GARNET ESQ FRANK CHOWDRY ESQ, THOMAS E DELAHANTY II ES, WENDY
Mills Justice, Superior Court
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
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.
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.
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.
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.
Motion for Partial Tudgment on the Pleadings
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. (Def .'s Mot. J. Pleadings 4-7.)
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
of the timeliness issue, defendant cannot prevail. When a
motion for judgment on the pleadings is made by the
plaintiff,  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.").
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.)
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 ...