U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF AEGIS ASSET BACKED SECURITIES TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-4
CHRISTOPHER J. CURIT et al
November 4, 2015.
W. Merritt, Esq., and Andrew C. Feldman, Esq., Houser &
Allison, APC, Boston, Massachusetts, for appellant U.S. Bank
Klein-Golden, Esq., Clifford & Golden, PA, Lisbon Falls,
for cross-appellants Christopher and Karen Curit.
C. Feldman, Esq., for appellant U.S. Bank National
Klein-Golden, Esq., for cross-appellants Christopher and
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶1] This appeal, another in a line of
foreclosure cases in which the purported mortgagee lacks
standing, presents us with challenges to the trial
court's initial judgment of dismissal with prejudice and
its authority, pending this appeal, to change that outcome to
a dismissal without prejudice. We conclude that the court
reached a result that is correct but erred in the process
used to achieve that result.
[¶2] U.S. Bank filed a motion to dismiss
its own foreclosure complaint, without prejudice, because it
lacked standing, and the District Court (West Bath,
Field, J. ) granted the motion but dismissed the
action with prejudice. M.R. Civ. P. 41(a)(2). The
bank appealed that decision. While its appeal was pending,
the bank filed with the trial court a motion to correct or
modify the record, pursuant to M.R. App. P. 5(e). It asked
the court to supplement the record on appeal to reflect the
court's intention, expressed on the record during the
hearing on its motion to dismiss but not recited in the
judgment, to allow the bank to re-file a foreclosure action
in the event of a future default if standing issues are
resolved. After a hearing on the bank's Rule 5(e) motion,
the court issued an order changing the judgment of dismissal
with prejudice to a dismissal without prejudice.
Christopher and Karen Curit, the mortgagors, cross-appeal
from that order.
[¶3] Although the court correctly recognized
that it erred when it dismissed U.S. Bank's action
with prejudice, and that a dismissal
without prejudice was the proper result, it erred as
a matter of law in the process used to achieve that result.
Accordingly, we vacate the judgments of
dismissal with and without prejudice and remand with
instruction to dismiss U.S. Bank's action without