Order Page 1 of 3
23-CV-04070 Hilarie Tolstoi v. Kathleen Wilson
However, the court was not able to find any cases indicating that a landlord must provide the
public housing agency with both the notice of termination and the eviction complaint. On the contrary,
the only case that the court found was one holding that the landlord must provide the public housing
agency with “either” the notice to vacate “or” the complaint, but that the federal regulation does not
require the landlord to provide both. Trahan v. 2010 Beglis, LLC, 81 So.3d 192, 197 (La. Ct. App.
2011).
Here, plaintiff provided the public housing agency with a copy of the notice of termination.
This satisfied the purpose of the federal regulation: the notice of termination provided the agency with
the information it needed to communicate with the tenant and the landlord about the possible eviction.
Calciano, 2010 WL 1930323 at *1. An additional notice of the same eviction would not further the
regulatory purpose. For this reason, in the absence of contrary authority, the court does not interpret
the federal regulation as requiring the landlord to provide the public-housing agency with both types of
the “owner eviction notice.”
The second issue involves ownership of the rental property. Plaintiff filed this eviction
complaint in her own name, but conceded at the rent-escrow hearing that the property is owned by a
limited-liability company called Wistol LLC, and that defendant’s rental agreement is with the limited-
liability company. Plaintiff represented that she is the sole owner of the LLC. However, that does not
mean that she and the LLC are interchangeable legal entities.
Vermont Civil Procedure Rule 17(a) requires lawsuits to be brought in the name of the “real
party in interest,” meaning the legal entity who has “the right to be enforced,” rather than whomever
has “the ultimate beneficial interest.” Vt. R. Civ. P. 17(a) & Reporter’s Notes; 6A Wright, Miller,
Kane & Marcus, Federal Practice and Procedure: Civil 3d § 1543. Here, plaintiff asserts that she is the
one who ultimately benefits from any rent paid to the LLC, but she admits that the LLC is the owner of
the property and the landlord who is entitled to judgment for possession of the property. For this
reason, the LLC should be named as the plaintiff in this eviction complaint, rather than Ms. Tolstoi in
her individual capacity.
At the rent-escrow hearing, the court said that it would allow plaintiff to amend the complaint
verbally on the record to effectuate this change, but the court should not have done that, because it did
not afford defendant an adequate opportunity to be heard on the motion. 6 Wright & Miller, Federal
Practice and Procedure: Civil 3d § 1485. For this reason, and for purposes of documentation and
clarity, the court will (1) deny plaintiff’s motion for payment of rent into court, because it was not filed
by the legal entity entitled to enforcement of the rental agreement, and (2) require plaintiff to file a
motion to substitute a party or to amend the complaint within 30 days of the file-stamped date of this
order, e.g., Vt. R. Civ. P. 17(a); South Burlington Mechanical and Elec. Contractors, Inc. v. Graybar
Elec. Co., Inc., 138 Vt. 580, 581 (1980). As outlined in Graybar Elec. Co., this is the preferred
procedure for addressing this situation, rather than dismissal of the case. The motion for rent escrow
may be renewed upon the filing and service of the motion to substitute a party or amend the complaint.
For these reasons:
(1) Plaintiff’s Motion for Payment of Rent into Court is denied;
(2) Defendant’s Motion to Dismiss is denied; and