Opinion
Civil Action RE-11-77
01-29-2015
WELLS FARGO BANK, N.A., As Trustee, Plaintiff v. BRADFORD WHITE, et al., Defendant
ORDER
Thomas D. Warren Justice
Before the court is defendant Brad White's motion for attorneys fees pursuant to 14 M.R.S. § 6101 (2014). After protracted litigation and at least one lengthy delay resulting from White's health problems, White ultimately prevailed in defending the foreclosure action brought by plaintiff Wells Fargo Bank.
The statute under which White seeks fees, 14 M.R.S. § 6101, provides in pertinent part as follows:
If the mortgagee does not prevail, or upon evidence that the action was not brought in good faith, the court may order the mortgagee to pay the mortgagor's reasonable court costs and attorney's fees incurred in defending against the foreclosure or any proceeding within the foreclosure action and deny in full or in part the award of attorney's fees and costs to the mortgagee.
Wells Fargo argues that this mortgage foreclosure action was commenced on January 13, 2011 and that the statutory language under which White is seeking fees was added as an amendment to 14 M.R.S. § 6101 by P.L. 2011 ch. 269 § 1. That amendment was effective on September 28, 2011 - eight months after the complaint was filed. The prior version of the statute, which was in effect when the foreclosure action was filed, made no provision for a statutory attorney's fee award to the mortgagor but provided only for the award of attorney's fees to a prevailing mortgagee.
Under Me. Const. Art. IV, Pt. 3, § 16, acts of the Legislature become effective 90 days after the recess of the legislative session in which the act was passed unless the preamble to the act includes an emergency clause. P.L. 2011 ch. 269 § 1 does not contain any emergency clause.
The application of statutory amendments to pending proceedings is governed by 1 M.R.S. § 302, which provides that "actions and proceedings pending at the time of the passage, amendment or repeal of an Act or ordinance are not affected thereby." The Law Court has ruled that absent express language demonstrating that the Legislature intended that an amendment have retroactive effect, amendments are treated as prospective and do not apply to pending proceedings pursuant to 1 M.R.S. § 302. See Bank of Maine N.A. v. Weisberger, 477 A.2d 741, 745-46 (Me. 1984).
Notably, the Weisberger case involved a claim for attorneys fees by a mortgagee under 14 M.R.S. § 6101. The Law Court held that because the action had been commenced in January 1981 and the statutory provision allowing attorneys fees to a mortgagee did not become effective until September 1981, the Bank was not entitled to attorneys fees when it ultimately prevailed with the entry of a judgment entered in 1984.
There is no express language in P.L. 2011 ch. 269 denoting legislative intent that the amendment allowing the award of attorney's fees to mortgagors was to have retroactive effect. Accordingly White is not entitled to pursue a claim for fees under 14 M.R.S. § 6101, as amended by P .L. 2011 ch. 269 § 1.
The entry shall be:
Defendant's motion for attorneys fees is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).