MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 81
Docket: Cum-13-472
Argued: May 13, 2014
Decided: June 24, 2014
Panel: ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
U.S. BANK, N.A.
v.
DAVID SAWYER et al.
MEAD, J.
[¶1] U.S. Bank N.A. (Bank) appeals from the judgment of the Superior
Court (Cumberland County, Mills, J.) dismissing the Bank’s foreclosure complaint
with prejudice. The Bank contends that the court abused its discretion in
dismissing the complaint because there was no evidence of bad faith or of
prejudice to the mortgagor, and because the sanction it imposed is too severe. We
affirm the judgment.
I. BACKGROUND
[¶2] The following facts are taken from the unrebutted testimony of David
and Debra Sawyer offered at the September 24, 2013, show cause hearing. See
Theriault v. Murray, 625 A.2d 908, 909 (Me. 1993).
[¶3] In 2009, the Sawyers first defaulted on a mortgage held by the Bank.1
After their default, the Sawyers were approved for a modification plan under which
they were to make a reduced monthly payment for a trial period of six months.
The Sawyers met their payment obligations at the reduced rate, but at some point
the loan-servicing agency, on behalf of the Bank,2 increased their monthly payment
to a level above the predelinquency amount and the Sawyers were again unable to
make timely payments. In 2012, the Bank filed a complaint for foreclosure. At the
time the complaint was filed, J.P. Morgan Chase Bank N.A. (Chase) had taken
over as loan servicer from the servicer with whom the Sawyers had negotiated the
reduced payment schedule. After the complaint was filed, and before the first of
four court-ordered mediations took place, the Sawyers contacted Chase in an
attempt to negotiate a modification. They were told to provide Chase with a list of
documents, which they did. The Sawyers reported, however, that Chase kept
requesting additional documents or new copies of documents that they had already
submitted.
A. The First Mediation
[¶4] In October 2012, Chase and the Sawyers met at the first mediation
session. The Sawyers again expressed their interest in a modification. Chase
requested additional copies of the same documents that the Sawyers had already
submitted in the months leading up to the mediation session. Chase promised the
Sawyers that if they provided the requested documentation a second time, it would
make a decision within 30 days of submittal. The Sawyers submitted the requested
documents, but Chase did not make a decision on the modification.
B. The Second Mediation
[¶5] On February 22, 2013, the parties attended another mediation session.
Again, the Sawyers were given a list of documents to provide. This time Chase
promised to respond to the modification request by April 22. The Sawyers
hand-delivered the requested documents to Chase’s local counsel, but Chase did
not respond by April 22, and still had not done so by the date of the next scheduled
mediation, May 17.
C. The Third Mediation
[¶6] At the May mediation, Chase once again requested additional
documentation and expressly promised to respond by June 28. The mediator later
reported to the court that Chase confirmed it was in receipt of the required
documents and that it would respond with a “definite answer” by the agreed-upon
date. The Sawyers did not receive a response by June 28. After the deadline had
passed, the Sawyers attempted unsuccessfully to contact Chase. When their
housing counselor did reach Chase, he was informed that the Sawyers’
modification was in the final stages of underwriting and would be released “in just
a couple of days.” Instead of a modification, however, the Sawyers received notice
on July 17—only a few days after their housing counselor spoke with Chase and
had been promised that a modification was imminent—that their loan would be
transferred to yet another servicer, Select Portfolio Servicing (SPS).
[¶7] After the third mediation, the court held a status conference at which
the Sawyers reported that in addition to the delays perpetuated by Chase, they were
subjected to daily debt-collection calls and letters, and that new and excessive
taxes, fees, and interest were regularly added to the valuation of their debt, making
it less likely that they would be approved for a modification.3 The Sawyers
accepted that they were responsible for the initial default, but reported that the
post-default actions of Chase and other servicers were causing them severe
distress. After hearing a summary of what had occurred at the mediation sessions
(including a description of Chase’s actions and inaction), the court directed Chase
that, unless the issues were resolved at the mediation on September 10, it was to
appear on September 24 and show cause why the complaint should not be
dismissed with prejudice.
D. The Fourth Mediation
[¶8] No agreement or modification was reached at the September mediation.
Instead, the new servicer, SPS, informed the Sawyers that they would have to
submit entirely new documentation if they wished to be considered for a
modification. SPS demanded these documents within ten days.
E. The Show Cause Hearing
[¶9] On September 24, the court conducted a show cause hearing. Although
SPS had been aware of the hearing date since August 15, it retained counsel only a
few days prior to the hearing. It sent counsel to the hearing with an oral proposal
for a proprietary modification,4 but without evidence, witnesses, or any convincing
argument as to why the court should not dismiss the case with prejudice.
[¶10] Noting that the Bank had the burden of going forward, the court found
that the Bank was not prepared to proceed at the hearing “in spite of the notice to
be prepared to proceed” and dismissed the complaint with prejudice. The Bank
appeals.
[…]
See Footnote #5 on Page 9.
Has anyone else out there “been through hell”?
Tom Cox rocks!
If you are following US Bank closely, they are getting slammed right now. The tide is turning.
I have gone threw four lawyers relative to mortgage fraud. Two of my properties are in foreclosure and have been acquired by U.S bank. I have had cfla supply audits. They show mortgages were robo signed, securitized after the closing date of the security, no transfers shown are from mortgager A to B to C then to D U.S bank. I learned some judges will find in favor of the home owner, others in favor of the bank. Same set of conditions, but it is the judge that decides who to favor. Lawyers want around five thousand dollars for each case, but they do not know what the outcome of the case will be, so all your doing is taking a gamble that you will end up with the right judge. This means you will go broke paying the lawyers that will take your money and do nothing about your case. This is the most ridiculous thing you could think of. Either there was mortgage fraud or their was not. The courts cannot have it both ways and the lawyers haul in alot of $. This entire set of conditions were known about by the banks, mortgage brokers and our government that allowed this to happen. In fact it was our government that put this in place with the bankers and wall street. Stop throwing your money into a pit
you will lose no matter what you do. The laws are made by the lawyers, they are argued by the lawyers and the decisions are made by the lawyers, Lawyers are the biggest frauds, they will tell you lies to get your money and that is what this entire mortgage fraud is about. Taking you property and your money.
You dont stand a chance you lost before you started. If you think you have something over your lender, you do not. All they have to do is correct today what they did wrong years ago. The jokes on us.
Philip,
Did your attorneys appeal? Will you go pro se?
What state are you in…with that much eveidence hope you are willing to continue to fight.
BLD thanks for your reply. My lawyers did not appeal. I gave $4000.00 to attorney John Fazzio a lawyer in NY and NJ. He was to defend me and or negotiate with the lenders. Instead he did nothing, then I got a call from my tenant telling me that the lender called him and that he should tell me that there will be a sheriffs sale on my property in two days. When I asked the lawyer if he knew about this he said he was not informed. He also said there was nothing anybody could have done to prevent the sale, even though I gave him proof that this was not a legal mortgage, and we were close to a deal with my lender according to my former lawyer. I terminated Fazzio and asked for my files. Fazzio responded that he will give me an accounting of what was done, but instead he he ignores me, keeps my retainer balance and sends no invoices. I would continue to fight, however I cannot afford to hire another lawyer nor am I capable to go pro se.
To ALL of those that have become disgusted with this fiasco and have exhausted all your resources, I want to offer you my most sincere condolences. I know that the odds were ALWAYS stacked against us. But NOW is NOT the time to give up or give in. And let me tell you why I say this.
Right now, the tide is turning. And the pretender lenders know the time is running short for them to continue gang raping all of us. So they are rushing around grabbing all the low hanging fruit they can, meaning those that will NOT put up a fight.
Start DEMANDING through Certified Letters that they provide you with the documents that a QWR requires they provide to you. Send a minimum of three to each entity claiming to have some kind of “Interest” in your property INCLUDING the attorneys that sent the Default Notice.
99% of the time, they WILL NOT comply. Why should they? They are VERY VERY BUSY right now, raping, robbing and pillaging Americans. So when they do not comply, file suit against them for the fullest amount allowable by your states Statutes in SMALL CLAIMS COURT.
Then make a claim on the Notary State fund for the notary who fraudulently notarized your documents.
They will not show up in court. They will ignore you thinking they have broken you and broken your spirit to fight. DON’T LET THEM!!
Once you win the Small Claims court (because they do not show up) start building your case against them one Domino at a time. When they do not pay you for your judgment from small claims court, (and they won’t) FILE A FORMAL JUDGMENT against them and then FORECLOSE ON THEIR OFFICES WHEN THEY DO NOT RESPOND.
This has been done already. Look up the case…and no, I am not going to give it to you. LEARN TO DO THE RESEARCH!!!!!! I will make it a little easier for you by telling you it FIRST happened in 2011 in Naples, FLA. and many times over since then.
If you give up now, I can guarantee you that neither your children nor your grandchildren will live as Free Men & Women in this country and I do not mean off into the far distant future. I am talking about within the next few years.
And if they do manage to wrongfully foreclose on you prior to the Statute of Limitations running out (which is typically 48 months) then simply REFUSE TO LEAVE YOUR HOME.
More and more homeowners are doing this. I have one friend that SafeGuard moved out while she was at work, and stole half her belongings. What was left, she moved RIGHT BACK IN. All the while documenting and videotaping EVERYTHING. Every conversation, visited the Mayor, made a lot of noise and STILL IS.
And if you feel too beaten down and weak to do all this, then I suggest you learn how to get on your knee’s and PRAY earnestly. PRAYER WORKS WHEN YOU BELIEVE!!! So start strengthening your Faith muscles, roll up your sleeves, and get in there and do some spiritual battle.
And if you cannot do ANY of these things, then I hate to tell you this, but you deserve to lose your home. If you cannot see this battlefield for what it really is, and you do not care enough to fight this fight for your children or grandchildren, then please do GIVE UP. For you are not worthy to stand on the battlefield with the rest of us that WILL NEVER GIVE UP.