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Federal National Mortgage Association v. Ibourk

Superior Court of Maine, Cumberland

October 17, 2014

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff
v.
MOULAY M. IBOURK, Defendant

ORDER

Honorable Roland A. Cole, Justice

Before the court is the Defendant's Motion for Contempt pursuant to M.R. Civ. P. 66.[1] The court, however, is treating this matter as a Motion for Sanctions pursuant to Rule 93(j). See M.R. Civ. P. 93(j). The court held a testimonial hearing on this matter, and has reviewed the case file, including the post-hearing findings of facts submitted by both parties.

I. Factual and Procedural Background

The court provides the following detailed background to show the extended and complicated path this case has taken.

This foreclosure action pursuant to 14 M.R.S. § 6321 was filed on January 22, 2010. The parties went through mediation in May of 2010. At that point, the Defendant was supposed to receive a temporary modification that would lead to a permanent modification. Chase, however, never contacted Mr. Ibourk to tell him where to send payments.

On September 4, 2012, the court issued an order (the " September 2012 Order") finding that there were equitable considerations created by Plaintiff's failure to implement in good faith the agreed to settlement. The court required the parties to re-start the foreclosure mediation process and mediate in good faith. The order also mandated that the Defendant was not to suffer any economic costs or expenses " attributable to the failure of Plaintiff to fulfill its obligations under the May 14, 2010 settlement."

On December 27, 2012, the Defendant wrote to the court to inform the mediator that the Defendant would refuse to provide updated financial information, because the Defendant believed that this information would punish the Defendant for having improved himself economically since the time when the original mediated agreement was breached. The Defendant believed that this punishment was contrary to the court's September 2012 Order.

On February 15, 2013, the parties met for their second mediation session. Because Mr. Ibourk declined to provide an updated financial package, the lender represented that it could not offer a loan modification at that time. Renee Burden, a representative from the servicer, Seterus, suggested that the homeowner submit a short sale offer with a waiver of deficiency. The Defendant asked whether it would be problematic if the sale were not an arm's length transaction, and Ms. Burden instructed the Defendant that he should move forward and propose the sale. The parties decided to pursue a short sale.

On November 8, 2013, the Defendant filed its Motion for Contempt (Proceeding for Remedial Sanctions) pursuant to Rule 66(d). Fannie Mae was served with a contempt subpoena on February 10, 2014.

On, March 4, 2014, the Plaintiff filed a Motion to Dismiss the Contempt Proceedings. The Plaintiff argued that it had not violated a court order and that Rule 66 does not apply as sanctions for cases in mediation are covered by Rule 93(j)[2] and 14 M.R.S. § 6321-A(12)[3]. Rule 66(a)(1) states that " [t]his rule shall not apply to the imposition of sanctions specifically authorized by other provisions of these rules or by statute." The Defendant has clarified that he is seeking contempt sanctions for violation of the court's September 2012 Order.

At the hearing on March 5, 2014, the court ruled that it was proceeding under Rule 93, and that the court was treating Defendant's motion as a motion for sanctions rather than a motion for contempt. The court heard testimony regarding the failed attempt at a short sale that the parties engaged in.

The court heard from Mr. Ibourk's designated broker, Jeff Reali, about the frustrating process of attempting to sell Mr. Ibourk's property. In an attempt to sell the property, Mr. Reali worked with Seterus, Inc. representatives Robbin Sutton and Renee Burden. Seterus, Inc. serviced the loan, while Fannie Mae was the investor on the loan. Fannie Mae's permission was necessary for a short sale to take place.

On March 21, 2013, Mr. Reali listed Mr. Ibourk's 30 Cadman Street Unit 1 property for sale. The property was not shown because it would have been very difficult for a buyer to obtain financing for the property. The condominium association had fallen apart and the property was in poor condition.

Mr. Ibourk's roommate in California, a physician named Dr. David Longstroth, made an initial offer on the property of $60, 000. The servicer countered at approximately $104 or $107, 000. All of the negotiations were between the lender and Dr. Longstroth; Mr. Ibourk was uninvolved in negotiations. After approximately five months, the parties became close to reaching a deal. Dr. Longstroth offered $90, 000.00 ...


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