Opinion
RE-1447
04-04-2015
NATIONSTAR MORTGAGE, LLC, Plaintiff v. TIMOTHY E. HALFACRE, Defendant
ORDER ON MOTION TO DISMISS
Joyce A. Wheeler, Justice, Superior Court
Before the court is the plaintiffs motion to dismiss without prejudice. Plaintiff asks the court to dismiss the complaint because it has discovered that its notice to cure is defective under 14 M.R.S. § 6111 as interpreted by the Law Court in the decision Bank of America, N.A. v. Greenleaf 2014 ME 89, 96 A.3d 700. Defendant opposes the motion and asks the court to rule on his pending motion for summary judgment. For the following reasons, the motion to dismiss is denied. The court addresses defendant's motion for summary judgment in a separate order.
Plaintiff's motion states that it is filed under M.R. Civ. P, 41(a)(1), however, because there is a pending motion for summary judgment in this case, plaintiff's case may only be dismissed by order of the court under M.R. Civ. P. 41(a)(2).
Background
This is the third foreclosure case filed against the defendant over the same property. In the first case, Suntrust Mortgage, Inc v. Halfacre, RE-09-134, plaintiff dismissed the complaint without prejudice after the parties entered into a loan modification agreement. In the second case, Nationstar Mortgage, LLC v. Halfacre, RE-12-02, judgment was entered in favor of defendant after trial.
This case was filed on January 9, 2014 and includes the same parties, allegations, and documents that were involved in the 2012 case. Defendant counterclaimed, asserting violations of the Unfair Trade Practices Act, Maine's Fair Debt Collections Act, and the Fair Debt Reporting Act. Defendant moved for summary judgment on June 11, 2014, arguing res judicata in light of the judgment in the 2012 case. The motion was fully briefed by the parties as of July 2014.
In October 2014, the court issued an order giving plaintiff sixty days to substitute the real party in interest because it appeared that plaintiff did not own the mortgage due to a defective assignment. Plaintiff filed the motion to dismiss and a motion to amend its complaint, which reflected a new assignment of the mortgage to plaintiff. The court granted plaintiff's motion to amend the complaint, which was not opposed.
Discussion
Plaintiff's complaint may only be dismissed by order of the court because defendant has filed an answer and a motion for summary judgment and defendant objects to dismissal. M.R. Civ. P. 41(a). Under M.R. Civ. P. 41(a)(2), "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Federal courts interpreting the nearly identical federal rule have found the following factors relevant in deciding whether to allow voluntary dismissal:
1) the defendant's effort and expense of preparation for trial; 2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action; 3) insufficient explanation for the need to take a dismissal; 4) the fact that a motion is made at a critical juncture in the ongoing processing of the case; and, 5) whether a dispositive motion has been filed.Canadian Nat'l Ry. Co. v. Montreal, Me. & Atl. Ry., Inc., 275 F.R.D. 38, 41 (D. Me. 2011).
After carefully weighing these factors, the court concludes that dismissal without prejudice is not warranted. Defendant has already incurred substantial costs defending a nearly identical foreclosure suit, which went to trial. Allowing plaintiff to start over at this point would add additional time and expense to what has already been a lengthy course of litigation. Another factor weighing against plaintiff is that defendant has filed and fully briefed a motion for summary judgment. Defendant would likely file an identical motion in a new case if plaintiff were allowed to dismiss and file a new complaint. Finally, the Greenleaf decision, which is the purported basis for plaintiff's motion, was decided six months before plaintiff filed its motion. Plaintiff could have filed earlier, thereby saving defendant from incurring additional legal costs and prolonging the uncertainty over the status of the property.
The entry is:
Plaintiff's motion to dismiss is DENIED