United States District Court, D. Maine
WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, as trustee for the Normandy Mortgage Loan Trust, Series 2015-1, Plaintiff,
MICHAEL H. MOONEY, Defendant.
ORDER ON THE DEFENDANT'S MOTION FOR JUDGMENT ON
LEVY U.S. DISTRICT JUDGE.
Defendant, Michael Mooney, has moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c).
ECF No. 13. He seeks dismissal of the Complaint filed by the
Plaintiff, Wilmington Savings Fund Society, FSB, doing
business as Christiana Trust, as trustee for the Normandy
Mortgage Loan Trust, Series 2015-1 (“Wilmington Savings
Fund”). Wilmington Savings Fund alleges claims for
foreclosure, breach of promissory note, breach of contract,
quantum meruit, and unjust enrichment. For the reasons
explained below, Mooney's motion is denied.
2007, Mooney executed a $173, 000 promissory note secured by
a mortgage on his property on Washington Avenue in Portland.
He defaulted on the promissory note approximately two years
later, in August 2009.
2012, the mortgage and promissory note were assigned to U.S.
Bank National Association, N.A., as trustee for Stanwich
Mortgage Loan Trust, Series 2012-7 (“U.S. Bank
National”). U.S. Bank National sent Mooney a Notice of
Default and Right to Cure pursuant to 14 M.R.S.A. § 6111
(2017), and later sued for foreclosure and sale in the
Cumberland County Superior Court. A bench trial was held in
October 2015, after which the court concluded that Mooney
never received the Notice of Default and Right to Cure, and
thus, U.S. Bank National had fallen short of the requirements
of 14 M.R.S.A. §§ 6111 and 6321. The trial court
dismissed the complaint, stating, in its order, that the
dismissal was without prejudice. Mooney did not appeal.
mortgage and promissory note were eventually assigned to
Wilmington Savings Fund in January 2016. In August 2016,
Wilmington Savings Fund sent Mooney a second Notice of
Default and Right to Cure, and filed the instant lawsuit in
federal court in October 2016.
motion for judgment on the pleadings under Rule 12(c) is
treated much like a Rule 12(b)(6) motion to dismiss, with the
court viewing the facts contained in the pleadings in the
light most favorable to the nonmovant and drawing all
reasonable inferences therefrom.” In re Loestrin 24
Fe Antitrust Litig., 814 F.3d 538, 549 (1st Cir. 2016)
argues that Wilmington Savings Fund's claims are barred
by the doctrine of res judicata, notwithstanding the fact
that the Cumberland County Superior Court's dismissal was
without prejudice. He maintains that the dismissal order
should have been with prejudice based on the
Superior Court's determination that the statutory
requirements of §§ 6111 and 6321 had not been
satisfied. By dismissing “without prejudice, ”
Mooney contends, the trial judge improperly speculated about
the effect of her adjudication on some future action. ECF No.
19 at 2 (citing U.S. Bank, N.A. v. Mackenzie, 2016
ME 149, ¶¶ 11, 12, 149 A.3d 267). Thus, according
to Mooney, the dismissal without prejudice was mere
commentary or an improper advisory opinion.
argument fails because he concedes that he did not appeal the
Cumberland County Superior Court's judgment dismissing
the foreclosure action without prejudice to the Maine Law
Court. This is fatal to his argument because a
“defendant's failure to challenge his adjudication
by direct appeal is a bar to relitigation under the
principles of res judicata.” State v. Reny,
511 A.2d 1066, 1067 (Me. 1986); see also Cline v. Maine
Coast Nordic, 1999 ME 72, ¶¶ 12, 14, 728 A.2d
686 (failure to appeal superior court's dismissal
rendered challenged decision “final and not subject to
collateral attack”). In other words, by failing to
timely appeal the dismissal without prejudice, Mooney cannot
now argue that that decision was in error. The judgment is
final and unassailable.
also cites three foreclosure decisions of the Maine Law Court
in which, in each case, the Superior Court had dismissed the
plaintiff bank's complaint without prejudice for want of
a valid notice of default, only for the Law Court to vacate
and direct that the dismissal be with prejudice.
Mackenzie, 2016 ME 149, 149 A.3d 267; U.S. Bank,
N.A. v. Tannenbaum, 2015 ME 141, 126 A.3d 734; Wells
Fargo Bank, N.A. v. Girouard, 2015 ME 116, 123 A.3d 216.
All three cases are distinguishable from this case because
those defendants, unlike Mooney, appealed to the Law
I conclude that Wilmington Savings Fund's claims are not
barred by res judicata, I need not address its
counterargument that the Rooker-Feldman doctrine
applies to bar Mooney's res judicata argument. For the
reasons explained above, ...