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Bank of New York v. Dyer

Supreme Judicial Court of Maine

January 14, 2016

THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC. ASSET-BACKED CERTIFICATES, SERIES 2003-15T2
v.
JOHN B. DYER et al

          Submitted on Briefs September 28, 2015

          On the briefs: George J. Marcus, Esq., Jennie L. Clegg, Esq., and Andrew C. Helman, Esq., Marcus, Clegg & Mistretta, P.A., Portland, for appellants John B. Dyer and William Purcell.

         David W. Merritt, Esq., Houser & Allison, APC, Boston, Massachusetts, for appellee The Bank of New York.

         Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

          OPINION

Page 967

          PER CURIAM

          [¶1] John B. Dyer appeals from an order entered by the District Court (Ellsworth, Mallonee, J. ) dismissing The Bank of New York's complaint, in which the Bank sought to foreclose on Dyer's real property in Bar Harbor, after the Bank acknowledged that it could not prove that it had the requisite standing to pursue its claim. Dyer contends that the court erred in dismissing the complaint without prejudice, and in declining to award him his full attorney fees and costs. We affirm the order.

         I. BACKGROUND

          [¶2] On May 29, 2003, Dyer gave a $997,000 promissory note and a mortgage on property in Bar Harbor securing the note to Countrywide Home Loans, Inc. The mortgage contained language naming Mortgage Electronic Registration Systems, Inc. (MERS) as lender's nominee--language that we found to be problematic in Bank of America, N.A. v. Greenleaf ( Greenleaf I ), 2014 ME 89, ¶ 13-15, 96 A.3d 700.

          [¶3] In July 2008, the Bank filed a complaint for foreclosure in the District Court, asserting that Dyer had stopped making payments on the note as of June 2007, and that he then owed the Bank $1,014,869.91. The Bank's motion for summary judgment and Dyer's cross-motion for summary judgment were denied, as was the Bank's second motion for summary judgment.

          [¶4] The case proceeded to trial on three separate days:

o January 4, 2013 ( Mallonee, J. ): The Bank was unable to produce the original note, and, given the limited knowledge of the Bank's witness, the court sustained Dyer's objection to the admission of a copy. The court took the Bank's motion for a continuance under advisement. Dyer objected and asked for a dismissal with prejudice. On January 11, the court granted the continuance, but as a sanction it ordered the Bank to pay Dyer's costs and attorney fees for the first day of the trial in the amount of $4,090.61.
o October 11, 2013 ( D. Mitchell, J. ): Because of judicial scheduling issues, a different judge presided at the second day of the trial. After the Bank's witness was sworn but before testimony began, the Bank moved to amend its ...

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