Nancy Mills, Justice, Superior Court.
Trial was held on the complaint for judgment of foreclosure. The court has considered the testimony, exhibits,  briefs, and arguments of counsel. For the following reasons, judgment is granted in favor of defendant and against plaintiff on the plaintiff's complaint.
Motion to Substitute
OneWest Bank, FSB's (OneWest) motion pursuant to M.R. Civ. P. 25(c) to substitute Ocwen Loan Servicing, LLC (Ocwen) for OneWest as party plaintiff was argued before trial. Defendant objected to the motion, although defendant did not object to the admission in evidence of plaintiff's exhibit L or to calling Harrison Whittaker as a witness. Defendant argued the substitution of the party plaintiff could affect defendant's waiver argument. Plaintiff agreed the substitution would not prejudice defendant's waiver argument and plaintiff has not argued that substitution of plaintiff affects the waiver issue.
As discussed below, it is undisputed plaintiff accepted funds in 2012 while this action was pending. The parties focus primarily on whether plaintiff waived its right to a judgment of foreclosure by accepting those funds. Plaintiff argues that paragraph 24 of the mortgage constitutes a signed agreement that allowed plaintiff to accept payments without waiving its right to foreclose. 14 M.R.S. § 6321; Pl.'s Ex. F, ¶ 24. Plaintiff argues further the funds accepted were not applied to the unpaid principal balance.
Section 6321 provides:
The acceptance, before the expiration of the right of redemption and after the commencement of foreclosure proceedings of any mortgage of real property, of anything of value to be applied on or to the mortgage indebtedness by the mortgagee or any person holding under the mortgagee constitutes a waiver of the foreclosure unless an agreement to the contrary in writing is signed by the person from whom the payment is accepted or unless the bank returns the payment to the mortgagor within 10 days of receipt.
14 M.R.S. § 6321 (2013).
Defendant argues he signed the mortgage before this law went into effect and the law does not apply retroactively to his mortgage. This provision, however, existed prior to its inclusion in 14 M.R.S. § 6321 in a different section of Title 14. See P.L. 1993 ch. 321, § 1 (amending 14 M.R.S. § 6204); P.L. 2007 ch. 391, § § 4, 9 (repealing 14 M.R.S. § 6204 and amending 14 M.R.S. § 6321). The same provision was, therefore, in effect when defendant signed his mortgage. By agreeing to paragraph 24 of the mortgage, defendant waived his right to assert the waiver defense set forth in 14 M.R.S. § 6321. See In re Tackson Brook Inst., Inc. 226 B.R. 487, 500-01 (Bankr. D. Me. 1998) (finding that defendant " waived its right to assert the defense set forth in Section 6204 and has in essence, agreed in writing that such payments do not constitute a waiver as contemplated by the statute").
Pursuant to Rule 25(c), OneWest's motion to substitute Ocwen as party plaintiff is granted over objection. M.R. Civ. P. 25(c).
Charles (Boomer) Bean has been employed by OneWest since 3/19/09 and has been an assistant vice president at OneWest since March 2010. His job involves trying to prevent foreclosures and to modify loans if appropriate. If that effort fails, he is involved in litigation depositions, mediations, and trials.
OneWest took over for IndyMac Bank (IndyMac), whose assets and servicing rights were sold by FDIC when IndyMac failed in July 2008. Mr. Bean previously worked for IndyMac Mortgage Services, a division of OneWest, beginning in April 2005. He worked ...