Bank of America v. Long

• Court: Superior Court of Maine
• Decided: October 15, 2015
• Docket: CUMre-13-124
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CMLACTION Docket No. RE-13-124

/ BANK OF AMERICA, N.A., _....-. STATE OF MAINE Plaintiff Cumberland, ss. Clerk's Office v. ORDER OCT 1 6 2015 GARY W. LONG, et al., RECElVED_ Defendants

Before the court is plaintiff's second motion for relief from judgment. Judgment

was entered in favor of defendants on 4/16/15. Plaintiff first moved for relief and to

vacate judgment for defendants on 6/4/15. The court denied that motion on 8/6/15.

Plaintiff filed a second motion for relief from judgment on 8/26/15. In the second

motion, plaintiff reasserts the argument from its first motion that it lacked standing to

foreclose. A court's final decision on a Rule 60(b) motion bars successive Rule 60(b)

motions on the same grounds. See Willette v. Umhoeffer, 268 A.2d 617, 618 (Me. 1970)

(holding that res judicata applies to Rule 60(b) motions).

Plaintiff's reliance on Homeward Residential, Inc. v. Gregor, decided since the

court's order on plaintiff's first motion, does not change this result. 2015 ME 108, _

A.3d _ . In Homeward Residential, the trial court determined the plaintiff lacked

standing after considering the exhibits and testimony admitted at trial. Id. <_[<_[ 9-11. In

contrast, there was no trial in this case, and there is no record or evidence on which to

consider plaintiff's argument. As a result, the court could not conclude that plaintiff

lacked standing even if this motion were not barred. The entry is

Plaintiff's Motion for Relief from Ju

Dated: October 15, 2015 cy Mills Justice, Superior Co

CUMB RE-13-124. II

JOHNNEYESQ SHECHTMAN HALPERIN SAVAGE 1080 MAIN ST PAWTUCKET RI 02860

MARK KEARNS ESQ PO BOX 17915 PORTLAND ME 04112

JOSHUA DOW ESQ c,P-r -:r: e;,tp~ (",..,.. J. -f U'""' .~ d--... PEARCE & DOW LLC PO BOX 108 PORTLAND ME 04112-0108 tvJI STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-13-124

BANK OF AMERICA, N.A.,

Plaintiff

v. ORDER

GARY W. LONG, et al., AUG 06 2015 Defendants )rr.: '~r~·r ·iFf) -"'S.~AJik.,& 'ij o..,..~., Before the court is plaintiff's motion for relief and to vacate judgment for

defendants. Plaintiff appeared on 3 I 6 I 15, the date for trial, and moved to dismiss the

complaint because plaintiff was not prepared for trial and had no witnesses. Judgment

was entered in favor of defendants on 4116115. No trial was held and there is no

record or evidence on which the court can consider the argument plaintiff now makes.

Plaintiff does not address this issue in its reply to defendants' objection. (Def.'s Obj. 6.)

Further, assuming the record after trial in the Superior Court established that

plaintiff "does not appear to own the mortgage and lacks standing to foreclose," that

fact would not provide a basis to vacate a judgment for defendants. See Nationstar

Mortgage, LLC v. Halfacre, PORSC-RE-2012-102 (Me. Super. Ct., Cum. Cty., July 23,

2015); (Pl.'s Mot. 3).

The entry is

Plaintiff's Motion for Relief and to Vacate Judgment for Defendants is DENIED

Dated: August 5, 2015 cy Mills Justice, Superior

Plaintiff-Jeffrey Hardiman Esq Defendants-Mark Kearns Esq ~) STATE OF MAINE SUPERIOR COURT . CUMBERLAND, ss CIVIL ACTION Docket No. RE-13-124

GREEN TREE SERVICING, LLC SUBSTITUTED 01 I 2014 aka BANK OF AMERICA, N.A., SUB 01 I 2014,

Plaintiff JUDGMENT v.

GARY W. LONG and SUSAN M. LONG,

Defendants

EVERGREEN CREDIT UNION and UNIFUND CCR PARTNERS,

Parties-in-Interest

By notice dated 1 I 13 I 15, this case was called to trial on 3 I 6 I 15. Prior to trial, on

11119113, a report of non-compliance was issued against plaintiff. On 2119115, the

court granted defendants' unopposed motion and required that plaintiff provide all

trial exhibits to defendants fourteen days prior to trial. On 3 I 3 I 15, defendants filed a

motion in limine to exclude documents not provided to defendants, including any

assignments that had not been provided as of 312115, and to exclude any documents

for which the one witness listed by plaintiff could not provide a sufficient foundation.

On 3 I 6 I 15, plaintiff's counsel appeared and moved to dismiss its complaint

because it was not prepared for trial and had no witness. Plaintiff relied on the Greeleaf

and Chartier decisions to argue it could not proceed. See CitiMortgage v. Chartier, 2015

ME 17, -- A.3d --; Bank of America, N.A. v. Greenleaf, 2014 ME 89, 96 A.3d 700. Although plaintiff may have had a Chartier issue, plaintiff admitted it lacked the

assignments mandated by Greenleaf? See Greenleaf, 2014 ME 89,

Greenleaf was decided on July 3, 2014.

This case differs from OneWest Bank, FSB v. LaRoche. See OneWest Bank, FSB

v. LaRoche, Mem-15-15 (Mar. 3, 2015); Mem-15-23 (April 2, 2015). The judgment of

foreclosure in LaRoche was issued before the Greenleaf decision. In LaRoche, the Law

Court originally remanded for entry of judgment for defendant but reconsidered,

vacated that judgment, and remanded for dismissal of the complaint. OneWest Bank,

FSB, Mem-15-15 (Mar. 3, 2014); Mem-15-23 (Apr. 2, 2015). In this case, plaintiff was on

notice of the Greenleaf requirements for nine months.

As defendants' counsel stated at trial, he had no idea what to expect when he

entered the courtroom for trial. Because plaintiff had filed no motion to continue or

motion to dismiss, counsel determined plaintiff might have obtained assignments and

witnesses necessary to proceed to trial. Instead, the first notice to the court and

defendants that plaintiff could not prove its case was given on the morning of trial.

In the report of noncompliance, the mediator stated:

It is the opinion of this mediator that the Plaintiff has completely disregarded the agreed to dates from the previous mediation session. The lack of response in meeting the agreed upon dates of the previous agreement is unnecessarily delaying this process and wasting court resources. Additional interest costs, fees, and costs are being added to the loan as it drags on as well as the Defendant's Counsel's fees and expenses.

(Report of Non-Compliance filed 11 I 19 I 13.) In its response, plaintiff agreed that at the

second mediation, the loan was still under review, there was no update to provide, and

1 Plaintiff stated that if the Greenleaf assignment is missing, there is no entity to send the Chartier demand.

2 a firm date for completion of the review could not be given. Plaintiff noted only the

large volume of modifications being reviewed by plaintiff and the potential benefit to

defendants if the modification took place. (Pl.'s Response to Report of Non-Compliance

filed 12/10/13.)

The mediator's comments apply to plaintiff's handling of this case since the

mediations. At trial, plaintiff did not identify any efforts made to address the Greenleaf

issues it faced. Plaintiff argued instead that its lack of standing required a dismissal

without prejudice. Plaintiff's nine-month awareness of lack of standing cannot be used

as a shield against its neglect of a lawsuit.

Judgment is entered in favor of Defendants Gary W. Long and Susan M. Long and against Plaintiff Green Tree Servicing, LLC Substituted 01/2014 aka Banko£ America, N.A., Sub 01/2014 on Plaintiff's Complaint.

Dated: t;. I~ ·15

Plaintiff-Jeffrey Hardiman Esq/Monica Shoenbaum Esq Defendants-Mark Kearns Esq PII Evergreen CU-Joshua Dow Esq