WELLS FARGO BANK, N.A.
Submitted On Briefs: May 26, 2016
Argued: September 14, 2016
Daniella Massimilla, Esq. (orally), Litchfield Cavo, LLP,
Lynnfield, Massachusetts, for appellant Wells Fargo Bank,
W. Austin, Esq. (orally), Rumford, for appellee Clara
ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Wells Fargo Bank, N.A., appeals from a judgment of the
District Court (Rumford, Beliveau, J.) dismissing
its foreclosure complaint against Clara Welch-Gallant as a
sanction, pursuant to M.R. Civ. P. l6A(d), for pretrial
misconduct. Wells Fargo argues that the court erred by
dismissing the complaint with prejudice rather than without
prejudice. We vacate the judgment and remand to allow the
court to follow the process we recently outlined in Green
Tree Servicing, LLC v. Cope, 2017 ME 68, ___ A.3d ___,
issued on April 11, 2017.
Wells Fargo instituted foreclosure proceedings against
Welch-Gallant in the District Court on February 24, 2014,
alleging that, in 2012, Welch-Gallant executed a promissory
note in the amount of $70, 700 in favor of Embrace Home
Loans, Inc. (EHL), as well as a mortgage on her real property
in Mexico, Maine, in favor of Mortgage Electronic
Registration Systems, Inc. (MERS), "as nominee for
[EHL]" to secure the note. Wells Fargo alleged that it
was the holder of the note and that MERS had assigned the
mortgage to it in 2013. Welch-Gallant timely answered the
complaint. See M.R. Civ. P. 12(a).
The court [Carlson, /.) issued a scheduling order
dated March 18, 2014, setting June 18, 2014, as the discovery
deadline. By July 1, 2014, both parties had filed their
witness and exhibit lists; Welch-Gallant named herself as her
sole witness and indicated that she intended to offer no
exhibits. On September 26, 2014,  the court conducted a
pretrial conference and issued an order that day noting that
"[d]iscovery [was] complete" and setting the trial
for February 5, 2015, giving "30 days['] prior
notice for out of state witness."
On the day of trial, Wells Fargo moved to dismiss without
prejudice its complaint against Welch-Gallant on the ground
that, because its mortgage assignment was from MERS as
"nominee, " it lacked standing to seek foreclosure
pursuant to our decisions in Bank of America, N.A. v.
Greenleaf, 2014 ME 89, 96 A.3d 700 and Mortgage
Electronic Registration Systems, Inc. v. Saunders, 2010
ME 79, 2 A.3d 289. After a nontestimonial hearing at which
Welch-Gallant asked that Wells Fargo be sanctioned, the court
[Beliveau, J.) ordered the action dismissed with
Wells Fargo moved to alter or amend the judgment to provide
for a dismissal without prejudice, arguing that its lack of
standing deprived the court of subject matter jurisdiction
and that the absence of subject matter jurisdiction allowed
the court to dismiss only without prejudice. Welch-Gallant
opposed the motion, arguing that a dismissal with prejudice
was within the court's discretion pursuant to M.R. Civ.
P. 41(a)(2) for Wells Fargo's failure to be prepared for
trial and filing of a "surprise" motion to dismiss
By decision dated July 21, 2015, the court denied Wells
Fargo's motion to alter or amend the judgment,
maintaining the dismissal with prejudice, and also ordered
Wells Fargo to pay ...