United States District Court, D. Maine
ORDER ON MOTION TO SEVER
A. WOODCOCK, JR.UNITED STATES DISTRICT JUDGE.
Court grants a bank's motion to sever its foreclosure
action from its partition action and to stay the partition
action pending resolution of the foreclosure action but
orders periodic status reports to make certain these matters
are resolved expeditiously.
December 21, 2018, TD Bank, N.A. filed a motion to sever and
to stay partition proceeding. Combined Mot. to Sever and
Mot. to Stay Partition Cls. Pending Resolution of Foreclosure
Cls. (ECF No. 67). The object of this litigation is a
parcel of land located at 67 Cutts Road in Kittery, Maine.
Mot. to Am. Compl. Attach. 1, First Am.
Compl. ¶ 27 (ECF No. 11). The parcel was once owned
as tenants in common by Bruce H. Woodman and Guy E. Kenerson.
Id. Mr. Woodman died in 2012 and Mr. Kenerson died
in 2003. Id. ¶¶ 28, 30. On October 9,
2013, the York County Probate Court appointed Stephanie
Albert as Special Administrator for the Estate of Bruce H.
Woodman. Id. ¶ 31, Mot. to Am. Compl.
Attach. 4, Order Special Administrator at 1. Mr.
Kenerson died intestate and no estate has been opened to
administer his property. Id. ¶ 28. The portion
of the Kittery parcel owned by Mr. Woodman is currently held
by the Woodman Estate and the Estate has not transferred its
interest in the parcel. Id. ¶ 33. The portion
of the Kittery parcel owned by Mr. Kenerson initially
devolved to his original heirs; however, all the original
heirs are now deceased, and twenty-one living Kenerson heirs
now own his share of the parcel. Id. ¶ 29.
2008, Bruce Woodman executed a mortgage and promissory note
in favor of TD Bank as a home equity line of credit with a
limit of $71, 584.00. Id. ¶ 36. The Estate of
Bruce Woodman has failed to make monthly payments on the loan
since November 10, 2013. Id. ¶ 39. On May 3,
2017, TD Bank filed in this Court a foreclosure complaint
against the Estate of Bruce Woodman and a partition action
against both the Estate and the Kenerson heirs.
Comp. (ECF No. 1). The Estate of Bruce Woodman
answered the Complaint on May 15, 2017. Answer to
Comp. (ECF No. 7). Several of the Kenerson heirs
answered the partition action. Answer of Eric Rune
Norberg (ECF No. 15); Answer to Am Compl. of
Katherine Krauss Hinds (ECF No. 36); Answer to Am.
Compl. of Mariah Fellow Krauss (ECF No. 42). Others have
not answered and have been defaulted. Req. to Clerk to
Enter Default Against Defs. Anita Kenerson Prickett, Bonita
C. Bunker, Lindsay Ashworth Krauss, Matthew Frederick Krauss,
Pamela Coulombe Ross, Kevin Carl Coulombe, Valerie M.
Bernier, Brian C. Kenerson, Bradley Paige Kenerson Dr., Paul
A. Kenerson Jr., Lizbeth Kenerson Villacaro, Daphne B. Lazor,
Brenda E. Collins Kenerson and Jodi Perrow (ECF No. 38);
Order Granting Mot. for Entry of Default (ECF No.
39); Req. to Clerk to Enter Default Against Defs.
Courtney Krauss, Stephen Allen Coulombe, Craig D. Perrow, and
Frank B. Kenerson (ECF No. 51); Order Granting Mot.
for Entry of Default (ECF No. 52).
August 31, 2018, TD Bank filed a notice of intent to file
summary judgment. Pl.'s Notice of Intent to Move for
Summ. J. (ECF No. 54). The Court held a Local Rule 56(h)
pre-filing conference on October 23, 2018. Min.
Entry (ECF No. 65). During the pre-filing conference,
there was some discussion about how TD Bank intended to
proceed, namely whether it was going to proceed with the
partition and foreclosure action in tandem or whether it was
going to proceed with the actions separately. Also, there was
a discussion about the status of the partition action and
whether TD Bank was going to make a separate peace with the
Kenerson heirs. As a consequence of these discussions, the
Court ordered TD Bank to file a status report by December 7,
2018. Id. On December 7, 2018, TD Bank filed a
status report indicating that it intended to file a motion to
sever the foreclosure actions from the partition action and
to stay the partition action pending resolution of the
foreclosure action. Pl.'s Status Report Regarding
Local Rule 56 Pre-Filing Conf. (ECF No. 66). On December
21, 2018, TD Bank filed its proposed motion. Combined
Mot. to Sever and Mot. to Stay Partition Cls. Pending
Resolution of Foreclosure Cls. (ECF No. 67). None of the
defendants responded and TD Bank's motion became ready
for decision on January 22, 2019.
THE MOTION TO SEVER AND TO STAY
motion, TD Bank asks the Court to sever the partition action
from the foreclosure action, to allow the foreclosure action
to proceed, and to stay the partition action pending
resolution of the foreclosure action. Id. at 1-4. TD
Bank says that a severance “will allow Plaintiff to
fully resolve its Foreclosure Claims against the Woodman
Estate and provide certainty with respect to the amounts due
to Plaintiff pursuant to its mortgage prior to a sale of the
entire Property via the Partition Claims.” Id.
at 2. TD Bank further states that “[a]ssuming the Court
grants this motion, Plaintiff will not be seeking relief
against the Woodman Estate as part of the Partition
Claims.” Id. at 3. It also notes that
“severance of the Foreclosure Claims from the Partition
Claims would obviate the need for briefing and a potential
hearing on concerns raised regarding Plaintiff's standing
as a mortgagee in brining the Partition Claims.”
Id. TD Bank anticipates that if it is able to
resolve the foreclosure claims and if it is the successful
bidder at the foreclosure sale, “Plaintiff's
standing to pursue the Partition Claims will be
unambiguous.” Id. TD Bank says that it and the
Woodman Estate are “currently finalizing terms of a
stipulated judgment of foreclosure and sale” and that
disposition of the foreclosure claims “would allow the
Woodman Estate to resolve its interest in the Property
without the need to participate in or wait for resolution of
the Partition Claims.” Id.
Rule of Civil Procedure 21 allows a court to “sever any
claim against a party.” Fed.R.Civ.P. 21. The effect of
a severance is to separate “a case into separate
actions.” Acevedo-Garcia v. Monroig, 351 F.3d
547, 558 (1st Cir. 2003). “[E]ven when venue is proper
to all defendants, the court may sever . . . an unrelated
claim and give it separate treatment when doing so would be
in the interest of some or all of the parties.” Day
v. Grey, No. 2:17-cv-00286-JAW, 2018 U.S. Dist. LEXIS
109616, at *4 (D. Me. Jun. 30, 2018) (quoting 7 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure (3d ed. 2001) § 1689, at 517-18)
(Wright, Miller & Kane). “On the other hand,
severance with be refused if the court believes that it only
will result in delay or inconvenience, or added
expense.” Id. (quoting Wright, Miller &
Kane at 518-19). “The decision to separate parties or
claims is a case management determination ‘peculiarly
within the discretion of the trial court.'”
Keene v. Me. Dep't of Corr., No.
1:17-cv-00403-JDL, 2018 U.S. Dist. LEXIS 61412, at *2-3 (Apr.
11, 2018) (quoting Acevedo-Garcia, 351 F.3d at 558).
The Court agrees with TD Bank that a severance of the
foreclosure action from the partition action would likely
result in a more expeditious, clearer, and less costly
resolution of the issues surrounding the Kittery parcel and
therefore will grant TD Bank's motion.
that said, the Court is concerned that this case has now been
pending for over one year and eight months and is only now in
a posture for resolution of the foreclosure action, leaving
the partition action for later resolution. As the case has
dragged, increasing interest costs and other expenses have
attached to the foreclosure and it is time for TD Bank to
move quickly to resolve the foreclosure. The Court
anticipates that counsel for TD Bank will, as promised, act
expeditiously to resolve the foreclosure action so that the
partition action may be attended to and the case as a whole
resolved. To this end, the Court will order TD Bank to file a
status report regarding the foreclosure action thirty days
from the date of this Order and every ninety days thereafter
until both actions are resolved.
Court GRANTS Plaintiff's Combined Motion to Sever and
Motion to Stay Partition Claims Pending Resolution of
Foreclosure Claims (ECF No. 67). The Court SEVERS the
foreclosure action from the partition action and STAYS the