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U.S. Bank N.A. v. Curit

Supreme Judicial Court of Maine

January 21, 2016

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF AEGIS ASSET BACKED SECURITIES TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-4
v.
CHRISTOPHER J. CURIT et al

         Argued November 4, 2015.

         On the briefs:

          David W. Merritt, Esq., and Andrew C. Feldman, Esq., Houser & Allison, APC, Boston, Massachusetts, for appellant U.S. Bank National Association.

         Joshua Klein-Golden, Esq., Clifford & Golden, PA, Lisbon Falls, for cross-appellants Christopher and Karen Curit.

         At oral argument:

         Andrew C. Feldman, Esq., for appellant U.S. Bank National Association.

         Joshua Klein-Golden, Esq., for cross-appellants Christopher and Karen Curit.

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

          OPINION

Page 904

          HUMPHREY, J.

          [¶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[1] 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

Page 905

dismissal with and without prejudice and remand with instruction to dismiss U.S. Bank's action without prejudice.

         I. ...


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