JP Morgan Chase Bank, Nat'l Ass'n v. Cobb

• Court: Superior Court of Maine
• Decided: April 24, 2013
• Docket: SAGre-10-039
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT) / n JV~ 11tt- I} \ ~ f'\.....( a('._,.- 4 d L/ J .<0 L3 . Sagadahoc, ss.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

Plaintiff

v. Docket No. SAG-RE-10-039

BRYAN COBB and KATHRYN COBB

Defendants

ORDER REGARDING JUDGMENT BASED ON IMPROPER VENUE

The Clerk has noted that this residential foreclosure action was brought in the

wrong venue. The real estate at issue is in Brunswick, Cumberland County. A

foreclosure proceeding by civil action must be brought in "either the Superior Court or

the District Court in the division in which the mortgaged premises or any part of the

mortgaged premises is located." 14 M.R.S. § 6321. Unfortunately, the error of the

Plaintiff bank's attorneys in filing the case in the wrong court went undetected until

after the point at which the court had issued summary judgment.

The question becomes what to do? Had the problem surfaced before entry of

judgment, one option might have been to transfer the case to the proper court in

Cumberland County. See 14 M.R.S. § 508 (transfer of venue). However, the transfer

provisions apply to actions or proceedings, not to judgments. Id. Moreover, the public

policy underlying in the statutory and programmatic protections for homeowners in

foreclosure proceedings, such as the Foreclosure Diversion Program, argues for making

the burden of the error fall on the bank that made the error.

In the court's view, the judgment in this case must be vacated under Rule 60(b ).

Once the judgment is vacated, the case again becomes a civil action that can be

1 transferred to the correct court. The Plaintiff bank will need to refile its motion for

summary judgment in that court ifit wishes again to obtain judgment.

Rule 60(b) is silent as to whether a motion to vacate must be flied by a party or

whether such a motion may the court's own motion, but the analogous federal rule has

been construed to allow the court to act on its own motion under Rule 60(b ), and this

court is prepared to do so. See, e.g. Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168

F.3d 347, 350 (9th Cir. 1999); McDowell v. Celebrezze, 310 F.2d 43 (5th Cir. 1962); United

States v. Jacobs, 298 F.2d 469, 472 (4th Cir. 1961). See also Mondello v. General Elec. Co.,

650 A.2d 941, 944 (Me. 1994)(federal courts' interpretation of federal rules provide

guidance in interpretation of counterpart Maine rules). However, the parties are

entitled to notice and an opportunity to be heard before the court acts on its own

motion to vacate the judgment should one or more of the parties fail or refuse to do so.

The Clerk will send this Order to the parties. The parties have 14 days from

the date of this Order to file any objection to the Court's proposed course of action, or to

file their own motion to vacate the judgment for improper venue. Failure to make a

responsive filing within 14 days constitutes waiver of any objection to the court's

vacating the judgment on its own motion.

Pursuant to M. R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

order by reference in the docket.

Dated April24, 2013

A.M. Horton Justice, Superior Court

2 CHASE HOME FINANCE LLC - PLAINTIFF SUPERIOR COURT SAGADAHOC, ss. Attorney for: CHASE HOME FINANCE LLC Docket No BATSC-RE-2010-00039 JOHN A TURCOTTE - RETAINED 02/13/2012 AINSWORTH THELIN & RAFTICE, PA 7 OCEAN ST DOCKET RECORD PO BOX 2412 SOUTH PORTLAND ME 04116-2412

Attorney for: CHASE HOME FINANCE LLC PAUL E THELIN - RETAINED 10/07/2010 AINSWORTH THELIN & RAFTICE, PA 7 OCEAN ST PO BOX 2412 SOUTH PORTLAND ME 04116-2412

vs BRYAN COBB - DEFENDANT 185 HACKER ROAD BRUNSWICK ME 04011 KATHRYN COBB - DEFENDANT 18 5 HACKER ROAD BRUNSWICK ME 04011

Filing Document: COMPLAINT Minor Case Type: FORECLOSURE