ORDER AFTER REMAND
Mills Justice, Superior Court.
Pursuant to the Law Court Mandate certified on April 25,
2017, this case was scheduled for hearing on July 6, 2017.
See Green Tree Servicing, LLC v. Cope, 2017 ME 68,
¶ 21, 158 A.3d 931. Plaintiff, Green Tree Servicing,
LLC, and defendant, Thelma Cope, appeared through counsel;
the party in interest did not appear. The history of this
case has been documented by the Law Court and by the Superior
Court in two orders. See Green Tree Servicing. 2017
ME 68, 55 1, 3-6, 8-10, 158 A.3d 931; Green Tree
Servicing v. Cope, No. RE-14-244, 2016 Me. Super. LEXIS
1 (Jan. 2, 2016); Green Tree Servicing v. Cope,
CUMSC-RE-16-244 (Me. Super. Ct., Cum. Cty., Mar. 18, 2016).
support of its request that the court dismiss the complaint
without prejudice, plaintiff Green Tree argued first that the
provision in Rule 41(a)(1) that the second notice of
dismissal by a plaintiff of the same claim operates as an
adjudication on the merits does not apply to this case. M.R.
Civ. P. 41(a)(1). Although there have been three complaints
for judgment of foreclosure involving this note and mortgage,
each complaint involved a different plaintiff. See
Green Tree Servicing, 2017 ME 68, ¶ 6 n.5, 158
A.3d 931. The first complaint was dismissed by stipulation of
the parties. M.R. Civ. P. 41(a)(1). The second complaint was
dismissed by order of the court granting plaintiff's
motion to dismiss. M.R. Civ. P. 41(a)(2).
Green Tree argued next that Saunders did not provide
notice that an assignment from MERS was inappropriate.
See Mortg. Elec. Registration Sys. v.
Saunders. 2010 ME 79, 2 A.3d 289. In
Saunders, the Law Court made clear that MERS had no
standing to institute the foreclosure proceedings because it
was not a mortgagee and had no possession or interest in the
note. Id. 55 10, 15. The Law Court determined,
however, that the substitution of Deutsche Bank for MERS as
plaintiff was proper because:
Accredited [, the original lender and mortgagee], as the
party entitled to enforce the rights granted in the mortgage,
was the real party in interest at the time MERS instituted
foreclosure proceedings. Five months after MERS filed for
foreclosure, the Bank became the real party in interest when
Accredited transferred the Saunders' mortgage and note to
it. As we had not previously spoken on MERS's standing to
foreclose a residential mortgage, the prosecution of the case
in its name is an understandable mistake to which Rule 17(a)
can be applied.
Id. ¶ 19. The assignment in Saunders
was, in fact, an assignment from MERS as nominee for
Accredited. Id.; (Pl.'s Ex. 1.); see also
Deutsche Bank Nat'l Trust Co. v. Wilk, 2013
ME 79, 55 2, 21, 76 A.3d 363 (the Law Court concluded that
assignments from MERS to IndyMac Federal Bank FSB and from
the FDIC, as the receiver for Indy Mac, to Deutsche Bank,
would have shown Deutsche Bank received the mortgage by
proper assignments if the assignments had been offered in
undisputed, however, that as of July 3, 2014, the date
Greenleaf was decided, plaintiff Green Tree knew it
lacked standing to pursue the foreclosure complaint filed on
May 28, 2014. See Bank of Am., N.A. v. Greenleaf,
2014 ME 89, ¶¶ 16-17, 96 A.3d 700; (Compl.
¶¶ 6-7; Ex. C). Plaintiff Green Tree's motion
to dismiss was filed on July 13, 2015. See M.R. Civ. P.
on the court's request at the hearing on plaintiff Green
Tree's motion to dismiss on July 23, 2015, plaintiff
Green Tree filed an affidavit and outlined counsel's
efforts to remedy the MERS assignment problem in this case.
Counsel's investigation revealed that the original
lender, First Magnus Mortgage Corporation, had been
administratively dissolved and had filed for bankruptcy in
2007. The bankruptcy was pending in the fall of 2014. (Jordan
Aff. ¶ 7.) The assets of First Magnus had been
transferred to a separate entity, First Magnus Liquidating
Trust, which was represented by an attorney. (Id.
¶ 8.) Dealings with the Trust's attorney became
increasingly contentious and the Trust office ultimately
prevented in-hand service. (Id. ¶ 9.) At the
Trust's request, the bankruptcy was terminated on July
15, 2015. (Id.)
defendant did not move to dismiss based on plaintiff Green
Tree's capacity to sue, plaintiff Green Tree believed it
could proceed with the complaint if plaintiff Green Tree was
able to cure the standing problem. See JPMorgan Chase
Bank v. Harp, 2011 ME 5, ¶¶ 9-10, 12, 10 A.3d
718; Saunders. 2010 ME 79, ¶ 19, 2 A.3d 289.
Defendant chose not to challenge plaintiff Green Tree's
standing because she believed a trial would be more
communication with the Trust ended, plaintiff Green Tree
filed on July 1, 2015 a motion to amend the complaint to add
a count for declaratory judgment and to add the Trust as a
defendant. The motion was denied on July 14,
2015. As discussed above, the motion to dismiss
without prejudice was filed on July 13, 2015.
Green Tree argued finally that this history does not
demonstrate a lack of good faith for which a dismissal with
prejudice is appropriate. See U.S. Bank v. Sawyer.
2014 ME 81, ¶ 15, 95 A.3d 608. "A dismissal with
prejudice imposed as a sanction . . . represents the
court's 'determination of a collateral issue: whether
the [party or] attorney has abused the judicial
process.'" Green Tree Servicing, 2017 ME
68, ¶ 18, 158 A.3d 931 (quoting Willy v. Coastal
Corp.. 503 U.S. 131, 138-39 (1992)). When imposing
the trial court must consider a number of factors, including
"(1) the purpose of the specific rule at issue; (2) the
party's conduct throughout the proceedings; (3) the
party's basis for its failure to comply; (4) prejudice to
other parties; and (5) the need for the orderly
administration of justice. The court should also consider the
purpose to be served by imposing sanctions, including
penalizing the noncompliant party and deterring similar
Bayview Loan Servicing v. Bartlett. 2014 ME 37,
¶ 12, 87 A.3d 741 (quoting Estate of Hoch, 2011
ME 24, ¶ 33, 16 A.3d 137) (citations omitted). The
presence of a warning is a factor that supports a dismissal
with prejudice. See Bartlett. 2014 ME 37, ¶ 14,
87 A.3d 741. It is "the rare case that requires the
ultimate sanction" of dismissal with prejudice. U.S.
Bank v. Manning. 2014 ME 96, ¶¶ 13, 20, 97
A.3d 605 (quotation marks omitted) (dismissal with prejudice
based on payment of an unauthorized sanction that was not
late was an abuse of discretion); Sawyer. 2014 ME
81, ¶¶ 9-10, 15-16, 95 A.3d 608 (court is required
to find evidence of a lack of good faith, not bad faith;
Bank's failure to participate in the mediation process in
good faith, failure to be prepared for noticed show cause
hearing, and failures to honor agreements to provide offers
for modifications resulted in emotional upheaval and costs,
fees, and expenses to defendants that justified dismissal
with prejudice); Bartlett, 2014 ME 37, ¶ 9, 87
A.3d 741 (Law Court affirmed dismissal with prejudice where
plaintiff engaged in pattern of disruptive behavior, failed
to respond to lesser sanctions, and was strongly warned by
the court that future noncompliance could result in dismissal
with prejudice); Unifund CCR Partners v. Demers,
2009 ME 19, ¶ 14, 966 A.2d 400 (dismissal with prejudice
was an abuse of discretion based on plaintiff's failure
to appear at one pretrial conference); Terjelian v.
Concord Group Ins. Co.. 606 A.2d 197, 198 (Me. 1992)
(dismissal with prejudice affirmed based on plaintiff's
receipt of numerous notices and orders regarding the failure
to file a report, plaintiff's receipt of warnings of the
consequences of the failure to file the report, and
plaintiff's dilatory tactics regarding discovery).
court agrees that plaintiff Green Tree's conduct did not
rise to the level described in the cases in which the Law
Court determined a dismissal with prejudice was appropriate.
Although, based on this record, it appears that the standing
and notice issues may be difficult to address, the court
remains concerned about a fourth foreclosure action involving
this note and mortgage. Plaintiff Green Tree's motion for
substitution of parties ...