Robishaw v. Wells Fargo Bank

CourtSuperior Court of Maine
DecidedMay 26, 2010
DocketCUMcv-09-263
StatusUnpublished

This text of Robishaw v. Wells Fargo Bank (Robishaw v. Wells Fargo Bank) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robishaw v. Wells Fargo Bank, (Me. Super. Ct. 2010).

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. STATE OF MA1N'trVIL ACTION V Cumberland, 55, Clerk's 1j18~et No. ~V-09-t63 r'~, MAY 26 2010 TfjvJ·- Cv ;\\ - 'J/

v. ORDER

WELLS FARGO BANK, et al.,

Defendants.

Before the court are motions for summary judgment filed by defendants Wells

Fargo Bank, American Home Mortgage Servicing (AHMS), and Bryce Hamilton. Wells

Fargo and AHMS are represented by the same counsel and have filed a joint motion.

1. Summary Iudgment

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56 (h) statements.

E.g., Johnson v. McNeil, 2002 ME 99 <[ 8, 800 A.2d 702,704. The facts must be considered

in the light most favorable to the non-moving party. Id. Thus, for purposes of

summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a

matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99

<[ 8, 694 A.2d 924, 926. 2. Undisputed and Disputed Facts

In this case plaintiff Derek Robishaw, whose residence was the subject of a

foreclosure judgment on April 26, 2007, is suing defendants for illegal eviction, breach

of warranty of habitability, breach of warranty of quiet enjoyment, trespass, conversion,

negligent destruction of personal property, and negligent infliction of emotional

distress. He also seeks punitive damages.

A large number of facts are undisputed:

Robishaw originally executed a mortgage and promissory note in favor of

Option One Mortgage Corp. in 2004. The mortgage covered his residence at 5 Shady

Lane in Falmouth. Option One later assigned the mortgage and note to Wells Fargo but

continued to service the mortgage for some period of time thereafter. AHMS

subsequently became the mortgage servicer, but not until foreclosure proceedings were

underway.

At some point Robishaw ceased to make mortgage payments and Wells Fargo

commenced a foreclosure action in the Portland District Court in August 2006. The

District Court entered a foreclosure judgment in favor of Wells Fargo in April 26, 2007.

No appeal was filed and following the expiration of the statutory redemption period,

Wells Fargo scheduled a public auction for October 2007. Robishaw was aware of the

sale and the sale date but did not attend. At the sale, Wells Fargo was the highest

bidder, and the property was sold to Well Fargo.

On October 26, 2007 the District Court issued a writ of possession. Despite

several attempts, the writ was never served.

There is a dispute as to whether Robishaw and his family intended to abandon

the 5 Shady Lane property, but they at least obtained interim alternative housing in

November 2007 by entering into a 19 month lease on a residence on Rebecca Way in

2 Falmouth. By late December 2007, although they testified that they eventually hoped to

return to 5 Shady Lane, the Robishaws had moved into the Rebecca Way residence and

were residing there full time. From then until February 2008 Robishaw continued to

return to 5 Shady Lane every week or so to gather certain of his personal property and

move it to Rebecca Way.

As of February 2008 certain of the Robishaws' personal property remained at 5

Shady Lane. Robishaw had not signed any lease permitting him to keep his property at

5 Shady Lane, and he was not making any rent or other payment to store possessions in

or otherwise occupy the 5 Shady Lane property. In addition, he had not had any

discussions with Wells Fargo, AHMS or with Hamilton about remaining in the

property.

Hamilton is a real estate agent affiliated with Coldwell Banker, which was hired

by Option One (before the latter was replaced as servicer by AHMS) to determine the

occupancy status of 5 Shady Lane, to change the locks, and prepare the property for

resale. Hamilton had originally reported in October 2007 that the property still

appeared to be occupied but he reported in February 2008 that he believed it was

unoccupied and he then arranged for the locks to be changed. At that time, Hamilton

was aware that 5 Shady Lane still contained personal property belonging to the

Robishaws and he told Option One or AHMS that further notification to the Robishaws

might be needed.

Robishaw returned to the property in late February 2008 and found the locks

changed but gained access to the house through a kitchen window. 1 In April 2008,

when he again returned to the property, Robishaw discovered several inches of

standing water in his basement, soaking certain of his belongings that were still on the

1 Robishaw later changed a side door lock to gain continued access to the property.

3 property. Robishaw surmises that Hamilton or one of his agents had turned off the

circuit breakers, including one that powered a basement sump pump. Hamilton had

hired a vendor to change the locks, winterize the property, and drain the pipes.

However, he denied that he ever gave any instruction to shut off the power, and there is

no evidence to the contrary. There is also no evidence as to whether the circuit breakers

were intentionally turned off or whether they tripped for some other reason.

After discovering standing water in the basement in February, Robishaw

continued removing a few items at a time. He communicated with both Wells Fargo

(through an attorney) and with Hamilton to complain about the standing water. His

complaint to Hamilton occurred after Hamilton sent Robishaw a letter in May 2008

advising him he had 30 days to remove all his property or it would be disposed of.

Hamilton sent Robishaw a second letter to the same effect in September 2008, this time

with a September 30, 2008 deadline. After receiving that letter, Robishaw called

Hamilton and demanded compensation. Some time later that fall Robishaw returned to

the property and found that items of his personal property had been placed out on the

lawn. There is no specific evidence as to who placed the belongings on the lawn.

In November the Robishaws discovered two men removing items belonging to

them from the garage at 5 Shady Lane. Confronted by the Robishaws, the men stated

they had been hired to clean out the garage and take the items to the dump. The two

men called for instructions. This eventually led to a phone call from Stephen Schariff,

an employee of Field Asset Services (a field preservation service working for AHMS), to

Hamilton. Hamilton told Schariff that there was a dispute with the Robishaws and

advised him that things needed to be left where they were. At that point the property

was returned to the garage, and the Robishaws continued to remove items.

4 There is no evidence to controvert Hamilton's affidavit that he did not remove

any items from 5 Shady Lane or have any role in the removal of such property by

others. Hamilton was generally aware that when AHMS took over from Option One,

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Johnson v. McNeil
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Irving Oil Corp. v. Maine Aviation Corp.
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Boivin v. Jones & Vining, Inc.
578 A.2d 187 (Supreme Judicial Court of Maine, 1990)
Doughty v. Sullivan
661 A.2d 1112 (Supreme Judicial Court of Maine, 1995)
State v. DeCoster
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Frost Vacationland Properties, Inc. v. Palmer
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Gayer v. Bath Iron Works Corp.
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Rodrigue v. Rodrigue
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