ORDER ON PLAINTIFF'S MOTION TO DISMISS WITHOUT PREJUDICE
Nancy Mills Justice
Three complaints for foreclosure have been filed against defendant Cope involving the same note and mortgage. The first complaint for foreclosure was filed on September 15, 2009. The parties filed a stipulation of dismissal without prejudice on February 11, 2011. CUMB-RE-09-415.
The second complaint for foreclosure was filed on June 6, 2011. On October 12, 2012, plaintiffs motion to dismiss without prejudice was granted. CUMB-RE-11-406.
The third complaint for foreclosure was filed on May 28, 2014, Defendant's answer was filed on August 5, 2014. The parties attended mediation on September 12, 2014 and a second mediation session was scheduled for December 5, 2014. (Rept. 9/12/14.) Because defendant's request for a loan modification was denied, however, defendant moved to remove the case from the foreclosure diversion program by motion filed December 4, 2014. (Def.'s Mot. Remove Foreclosure Diversion Program 1.) That motion was granted on December 4, 2014. A scheduling order issued on December 16, 2014. The parties pursued discovery. Defendant, who was 90 years old at the time of the argument on the motion to dismiss, was deposed on March 12, 2015. (Def.'s Opp'n to Mot. Dismiss 2.)
By notice dated May 27, 2015, the parties were notified of the trial date of July 21, 2015. On July 1, 2015, plaintiff filed a motion to amend the complaint to add a count for declaratory judgment, an effort to address a standing issue. (Mot. Amend 2.) By order filed July 15, 2015, the court denied plaintiff's motion to amend because the motion was untimely and because trial was scheduled for July 21, 2015.
On July 13, 2015, plaintiff filed a motion to dismiss without prejudice. Plaintiff acknowledged that it did not have standing to proceed and would not have standing at the time of trial. (Mot. Dismiss 2.) Defendant filed an opposition to the motion to dismiss on July 21, 2015. Defendant requests the court grant the motion to dismiss with prejudice or, in the alternative, enter judgment in her favor. (Def.'s Opp'n to Mot. Dismiss 3; Def.'s Opp'n to Mot. Leave File Reply 2.) Plaintiff's counsel received defendant's opposition on July 20, 2015. (Am. Mot. Leave File Reply 2.) Counsel argued the motion to dismiss on the trial date, July 21, 2015. The court requested that plaintiff's counsel file an affidavit by August 21, 2015 outlining plaintiff's efforts to address the standing issue.
On August 3, 2015, plaintiff filed a reply to defendant's opposition to the motion to dismiss without prejudice. On the same day, plaintiff filed an amended motion for leave to file a reply to defendant's opposition. Plaintiff stated, "Plaintiff was not able to file a reply within either deadline fixed by Rule 7(e)." (Am. Mot. Leave File Reply 2.) On August 14, 2015, defendant filed an opposition to the amended motion for leave to file a reply to defendant's opposition. On August 20, 2015, the plaintiff's counsel filed his affidavit.
The affidavit shows that plaintiff's counsel did not rely on a case-by-case approach to solve the Greenleaf. (Jordan Aff. ¶ 3.) Efforts to deal with the original lender have not been fruitful and prospects for future success appear minimal. (Jordan Aff. ¶¶ 7-9.) Resolutions pursued in other cases were not achieved in this case. Defendant's request for a loan modification was denied and the case was removed from mediation. (Jordan Aff. ¶ 6.)
The parties dispute whether plaintiff knew in 2010 from the Saunders case that it did not have standing. See Mortg. Elec. Registration Sys., Inc. v. Saunders, 2010 ME 79, ¶ 10, 2 A.3d 289. The court made clear in Saunders that based on the language in the mortgage, MERS did not qualify as a mortgagee. Saunders, 2010 ME 79, ¶ 11, 2 A.3d 289. In Saunders, however, "the Bank filed: (1) an undated, two-page allonge indicating that [the original lender] transferred the note to the Bank, and (2) an assignment indicating that MERS had transferred any rights it had in the note or mortgage to the Bank." Saunders, 2010 ME 79, ¶ 5, 2 A.3d 289. The court in Saunders determined that "the jurisdictional flaw was corrected when the court appropriately granted the Bank's motion for substitution." Saunders, 2010 ME 79, ¶ 26, 2 A.3d 289. Plaintiff makes no such allegation in this case and admits it had no standing at the time of trial.
Unquestionably, plaintiff knew on July 3, 2014 from the Greenleaf case that plaintiff had no standing to foreclose. Bank of Am., N.A. v. Greenleaf, 2014 ME 89, ¶ 17, 96 A.3d 700. One year later, plaintiff filed a motion to amend the complaint and a motion to dismiss. Plaintiff was not prepared to proceed to trial on July 21, 2015 and admitted it cannot prove it is entitled to a judgment of foreclosure.
The court agrees with the reasoning set forth in Nationstar Mortg,, LLC v. Deakin, 2015 Me. Super. LEXIS 174 (July 9, 2015). Unlike Deakia which involved two complaints for foreclosure, this case involves three complaints for foreclosure. Although the motion to dismiss in this case was filed one week before trial, as opposed to on the day of trial as in Deakin, plaintiff had two months' notice of the trial date and knew for months that the Greenleaf issues would not be resolved.
Further, no reasons were given for the previous stipulation of dismissal in the first case, after the case had been pending for eighteen months, and the motion to dismiss without prejudice in the second case, in which defendant was unrepresented, after the case had been pending for sixteen months. Plaintiff now seeks a third voluntary dismissal. Fairness dictates it should not receive more favorable treatment than it would have received ...