Drouin v. Wells Fargo Bank

2014 DNH 240

• Court: District Court, D. New Hampshire
• Decided: November 17, 2014
• Docket: 14-cv-271-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Drouin and Kathleen Drouin

v. Civil No. 14-cv-271-LM Opinion No. 2014 DNH 240 Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2004-2, Asset-Backed Certificates, Series 2004-2

O R D E R

For several years, Michael and Kathleen Drouin

(“Plaintiffs”) have fought in the state and federal courts to

enjoin the defendant, Wells Fargo Bank, N.A. (“Wells Fargo”),

from foreclosing on their mortgaged property. The present issue

arose when Wells Fargo removed a suit filed by the Plaintiffs

from state court to federal court, completely unaware that the

state court had already entered an order dismissing the action.

The Plaintiffs have now filed a Motion to Void Dismissal and

Continue Case and for Related Relief which, for the reasons that

follow, is denied.

Factual Background

While a contested foreclosure is not uncommon in this

court, the specific circumstances involved in this case are

rather unusual. Plaintiffs filed an ex parte petition for a temporary restraining order and a request for preliminary

injunction on May 19, 2014, in the Rockingham County Superior

Court, seeking to enjoin Wells Fargo from foreclosing on their

home. Ultimately, the superior court (Delker, J.) issued an

order denying the preliminary injunction and dismissing the case

with prejudice on grounds of collateral estoppel and res

judicata.

Although the superior court order was signed on May 28,

2014, by Judge Delker, the clerk of court did not mail it to the

parties until June 18, 2014. On the very same day, June 18,

2014, Wells Fargo filed a removal petition in this court based

on diversity jurisdiction, unaware that the case had been

dismissed. Upon receiving notice of the superior court’s order

two days later, on June 20, 2014, Wells Fargo filed a notice of

dismissal with this court and the case was closed.

Plaintiffs then filed the instant motion, contending that

the superior court’s order of dismissal is unenforceable because

the case was removed to this court at, or prior to, the time

that the order of dismissal took effect.

Discussion

“It is axiomatic that an order is effective from the time

it is signed by the court.” State v. Martin, 761 A.2d 516, 519

(N.H. 2000); see also Depuy v. Hoeme, 775 P.2d 1339, 1343 (Okla.

2 1989) (“A judgment or order is rendered and begins its legal

life as soon as it is pronounced from the bench and before it is

ever reduced to writing for entry of record by the clerk . . .

[A]ny judgment or order is operative from the moment it is

announced . . . .”).

It is not disputed that the superior court’s order of

dismissal was signed by Judge Delker on May 28, 2014. Judge

Delker’s order became effective on that date, regardless of the

time that elapsed between the date on which the order was signed

and the date on which the clerk of court mailed copies to the

parties. Wells Fargo’s unwitting petition for removal on June

18, 2014, does not invalidate the effectiveness of the superior

court’s dismissal.

Conclusion

For the foregoing reasons, Plaintiffs’ Motion to Void

Dismissal and Continue Case and for Related Relief (doc. no. 4)

is denied. Wells Fargo’s request for fees and costs is denied.

SO ORDERED.

_____________________________ Landya B. McCafferty United States District Judge

November 17, 2014 cc: Michael J. DiCola, Esq. Paula-Lee Chambers, Esq.