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Green Tree Servicing, LLC v. Cope

Superior Court of Maine, Cumberland

March 21, 2016

GREEN TREE SERVICING, LLC, Plaintiff
v.
THELMA COPE, Defendant

          ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION

          Nancy Mills Justice, Superior Court

         Before the court is plaintiff's motion for reconsideration of the dismissal of its foreclosure action with prejudice. For the following reasons, the motion is granted.

         FACTS

         Plaintiff has filed three complaints against defendant involving the same note and mortgage. Plaintiff filed the first complaint on September 15, 2009. The parties filed a stipulation of dismissal without prejudice on February 11, 2011. Plaintiff filed the second complaint on June 6, 2011. On October 12, 2012, the court granted plaintiff's motion to dismiss without prejudice. Plaintiff filed the third complaint on May 28, 2014.

         The case was removed from the foreclosure diversion program after defendant's request for a loan modification was denied. By notice dated May 27, 2015, the parties were notified of a trial date of July 21, 2015. Plaintiff filed a motion to dismiss without prejudice on July 13, 2015 on the ground that it did not have standing to proceed to trial. Defendant opposed the motion on July 21, 2015 and requested that the court grant the motion to dismiss with prejudice or, in the alternative, enter judgment in her favor. The court requested that plaintiff's counsel file an affidavit outlining its efforts to address the standing issue. The affidavit showed that efforts to deal with the original lender had not been fruitful and prospects for future success appeared minimal.

         The court dismissed the case with prejudice on January 4, 2016. Plaintiff filed its motion for reconsideration on January 19, 2016. Defendant opposed the motion on January 29, 2016. Plaintiff filed a reply on February 4, 2016.

         DISCUSSION

         1. Standard of Review

         "Motions for reconsideration of an order shall not be filed unless required to bring to the court's attention an error, omission or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). The court treats a motion to reconsider as a motion to alter or amend the judgment. M.R. Civ. P. 59(e); S. Me. Props-Co. v. Johnson, 1999 ME 37, ¶ 5, 724 A.2d 1255. The court need not grant a motion to alter or amend the judgment "unless it is reasonably clear that prejudicial error has been committed or that substantial justice has not been done." Cates v. Farrington, 423 A.2d 539, 541 (Me. 1980). The moving party bears the burden of showing prejudicial error. Id.

         2. Motion for Reconsideration

         Citing Bank of N.Y. v. Dyer, 2016 ME 10, __ A.3d __, plaintiff argues that the court lacked the power to dismiss the case with prejudice because plaintiff did not have standing at the time of the dismissal. (Pl's Mot. Recons. 1-3.) In Dyer, the plaintiff filed a complaint for foreclosure in July 2008. Id. ¶ 3. On January 4, 2013, the first day of trial, the plaintiff moved to continue because it could not produce the original note. Id. ¶ 4. The court continued the trial until October 11, 2013. Id. On October 11, 2013, the court continued the trial until November 20, 2014 because the plaintiff wished to add a party-in-interest. Id. On September 22, 2014, the plaintiff moved to dismiss without prejudice because it lacked standing following Bank of Am., N.A. v. Greenleaf, 2014 ME 89, 96 A.3d 700. Id. The court dismissed the action without prejudice. Id. ¶ 5.

         The Law Court affirmed, holding that:

Because there is no dispute that the Bank lacked standing ... the trial court's power to make any adjudication on the merits of that claim, including a dismissal with prejudice, was not invoked. Accordingly, a dismissal without prejudice, which disposed of ...

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