Opinion
CIVIL ACTION DOCKET NO. RE-10-307
12-06-2012
DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff v. ANDREW G. LUDE, et al., Defendants
ORDER ON MOTION
The Court has carefully considered the arguments and affidavits submitted. The Court concludes that this motion should be evaluated under Rule 60(b) instead of Rule 59.
To establish relief under Rule 60(b)(1) for mistakes, it is also required that the moving party establish why there was justification for the mistake being made. See e.g., Merrill/Norstar Bank v. Sites, 592 A.2d 1077 (Me. 1991).
In this case the mistake was the belief that the Plaintiff was not in fact the proper plaintiff according to the Wells Fargo database. This was appropriately brought to the court's attention by counsel rather than going through with a trial.
A review of Ms. Decaro's affidavit indicates she had acted diligently in accessing the Wells Fargo database including consulting with a Wells Fargo paralegal. The mistake occurred as a consequence of a relatively complicated accounting process, which shifted future payments to prior holders.
The Court concludes that due to the complexity of this portion of the Wells Fargo database that there was adequate justification to explain this mistake.
Based on the history of this case, it would likely not have been an abuse of discretion to deny this motion, but the court concludes the motion should be granted for the reasons stated above. There had remained counterclaims in place and no additional trial burden would be placed on the court as all issues are interwoven.
Accordingly, the court orders as follows:
1. Motion granted. Complaint to be reinstated with matters to be set for trial.
2. Counsel for Defendants to be awarded their counsel fees in trial preparation for July 11, 2012 including court appearance and fees for opposing the motion for voluntary dismissal.
3. Clerk may incorporate this order by reference on the docket.
______________________
John H. O'Neil, Jr.
Justice, Superior Court
ATTORNEYS FOR PLAINTIFF:
MARK A DARLING ESQ
LITCHFIELD CAVO LLP
6 KIMBALL LANE SUITE 200
LYNNFIELD MA 01940
NEIL S HIGGINS ESQ
FLAGG LAW PLLC
93 MIDDLE STREET
PORTSMOUTH NH 03801
ATTORNEY FOR DEFENDANT:
S JAMES LEVIS JR ESQ
LAW OFFICE OF S JAMES LEVIS JR PA
5 WEBHANNET PLACE BOX 12
KENNEBUNK ME 04043
ATTORNEYS FOR PARTIES-IN-INTEREST:
MOLLY BUTLER BAILEY ESQ
DAVID WEYRENS ESQ
THE HALLETT LAW FIRM
PO BOX 7508
PORTLAND ME 04112