Bank of N. Y. Mellon v. Mellin

• Court: Superior Court of Maine
• Decided: October 23, 2012
• Docket: CUMre-12-119
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION ( r:_j)Tv~.,; .. i'RE-12~1 Docket No !{ 1 ' 1,, 7 10 Z3f._.o 1...._, ··- /

BANK OF NEW YORK MELLON,

Plaintiff

v. ORDER

ALICE MELLIN, et al,

Defendants OCT 2 3 2012 RECE~\/ED Before the court is a motion by defendant Melco LLC to dismiss the complaint on

res judicata grounds.

This is the third skirmish between BNY and the defendants relating to a

foreclosure action brought by Alice Mellin and Melco against certain property in

Yarmouth on which BNY also held a mortgage. Mellin v. Coyne, RE-10-22 (Superior Ct.

Cumberland, judgment of foreclosure entered November 23, 2010). The background of

the previous two skirmishes is set forth in this court's March 2012 decision in a prior

action between the parties, Bank of New York Mellon v. Mellin, et al, RE-11-421

(Superior Ct. Cumberland) and will not be repeated here.

The issue in this case is whether, having defaulted when named as a party-in-

interest in the foreclosure action brought by Melco and Alice Mellin, BNY may now

bring a separate action to challenge alleged deficiencies in the manner in which the

foreclosure sale was conducted. At that sale Alice Mellin, one of the parties who had brought the foreclosure action, purchased the Yarmouth property for approximately

$98,000. 1

A logical argument can be made that BNY' s default should preclude BNY from

challenging any deficiencies in the sale as well as challenging the foreclosure itself.

However, in a relatively recent case a defendant who had appeared in a foreclosure

action and had not prevailed then filed a Rule 60(b) motion and two separate actions

challenging aspects of the foreclosure. Keybank N.A. v. Sargent, 2000 ME 153, 758 A.2d

528. Sargent's Rule 60(b) motion was denied on the ground that the arguments

presented in her Rule 60(b) motion could have been raised in the original action. That

denial was affirmed by the Law Court. 2000 ME 153

she had filed after the foreclosure was dismissed because the trial court ruled that the

claims raised were claims that would have been compulsory counterclaims in the

foreclosure action and were therefore barred. That dismissal was also affirmed by the

Law Court. 2000 ME 153

However, both the trial court and the Law Court considered the third separate

action filed by Sargent - an action challenging deficiencies in the public sale held after

the judgment of foreclosure- on the merits. 2000 ME 153

the court held that a foreclosure proceeding and a subsequent public sale did not

constitute a "unified action" for purposes of determining whether errors in the public

sale would vitiate the entire foreclosure action. 2000 ME 153

Given that Sargent's challenge to alleged deficiencies in the foreclosure sale was

considered on the merits and given the Law Court's decision in Sargent that the

1 This court can take judicial notice of its own records. See, ~ Currier v. Cyr, 570 A.2d 1205, 1207-08 (Me. 1990); Warren v. Waterville Urban Renewal Authority, 290 A.2d 362, 367 (Me. 1972). In considerjng Melco's res judicata argument, it has considered the court file in Mellin v. Coyne, RE-10-22, and the court file in the prior action between the parties, RE-11-421.

2 foreclosure judgment and the ensuing public sale were not part of a unified action, the

court concludes that BNY' s challenge to the public sale in this case is not foreclosed by

res judicata.

The entry shall be:

Defendant Melco LLC' s motion to dismiss is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: October "P 'L- 2012

~ Thomas D. Warren Justice, Superior Court

3 THE BANK OF NEW YORK MELLON VS ALICE MELLIN ET AL UTN:AOCSsr -2012-0035984 CASE #:PORSC-RE-2012-00119

01 0000003412 BALS LEE ONE CANAL PLAZA SUITE 600 PORTLAND ME 04101-4035 F MELCO LLC DEF RTND 05/29/2012

02 0000004286 SHAPIRO VICTOR 1080 MAIN STREET PAWTUCKET RI 02860 F THE BANK OF NEW YORK MELLON PL RTND 04/17/2012 -