U.S. Bank, N.A. v. Sawyer

2014 ME 81, 95 A.3d 608, 2014 WL 2853907, 2014 Me. LEXIS 89
CourtSupreme Judicial Court of Maine
DecidedJune 24, 2014
DocketDocket No. Cum-13-472
StatusPublished
Cited by10 cases

This text of 2014 ME 81 (U.S. Bank, N.A. v. Sawyer) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Bank, N.A. v. Sawyer, 2014 ME 81, 95 A.3d 608, 2014 WL 2853907, 2014 Me. LEXIS 89 (Me. 2014).

Opinion

MEAD, J.

[¶ 1] U.S. Bank N.A. (Bank) appeals from the judgment of the Superior Court (Cumberland County, Mills, J.) dismissing the Bank’s foreclosure complaint with prejudice. The Bank contends that the court abused its discretion in dismissing the complaint because there was no evidence of bad faith or of prejudice to the mortgagor, and because the sanction it imposed is too severe. We affirm the judgment.

I. BACKGROUND

[¶ 2] The following facts are taken from the unrebutted testimony of David and Debra Sawyer offered at the September 24, 2013, show cause hearing. See Theriault v. Murray, 625 A.2d 908, 909 (Me.1993).

[¶ 3] In 2009, the Sawyers first defaulted on a mortgage held by the Bank.1 After their default, the Sawyers were approved for a modification plan under which they were to make a reduced monthly payment for a trial period of six months. The Sawyers met their payment obligations at the reduced rate, but at some point the loan-servicing agency, on behalf of the Bank,2 increased their monthly payment to a level above the predelinquency amount and the Sawyers were again unable to make timely payments. In 2012, the Bank filed a complaint for foreclosure. At the time the complaint was filed, J.P. Morgan Chase Bank N.A. (Chase) had taken over as loan servicer from the servicer with whom the Sawyers had negotiated the reduced payment schedule. After the complaint was filed, and before the first of four court-ordered mediations took place, the Sawyers contacted Chase in an attempt to negotiate a modification. They were told to provide Chase with a list of documents, which they did. The Sawyers reported, however, that Chase kept requesting additional documents or new copies of documents that they had already submitted.

A. The First Mediation

[¶ 4] In October 2012, Chase and the Sawyers met at the first mediation session. The Sawyers again expressed their interest in a modification. Chase requested additional copies of the same documents that the Sawyers had already submitted in [610]*610the months leading up to the mediation session. Chase promised the Sawyers that if they provided the requested documentation a second time, it would make a decision within 30 days of submittal. The Sawyers submitted the requested documents, but Chase did not make a decision on the modification.

B. The Second Mediation

[¶ 5] On February 22, 2013, the parties attended another mediation session. Again, the Sawyers were given a list of documents to provide. This time Chase promised to respond to the modification request by April 22. The Sawyers hand-delivered the requested documents to Chase’s local counsel, but Chase did not respond by April 22, and still had not done so by the date of the next scheduled mediation, May 17.

C. The Third Mediation

[¶ 6] At the May mediation, Chase once again requested additional documentation and expressly promised to respond by June 28. The mediator later reported to the court that Chase confirmed it was in receipt of the required documents and that it would respond with a “definite answer” by the agreed-upon date. The Sawyers did not receive a response by June 28. After the deadline had passed, the Sawyers attempted unsuccessfully to contact Chase. When their housing counselor did reach Chase, he was informed that the Sawyers’ modification was in the final stages of underwriting and would be released “in just a couple of days.” Instead of a modification, however, the Sawyers received notice on July 17 — only a few days after their housing counselor spoke with Chase and had been promised that a modification was imminent — that their loan would be transferred to yet another servicer, Select Portfolio Servicing (SPS).

[¶ 7] After the third mediation, the court held a status conference at which the Sawyers reported that in addition to the delays perpetuated by Chase, they were subjected to daily debt-collection calls and letters, and that new and excessive taxes, fees, and interest were regularly added to the valuation of their debt, making it less likely that they would be approved for a modification.3 The Sawyers accepted that they were responsible for the initial default, but reported that the post-default actions of Chase and other servicers were causing them severe distress. After hearing a summary of what had occurred at the mediation sessions (including a description of Chase’s actions and inaction), the court directed Chase that, unless the issues were resolved at the mediation on September 10, it was to appear on September 24 and show cause why the complaint should not be dismissed with prejudice.

D. The Fourth Mediation

[¶ 8] No agreement or modification was reached at the September mediation. Instead, the new servicer, SPS, informed the Sawyers that they would have to submit entirely new documentation if they wished to be considered for a modification. SPS demanded these documents within ten days.

E. The Show Cause Hearing

[¶ 9] On September 24, the court conducted a show cause hearing. Although SPS had been aware of the hearing date since August 15, it retained counsel only a few days prior to the hearing. It sent counsel to the hearing with an oral propos[611]*611al for a proprietary modification,4 but without evidence, witnesses, or any convincing argument as to why the court should not dismiss the case with prejudice.

[¶ 10] Noting that the Bank had the burden of going forward, the court found that the Bank was not prepared to proceed at the hearing “in spite of the notice to be prepared to proceed” and dismissed the complaint with prejudice. The Bank appeals.

II. DISCUSSION

[¶ 11] Parties to a foreclosure mediation must “make a good faith effort to mediate all issues.” 14 M.R.S. § 6321-A(12) (2013); M.R. Civ. P. 93(j). If the parties fail to participate in good faith, the court “may impose appropriate sanctions,” including dismissal of the complaint with prejudice. M.R. Civ. P. 93(j). Dismissal with prejudice is a severe sanction that has constitutional implications and will be given close scrutiny on appeal. See Bayview Loan Servicing, LLC v. Bartlett, 2014 ME 37, ¶ 11, 87 A.3d 741. The imposition of sanctions, however, remains a discretionary decision. Estate of Hoch v. Stifel, 2011 ME 24, ¶ 32, 16 A.3d 137. And we have confirmed that the trial court is within its discretion to dismiss a complaint with prejudice if a bank or an independent mortgage servicer fails to negotiate in good faith. See Bartlett, 2014 ME 37, ¶ 25, 87 A.3d 741.

[¶ 12] The court, in its show cause order, placed the parties on notice that dismissal with prejudice was a very real possibility. Despite this warning, the Bank was not prepared to present any evidence to explain or excuse its dilatory conduct or otherwise explain why the complaint should not be dismissed with prejudice. Given the Bank’s failure to meet its burden at the show cause hearing—after receiving adequate notice and a meaningful opportunity to be heard on the potential dismissal—we conclude that the court did not abuse its discretion in imposing the sanction. See Pelletier v. Pelletier,

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2014 ME 81, 95 A.3d 608, 2014 WL 2853907, 2014 Me. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-na-v-sawyer-me-2014.