ORDER ON PLAINTIFF'S MOTION FOR
Mills Justice, Superior Court
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.
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
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.
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.
Standard of Review
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.
Motion for Reconsideration
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.
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 ...