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U.S. Bank National Association v. Manning

Superior Court of Maine, Cumberland

April 28, 2019

U.S. BANK NATIONAL ASSOCIATION as trustee for RASC 2005KS9, Plaintiff
v.
THOMAS MANNING, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION

          Joyce A. Wheeler, Active Retired Justice

         Before the Court is Defendant Thomas Manning's Motion for Reconsideration of this Court's June 1, 2015 Order dismissing this case without prejudice. This motion was originally filed on June 15, 2015, prior to the Court granting a stay of the case on July 15, 2015, which was lifted on January 17, 2019. Thereafter, the parties filed supplemental briefs which the Court has considered in reaching its decision on this motion.

         I. Background

         The procedural history of this case is extensive, and the Court here recounts the facts most relevant to the motion under consideration.

         A. Early Discovery Dispute, Appeal, and Remand

         Plaintiff U.S. Bank National Association as trustee for RASC 2005KS9 (the "Bank") filed its Complaint for foreclosure in this Court on May 24, 2010. The Bank sought to foreclose on Mr. Manning's property located at 1 Birchwood Circle, Falmouth, Maine. Following an unsuccessful mediation, a standard scheduling order was issued on August 22, 2011, setting the discovery deadline at April 22, 2012. Pursuant to Mr. Manning's consented-to motion, the Court granted an enlargement of the discovery deadline to July 21, 2012, and on the Bank's consented-to motion, the Court again extended the discovery deadline to November 30, 2012. On November 9, 2012, the Court entered an Order acknowledging interrogatories and requests for production were served on the Bank on June 21, 2012 and compelling the Bank to respond by November 30, 2012. The Court also ordered the Bank to pay to Mr. Manning $150 within 30 days and warned that failure to comply with the Order would result in dismissal of the case with prejudice. The Court thereafter found the Bank failed to comply and dismissed the case. That dismissal became the subject of an appeal to the Law Court wherein it was found that the Bank timely complied with the payment of the sanction and that dismissal of the case with prejudice was improper under the circumstances at the time. U.S. Bank N.A. as trustee for RASC 2005KS9 v. Manning, 2014 ME 96, 97 A.3d 605. The Law Court did not find that imposition of the monetary sanction was unwarranted.

         B. The Dismissal Without Prejudice, Motion for Reconsideration, and Motion to Stay

         Following remand from the Law Court, this Court held a status conference on October 14, 2014 and issued an Order requiring the Bank to respond to outstanding discovery requests and produce names and dates of availability of deponents by December 5, 2014. The Court set the discovery deadline at March 6, 2015 with a judicial settlement conference to follow, which was to include a "Bank official with authority to settle." On December 8, 2014, Mr. Manning notified the Court that the Bank had failed to meet the December 5 deadline in all respects and requested a show cause hearing. The Bank filed an opposition to Mr. Manning's request for a show cause hearing on December 11, 2014. On December 15, 2014, the Court reminded the Bank that appearance of new counsel did not change the October 14 Order but nonetheless extended the December 5 deadline by 30 days. While the Bank did respond to Mr. Manning's discovery requests, a witness for deposition was never produced and dates of availability were never provided.

         On February 3, 2015, the Bank filed a motion to amend its Complaint and stay the case in light of the issuance of Bank of America, N.A. v. Greenleaf, 2014 ME 89, 96 A.3d 700.[1] Specifically, the Bank requested to add a count for declaratory judgment finding it was the equitable mortgagee of the mortgage, and further requested to stay the case until the Court rendered a decision on the declaratory judgment count. The Bank acknowledged that, in accordance with Greenleaf, it did not have standing to foreclose because the mortgage was granted to MERS at the time of origination.[2] Mr. Manning opposed the motion to amend and filed a motion for summary judgment, arguing judgment should be entered in his favor because the Bank did not have standing to foreclose. The Bank opposed the motion for summary judgment and filed a motion to voluntarily dismiss without prejudice pursuant to M.R. Civ. P. 41(a)(2).[3]

         On June 1, 2015, the Court granted the Bank's motion to voluntarily dismiss without prejudice and without an award of costs and fees to Mr. Manning; this is the Order currently under reconsideration. The Court further concluded it lacked subject matter jurisdiction and could not enter a judgement on the merits and therefore denied Mr. Manning's motion for summary judgment. Mr. Manning filed his motion for reconsideration on June 15, 2015, arguing the Bank's lack of standing does not deprive the Court of subject matter jurisdiction and requesting the Court therefore deny the motions to amend and to dismiss and grant the motion for summary judgment. The Bank opposed the motion for reconsideration on July 9, 2015.

         The parties filed, and the Court granted, a joint motion to stay the case on July 15, 2015, pending the issuance of the Law Court's opinion in "Greenleaf IF (Bank of America, N.A. v. Greenleaf, 2015 ME 127, 124 A.3d 1122) due to that case's potential effect on the motion for reconsideration. All deadlines pending at that time, including Mr. Manning's deadline to file a reply to the opposition to the motion for reconsideration, were stayed until 30 days after the issuance of Greenleaf II.

         Greenleaf II was issued on September 22, 2015, and by order on Mr. Manning's consented- to motion, the stay was continued until November 6, 2015. Following a status conference, the Court issued the following Order on October 22, 2015:

Within ten (10) days Manning make demand to Bank; within ten (10) days Bank to respond. Court to set judicial settlement conference for early December and Bank shall produce person with authority to settle. The case is stayed until 30 days after the conclusion of judicial settlement conference.

         On February 25, 2016, nearly three months after the Court intended the judicial settlement conference ("JSC") to take place, the Bank filed an objection to Mr. Manning's request for JSC and a motion to lift the stay, arguing the motion for reconsideration had become moot. The Bank contended the parties had engaged in settlement discussions but had been unable to resolve the matter and would continue to be unable to do so regardless of a formal JSC. On July 22, 2016, the Court entered an Order "solely to reiterate for the parties that this court ordered a judicial settlement conference in its order of October 22, 2015." The Court affirmed that it had not changed its position and ordered that a JSC be scheduled within 60 days and that the parties participate in good faith.

         C. The Judicial Settlement Conference

         On September 19, 2016, by Notice of Setting of Settlement Conference, the parties were ordered to attend a JSC before Justice Walker on September 23, 2016. The Notice stated in bold, underlined text: "all parties ... must be vested with full settlement authority.... A corporate party must be present in person at the conference through an appropriate representative. That ...


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