United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR RELIEF FROM
LEVY CHIEF U.S. DISTRICT JUDGE
26, 2019, this Court entered a Judgment of Foreclosure and
Sale against Defendant Patrick O'Donoghue (ECF No. 52).
O'Donoghue, representing himself, moves to set aside the
judgment (ECF No. 53). For the following reasons, I deny the
Plaintiff, Wilmington Savings Fund Society FSB, filed its
complaint against O'Donoghue and his co-defendant, Brian
K. Segal, on May 7, 2018. O'Donoghue received the
complaint as early as August 2018, and he was personally
served with the complaint, summons, cover sheet, and exhibits
at the subject property on October 3, 2018. O'Donoghue
did not answer the complaint, and an entry of default was
entered against him on November 13, 2018. Wilmington Savings
subsequently filed a motion for default judgment against
O'Donoghue, and a hearing was held on March 20, 2019 to
ascertain the damages. O'Donoghue appeared at and
participated in the hearing but did not object to any
testimony or exhibits offered by Wilmington Savings. After
the hearing, Wilmington Savings filed a proposed written
judgment. O'Donoghue filed a response seeking dismissal
of the action on several grounds, including that Wilmington
Savings had misspelled his name. Wilmington Savings then
filed an amended complaint and proposed judgment reflecting
the correct spelling of O'Donoghue's name. On July
26, 2019, the Court entered a final Judgment of Foreclosure
and Sale. On July 30, 2019, the Court received a letter from
O'Donoghue challenging the judgment and seeking “a
ruling on whether the property is an Owner Occupied
Property.” ECF No. 53.
court can set aside a final judgment by default only
‘in accordance with Rule 60(b).'” United
States v. $23, 000 in U.S. Currency, 356 F.3d 157, 164
(1st Cir. 2004) (citing Fed.R.Civ.P. 60(b) and Fed.R.Civ.P.
55(c)). Rule 60(b) permits relief from a judgment only for
the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “[R]elief under Rule 60(b) is
extraordinary in nature and . . . motions invoking that rule
should be granted sparingly.” Giroux v. Fed.
Nat'l Mortg. Ass'n, 810 F.3d 103, 106 (1st Cir.
2016) (alterations in original) (quoting Karak v. Bursaw
Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002)). Here,
O'Donoghue suggests that he is entitled to relief under
Rule 60(b) for two reasons. First, he asserts that service of
process was insufficient. Second, he contends that Wilmington
Savings did not provide “proof of completed mediation
(or waiver or default of mediation), ” which he asserts
is necessary to support a judgment of foreclosure. See
Bank of Am., N.A. v. Greenleaf, 96 A.3d 700, 708 (Me.
2014). I address each argument in turn.