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Bank of America, N.A. v. Burkhart

Superior Court of Maine

April 29, 2016

BANK OF AMERICA, N.A., Plaintiff
v.
FAY A. BURKHART, et al., Defendant

          JAMES GARNET ESQ FRANK CHOWDRY ESQ, THOMAS E DELAHANTY II ES, WENDY PARADIS ESQ

          ORDER

          Nancy Mills Justice, Superior Court

         Before the court are (1) defendant Fay Burkhart's motion for partial judgment on the pleadings, or in the alternative, partial summary judgment; (2) third party defendant iReverse Home Loans, LLC's motion to set aside an entry of default; and (3) defendant's amended motion for default judgment against iReverse. For the following reasons, the motion for partial judgment on the pleadings is denied and the motion to set aside the entry of default is denied. The court defers ruling on the motion for default judgment until after a hearing on damages. FACTS

         Plaintiff filed its complaint for foreclosure in Bridgton District Court on August 21, 2015. Plaintiff seeks to foreclose on property located at 46 Nasons Beach Road in Sebago. On September 21, 2015, defendant filed an answer and a counterclaim with three counts against plaintiff: count I, fraud in the inducement; count II, slander of title; and count III, unfair trade practices. Defendant also initiated a third party complaint against iReverse, defendant's mortgage broker, with two counts: count I, incorporating claims of fraud in the inducement and unfair trade practices from defendant's counterclaim; and count II, breach of fiduciary duty. Also on September 21, 2015, defendant removed the case to Superior Court.

         Mediation was scheduled for December 18, 2015. On November 30, 2015, plaintiff filed a motion to terminate mediation. On December 15, 2015, defendant opposed the motion and also moved for partial judgment on the pleadings, or in the l alternative, partial summary judgment. Mediation occurred on December 18, 2015, and a final mediator's report was filed that same day. The third party complaint and summons were served on iReverse's registered agent in Baltimore, Maryland on December 23, 2015. On January 5, 2016, plaintiff opposed defendant's motion for partial judgment on the pleadings. Defendant filed a reply on January 12, 2016.

         On January 13, 2016, defendant filed an application to the clerk for an entry of default against iReverse and a motion to the court for default judgment against iReverse. The clerk entered default against iReverse on January 21, 2016. Also on January 21, 2016, defendant filed an amended motion for default judgment, counsel for iReverse entered an appearance, and iReverse filed an answer to defendant's third party complaint. On January 26, 2016, iReverse filed a motion to set aside the entry of default and an opposition to defendant's motion for default judgment.

         On February 1, 2016, the court issued an order stating that the motion to terminate mediation was moot. On February 4, 2016, defendant filed an amended affidavit to its amended motion for default judgment, an opposition to iReverse's motion to set aside the entry of default, and a reply to iReverse's opposition to the motion for default judgment. Also on February 4, 2016, iReverse filed an opposition to defendant's amended motion for default judgment. On February 11, 2016, iReverse filed a reply to defendant's opposition to the motion to set aside the entry of default.

          DISCUSSION

         1. Motion for Partial Tudgment on the Pleadings

         Defendant requests that the court enter judgment on counts I and III of her counterclaim and judicially estop plaintiff from asserting that defendant's Sebago property is her primary residence.[1] (Def .'s Mot. J. Pleadings 4-7.)

         As a preliminary matter, it is unclear whether defendant's motion is timely. M.R. Civ. P. 93(d)(1) provides that "no dispositive motions or requests for admissions shall be filed until five (5) days after mediation is completed and a final mediator's report is filed with the court." M.R. Civ. P. 93(d)(1). Under that rule, defendant's December 15 motion is premature because a final mediator's report was not filed until December 18. However, M.R. Civ. P. 93 applies only when the defendant is an "owner-occupant, " which is defined as "the mortgagor of a residential property that is that individual's primary residence." See id.; M.R. Civ. P. 93(a)(3); 3 Harvey, Maine Civil Practice § 93:2 at 609 (3d ed. 2011). Plaintiff does not dispute that defendant's Sebago property is not her primary residence. (Pl's Opp'n to Def.'s Mot. J. Pleadings ¶9.) Therefore, although the case proceeded through mediation, it appears that M.R. Civ. P. 93 does not apply.

         Regardless of the timeliness issue, defendant cannot prevail. When a motion for judgment on the pleadings is made by the plaintiff, [2] the motion "challenges the legal sufficiency of the answer." Temple v. DiPietro, 2015 ME 166, ¶ 27, 130 A.3d 368 (citation omitted). It is therefore effective "only when the sole defense is an affirmative one, because any denials of fact by defendant will be taken as true for purposes of the motion and thus will have to be tried." Id. (citation omitted). Plaintiff asserted five affirmative defenses but also denied multiple allegations in the counterclaim. (Pl's Ans. ¶¶ 1-2, 4-7, 9-13, 15-19.) These denials preclude entry of judgment on the pleadings. See Temple, 2015 ME 166, ¶¶ 28-29, 130 A.3d 368; Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988) ("Conflict between pleadings can be reached only by motion for summary judgment or trial.").

         Even if the court were to treat the motion as one for summary judgment, defendant does not prevail. Defendant asks the court to estop plaintiff from arguing that the Sebago property is her primary residence because it has allegedly changed its position on this issue. Defendant claims that plaintiff initially asserted the Sebago property was her primary residence because it included with its complaint a request for mediation, which is available only when the property at issue is owner-occupied, and because it denied the paragraph of defendant's counterclaim that stated defendant is a Florida resident. (See Supp. S.M.F. ¶¶ 2, 4.) Defendant claims that plaintiff then changed its position by moving to terminate mediation on the ground that the Sebago property was not her primary residence. (See id. ¶ 6.)

         The form answer that plaintiff included in its complaint was required by statute and cannot be viewed as an assertion that defendant qualified for mediation. (Pl's AddtT S.M.F. ¶ 4); see 14 M.R.S. § 6321-A(2) (2015). In its answer to defendant's counterclaim, plaintiff denied that defendant's property in Sebago was her primary residence because it was without knowledge or information sufficient to form a belief. (Pl's AddtT S.M.F. ¶¶ 1-2.) When plaintiff learned through defendant's representations that the property was not her primary residence, plaintiff properly moved to ...


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