U.S. BANK, NATIONAL ASSOCIATION, as trustee for RMAC TRUST, SERIES 2012-5T, Plaintiff,
BARCLAYS BANK PLC, f/k/a EQUIFIRST CORPORATION, Defendant, and THOMAS W. BYRNE, a/k/a THOMAS BYRNE, ANNA MARIE BYRNE, MAINE REVENUE SERVICE, LVNV FUNDING, LLC, PORTFOLIO RECOVERY ASSOCIATES, LLC, Parties-in-Interest.
ORDER ON PLAINTIFF'S MOTION TO VOLUNTARILY
Gay Kennedy Justice, Superior Court
before the court is Plaintiff U.S. Bank, National
Association's motion to dismiss its complaint for
declaratory judgment and title against Defendant Barclays
Bank PLC. Based on the following, Plaintiff's complaint
is dismissed with prejudice.
to Plaintiff's complaint, on July 20, 2007,
Parties-in-Interest Thomas W. Byrne and Anna Marie Byrne
("the Byrnes") executed and delivered to Equifirst
Corporation a promissory note in the amount of $161, 5000.00.
(Compl. ¶ 8.) To secure the note, the Byrnes executed a
mortgage deed in favor of Mortgage Electronic Registration
System, Inc. ("MERS"), as nominee for Equifirst
Corporation. (Id. ¶ 10.) The secured property
is located at 21 Tyler Street in Auburn, Maine.
(Id.) The mortgage deed was recorded in the
Androscoggin County Registry of Deeds in Book 7229, Page 226.
(Id.) Plaintiff asserts that, on September 26, 2012,
MERS assigned the mortgage deed to The Bank of New York
Mellon Trust Company, National Association, which in turn
assigned mortgage to Plaintiff on December 28, 2012.
(Id. ¶¶ 12-14.)
2014, the Law Court held that, because MERS has only the
right to record the mortgage and no ability to assign the
right to foreclose on the mortgage, an assignee from MERS
lacks standing to foreclose on a mortgage. Bank of Am.,
N.A. v. Greenleaf, 2014 ME 89, ¶ 14-17, 96 A.3d
700. Therefore, Plaintiff in this case has no standing to
seek foreclosure on the mortgage deed executed by the Byrnes.
resolve its standing problem, Plaintiff filed this action for
declaratory judgment and title against Defendant Barclays
Bank PLC on June 5, 2015. Plaintiff's complaint seeks a
"confirmatory Nunc Pro Tunc order"
reaffirming the assignment of the mortgage from MERS to
Plaintiff. (Compl. ¶ a.) Plaintiff also seeks a
declaratory judgment that it is both the owner of the subject
note and mortgage. (Id. ¶ b.) Defendant
Barclays Bank PLC did not answer the complaint and has not
appeared in this action. The Byrnes, as parties-in-interest,
did answer the complaint and have appeared in this action.
November 16, 2015, Plaintiff filed a motion for partial
default judgment and judgment on the pleadings against
Barclays Bank PLC affirming the assignment by MERS and
declaring Plaintiff the owner of the subject note and
mortgage. (Pl. Mot. for Default J. 4-5.) The Byrnes filed an
opposition to the motion for default judgment and a motion
for sanctions against Plaintiff's counsel on December 7,
2015. Plaintiff timely replied to the Byrnes' opposition
on December 14, 2015, and filed an opposition to the motion
for sanctions on December 30, 2015. The Byrnes' timely
replied to the opposition. Oral argument on both motions was
held on February 2, 2016.
March 3, 2016, while the court's decisions on the motion
for default judgment and the motion for sanctions were still
pending, Plaintiff filed this motion, which Plaintiff's
counsel has titled a "motion to dismiss action as
moot." Plaintiff asserts that it has obtained a
quitclaim assignment from original lender Equifirst
Corporation assigning any and all rights it may have under
the mortgage to Plaintiff. (Pl. Mot. to Dismiss 2, Ex. A.)
Thus, according to Plaintiff, its complaint for declaratory
judgment and title against Defendant Barclays Bank PLC is now
Byrnes filed an opposition to Plaintiff's motion to
dismiss on March 25, 2016. The Byrnes do not oppose dismissal
of this action, but argued that the court should impose terms
and conditions upon dismissal pursuant to Maine Rule of Civil
Procedure 41(a)(2). (Byrne Resp. to PI. Mot. to Dismiss 1.)
The Byrnes also argued that the court should still act on
their motion for sanctions against Plaintiff's counsel.
(Id.) However, on June 2, 2016, the Byrnes withdrew
their motion for sanctions and their opposition to the motion
to dismiss. The Byrnes consent to the dismissal of this
action without any fees or costs to either party.
STANDARD OF REVIEW
motion to dismiss does not address, or even cite, the
applicable Rule of Civil Procedure governing the dismissal of
its complaint. Maine Rule of Civil Procedure 41(a) governs
the voluntary dismissal of an action by a plaintiff. Rule
41(a) states, in relevant part, "an action shall not be
dismissed at the plaintiff's instance save upon order of
the court and upon such terms and conditions as the court
deems proper. ... Unless otherwise specified in the order, a
dismissal under this paragraph is without prejudice."
M.R. Civ. P. 41(a)(2).
permits a plaintiff to voluntarily dismiss an action it no
longer wishes to pursue. Because Plaintiff believes that the
quitclaim assignment it has obtained satisfies its objectives
and it no longer wishes to pursue its declaratory judgment
action against Barclays Bank PLC, the court will dismiss this
action pursuant to Rule 41. Because Plaintiff has moved to
voluntarily dismiss its complaint, the court need not decide
whether Plaintiff's claim is moot as a matter of law. In
fact, the court expressly declines to rule or opine on the
validity of the quitclaim assignment at this time and whether
it moots Plaintiff's complaint.
the court grants the motion to voluntarily dismiss its
complaint, the court notes that Plaintiff's filings
throughout this case have been less than scrupulous. In some
instances, Plaintiff has led the court believe that Equifirst
Corporation no longer exists and that Barclays Bank PLCS is
the proper defendant. In other instances, the Plaintiff has
averred that Equifirst Corporation is the real defendant in
this case. Plaintiff's motion to dismiss and the
quitclaim assignment have done nothing to clarify the facts
in this case or ...