Date: Aug 8, 2026

Usury as a Waivable Affirmative Defense: Vermont Requires Reassertion at Summary Judgment and Permits Enforcement at the Legal Interest Rate Absent a Preserved § 50(b) Claim

1. Introduction

In Christopher Huber v. Janet Currie (2026 VT 36), the Vermont Supreme Court addressed whether a borrower who pleaded usury in an answer—but did not reassert it in opposition to summary judgment—could later reopen a partial summary-judgment ruling to invoke the statutory usury penalty. Plaintiff-appellee Christopher Huber loaned defendant-appellant Janet Currie $185,000 under a contract that, on its face, required repayment of $370,000 in about six months (an annualized rate the Court described as 200%). Currie did not repay and did not execute promised collateral documents.

The key issues were: (1) whether usury under Vermont law must be timely and properly raised as an affirmative defense at the summary-judgment stage; (2) whether a facially usurious contract obligates a court to impose the harsh penalty in 9 V.S.A. § 50(b) even if the defense was not preserved; (3) whether an equitable lien could be imposed given allegations of unclean hands; and (4) whether the trial court erred by failing to rule on Currie’s third-party claims.

2. Summary of the Opinion

The Court affirmed judgment for Huber on the breach-of-contract claim and affirmed the trial court’s refusal to vacate the partial summary-judgment ruling. It held the trial court acted within its discretion in concluding Currie waived (in the civil preservation sense) the usury defense by failing to reassert it in response to Huber’s summary-judgment motion. Because the usury defense was not properly preserved, the trial court was not required to adjudicate unlawful intent under § 50(b).

The trial court nevertheless awarded only the principal ($185,000) plus statutory interest at 12% (not the contract’s illegal rate), and imposed an equitable lien on the Orwell property. The Supreme Court upheld that remedy, reasoning that Currie’s unclean-hands argument depended on the unpreserved usury contention.

The Court remanded for the trial court to consider and rule on Currie’s third-party claims, because they remained outstanding and the trial court had indicated it would address them.

3. Analysis

A. Precedents Cited

1) Vermont usury doctrine and “unlawful intent”

Farnsworth v. Cochran, 125 Vt. 174 (1965): Cited for the definition of a usurious contract—where charges exceed the lawful return “in addition to the interest stipulated.” This anchored the Court’s acknowledgement that the contract here was facially extreme.
Farmers' Bank v. Burchard, 33 Vt. 346 (1860): Provided two critical principles: (i) usury within the law requires unlawful intent “knowingly to contract for, or to take usurious interest”; and (ii) where a contract “upon its very face, imports usury,” intent may be apparent. Yet, the Court used the same case to support severability and enforcement up to the lawful rate where only the “excess” is forbidden.
Lowell & Austin, Inc. v. Truax, 146 Vt. 448 (1985): Clarified the intent inquiry—usury turns on intent to exact more than the law allows, not merely intent to impose the charges.
Irish v. Clayes, 10 Vt. 81 (1838) and Austin v. Chittenden, 33 Vt. 553 (1861): Used to distinguish “void” from “voidable” in the usury context and to reinforce that usury protections are for the borrower, who must “take advantage of the law.” These cases supported the Court’s core holding that a usurious contract may stand unless properly avoided through litigation.

2) Procedural preservation: affirmative defenses must be reasserted at summary judgment

Vineyard Brands, Inc. v. Oak Knoll Cellar, 155 Vt. 473 (1990): Cited for the rule that “Usury is an affirmative defense.” This classification was decisive because affirmative defenses carry procedural burdens at the summary-judgment phase.
State of Vt. Agency of Nat. Res. v. Parkway Cleaners, 2019 VT 21: The central procedural precedent. Even if an affirmative defense is pleaded in an answer, it must be reasserted in opposition to summary judgment; failure results in waiver (as Vermont civil cases use the term). The Court treated Currie’s situation as materially indistinguishable.
Zlotoff Found., Inc. v. Town of South Hero, 2020 VT 25 and Campbell v. Stafford, 2011 VT 11: Supported the principle that a court may decline to consider new theories raised only after summary judgment when they could have been raised earlier.
Mintz v. Matalon, 148 Vt. 442 (1987) and Kelly v. Town of Barnard, 155 Vt. 296 (1990): Distinguished pleading-stage minimalism from summary-judgment evidentiary obligations. At summary judgment, a party may not rest on pleadings; it must set forth specific facts showing a genuine issue for trial.
Bostock v. City of Burlington, 2011 VT 89: Provided the abuse-of-discretion standard for a trial court’s refusal to revise an interlocutory summary-judgment ruling under V.R.C.P. 54(b).
Adamson v. Dodge, 174 Vt. 311 (2002): Invoked to emphasize finality and the limited circumstances for undoing judgments/orders.

3) Pro se litigants and enforcement of procedural rules

Nevitt v. Nevitt, 155 Vt. 391 (1990): The court is not responsible for providing affirmative help to self-represented litigants.
In re Verizon Wireless Barton Permit, 2010 VT 62: Courts may enforce procedural rules equitably against pro se litigants; judges are not to suggest arguments to parties.

4) Illegality, severability, and equitable doctrines

Lewis & Queen v. N. M. Ball Sons, 308 P.2d 713 (Cal. 1957): Currie’s out-of-state authority for the proposition that courts should not “lend assistance” to illegal arrangements regardless of pleadings. The Vermont Supreme Court found it unpersuasive because Vermont treats usury as an affirmative defense requiring preservation and proof, and because Vermont law can enforce a usurious contract up to the legal rate.
Osgood v. Cent. Vt. Ry. Co., 77 Vt. 334 (1905): Supported the severability principle—reject the illegal part and retain the legal part when severable— which undergirded enforcing principal plus lawful interest rather than the contract’s illegal excess.
Crocker v. Brandt, 130 Vt. 349 (1972): Cited for caution about imposing statutory penalties against public policy; the Court characterized § 50(b) as a “harsh penalty,” reinforcing restraint where the defense was not preserved.
Shattuck v. Peck, 2013 VT 1 and Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22 (1996): Shattuck was distinguished; it denied equitable relief due to the claimant’s own unclean hands, whereas Currie sought to invoke unclean hands against Huber based on unpreserved usury. Samplid was cited for affirming on alternate grounds when the result is correct.
Associated Mortg. Invs. v. Haystack Corp., 140 Vt. 125 (1981): Supported remand when a third-party complaint is not properly resolved.
State v. Gurung, 2025 VT 52 and Follo v. Florindo, 2009 VT 11: Used to clarify terminology: Vermont distinguishes waiver/forfeiture more formally in criminal cases and generally limits plain-error review in civil cases.

B. Legal Reasoning

Standard of review and trial-court discretion (V.R.C.P. 54(b)). Because the challenged ruling was a partial summary-judgment order, the trial court had discretion to revise it before final judgment. The Supreme Court reviewed only for abuse of discretion and found none.
Usury is an affirmative defense and must be litigated at summary judgment. The Court treated usury like other affirmative defenses: pleading it in an answer is not enough once the case reaches summary judgment. Under Parkway Cleaners, the defense must be reasserted with record support when opposing the motion. Currie’s opposition did not argue usury (or any affirmative defense), and her answer’s conclusory allegation did not satisfy V.R.C.P. 56.
No sua sponte imposition of § 50(b) penalty. Currie argued that because the contract was facially usurious, the court had an independent obligation to apply § 50(b) (half principal, no interest). The Court rejected this: making § 50(b) automatic would undermine the characterization of usury as an affirmative defense and the procedural requirements for raising it. Vermont usury law is framed as borrower-protective and avoidable; it is not a nonwaivable jurisdictional defect.
Enforcement of the “good” part: principal plus legal interest. With usury not properly preserved for § 50(b) adjudication, the trial court enforced the contract but limited interest to the statutory rate. The Supreme Court relied on Vermont’s severability principle (Osgood v. Cent. Vt. Ry. Co.) and older usury doctrine (Farmers' Bank) that the “excess” is what is forbidden.
Equitable lien not undone by unclean hands where the predicate (usury) was not reached. Currie’s unclean-hands theory depended on establishing usury. Because the trial court properly declined to reopen that issue, the Supreme Court did not reach unclean hands and upheld the equitable lien.
Third-party claims must be resolved. Even though Currie did not highlight the third-party issues in post-trial briefing, the trial court had notice and indicated it would rule. The absence of a ruling required remand.

C. Impact

Procedural clarity with substantive consequences. The decision strongly signals that in Vermont civil practice, an affirmative defense—even one supported by obvious documents in the record—can be lost if not reasserted and supported at the summary-judgment stage.
Limits on courts “saving” parties from usurious bargains. Even where a contract appears facially usurious, courts are not required to impose § 50(b)’s penalty sua sponte; usury remains borrower-invoked and borrower-proved.
Remedial path for lenders where § 50(b) is not established. The opinion reinforces that Vermont courts may enforce repayment of principal and award only lawful interest (rather than voiding the entire agreement) when the usury penalty is not properly in play.
Trial-court housekeeping: third-party claims require explicit disposition. The remand underscores that unresolved third-party complaints can prevent complete finality and must be addressed expressly.

4. Complex Concepts Simplified

Usury: Charging or contracting for interest above the lawful rate (here, generally 9 V.S.A. § 41a). Vermont also focuses on whether the lender had the requisite intent to exact an unlawful amount.
9 V.S.A. § 50(b) “harsh penalty”: If the lender knowingly or willfully contracts for interest above the legal rate, the lender may collect only one-half of the principal and no interest. The Court treated this consequence as nonautomatic: it applies only if properly raised and established.
Affirmative defense: A defense the defendant must raise and support. It is not enough to deny liability; the defendant must timely assert the defense in a way that complies with procedural rules—especially at summary judgment.
Summary judgment (V.R.C.P. 56): A stage where the court can decide claims without trial if there is no genuine dispute of material fact. The nonmoving party must cite evidence; it cannot rely on bare pleadings.
“Waiver” in Vermont civil preservation: The Court used “waiver” to mean the issue was not preserved under civil procedure (distinct from the criminal-law concept requiring intentional relinquishment).
Severability: If part of a contract is illegal (e.g., excessive interest), a court may sometimes enforce the legal part (repayment of principal and lawful interest) and reject the illegal excess.
Unclean hands / equitable lien: “Unclean hands” can bar equitable remedies if the party seeking equity engaged in improper conduct connected to the claim. An “equitable lien” is a court-imposed security interest to prevent unjust results. Here, the unclean-hands theory depended on proving usury, which was not reached.

5. Conclusion

Christopher Huber v. Janet Currie establishes a practically significant Vermont rule: usury is a waivable affirmative defense that must be reasserted and supported at the summary-judgment stage, and a court is not required to impose 9 V.S.A. § 50(b) sua sponte simply because a contract appears facially usurious. When § 50(b) is not properly preserved and proven, Vermont courts may enforce repayment while limiting interest to the statutory legal rate and may grant related equitable remedies. The decision also reinforces that trial courts must expressly resolve third-party claims to complete the case, prompting a limited remand.