MAINE SUPREME JUDICIAL COURT
Decision: 2014 ME 37
Docket: Yor-13-298
Argued: January 14, 2014
Decided: March 4, 2014
Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
BAYVIEW LOAN SERVICING, LLC
v.
JOHN H. BARTLETT et al.
SILVER, J.
[¶1] Bayview Loan Servicing, LLC,1 appeals from a judgment entered in
the District Court (York, Cantara, J.) dismissing with prejudice Bayview’s
complaint seeking a judgment of foreclosure against John H. Bartlett and Cheryl J.
Bartlett. Bayview argues that the District Court erred or abused its discretion in
dismissing the action based on Bayview’s failure to appear at three mediation
sessions. We affirm the judgment.
[…]
[¶7] After a hearing, the court (Douglas, J.) entered an order on
October 4, 2012, concluding that the ultimate sanction of dismissal with prejudice
was not warranted “yet.” The court warned Bayview, however, that it had “come
very close to that point,” and that “if there is a future breach by [Bayview] there is
a risk that the court could, upon motion and after proper process, dismiss this case
with prejudice.” The court ordered that the parties attend a fourth mediation
session and sanctioned Bayview, ordering (1) that all interest and fees be tolled
from the date of the first mediation until the date of any loan modification, or, if
none, the date of the order; (2) that Bayview pay the Bartletts’ reasonable
expenses, “including lost income and transportation costs for (i) the second and
third mediation sessions, (ii) any and all court events they have attended related to
this motion, and (iii) lost income and transportation expenses, if any, incurred in
connection with a fourth mediation session”; (3) that Bayview pay the Barletts’
reasonable attorney fees in connection with the Bartletts’ motion; and (4) that
Bayview pay a $1000 fine to the Foreclosure Diversion Program.
[…]
[¶9] On April 2, 2013, after a hearing, the court (Cantara, J.) dismissed
Bayview’s complaint with prejudice. The court stated that it was “aware of the
gravity of the sanction it is imposing,” but concluded that dismissal with prejudice
was “the only appropriate sanction” in light of Bayview’s “pattern of disruptive
behavior,” its failure to respond to lesser sanctions, and the court’s “strong
warning” that future noncompliance could result in dismissal with prejudice.
The court rejected Bayview’s argument that its failure to appear at the fourth
mediation session was excusable because it was the result of an inadvertent error of
counsel, reasoning that “[a]fter failing to appear on two previous occasions,”
Bayview “should have been [hypervigilant] about ensuring that it appeared at all
future mediation sessions.” The court also noted that the case had been pending
since 2009 and that Bayview’s conduct deprived the Bartletts of three opportunities
to mediate. Bayview filed a motion for reconsideration, which the court denied.
Bayview timely appealed.
[…]
