Bank of America, N.A. V. Kelly

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STATE OF M AL'-.-E CU:viBERLAl\iTI, ss S\JI'ERIOR COL~T CI\•lL ACTIO:\ Docket No. KE-12-197 BANK OF 1\_\I!FRIC\, N.A., Plaintiff ORDER ON MOTJ0:\1 FOR SAJ\!CTTONS CF:ORGE]. KELLY, JR., STATEOFMAINC. CUI'Itle!land. S$. Clell(s Onice Defendant. NOV 2 4 2014 RECEIVED This matter is before lhe court on defendant's motion for sanctions. Defendant argues that plaintiff mmt be sanctioned for failing to mediab.' in g<K>d faith as required by the Foredosur~ D1verswn Program under l\LR. Civ. P. 93(j). For the followrng reasons, defendant's motion for sanc\J:ons is granted. j}_ACKCROU~D Plamb.ft filed its complai11t for for~do~urc in tlus case more than two year~ ago, on Apnl 13, 2012. Since then, the parlles have engaged in multiple mediation sessions, the most rece11t of whi<;h w~s held on hbruary 7, 2014. On that day, after fl months of mediation, the plaintiff fman~idl rcquc.~t~d an cnllfely new packet from the defendant, claiming it never received the documents necessary to process a loan modification. (2/7/14 :\foncompliance.) The mediator found that thi~ Mediator'~ conflict<·d with the Report of pl~inllffs prior representations and issued a report of noncomplianc~- Defendant n'qu\,~ll'd sanctions, which the court granted on May 6, 2014. (51 6/14 Order.) VV!ule defendant's first mob.on for sanctions was pending, defendant began resubrmtting the requested doCllments. (1st McKelway Aff. ~'[ 16-20.) On June 25, 2014, ddcndant'& housing counselor contacted the sen.Jicer for a status update and the servicer mformed defendant that it could not process the modific,ttwn r~quest became tbe profit and lo<s "latcment submitted by ddendant did not have a bu&i1W&O nilml' on it. (Jot <'xplain~d Defe11dant's housing counselor lvkKdw~y Aff_ '][ 27.) that ddl'ndm1t do"-" not hav'-' a businec;c; name--he simply uses hi& own name, b1.1t the ;crviccr requested a lcllcr explaining that he does business under his own name. (1st :'vicKelway Aff. 'j[ 27_) Up to that pomt, defendant had already submitted multiple profit and lo&ti statcmPnl1, and plaintiff ncwr ubjeded to their form. (1st :'vicKelway Aif. 'I 28.} Defc'ndant's housing counwlor wailed the letter on J=e 30 along with an updated profit and loss state1ncnt for the rnonlh of Yiay. (1st McKelway .Ali. '!i 30.) Ddcndant filed tlw moticm for sanct:wns on July 7, 2014. On August 8, 2014, the loan service,- told defend,mt's housing counselor that the only docwnent it needed was a bank slakment for July 2014, showing defendant's monthly social security benefit (2nd 'vkKdway Aff. 'If 8.) Defendant had already subrmtted multiple documenb &howing his social security income benefit (2nd McKelway Ail.~ 9.) Since August 8, 20'14, pbintiff has not notrfled defendant that he needed to submit any other documents. At argument on October 30, 2014, plaintiffs counsel stated could nol be proces~"d became defendant tl1~t ha~ the loan modificiltiOn request failt'd lo "ubmil an up-to-date proftt and loss statement. Dl;?CUSSK)N_ lJnder Rule 93(j) and 14 M.R.S. § 6321-A('i2) (20'13\ the mort may impose sanctions on,\ party for fail on' to mediate in good faith. llayvww i.(!lm SeroJr:ing, LLC v. Bartl~tt, 2014 lYlE 37, ~I 12, 87 A.3d 741. In Bayview, the Law Court identified several factors for tfle court to consider in imposing sanctions, mcluding: (])the purpose of the speCJI!c rule at1ssue; (2) the party's conduct throughout the proceedings; (3) the party's bas1s Ior 1ts Ia1lure to comply; (4) prejudiCe to other parties; and (5) the need for the orderly admuustrabon oi JUSttce. Id. "The court should also consHler the purpose to be served by unposing sanctions, mduding p<mali<ing tlw n<>ncumpliant party and detemng sinular conduct-" fd TI1e court may abo CC'nsidcr th\' dfcd violdtions have on the adverse party. Id. C: 13. A showmg of bad faith or fault is not r<'quirr,d for the court to impose sanctions. Id. Plamliff', conduct in this case 1~ unacceptable. Plamtiif has delayed, failed to communicate with defendant, rcqmred defendant to submit multiples of documents he had already subn1ith'd, defendant's request for a loan ~nd sl.dl has yet to make a decision on modific~tion. Although plainllff may be correct that the profit and loss statement wa~ not H'-lbm1tled m the correct form, plaintiff did not timely communi cat~ th~t infoTmation to the ddendant and d1d not take prompt action when defendant submitted hib name. D~fendant ktt~r explaining hi" business had already submitted multiple profit and loss otah·mcnts bdore June 2014 and plaintiff never objected until defendant's housing counselor called to find out whether his application was complete. In consid"ring the required factors, the court iirst finds that the purpose oi mediatwn h~~ been frustrated by plaintiffs failure to b.mely and competently handle dcl('ndant"s documents. Second, plamtift has already been sancb.oned m tlus case <md ~hould modificab.on rcque~t. have been aware t!Mt 1t need'-'d to procc"s ddcndant's loan Third. plamtiffs explanab.on, th.lt il dH.l not n'C<C1VC the 3 profit and lo" sldlc,.,-,<'nt in tlw correct form promptly ~ubmitted i~ not com~ncing. Defendant hab requt>sted documents and there is no reason that he would not '-l<tvc bubmitted the proiit and loss docm"!lent m the correct [mm had plambli made the request. I'ourth, defendant is prejud1ced by the conTinuous delay, the uncert,tml)" SUITOunding th~ st~tu~ of his lo~n, ~nd the vxtr~ costs and interest tiMt hdvC and mntinue t'' grow. Finallv, plaintiffb C('ndud is also hmilcd C01Jrt n'sources. Mu1tJple mediation sessions h~ve il strain on been held ~nd continue to be scheduled and rescheduled because plaintiff is lUlable to process defendant's applicaTion in a timely m,mner. Accordingly, t..'>e followmg sancTions are hereby ordered: l. Plaintiff shull eliminate from ddL'T!danl's loan a.ccount all mterest, late fees, pmpL'Yty in~pecti' m fees, coli cction tees, detaul Ltees and legal fees incuJTcd from the dak of the commencement of the foreclosure ac!lon through the date th'· foreclosu,-~ ddion is resolYed. 2. The fcc" mw,l be removed from defendant's account and an updated ,lccounling must be bent to defendant w1thinJO days of this order. J. Plaintiff sh~ll pay a pe11alty to ddvnd~nt in the amount of $2,500 to deter fuh1re violations. This penalty sboli be p~id lO defendant W1lhin J() dJys of this order. 4. Plaintiff shall pay all of defendant's attorney fees for this foreclosure action ;ince tlw complaint was filed and until this matter is resolwd. Counsel for ddendant shall submit an updoted ~ttorney fees affidavit W1lh the court at the reoolution of this cabe. Jn an effort to time! y resol vl' thi" cas<", the wurt furtlwr ord<>rs the following: 1. Defendant shall send plaintiff an updakd pn,fit and losb all of 2014 w1thin lll days of th,, dak of thib order. stat~me11t for 2. PlainTiff shall have 10 davs to make a decision 011 defendant'& loan modiflcation reque~t_ 3. Plaintiff& fadmc lo ("Olllply with this order shall result in dismissal with prejudice. 4 The clerk it- directed to '"'-urporu\(' this order in the docket by reference to Rule 79(~). -+J~,cli'. ~P4.,\;]~ u"tice, SupenorCourt Plaintiff-Christine Johnson Esq Randall Ebq PII-Lauren Thomas EBq (TD Banknorth KA)' D~fendant-Chet 5 purou~nt

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