Sabina V. JP Morgan Chase Bank

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B:USINESS AND CONSUMER COURT Location: Portland Docket No.: BCD-CV-14-61 STATE OF MAINE CUMBERLAND, ss ./ ALEC T. SABrNA and EMMA L. ) SABINA, on behalf of themselves and nil ) ) others similarly situnted ) Plaintiffs, ) ORDER ON DEFENDANT'S MOTION TO DISl.V.IISS AND MOTION TO STRITCE CLASS ALLEGATIONS ) V. ) ) ) JP MORGAN CHASE BANK, N.A., ) ) Defendant. .lJYfRODUCTION I. Before the Court is Defendant's JP Morgan Chase Bank, N.A. ("JP Morgan ChMe") Motion to Dismiss Plaintiffs' Complaint for failure to .state a claim for relief under Rllle 12(b)(6) of the lVJaine Rules of Civil Procedure. In addition, Defendant nrgues that the clnss allegations should be stricken as they fail to plead 11 ciiiSs-wide claim, nnd 11lso because the class as defined in the pleadings is n prohibited fail-safe class. II. ANALYSIS The Court on Apri I 6, 2015 denied motions to dismiss in two other related cases, Alec T. Sabina and Emma L. Sabina v. Wells Fargo Home Mortgage, CV-BCD-14-26, and Jonathan A. Q11ebbeman v. Bank q/Amerlca, N.A. BCD-CV-15-01. In those cases tl.Jc Court determined that the allegations made in both complaints, which are in pertinent part identical witb those made here, were adequate to survive n motion to dismiss brought under Rule 12(b)(6), but the Court did order the Plaintiffs in those cnses to provide more l speciftcity. After considering the arguments presented in this matter, the Court finds no reason to depart from the analysis applied in the two aforementioned cases or to come to a different conclusion with respect to whether the llllcgations made here nre sufficient to survive a motion to dismiss under Rule I 2(b)(6). 1 The Defendant in this case makes other arguments, which is thnt the Plaintiffs' cl11ss allegations should be stricken as they fail to plead a cl11ss-wide clnim and nlso that they impermissibly plead a prohibited fail-safe class. With respect to both these nrguments, the Court will deny the motion to strike the class allegations without prejudice. After reviewing the cnses referred to by the parties 11nd finding no controlling case in Maine which requires that this issue be resolved at this stftge, the Court concludes that nny argument regarding whether tllis cnse should proceed as a class IICiion should be made as part of any motion mftde by the Plaintiff for certification of the class. The Court would note that the Defendant has raised a legitimate issue as to whether the class as defined in the current complaint constitutes a fail~safe class, and believes that this issue is a live one for all the cases referred to above, ns well fiS the case of Nickerson v. TD Bank, N.A., B CD-CV -14-64. III. CONCLUSION The entry will be: l ). The Defendcmt' s Motion to Dismiss the Plaintiffs' Complaint for failure to stnte n claim is DENJED. Plaintiffs have 14 days from the date of tllis Order more specificity CIS to provide to any racts that they have in th.eir possession as to whether the Registry of Deeds returned the mortgage release to JP Morgan Chase, and if so when; and 1 The complnillts in these cnses contnin the identical ollegntion with regnrd to the nUeged violntiou, which is thnt the lender in qttestiGn foiled to comply with Section 551 of Title 33 M.R.S.A. nnmely t11nt the lender foiled to moil to the mortgagor by first closs moil n recorded mortgnge release within 30 doys of when the lender received it bock from the rcgisll)' of deeds. 2 to provide more specificity ns to any facts that they have in their possession as to when Wells Fargo mailed the originnl mo1igage release, or when (or if) Plaintiffs ever received it. 2). Tl1e Motion to Strike class llilegations is DENJED WITHOUT PREJUDICE. Defendant may re-argue the issues regarding whether this cnsc should proceed as a class action, and ns to whether the class as defined is 11 fail-safe class, when the Plaintiffs flle, if they do, a Molion for Certification. This Order may be noted on the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure. DATE lV . MJCIIAELA MUR.l' USTICE BUSINESS AND CONSUWfER COURT i/Jks 3 Entered on the Docket: Copies sent via Mail. __Electronically__~ Alec T Sabina and Emma L Sabinam on behalf of themselves and all others similarly situated v. JP Morgan Chase Bank, N.A. BCD-CV-2014-61 Alec T Sabina and Emma L Sabinam on behalf of themselves and all others similarly situated Plaintiff Counsel: Peter Van Heme!, Esq. Meredith Eilers, Esq. Michael Bosse, Esq. Daniel Mitchell, Esq. 100 Middle Street PO Box 9729 Portland, ME 04104-5029 JP Morgan Chase Bank, N.A. Defendant Counsel: Todd Holbrook, Esq. 225 Franklin Street 16th Floor Boston, MA 02110

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