ORDER ON DEFENDANT'S MOTION FOR SUMMARY
E. WALKER, JUSTICE
the Court is Defendant Brian Sturgis`s ("Sturgis")
motion for summary judgment,  This motion was filed pursuant to
the Court's May 7, 2018 trial management conference Order
directing Sturgis to file a motion regarding the
applicability of M.R. Civ. P. 41 to this case. Having
considered the filings of the parties, for the following
reasons, the Court now denies Sturgis's motion.
following facts are not in dispute. On August 31, 2005,
Defendant Brian Sturgis executed a promissory note in favor
of GMAC Mortgage Corporation ("GMAC") and executed
a mortgage to GMAC on the same day. On August 20, 2008,
Plaintiff Federal National Mortgage Association ("Fannie
Mae"), as GMAC's purported successor-in-interest,
filed a foreclosure action against Sturgis alleging Sturgis
defaulted on the loan on March 1, 2008 and the principal
balance due was $217, 351.70. Fannie Mae voluntarily
dismissed that lawsuit pursuant to M.R. Civ. P. 4l(a)(1)(i)
on October 27, 2008, On June 1, 2009, Fannie Mae filed a
second foreclosure action against Sturgis alleging Sturgis
defaulted on January 1, 2009 and the principal balance due
was $214, 479-62. Sturgis signed a modification agreement
offered by GMAC on September 25, 2009. On October 20, 2009,
the second lawsuit was also voluntarily dismissed pursuant to
Rule 4l(a)(1)(i). On April 6, 2011, Fannie Mae filed a third
foreclosure action against Sturgis. That action was dismissed
by stipulation of the parties pursuant to M.R. Civ. P.
4l(a)(1)(ii) on June 6, 2012. The current foreclosure action
was filed on May 10, 2016.
Standard of Review
judgment is appropriate if, based on the parties'
statements of material facts and the cited record, there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
Dyer v. Dep't of Tramp., 2008 ME 106, ¶ 14,
951 A.2d 821. "A material fact is one that can affect
the outcome of the case. A genuine issue of material fact
exists when the factfinder must choose between competing
versions of the truth." Dyer, 2008 ME 106,
¶ 14, 951 A.2d 821 (internal citation and quotation
marks omitted). When deciding a motion for summary judgment,
the court reviews the evidence in the light most favorable to
the non-moving party. Id.
movant's motion for summary judgment is properly
supported, the burden then shifts to the non-movant to
respond with specific facts indicating a genuine issue for
trial in order to avoid summary judgment. M.R. Civ. P. 56(e).
When a defendant moves for summary judgment, the plaintiff
must respond with evidence establishing a prima facie case.
Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969
A.2d 897. The evidence proffered by the plaintiff "need
not be persuasive at that stage, but the evidence must be
sufficient to allow a factfinder to make a factual
determination without speculating." Estate of Smith
v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759.
If a plaintiff fails to present sufficient evidence, then the
defendant is entitled to a summary judgment. Watt,
2009 ME 47, ¶ 21, 969 A.2d 897.
The Two-Dismissal Rule
motion is premised on the assertion that the filing and
dismissal of the first two foreclosure lawsuits operates as a
judgment on the merits, thereby barring the current claim as
res judicata.  Rule 41(a)(1) states, in relevant
[A]n action may be dismissed by the plaintiff without order
of court (i) by filing a notice of dismissal at any time
before service by the adverse party of an answer or of a
motion for summary judgment, whichever first occurs.... [A]
notice of dismissal operates as an adjudication upon the
merits when filed by a plaintiff who has once dismissed in
any court of this state ... an action based on or including
the same claim.
argues the dismissal of the second lawsuit operates as an
adjudication on the merits and therefore bars Plaintiff from
bringing a subsequent foreclosure action against him, citing
Johnson and its progeny. See Johnson v. Samson
Constr. Corp., 1997 ME 220, ¶ 8, 704 A.2d 866
("The court's dismissal with prejudice of the first
action operated 'as an adjudication on the merits.'
... That judgment bars the complaint in this action which
alleges precisely what the complaint in the first action
alleged: that [Defendant] defaulted on the note and that
[Plaintiff] is entitled to a judgment for the amount due
under the note.").
there been no subsequent payments made on the loan or any
modification of the loan, Fannie Mae v. Deschaine,
which holds that the filing of a foreclosure lawsuit
accelerates the mortgage debt and therefore bars subsequent
foreclosure suits pursuant to the rule in Johnson,
would likely compel a finding that the two-dismissals rule
bars any future foreclosure action. See Fannie Mae v.
Deschaine, 2017 ME 190, ¶¶ 26, 35-36, 170 A.3d
230. Indeed, the Law Court in Pushard v. Bank of
America cites with approval an opinion of the Supreme
Court of Ohio wherein, when presented with a Rule 41 question
in the foreclosure context, the Court held a second voluntary
dismissal bars all future foreclosure actions. U.S. Bank
Nat'l Ass'n v. Gullotta, 899 N.E.2d
987, 402 (Ohio 2008) ("[W]e hold that each missed
payment under the promissory note and mortgage did not give
rise to a new claim and that [the] two-dismissal rule does
apply. Thus, res judicata barred [Plaintiffs] third
complaint."); see Pushard v. Bank of Am., N.A.,
2017 ME 230, ¶ 22 n. 10, 175 A.3d 103. Yet, this passage
of the Ohio Court's opinion is particularly relevant to
the case under consideration:
The significant facts here are that the underlying note and
mortgage never changed, that upon the initial default, the
bank accelerated the payments owed and demanded the same
principal payment that it demanded in every complaint, that
[Defendant] never made another payment after ...