
- After the loan, Caroline contacted the assignee to report she had opposed the loan and had been pressured into signing; she also made payments for a period, and the household benefitted from proceeds used to pay other debt.

## Issues

1. Whether Caroline’s execution of the mortgage under threats by her spouse rendered the mortgage void, rather than voidable.
2. Whether summary judgment could resolve (a) voidability and (b) whether Caroline later ratified the mortgage through post-signing conduct.
3. Whether EverBank, as an assignee, could enforce the mortgage by invoking bona fide purchaser status despite Caroline’s duress defense.
4. Whether the trial court abused its discretion in denying EverBank’s Rule 59(e) motion asserting unjust enrichment after summary judgment was entered.

## Decision

- The Vermont Supreme Court reversed the grant of summary judgment to Caroline on the ground that the mortgage was void and directed entry of judgment for EverBank on the “void” issue.
- The Court remanded for trial on whether the mortgage was voidable due to duress and, if voidable, whether Caroline ratified it.
- The Court affirmed the ruling that the bona fide purchaser doctrine was unavailable to EverBank.
- The Court held there was no abuse of discretion in denying EverBank’s Rule 59(e) motion; after reversal of the underlying judgment, the Rule 59(e) dispute was effectively moot.

## Legal Principles

- Contracts executed under duress are generally voidable, not void; treating an agreement as void is limited to narrow circumstances.
- Where duress is asserted, post-execution conduct (including acceptance of benefits and performance) may support ratification, and fact disputes about voidability and ratification ordinarily require trial.
- An assignee of a mortgage generally takes subject to defenses and equities that could be asserted against the assignor; the bona fide purchaser doctrine did not shield the assignee on these facts.
- Rule 59(e) is not a vehicle to raise new theories that could have been asserted before judgment (such as unjust enrichment in response to summary judgment briefing).

## Conclusion

The court held that a mortgage signed under alleged threats of physical harm was not void as a matter of law, requiring trial to determine voidability and possible ratification, while also rejecting the assignee’s attempt to avoid the homeowner’s defense through bona fide purchaser status and upholding denial of a post-judgment motion that introduced an untimely unjust enrichment theory.


EverBank v. Marini, 200 Vt. 490, 134 A.3d 189 (Vt. 2015)