THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC. ASSET-BACKED CERTIFICATES, SERIES 2003-15T2
JOHN B. DYER et al
on Briefs September 28, 2015
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.
W. Merritt, Esq., Houser & Allison, APC, Boston,
Massachusetts, for appellee The Bank of New York.
ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
[¶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.
[¶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
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