U.S. Bank Nat'l Ass'n v. Richmond, No. 2:21-cv-00208-JAW (Oct. 27, 2025)

Case details
Full caption
U.S. Bank National Association v. Richmond
Country
United States
Jurisdiction
Maine (ME)
Court
Maine Supreme Judicial Court
Decided
Oct. 27, 2025
Disposition
Motion Granted
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3002049Only the Westlaw citation is currently available.United States District Court, D. Maine.U.S. BANK NATIONAL ASSOCIATION, ASTRUSTEE, ON BEHALF OF THE HOLDERS OF THEASSET BACKED SECURITIES CORPORATIONHOME EQUITY LOAN TRUST, SERIES NC2005-HE8, ASSET BACKED PASS-THROUGHCERTIFICATES, SERIES NC 2005-HE8, Plaintiff,v.ERIC RICHMOND, a/k/a ERICH. RICHMOND, Defendant,andCITIMORTGAGE, INC., f/k/a CITIGROUPMORTGAGE, INC., Defaulted Party.No. 2:21-cv-00208-JAW|Filed 10/27/2025FINDINGS OF FACT AND CONCLUSIONS OF LAWJOHN A. WOODCOCK, JR. UNITED STATES DISTRICTJUDGE*1 Applying Maine law, the court concludes that themortgagee demonstrated its interest in the promissorynote but not in the mortgage and therefore dismisses themortgagee's foreclosure count without prejudice, leavingfor later resolution the non-foreclosure-based counts in thecomplaint. The court preliminarily determines the defendanthas a right to a jury trial on the plaintiff's breach of contractand breach of promissory note claims and likely on thequantum meruit claim; if plaintiff maintains there is no rightto a jury trial on these counts, the court orders the plaintiff toexplain why. The court orders the Clerk's Office to place thismatter on the next available civil jury trial list.I. PROCEDURAL BACKGROUND1On July 29, 2021, U.S. Bank National Association (U.S.Bank), as trustee, on behalf of the holders of the Asset BackedSecurities Corporation Home Equity Loan Trust, Series NC2005-HE8, Asset Backed Pass-Through Certificates, SeriesNC 2005-HE8, the mortgagee, filed a foreclosure actionagainst Eric H. Richmond. Compl. (ECF No. 1). In itscomplaint, U.S. Bank claims that on August 9, 2005, Mr.Richmond borrowed $198,000 from New Century MortgageCorporation, secured by a mortgage deed, on the real propertylocated at 66 Back Meadow Road, Nobleboro, Maine (theNobleboro Property). Id. 8. U.S. Bank also alleges that,following assignment, it is the current holder of the August9, 2005 promissory note and mortgage. Id. 10. U.S. Bankfurther claims that Mr. Richmond failed to pay U.S. Bankin accordance with the terms of the promissory note andthat he has failed to make any monthly payments sinceFebruary 1, 2012. Id. 24. Finally, U.S. Bank claims that Mr.Richmond owes it $345,067.69 and asked the Court to orderthe foreclosure of the Property pursuant to Maine's JudicialForeclosure Law. Id. at 1-14.Over the ensuing years, Mr. Richmond deliberatelyobstructed the foreclosure. He filed a litany of motionsand six interlocutory appeals, each dismissed by the FirstCircuit Court of Appeals as unreviewable. Mr. Richmondignored eight orders to file an answer to the complaintand, in fact, never answered the complaint at all, despiteconsistently demonstrating a desire to contest the foreclosure.Mr. Richmond's nearly two-year refusal to file an answercaused a delay in the issuance of a scheduling order, andfinally, on June 5, 2023, the Court directed the Court Clerkto enter a general denial of the claims against him toallow this long-delayed case to proceed. Order DenyingDef.’s Mot., Entering General Denial, and Imposing “Cok”Warning at 3 (ECF No. 91). Further, as a result of theoffensive and combative language in Mr. Richmond's filings,including personal insults and vulgarity directed at opposingcounsel, court personnel, and the presiding judge, the Courtafter multiple warnings ordered Mr. Richmond restrictedfrom making further filings in this case without the Court'spermission pursuant to Cok v. Family Court of Rhode Island,985 F.2d 32 (1st Cir. 1993). Order on Mot. for Sanctions andMot. for Judicial Notice at 10 (ECF No. 157) (Cok Order).*2 On June 16, 2023, U.S. Bank served Mr. Richmond withRequests for Admission to be answered within thirty daysunder Federal Rule of Civil Procedure 36. Pl.’s Mot. for Reqs.for Admission to be Deemed Admitted at 2 (ECF No. 167);see also Req. for Hr'g Re: Disc. Dispute Pursuant to Loc.Rule 26(b) (ECF No. 161) (Pl.’s Req. for Hr'g). Mr. Richmondnever responded to U.S. Bank's Requests for Admission, Pl.’sReq. for Hr'g at 1, and on October 9, 2024, U.S. Bank fileda motion for the Court to deem admitted its Requests forAdmission. Pl.’s Mot. for Reqs. for Admission to be DeemedAdmitted. Mr. Richmond did not respond to the motion, and
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2the Court granted the motion on November 19, 2024, deeming“the facts asserted in U.S. Bank's June 16, 2023 Requestsfor Admission to be admitted.” Order on Mot. for Reqs. forAdmission to be Deemed Admitted at 4 (ECF No. 169).The Court held a one-day bench trial on June 23, 2025, atwhich Attorney Reneau J. Longoria represented U.S. Bankand Mr. Richmond appeared pro se. Min. Entry (ECF No.196); Tr. of Proceedings (ECF No. 211) (Bench Trial Tr.).With the Court's permission, Mr. Richmond subsequentlyfiled a post-trial brief on July 21, 2015, Post Trial Brieffor Def. (ECF No. 219) (Def.’s Br.), which he supplementedwith minor corrections on July 24, 2025, with the Court'spermission. Notice of Correction to Post-Trial Brief (ECFNo. 222) (Def.’s Correction). In compliance with the Court'sinstructions at trial, Plaintiff filed a response brief on August5, 2025. [Proposed] Findings of Fact and Conclusions of Lawand Resp. to Def.’s Post-Trial Brief (ECF No. 225) (Pl.’s Br.).Mr. Richmond's reply was originally due by August 15, 2025;however, on August 13, 2025, he filed a motion for extensionuntil ten days after the Court ruled on its order to show cause,and on August 25, 2025, he filed an emergency motion toextend the due date for his reply to September 10, 2025.Resp. to O.S.C. (ECF No. 229); Req. for Permission to Req.Extension of Ct. Mandated Time to File Post-Trial Papers,Attach. 1 Def.’s Emer. Mot. for Extension of Time to File Post-Trial Papers (ECF No. 232). In response to the first motionfor extension, the Court granted Mr. Richmond until August25, 2025, to file his post-trial reply, Order (ECF No. 231),and in response to the second motion, the Court granted Mr.Richmond until September 10, 2025. Order (ECF No. 233).On September 15, 2025, Mr. Richmond filed a request to bepermitted to file his reply, attaching his proposed reply brief,which the Court accepted.2II. ORDER TO SHOW CAUSE*3 In their response to Mr. Richmond's post-trialmemoranda, U.S. Bank questioned whether Mr. Richmondused Artificial Intelligence (AI) to assist his brief-writing, noting that his post-trial memorandum was “repletewith incorrect citations.” Pl.’s Br. at 12. The Courtperformed its own examination of Mr. Richmond's post-trial brief, and, having concluded that Mr. Richmond'spost-trial memorandum contained substantial and misleadingmisquotations and misattributed citations, the Court orderedMr. Richmond to show cause as to why additional Cokrestrictions should not be ordered to address his Rule 11violations. O.S.C. (ECF No. 226). On August 13, 2025, Mr.Richmond filed a response in which he heaped abuse onthe Court and Plaintiff's counsel for the handling of thiscase and responded (in a fashion) to only two of the Court'sfive questions. Resp. to O.S.C. at 1-5 (ECF No. 229). Inits August 13, 2025 order, the Court found Mr. Richmond'sresponse “unresponsive, largely irrelevant, provocative, andto the extent responsive, patently erroneous” and concludedit would address the appropriate sanction in its final order inthis case. Order (ECF No. 231).III. A PRELIMINARY NOTE ON THE COURT'SAPPROACHBefore making findings of fact and conclusions of law, theCourt addresses several unique aspects of this case. First, Mr.Richmond again vociferously objects to the Court entering ananswer on his behalf generally denying all claims. See Def'sBrief at 47-55; see also Order on Mot. for Reqs. for Admissionto be Deemed Admitted at 5 (ECF No. 169). At trial, the Courtexplained at length that it entered a general denial for Mr.Richmond only as a last resort resulting from his yearslongrefusal to answer the complaint despite repeated orders todo so. Bench Trial Tr. at 17:2-22:6. The Court declines toreengage with this issue in this order.Second, as briefly noted above, the Court's Cok order requiredMr. Richmond to seek the Court's permission to make filingsin this case because of his “use of personal, derogatory,vulgar language that has no place in a court of law.” CokOrder at 10. Further, at the bench trial, after granting Mr.Richmond permission to file post-trial briefing, the Courtexpressly reminded him that such filings must comport withthe standards of professionalism and decorum traditionallyafforded a case in federal court and Mr. Richmond indicatedhis understanding. See Bench Trial Tr. at 174:23-175:1 (THECOURT: Okay. You can put the request in, but I'm allowingyou to do it only if you're not nasty, right? You've gotten thatmessage? Right? MR. RICHMOND: Understood”).Nonetheless, his substantive arguments aside, Mr.Richmond's trial brief repeatedly violates his promise to treathis fellow litigants and judicial officers with the respectowed to a proceeding in federal court. See Def.’s Brief at8 (“Defendant's presence at trial was not a choice but anecessity, driven by the First Circuit's maddening foolery indismissing appeals as non-final judgments ...”); id. at 4 (“Ican't get appeals of things that would end the case or cureirreparable harm of being made a ward of the court ... untilthis court sticks a knife in my back, so to speak”); id. at
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.345 (calling witness testimony “utter horseshit legally”). Foryears, the Court has been clear with Mr. Richmond that suchinflammatory accusations and vulgar language have no placein a court of law.Despite Mr. Richmond's deliberate efforts to provoke theCourt, the Court has declined to be provoked and instead hasruled strictly on the merits of the foreclosure claim. Eventhough it rules in Mr. Richmond's favor on the foreclosurecount, the Court does not wish to be mistaken. It neithercondones nor encourages his deplorable conduct in this case.Mr. Richmond is forewarned. It is bad enough to act up infront of a federal judge, but the Court will not tolerate suchconduct in front of a jury.IV. FINDINGS OF FACTA. A Preliminary Note on Scope of the RecordAt trial, Mr. Richmond asked the Court “to put in my ownproposed findings of fact and conclusions of law,” which theCourt permitted. Bench Trial Tr. at 174:9-15. Mr. Richmond'spost-trial submission, however, does not provide a clearlydelineated set of proposed findings of fact. Instead, Mr.Richmond organizes his brief around discrete legal argumentshe asserts are fatal to Plaintiff's foreclosure action, for whichhe cites factual evidence in support. Further, Mr. Richmondobjects in his post-trial brief to the Court's reliance forfindings of fact on the Plaintiff's requests for admission,which were deemed admitted when Mr. Richmond failed torespond to them for over a year and failed to file an objectionto the Court's order deeming such requests for admissionsadmitted, despite the Court's clear instruction to do so withinfourteen days. See Def's Brief at 47-55; see also Order on Mot.for Reqs. for Admission to be Deemed Admitted at 5 (ECF No.169).*4 As the Court explained in its order deeming the requestsfor admissions admitted, robust authority from the FederalRules of Civil Procedure and First Circuit Court of Appealshold that a failure to respond to a request for admission, orsubsequently to move for its withdrawal, results in the factsbeing conclusively established, including material facts thatconclusively prove a party's claim. See Order on Mot. forReqs. for Admission to be Deemed Admitted at 12-14 (citingFED. R. CIV. P. 36; Brook Vill. N. Assocs. v. Gen. Elec. Co.,686 F.2d 66, 70 (1st Cir. 1982)).Nonetheless, while recognizing this caselaw in its orderon Plaintiff's motion in limine to admit the admissions forall purposes at trial, the Court “urge[d] Attorney Longoriato present an evidentiary basis to sustain the Plaintiff'sforeclosure complaint through testimony and exhibits, ratherthan relying exclusively on Mr. Richmond's failure to respondto U.S. Bank's request for admissions,” explaining that“[i]f U.S. Bank demonstrates at trial through witnessesand exhibits that it is entitled to foreclose Mr. Richmond'sNobleboro property, any judgment will be based on the meritsof the complaint and not solely on Mr. Richmond's miscue.”Order on U.S. Bank's Mot. in Lim. at 14 (ECF No. 183). TheCourt noted that, “[g]iven Mr. Richmond's status as a pro selitigant, it would be wiser and fairer to Mr. Richmond, andmore prudent for Attorney Longoria, to make the evidentiarycase on June 23, 2025 that U.S. Bank is entitled to itsrequested relief.” Id. At trial, Attorney Longoria did so,presenting witness testimony and documentary evidencerather than relying on the requests for admissions. See BenchTrial Tr. at 1-178.Given the First Circuit's preference for deciding cases on theirmerits, rather than on technicalities and further based on theCourt's discretionary authority whether to grant withdrawalsto admissions, the Court in this order makes findings offact based on the exhibits and witness testimony presentedat trial and issues judgment by applying the relevant lawto those facts. See cf. Kuehl v. FDIC, 8 F.3d 905, 908 (1stCir. 1994) (“Our federal rules promote the disposition ofclaims on the merits rather than on the basis of technicalities,and courts should be reluctant to impose a dismissal withprejudice for a rules violation that is neither persistent norvexatious, particularly without some review of the merits”)(citing Foman v. Davis, 371 U.S. 178, 181-82 (1962)); seealso Foss v. Marvic, Inc., 994 F.3d 57, 63 (1st Cir. 2021)(“district courts have considerable discretion over whetherto permit withdrawal or amendment of admissions madepursuant to Rule 36”).B. The Witnesses1. Michelle SimonMichelle Simon serves as Director of Litigation for SelectPortfolio Servicing, Inc. (SPS) and has worked at SPS invarious roles since February of 2000. Bench Trial Tr. at23:10-19. In her current role, she provides testimony, asrequired, for accounts serviced by SPS, attends adversarialproceedings, mediations, depositions, and reviews andverifies legal documents. Id. at 23:23-24:2. She formerlyserved as Vice President and Consumer Ombudsman atSPS from 2004 to approximately February 2016, a role in
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4which she was exposed to all business units within SPS torespond to inquiries from regulatory agencies, including theConsumer Financial Protection Bureau and Better BusinessBureau. Id. at 24:6-13. Before that, Ms. Simon worked as amanager, director, and supervisor within SPS's loss mitigationdepartment and in vendor management. Id. at 24:17-23.2. John Doonan, Esq.*5 John Doonan, Esq. is counsel of record for thePlaintiff who has represented Plaintiff in this proceedingfrom approximately 2012 until 2021, as well as in an earlierforeclosure proceeding initiated in state court. Id. at 121:9-21.3. Eric RichmondEric Richmond is the owner and mortgagor of the propertylocated at 66 Back Meadow Road, Nobleboro, ME 04555(the Nobleboro Property), which he purchased in 1990. Id. at31:7-9; Pl.’s Trial Ex. 4, Mortgage.C. The First MortgageIn 1990, Mr. Richmond borrowed money from CiticorpMortgage, Inc. for his initial purchase of the Property.Bench Trial Tr. at 31:7-12. This mortgage was subsequentlyrefinanced with Centex, which was paid off in the amount of$140,469.65 at the closing of a second refinancing whereinMr. Richmond received $40,622.09. Id. at 28:4-16; Pl.’s TrialEx. 1, HUD Settlement Statement at 3.3 Despite this payment,the original Citicorp Mortgage was not discharged of record.Bench Trial Tr. at 31:13-17; HUD Settlement Statement.However, a title policy generated in August 2005 reflectsthat the Citicorp mortgage has been paid and is thus nolonger a valid encumbrance on the Property. Bench Trial Tr.at 31:13-32:1.D. The Second MortgageOn August 9, 2005, Mr. Richmond executed a promissorynote and mortgage with New Century Mortgage Corporation(New Century) for a total amount of $198,000; the mortgagewas recorded in the Lincoln County, Maine Registry of Deedson September 7, 2005 at Book 3546, Page 230. Bench Trial Tr.at 144:9-10; Pl's Trial Ex. 3, Promissory Note at 12; Pl.’s TrialEx. 4, Mortgage. The promissory note is endorsed in blank byNew Century Mortgage Corporation. Promissory Note at 16;Bench Trial Tr. at 33:9-15. The original note is currently heldby Plaintiff's counsel on behalf of U.S. Bank and SPS. BenchTrial Tr. at 33:21-24.In September or October 2005, the mortgage was soldon the secondary market to Credit Suisse First Boston(CSFB) for securitization pursuant to a pooling andservicing agreement between New Century and CSFB. Id. at35:22-36:5, 72:23-73:5, 73:16-74:6, 90:8-13. The mortgagewas securitized into pool number 2005194; this pool wasplaced into Asset Backed Securities Corporation HomeEquity Loan Trust, Series NC 2005-HE8, Asset Backed Pass-Through Certificates, Series NC 2005-HE8, of which U.S.Bank held the role of trustee. Id. at 36:6-15, 73:16-74:6.Securitization closed on October 28, 2005, and all loans inthe pool were transferred to their investors. Id. at 36:25-37:4.SPS submits the mortgage has remained in that pool since itwas securitized. Id. at 37:9-11.On April 18, 2012, New Century executed an assignmentof the mortgage, through SPS as its attorney-in-fact, to U.S.Bank entered in the Lincoln County, Maine Registry of Deedson April 27, 2012 at Book 4516, Page 240. Pl.’s Trial Ex. 5,Assignment; Bench Trial Tr. at 40:16-19, 77:8-14.E. Select Portfolio Services InvolvementNew Century assigned the servicing rights to the mortgage toSPS effective November 29, 2005, and SPS has remained theservicer at all times relevant to this proceeding. Pl.’s Ex. 14,Notice of Assignment, Sale, or Transfer of Servicing Rights(Goodbye Letter); Bench Trial Tr. at 30:13-20; 65;23-66:2;81:16-17: 91:1-10; 101:1-5. As servicer, SPS had the right toadminister the terms of the note and mortgage and to act onbehalf of the owner of the loan. Bench Trial Tr. at 75:12-16.*6 New Century further issued SPS a limited power ofattorney on June 20, 2007 entered in the Lincoln CountryRegistry of Deeds at Book 4984, Page 165. Assignment at2; Bench Trial Tr. at 41:12:20, 81:9-15. New Century alsogave SPS the right to assign the mortgage. Id. at 41:12-15;Assignment at 40.Bill Koch has served as Document Control Officer for SPSfrom 2012 through the present. Bench Trial Tr. at 40:24-41:6.In this role, Mr. Koch is authorized to sign on behalf of SPS.Id. at 41:7-11; Pl.’s Trial Ex. 15, Certificate of Authority. SPScontinued to sign assignments of mortgage on behalf of NewCentury after October 31, 2007. Bench Trial Tr. at 80:22-25.F. New Century Mortgage Corporation's Bankruptcyand Consequences on its Business in Maine
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5In 2007, New Century declared bankruptcy. Bench TrialTr. at 42:3-6, 76:25-77:4. Relatedly, New Century filedan application of withdrawal from being authorized to dobusiness in the state of Maine with the Maine Secretary ofState dated October 31, 2007. Def.’s Trial Ex. 1, Appl. ofWithdrawal. New Century had been authorized to do businessin the state of Maine since November 22, 1996. Id.G. Eric Richmond's Nonpayment of the MortgageThough he periodically paid late or fell behind, Mr. Richmondwas deemed current on his mortgage payments through May2011. Bench Trial Tr. at 47:23-48:7. However, in late 2011,Mr. Richmond again fell behind on his monthly payments.Mr. Richmond submitted his final payment on November12, 2014 in the amount of $1,449.70, which was attributedto the amount owed as of January 1, 2012. Id. at 48:13-19,66:21-67:2; Pl.’s Trial Ex. 10, SPS Financial BreakdownSumm. Mr. Richmond has not made the monthly paymentson his mortgage since February 2012. Id. at 48:13-19. SPSrecords reflect Mr. Richmond owes an unpaid principalbalance of $182,735.92. Id. at 83:25-84:3, 132:22-25; SPSFinancial Breakdown Summ. at 121.H. Eric Richmond Residing in New York andRelocation to MaineOn November 11, 2013, Attorney Doonan sent the originalstate court foreclosure complaint via certified mail to Mr.Richmond at 227 4th Street, Brooklyn, NY, and on November14, 2013, Mr. Richmond received and signed for thecomplaint. Pl.’s Trial Ex. 16, State Ct. Compl. Mr. Richmondfiled for bankruptcy in New York in 2014. Bench Trial Tr. at48:18-19; Pl.’s Ex. 13, U.S. Bankruptcy Court, E. Dist. of N.Y.,Bankruptcy Pet. (Bankruptcy Pet.). The bankruptcy petitionlists Mr. Richmond's address as 227 4th Avenue, Brooklyn,NY 11215. Id.As of 2017, Mr. Richmond lived in New York and spent muchtime looking after his father and stepmother in New York andFlorida. Bench Trial Tr. at 152:3-14. In 2020, Mr. Richmondassisted his father and stepmother in relocating to Maine, and,on November 3, 2020, he registered to vote in Maine listingthe Nobleboro Property as his residence. Id. at 153:1-6; Def.’sTrial Ex. 2, Voter Registration. Mr. Richmond has resided inMaine fulltime since the middle of 2020, id. at 153:15-16,and has worked in Rockland for UPS since April 2022. Id.at 154:10-11, 170:19-22. Mr. Richmond continued to providecaregiving for his father and stepmother at their home at 5Elmwood Drive, Saco, Maine; he would visit the Propertyonce or twice a week. Id. at 171:4-175:1. Mr. Richmond listedthe 5 Elmwood Drive, Saco address as his return address onletters to Plaintiff's counsel and on his notices of appearancein this case, which he avers was a function of the limited hoursoffered by the Nobleboro, Maine post office. Id. at 172:1-7,173:5-16; Pl.’s Trial Ex. 8, Richmond Letters and Notices ofAppearance.I. The Notice of Mortgagor's Right to Cure*7 On April 26, 2021, Attorney Doonan mailed a notice ofmortgagor's right to cure to Mr. Richmond at three addresses:(1) 66 Back Meadow Road, Nobleboro, ME 04555; (2) 2274th Avenue, Brooklyn, New York, 11215; and (3) P.O. Box139, Nobleboro, Maine 04555-0139. Pl.’s Ex. 6, Notice ofMortgagor's Right to Cure; Bench Trial Tr. at 50:22-51:6,123:14-16. The notice of right to cure was also filed with theBureau of Consumer Protection. Bench Trial Tr. at 51:4-6.The envelope sent to P.O. Box 139 reflects it was sent viacertified and first-class mail, that it was redirected to the 66Back Meadow Road address, that delivery was attempted onApril 28 and May 4, and that the envelope was returned tosender on May 18, 2021. Notice of Mortgagor's Right to Cureat 56; Bench Trial Tr. at 51:7-11. The envelope sent to 66 BackMeadow Road reflects it was sent via certified and first-classmail, that delivery was attempted on April 29 and May 4, andthat the envelope was returned to sender on May 18, 2021.Id. The notice sent via certified mail to the Brooklyn addresswas recorded as delivered to an individual at the address onApril 29, 2021. Id. at 42, 57-58; Bench Trial Tr. at 51:7-14-20,72:13-15, 81:21-23.The notice of mortgagor's right to cure states:Payments $179,636.74Late Charges $256.84Unapplied Balance -$109.08TOTAL TO CURE DEFAULT: $179,784.50A portion of the amount due is reasonable interest in theamount of $109,313.50.Notice of Mortgagor's Right to Cure at 43; Bench TrialTr. at 83:25-84:7. These amounts include principal, interest,taxes, and insurance. Bench Trial Tr. at 49:25-16; 106:8-11.The principal past due was not included in the notice ofmortgagor's right to cure. Id. at 132:22-133:9, 133:24-25.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6The amount of interest of $109,313.50 included in the noticeof right to cure was derived from documents provided bySPS and relied upon by counsel. Notice of Mortgagor's Rightto Cure at 59; Bench Trial Tr. at 124:1-4, 131:22:132:21.The amounts of past due payments that are due as of thereinstatement good-through date, the late charges, and thecredit for unapplied balance all appear on a letter provided bySPS that was included with the notice of mortgagor's right tocure. Notice of Mortgagor's Right to Cure at 59; Bench TrialTr. at 54:14-55:5, 106:23-107:5. Additional fees included inSPS's letter, such as interest on advances in the amount of$1.55, late charges in the amount of $256.84, and expensespaid by the servicer (loan level advances) in the amountof $4,863.86 are not included in the notice of right to curebecause SPS chose to waive those fees should the mortgagorreinstate the account. Notice of Mortgagor's Right to Cureat 63; Bench Trial Tr. at 54:25-55:9. SPS's letter dated April15, 2021 states a payment due date of February 1, 2012 andthat the statement expires as of April 21, 2021. Notice ofMortgagor's Right to Cure at 59; Bench Trial Tr. at 83:9-17.The total amount to cure default in the letter further includesescrow amounts for taxes and insurance, which accrue whenthe servicer pays these amounts to protect the mortgagee'sinterest in the property as a result of Mr. Richmond not payingthem. Bench Trial Tr. at 85:9-20, 86:12-16. The mortgagedid not create an escrow account at the time of originationbut provides for a servicer to make taxes and insurancepayments if necessary and to recover such amounts from aborrower. Id. at 93:14-20; Mortgage at 23, § 4. Borrower'sObligation to Pay Charges, Assessments, and Claims (“I willpay all taxes, assessments, and any other charges and finesthat may be imposed on the Property and that may be orbecome superior to this Security Instrument”), id. at 23-24,§ 5. Borrower's Obligation to Maintain Hazard Insurance orProperty Insurance; Use of Insurance Proceeds (“I will obtainhazard or property insurance to cover ... the Property .... IfI do not maintain any of the insurance coverages describedabove, Lender may obtain insurance coverage at its optionand charge me in accordance with Section 9 below”), id.at 25-26, § 9. Lender's Right to Protect its Rights in theProperty (stating that if Mr. Richmond violates any provisionof the mortgage, “then Lender may do and pay for whateveris necessary to protect the value of the Property” and Mr.Richmond “will pay to Lender any amounts, with interest,which Lender spends under this Section 9”). The respectiveamounts owed for unpaid taxes, insurance and principal arenot specifically identified in the notice of right to cure default;however, these amounts are included within a lump sumdesignated as Payments. Notice of Mortgagor's Right to Cureat 43; Bench Trial Tr. at 86:1-4, 96:22-97:5.J. The Complaint*8 On July 29, 2021, U.S. Bank filed a foreclosurecomplaint in this Court. See Pl.’s Trial Ex. 7, Ex. Compl.;Bench Trial Tr. at 93:4-7. In the complaint, paragraph fifteenstates U.S. Bank “is the lawful holder and owner of theNote and Mortgage.” Ex. Compl. at 71; Bench Trial Tr. at58:17-59:2. Paragraph sixteen of the complaint states thatU.S. Bank “hereby certifies that all steps mandated by law toprovide notice to the mortgagor pursuant to 14 M.R.S.[ ] §6111 and/or Note and Mortgage were strictly performed.” Ex.Compl. at 71; Bench Trial Tr. at 59:21-59:25.V. CONCLUSIONS OF LAWConsidering the foregoing facts, the Court identifies thestatutes and caselaw governing foreclosure under Maine statelaw, before proceeding to consider the defenses raised by Mr.Richmond at trial.A. Legal Standard for Judgment of Foreclosure andSale“In Maine, foreclosure is a creature of statute, see 14 M.R.S.§§ 6101-6325 (2013), and thus, standing to foreclose isinformed by various statutory provisions.” Bank of Am., N.A.v. Greenleaf (Greenleaf I), 2014 ME 89, 9, 96 A.3d 700. Asthe Law Court explained in Greenleaf I:Title 14 M.R.S. § 6321, states that “the mortgagee orany person claiming under the mortgagee” may seekforeclosure of mortgaged property. See Bank of Am., N.A. v.Cloutier, 2013 ME 17, 15, 61 A.3d 1242. “[A] mortgageeis a party that is entitled to enforce the debt obligation thatis secured by a mortgage.” [Mortg. Elec. Registration Sys.,Inc. v.] Saunders, 2010 ME 79, 11, 2 A.3d 289 (emphasisomitted). Because foreclosure regards two documents—a promissory note and a mortgage securing that note—standing to foreclose involves the plaintiff's interest in boththe note and the mortgage.Id. “A plaintiff seeking a foreclosure judgment must complystrictly with all steps required by statute.” Id. 18 (internalquotation marks omitted).For a plaintiff “to state a claim for foreclosure upon whichrelief can be granted, [their] complaint must contain acertification of proof of ownership of the mortgage note.”
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.714 M.R.S. § 6321. “The mortgagee shall certify proofof ownership of the mortgage note and produce evidenceof the mortgage note, mortgage and all assignments andendorsements of the mortgage note and mortgage.” Id.Further, “[t]o prevail in a foreclosure action under 14 M.R.S.§ 6321, the plaintiff must prove eight conditions, including‘properly served notice of default and mortgagor's rightto cure in compliance with statutory requirements.’ ” J.P.Morgan Mortg. Acquisition Corp. v. Moulton, 2024 ME 13, 10, 314 A.3d 134 (quoting Greenleaf I, 2014 ME 89, 18,96 A.3d 700; 14 M.R.S. § 6321 (“The mortgagee shall furthercertify and provide evidence that all steps mandated by lawto provide notice to the mortgagor pursuant to section 6111were strictly performed”)). The Law Court has consistentlyheld that a mortgagor who fails to establish ownership ofthe mortgage as required under 14 M.R.S. § 6321 lacksstanding to bring a foreclosure claim. See Greenleaf I, 2014ME 89, 17, 96 A.3d 700; accord Bank of Am., N.A.v. Greenleaf (Greenleaf II), 2015 ME 127, 4, 124 A.3d1122 (explaining, in Greenleaf I, the Law Court “explicitlynoted that our discussion of the merits was distinct from ourstanding analysis, and clearly vacated the judgment based onthe Bank's lack of standing”).Title 14 M.R.S. § 6111, which applies “to mortgages uponresidential property located in this State when the mortgagoris occupying all or a portion of the property as the mortgagor'sprimary residence and the mortgage secures a loan forpersonal, family or household use,” provides that a mortgageecannot accelerate maturity of the unpaid balance or otherwiseenforce the mortgage based on a mortgagor's default untilat least thirty five days after written notice is given to themortgagor informing him of “the right to cure the default byfull payment of all amounts that are due without acceleration,including reasonable interest and late charges specified in themortgage or note as well as reasonable attorney's fees.” 14M.R.S. § 6111(1). The statute lists the required contents of thenotice (the notice of mortgagor's right to cure) in subsection1-A, which includes eight items:*9 A. The mortgagor's right to cure the default as providedin subsection 1;B. An itemization of all past due amounts causing the loanto be in default and the total amount due to cure thedefault;C. An itemization of any other charges that must be paid inorder to cure the default;D. A statement that the mortgagor may have optionsavailable other than foreclosure, that the mortgagormay discuss available options with the mortgagee,the mortgage servicer or a counselor approved bythe United States Department of Housing and UrbanDevelopment and that the mortgagor is encouraged toexplore available options prior to the end of the right-to-cure period;E. The address, telephone number and other contactinformation for persons having authority to modify amortgage loan with the mortgagor to avoid foreclosure,including, but not limited to, the mortgagee, themortgage servicer and an agent of the mortgagee;F. The name, address, telephone number and other contactinformation for all counseling agencies approved bythe United States Department of Housing and UrbanDevelopment operating to assist mortgagors in the Stateto avoid foreclosure;G. Where mediation is available as set forth in section6321-A, a statement that a mortgagor may requestmediation to explore options for avoiding foreclosurejudgment; andH. A statement that the total amount due does not includeany amounts that become due after the date of the notice.14 M.R.S. § 6111(1-A). A mortgagee must provide noticeof mortgagor's right to cure “to a mortgagor and anycosigner under this section to the last known addresses of themortgagor and cosigner by both: (1) Certified mail, returnreceipt requested; and (2) Ordinary first-class mail, postageprepaid.” 14 M.R.S. § 6111(2-A)(A).The statute further clarifies how timing of the noticeof mortgagor's right to foreclose should be calculated,explaining “the time when the notice is given to themortgagor or cosigner is the sooner of: (1) The date themortgagor or cosigner signs the receipt or, if the notice isundeliverable, the date the post office last attempts to deliverit under paragraph A, subparagraph (1); and (2) The date themortgagor or cosigner receives the notice under paragraph A,subparagraph (2).” 14 M.R.S. § 6111(2-A)(B). “A post officedepartment certificate of mailing to the mortgagor or cosigneris conclusive proof of receipt on the 7th calendar day aftermailing notice as provided under paragraph A, subparagraph(2).” Id.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8B. DiscussionStanding is “the threshold question in every federal case,determining the power of the Court to entertain the suit.”Warth v. Seldin, 422 U.S. 490, 498 (1975). The Maine LawCourt has determined satisfaction of 14 M.R.S. § 6321’scertification of ownership of the note is necessary to provestanding to bring a foreclosure action. Greenleaf I, 2014 ME89, 17, 96 A.3d 700. Thus, the Court first considers whetherU.S. Bank has established its standing to bring a foreclosureclaim on the mortgage pursuant to 14 M.R.S. § 6321. Ifthe Court concludes that the Plaintiff has standing to bringits foreclosure claim, the Court next addresses 14 M.R.S.§ 6321’s requirement that a mortgagee “produce evidenceof the mortgage note, mortgage and all assignments andendorsements of the mortgage note and mortgage,” which theLaw Court explained in Greenleaf I “regards what evidentiaryburden the plaintiff must satisfy to obtain a foreclosurejudgment once the plaintiff's standing has been established.”Id. 22 (citing Cloutier, 2013 ME 17, ¶¶ 15-17, 61 A.3d1242 (distinguishing the standing requirement in section 6321from the ‘procedural prerequisites’ necessary to obtain aforeclosure judgment by a party that has already establishedits standing)). Finally, should the Court conclude U.S. Bankhas satisfied its evidentiary burden under 14 M.R.S. § 6321,the Court considers whether the record entitles Plaintiff to aforeclosure judgment under 14 M.R.S. § 6111.1. 14 M.R.S. § 6321a. Certification of Ownership in the Complaint*10 Mr. Richmond argues Plaintiff's complaint fails toadequately certify proof of ownership of the mortgage noteand thus it lacks standing to proceed on its claim under Mainelaw. Def.’s Brief at 32-40. Plaintiff responds that the contentsof its complaint satisfy the certification requirements of 14M.R.S. § 6321 as this requirement has been interpreted byMaine courts. Pl.’s Brief at 17-18.Mr. Richmond's argument implicates two Law Court casesand a 2015 legislative amendment; each addressed thecertification requirement of 14 M.R.S. § 6321. The Courtbriefly reviews these authorities as necessary context.Before the amendment in 2015, 14 M.R.S. § 6321 set forth thefollowing requirements that govern a mortgage foreclosure inthe state of Maine:The foreclosure must be commencedin accordance with the Maine Rulesof Civil Procedure, and the mortgageeshall within 60 days of commencingthe foreclosure also record a copy ofthe complaint or a clerk's certificateof the filing of the complaint ineach registry of deeds in which themortgage deed is or by law oughtto be recorded and such a recordingthereafter constitutes record noticeof commencement of foreclosure.The mortgagee shall further certifyand provide evidence that all stepsmandated by law to provide noticeto the mortgagor pursuant to section6111 were strictly performed. Themortgagee shall certify proof ofownership of the mortgage note andproduce evidence of the mortgagenote, mortgage and all assignmentsand endorsements of the mortgagenote and mortgage.14 M.R.S. § 6321, 3 (2013).In Bank of America v. Cloutier, 2013 ME 17, 61 A.3d 1242(2012), the Law Court held that “certify proof of ownership”in § 6321 did not limit standing to file a foreclosure complaintonly to the owner of the promissory note, but rather merelyobligates a plaintiff to identify the owner or beneficiary and,if the plaintiff is not the owner, explain the basis for itsauthority to enforce the note under the Uniform CommercialCode. See Cloutier, 2013 ME 17, 16, 61 A.3d 1242. TheCloutier Court continued to explain that the UCC is clearthat the holder of an instrument is entitled to enforce it, evenif not the owner. Id. 18 (“A holder of an instrument isentitled to enforce it”) (citing 11 M.R.S. § 3-1301(1)) (“Aperson may be a person entitled to enforce the instrument eventhough the person is not the owner of the instrument”)). TheCloutier Court summed up its holding as “the phrase ‘certifyproof of ownership of the mortgage note’ requires onlythat a foreclosure plaintiff identify the owner or economicbeneficiary and, if it is not itself the owner, prove that it haspower to enforce the note.” Id. 21.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9Then, in U.S. Bank National Association v. Thomes, 2013ME 60, 69 A.3d 411 (2013), the Law Court elaborated onCloutier, explaining that the plaintiff in that case had metits burden of demonstrating its authority to enforce the note“when it admitted in evidence the original note endorsed inblank and elicited testimony that it had physical possessionof the note.” Thomes, 2013 ME 60, 11, 69 A.3d 411. Asthe definition of “holder” includes “[t]he person in possessionof a negotiable instrument that is payable ... to bearer,”the Thomes Court concluded the plaintiff was entitled to ajudgment of foreclosure. Id. (citing 11 M.R.S. § 1-1201(21)(a) (2012)).*11 However, shortly after these Law Court decisions,the Maine Legislature amended 14 M.R.S. § 6321 in 2015specifically regarding the certification requirement:The foreclosure must be commencedin accordance with the Maine Rulesof Civil Procedure, and the mortgageeshall within 60 days of commencingthe foreclosure also record a copy ofthe complaint or a clerk's certificateof the filing of the complaint ineach registry of deeds in which themortgage deed is or by law oughtto be recorded and such a recordingthereafter constitutes record noticeof commencement of foreclosure.The mortgagee shall further certifyand provide evidence that all stepsmandated by law to provide noticeto the mortgagor pursuant to section6111 were strictly performed. In orderto state a claim for foreclosureupon which relief can be granted,the complaint must contain acertification of proof of ownershipof the mortgage note. The mortgageeshall certify proof of ownership of themortgage note and produce evidenceof the mortgage note, mortgage and allassignments and endorsements of themortgage note and mortgage.14 M.R.S. § 6321, 3 (2015) (emphasis of 2015 amendedlanguage supplied); see also 2015 Me. HP 267.The Court concludes the Maine Legislature's 2015amendment revises not the contents of the certification, butrather the timing of when it must be provided. 14 M.R.S.§ 6321 (2015) (“In order to state a claim for foreclosureupon which relief can be granted, the complaint mustcontain a certification of proof of ownership of the mortgagenote”) (emphasis supplied). The amendment provides thatthis certification is required in the complaint and, absentcertification in the complaint, cannot be proven at trial, asthe Law Court allowed in Thomes. Thomes, 2013 ME 60, 11, 69 A.3d 411. The Legislature did not, however, changethe language of the statute as to what constitutes a sufficientcertification.In Cloutier, the Law Court explained what is required ofa certification for the purposes of a foreclosure action; tocertify proof of ownership of a mortgage note, a plaintiff must“identify the owner or economic beneficiary of the note and,if the plaintiff is not the owner, to indicate the basis for theplaintiff's authority to enforce the note pursuant to Article 3-A of the UCC.” Cloutier, 2013 ME 17, 16, 61 A.3d 1242.Here, the complaint states at paragraph fifteen: “The Plaintiff,U.S. Bank National Association, as trustee, on behalf of theholders of the Asset Backed Securities Corporation HomeEquity Loan Trust, Series NC 2005-HE8, Asset Backed Pass-Through Certificates, Series NC 2005-HE8, is the lawfulholder and owner of the Note and Mortgage.” Compl. 15.The complaint therefore meets the standard for a certificationunder Cloutier by “identify[ing] the owner or economicbeneficiary of the note” and Cloutier’s second clause isinapposite, as Plaintiff identified itself as the owner.Mr. Richmond insists that Cloutier is entirely a dead letterand that a complaint must contain the word “certify” or itsequivalent to satisfy 14 M.R.S. § 6321 post-2015 amendment.However, he provides no cognizable authority in support ofthis claim4 and the Court disagrees with his interpretationas a matter of law and applies the definition of “certify”stated by the Law Court in Cloutier, 2013 ME 17, 16,61 A.3d 1242. Notably, in Homeward Residential, Inc. v.Gregor, 2015 ME 108, 122 A.3d 947, specifically addressingthe 2015 amendment, the Law Court explained “[t]he statedpurpose of the amendment is to require the plaintiff in aforeclosure action to identify the owner of the promissorynote at the outset of the litigation ‘when the parties mostneed that information as they engage in mediation and loanmodification efforts.’ ” Gregor, 2015 ME 108, 13 n.10, 122A.3d 947 (quoting Summary, Comm. Amend. A to L.D. 401,
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.10No. H-257 (127th Legis. 2015)). Here, paragraph fifteen ofthe complaint provides the necessary information to identifythe owner of the promissory note at the outset of the litigationand thus satisfies the Law Court's interpretation of the statuteas amended by the Legislature in 2015.*12 In further independent support for this conclusion,Black's Law Dictionary defines “certify” as “1. Toauthenticate or verify in writing. 2. To attest as being true oras meeting certain criteria.” Certify, Black's Law Dictionary(10th ed. 2014). Under Federal Rule of Civil Procedure11, in making any written submission to the Court, “anattorney ... certifies that to the best of the person's knowledge,information, and belief, formed after an inquiry reasonableunder the circumstances: ... the factual contentions haveevidentiary support or, if specifically so identified, will likelyhave evidentiary support after a reasonable opportunity forfurther investigation or discovery[.]” FED. R. CIV. P. 11(b).Therefore, by submitting the complaint on the record in thiscase, Plaintiff has certified the truth of its statement that U.S.Bank is the lawful holder and owner of the promissory noteand mortgage.Based on the foregoing, the Court concludes that Plaintiff'scomplaint satisfies the certification requirement of 14 M.R.S.§ 6321 and that Mr. Richmond's argument that Plaintiff lacksstanding to bring a foreclosure action for failure to certifyownership of the note in the complaint fails.b. Evidence of Ownership of the Note and MortgageThe Court turns next to 14 M.R.S. § 6321’s “proceduralprerequisite,” Greenleaf I, 2014 ME 89, 22, 96 A.3d 700(citing Cloutier, 2013 ME 17, ¶¶ 15-17, 61 A.3d 1242),that the mortgagee must “produce evidence of the mortgagenote, mortgage and all assignments and endorsements ofthe mortgage note and mortgage” to obtain a foreclosurejudgment under 14 M.R.S. § 6321. As this statutoryrequirement encompasses both the promissory note andmortgage, the Court addresses each in turn.i. The NoteThe parties do not dispute that U.S. Bank is the present andlawful holder of the promissory note. In Greenleaf I, the LawCourt considered how a mortgagee can establish an interestin a promissory note, writing:Because a mortgage note is anegotiable instrument, 11 M.R.S. §3-1104(1) (2013), the enforceabilityof the plaintiff's interest in the noteis governed by Maine's [UCC], 11M.R.S. § 3-1301 (2011). Wells FargoBank, N.A. v. Burek, 2013 ME 87, 18, 81 A.3d 330; see 11 M.R.S.§ 1-1101(1) (2013). Section 3-1301permits a party to enforce a note if itis the “holder” of the note, that is, ifit is in possession of the original notethat is indorsed in blank. 11 M.R.S. §1-1201(5), (21)(a) (2013); 11 M.R.S. §3-1301(1).Greenleaf I, 2014 ME 89, 10, 96 A.3d 700. The Greenleaf ICourt concluded that the plaintiff had established possessionof the note endorsed in blank, and in so doing had proven itsright to enforce the debt. Id. 11.The case at bar is highly analogous to Greenleaf I, as theparties do not dispute that U.S. Bank presently possesses thepromissory note, which was endorsed in blank. PromissoryNote at 16; Bench Trial Tr. at 33:9-24. Consistent withGreenleaf I, Plaintiff has “proved its status as holder of thenote and therefore enjoys the right to enforce the debt”.Greenleaf I, 2014 ME 89, 11, 96 A.3d 700 (citationsomitted).ii. The MortgageTurning to the mortgage, Greenleaf I again provides a usefulsynopsis of the law relevant to proving ownership of amortgage in a foreclosure action. As the Law Court explained,“[u]nlike a note, a mortgage is not a negotiable instrument.Thus, whereas a plaintiff who merely holds or possesses—butdoes not necessarily own—the note satisfies the note portionof the standing analysis, the mortgage portion of the standinganalysis requires the plaintiff to establish ownership of themortgage.” Id. 12 (citation omitted). In Greenleaf I, theLaw Court reflects on Deutsche Bank National Trust Co. v.Wilk, 2013 ME 79, 76 A.3d 363, in which it accepted thebank's ownership of the note based on possession but vacatedthe trial court's judgment of foreclosure because one in theseries of purported assignments submitted in support of the
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.11foreclosing bank's ownership was dated two weeks before theassignor had acquired the mortgage from its predecessor. Id.In Greenleaf I, the Law Court similarly concluded that theassignments submitted on the record failed to establish thatthe foreclosing bank owned the relevant mortgage, and thusthe bank lacked standing to foreclose. Id. 17.*13 Here, Mr. Richmond argues U.S. Bank was unable todemonstrate its ownership of the mortgage based on twofailures: first, that it provided no documentary evidenceregarding the mortgage's purported sale by New Centuryto CSFB for securitization in 2005, and second, that SPSlacked authority to assign the mortgage from New Centuryto U.S. Bank in 2012 because New Century had withdrawnits authority to conduct business in the state of Maine in2007. Def.’s Brief at 27-32. Plaintiff contends U.S. Bank isthe lawful owner of the mortgage based on valid assignments.Pl.’s Brief at 3-5.Maine foreclosure law is clear on this point. For a foreclosingmortgagee “to state a claim for foreclosure upon which reliefcan be granted, [their] complaint must contain a certificationof proof of ownership of the mortgage note.” 14 M.R.S. §6321. “The mortgagee shall certify proof of ownership ofthe mortgage note and produce evidence of the mortgagenote, mortgage and all assignments and endorsements of themortgage note and mortgage.” Id. Accordingly, “the standinganalysis requires the plaintiff to establish ownership of themortgage.” Greenleaf I, 2014 ME 89, 12, 96 A.3d 700(citation omitted).Because U.S. Bank has failed to prove its ownership of themortgage, its foreclosure count fails. Although U.S. Banksclaims ownership of the mortgage through a purported salebetween New Century and CSFB, which through a poolingand servicing agreement placed the mortgage in the 2005-HE8 trust, Bench Trial Tr. at 72:20-73:5, 73:25-74:6, U.SBank provides no documentary evidence to establish thedetails of this purported sale. The only evidence came duringMs. Simon's trial testimony, when she explained the referenceto CSFB on the HUD Settlement appeared by virtue of themortgage's sale by New Century to CSFB for securitizationwithin a few months of its origination.Q. As I read it, it says investor name CS First Boston. Canyou explain how -- how that name got on there when it wasa New Century mortgage?A. Yes. As I testified earlier, when loans are originatedshortly thereafter when they're securitized they're sold onthe secondary market. New Century was known for sellingmany of their loans to DLJ, which was a business that wasacquired by CS First Boston in 2000.Q. Okay. So you're telling me the loan was sold to CS FirstBoston almost immediately upon being signed?A. Within a few months it was securitized, yes.....Q. So I'll try to be direct in my question. The possession ofthe mortgage or the ownership of the mortgage was in CSFirst Boston in 2005.A. It was transferred to them to be securitized so DLJreceives the loan, per the pooling and servicing agreementit is placed into the trust where U.S. Bank is the trustee inthe 2005-HE8 trust.Bench Trial Tr. at 72:20-73:5; id. at 73:25-74:6. Moreover,even if U.S. Bank had provided the pooling and servicingagreement described in Ms. Simon's testimony, such anagreement would only trace the transfer of ownership fromCSFB to the 2005-HE8 trust; it would not prove howownership was transferred from New Century to CSFBand thus fails to produce “evidence of the mortgage note,mortgage and all assignments and endorsements of themortgage note and mortgage.” 14 M.R.S. § 6321 (emphasissupplied).Furthermore, New Century's 2007 bankruptcy is fatal to U.S.Bank's foreclosure count. It is undisputed that New Centurywithdrew its authority to conduct business in the state ofMaine on October 31, 2007, Appl. of Withdrawal, prior tothe assignment from New Century to U.S. Bank, executedby SPS, on April 18, 2012. Assignment. The Court furtherheard testimony that New Century's bankruptcy took placein 2007, though no certificate of cancellation was introducedinto evidence. Bench Trial Tr. at 42:3-6, 76:25-77:4. TheCourt further notes an inconsistency with the prior testimonythat the loan had been sold to CSFB for securitization, andsubsequently placed into the 2005-HE8 trust, in 2005 withthe purported assignment from New Century to U.S. Bank in2012. See Bench Trial Tr. at 72:20-73:5, 73:25-74:6.*14 The Court could stop here, but given the chain oftitle issues presented in this case, the Court turns to ananalogous foreclosure action recently before the SuperiorCourt (Cumberland County, McKeon, J.) to further illustrate
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12why U.S Bank lacks standing to raise the foreclosure countin this action.iii. Recitation of Deutsche Bank Trust CompanyAmericas v. KendallThe Cumberland County Superior Court's recent decisionin Deutsche Bank Trust Company Americas v. Kendall,RE-17-303 (Me. Super. Ct., Cum. Cnty., Feb. 7, 2024),vacated on other grounds, Deutsche Bank Trust CompanyAmericas v. Kendall, Mem-25-54, 2025 Me. Unpub. LEXIS55 (May 13, 2025), is consistent with this Court's analysis.In that case, the mortgage had purportedly been assignedfrom Homecomings Financial, LLC, by its attorney-in-factOcwen Loan Servicing, LLC, to Deutsche Bank in November2013. Kendall, slip op. at 4. However, the court in thatcase noted that the purported assignment was executedon July 20, 2017, despite evidence being presented thatHomecomings Financial, LLC had declared bankruptcy in2013 and cancelled its right to do business as of February 26,2014. Id. The defendant mortgagor in Kendall argued that anyauthority Ocwen Loan Servicing had to assign mortgages onbehalf of Homecomings Financial, LLC ceased to exist afterit had withdrawn from the state and ceased to exist becauseof its bankruptcy. Id. at 4-5.To resolve the question, the Cumberland County SuperiorCourt turned to the Restatement (Third) of Agency, whichstates that “when a principal that is not an individual ceasesto exist or commences a process that will lead to cessationof its existence or when its powers are suspended, the agent'sactual authority terminates except as provided by law.” Id.at 5 (quoting RESTAT. 3D OF AGENCY, § 3.07(4) (AM.L. INST. 2006)). Noting the Restatement provides “[t]hecircumstances under which a person that is not an individualceases to exist are governed by the legal regime by virtue ofwhich the person has legal personality,” id. (citing RESTAT.3D OF AGENCY, § 3.07 cmt. c), and that HomecomingsFinancial, LLC was organized under the laws of Delaware,the Cumberland County Superior Court consulted Delaware'sLimited Liability Company Act, codified as 6 Del. C. §18-803(b)), which provides that “[u]pon dissolution of alimited liability company and until the filing of a certificateof cancellation ... the persons winding up the limited liabilitycompany's affairs may, in the name of, and for and on behalfof, the limited liability company ... dispose of and convey thelimited liability company's property.” Id. (quoting 6 Del. C. §18-803(b)) (citation corrected) (Kendall Court's alterations).The court noted that it had not been provided HomecomingsFinancial, LLC's certificate of cancellation in Delaware, but“the parties had stipulated that its certificate of cancellationwas effective in Maine on February 26, 2014 and the courtheard testimony of Sally Torres that referenced HomecomingsFinancial, LLC's bankruptcy as occurring in 2012 and 2013.”Id.The Kendall Court concluded that the plaintiff mortgagee hadprovided no basis for the court to conclude “that Ocwen LoanServicing had the authority to act as Homecoming Financial,LLC's agent after Homecomings Financial, LLC cancelledits business operations after the bankruptcy.” Id. at 5-6. TheCourt continued that an assignment can only assign propertyrights actually held by the assignor, noting that evidencehad been presented that Homecomings Financial, LLC hadentered bankruptcy and gone out of business in the periodbetween 2012 and 2014, such that “the court cannot findthat Homecomings Financial, LLC still had ownership rightsin the Kendall mortgage” or “in any mortgage by the timeOcwen purported to assign it to Plaintiff on Homecomings’behalf in 2017. The court simply does not know the ownershipof the mortgage coming out of bankruptcy.” Id. at 6. For thisreason, among others, the Kendall Court concluded:*15 The evidence of ownership ofthe mortgage presented to the courtleaves the court to speculate as tohow, if at all, Plaintiff Deutsche BankTrust Company Americas came to bethe owner of the Kendall's mortgage.Plaintiff has not met its burden toshow the requisite ownership of themortgage sufficient to satisfy thestanding requirement that Plaintiff isthe mortgagee within the meaning ofthe foreclosure statute.Id. at 9 (citing Greenleaf I, 2014 ME 89, ¶¶ 9, 12, 96 A.3d700). The Kendall Court thus entered judgment in favor of themortgagor defendants. Id.Notably, the plaintiff mortgagee in Kendall moved to amendand reconsider judgment and for reconsideration of factson February 29, 2024, arguing information not previouslyconsidered by the court established its ownership of themortgage and standing to foreclose. Deutsche Bank TrustCo. Ams. v. Kendall, RE-17-303, Pl.’s Mot. Pursuant toRules 52(b) and 59 and Incorporated Proposed Findings
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.13of Fact and Conclusions of Law (Me. Super. Ct., Cum.Cnty., Feb. 29, 2024). On review, the Kendall Court notesthat, even if the new submissions, including a poolingand service agreement between Residential Accredit Loans,Inc., Residential Funding Company, LLC, and DeutscheBank Trust Company Americas, are taken as true, thecontents still did not establish Deutsche Bank Trust CompanyAmericas owned the mortgage. Deutsche Bank Trust Co.Ams. v. Kendall, RE-17-303, slip op. at 6 (Me. Super.Ct., Cum. Cnty., July 15, 2024). While the servicingand pool agreement may be sufficient to demonstrate thatResidential Accredit Loans, Inc. transferred the mortgageinto the relevant trust, the Kendall Court reasoned, thisdocument did not prove how ownership of the mortgage wastransferred from Homecomings Financial, LLC, the originalmortgagor, to Residential Accredit Loans, Inc. Id. “Withoutthis, Plaintiff still cannot establish that it has standing toforeclose because the foreclosing mortgagee must produce‘evidence of the mortgage note, mortgage and all assignmentsand endorsements of the mortgage note and mortgage.” Id.(quoting 14 M.R.S. § 6321).The Kendall Court continued that the plaintiff mortgagees“attempted to remedy the ‘chain of ownership’ problemwith the 2017 quitclaim assignment” purportedly evidencingtransfer of the mortgage from Homecomings Financial,LLC to Deutsche Bank Trust Company Americas in 2017.Id. However, the Kendall Court rejected this argument,explaining:Plaintiff seeks to have the courtfind both that Residential AccreditLoans, Inc. transferred the mortgageto Plaintiff on or before February27, 2007, and that HomecomingsFinancial, LLC assigned its interest inthe mortgage to Plaintiff on July 20,2017. (Pl.’s Proposed Findings of Fact¶¶ 20-21, 24, 36-40.) Both cannot betrue. Either the mortgage somehow gotto Residential Accredit Loans, Inc. andwas transferred to the Trust in 2007 orHomecomings Financial, LLC, despitebankruptcy, still had some interestin the mortgage to convey in 2017.Neither is convincing.Id. The Kendall Court thus reiterated its conclusion thatthe plaintiff mortgagee had failed to prove its standing toforeclose on the mortgage and denied its motion to amend andreconsider judgment. Id. at 8.Deutsche Bank appealed the Superior Court judgment tothe Maine Supreme Judicial Court. The Maine Law Courtreviewed the Cumberland County Superior Court's judgmentand, on May 13, 2025, concluded “there was sufficientevidence in the record to support the court's determinationthat Deutsche Bank lacked standing to foreclose, and therecord does not compel a different result.” Deutsche BankTrust Company Americas v. Kendall, Mem-25-54, 2025 Me.Unpub. LEXIS 55, at *1 (May 13, 2025) (citations omitted).The Law Court continued that “[r]ather than entering ajudgment in favor of the Kendalls, however, the courtshould have dismissed the case without prejudice for lack ofstanding.” Id. at 1-2. The Law Court thus vacated the SuperiorCourt's judgment and remanded the case to the Superior Court“to enter judgment dismissing the case for lack of standing.”Id. at 2.iv. Application of Kendall to the Case at Bar*16 The Court's decision in this case is consistent with theholding in Kendall. First, the record reflects two separatepaths from which the mortgage in this case purportedly wastransferred from the original mortgagee, New Century, to theplaintiff mortgagee seeking to foreclose, U.S. Bank. One pathis through a purported sale, at an unspecified date shortlyafter origination, to CSFB, who then placed it in the 2005-HE8 trust. See Bench Trial Tr. at 72:20-73:5, 73:25-74:6.Plaintiffs submit that the mortgage has remained in this trustsince that time. Id. at 37:9-11. However, Plaintiffs provideno documentary evidence to establish the details of thispurported sale and, though testimony described a poolingand servicing agreement through which the mortgage wasplaced in the 2005-HE8 trust, the Kendall Court persuasivelyexplained why, even if taken as true, such an agreementwould only trace the transfer of ownership between CSFBand the 2005-HE8 trust; it would not prove how ownershipwas transferred between New Century and CSFB and thusfails to produce “evidence of the mortgage note, mortgageand all assignments and endorsements of the mortgage noteand mortgage.” See Kendall, RE-17-303, slip op. at 6 (Me.Super. Ct., Cum. Cnty., July 15, 2024) (quoting 14 M.R.S. §6321). The Kendall Court reached this conclusion even whenpresented the relevant pooling and servicing agreement; here,
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.14this document was not entered into evidence for the Court toreview.Next, the 2012 assignment submitted by U.S. Bank in thecase at bar presents similar concerns the Kendall Courtresolved against Deutsche Bank regarding the purported2017 assignment in that case. There, the parties agreedthat Homecomings Financial, LLC cancelled its right to dobusiness in the state on February 26, 2014, and the court heardevidence that Homecomings Financial, LLC's bankruptcy hadoccurred in 2012 and 2013, prior to the purported assignmentexecuted by Ocwen Loan Servicing on its behalf July 20,2017. See Kendall, RE-17-303, slip op. at 4 (Me. Super. Ct.,Cum. Cnty., Feb. 7, 2024).In this case, it is undisputed that New Century withdrew itsauthority to conduct business in the state of Maine on October31, 2007, Appl. of Withdrawal, prior to the assignment fromNew Century to U.S. Bank, executed by SPS, on April 18,2012. Assignment. The Court further heard testimony thatNew Century's bankruptcy took place in 2007, though nocertificate of cancellation was produced into evidence. BenchTrial Tr. at 42:3-6, 76:25-77:4.As the Kendall Court noted, the Restatement (Third) ofAgency provides that “when a principal that is not anindividual ceases to exist or commences a process that willlead to cessation of its existence or when its powers aresuspended, the agent's actual authority terminates except asprovided by law,” a determination guided by the laws ofthe state in which the principal is incorporated. RESTAT.3D OF AGENCY, § 3.07(4); id. cmt. c (“The circumstancesunder which a person that is not an individual ceases to existare governed by the legal regime by virtue of which theperson has legal personality”). While the principal in Kendallwas a Delaware corporation, New Century was a corporation“which exist[ed] under the laws of California.” See Mortgageat 18.As a California corporation, New Century's dissolution isgoverned by California Corporations Code § 17707.06, whichstates:A limited liability company that hasfiled a certificate of cancellationnevertheless continues to exist for thepurpose of winding up its affairs,prosecuting and defending actions byor against it in order to collect anddischarge obligations, disposing of andconveying its property, and collectingand dividing its assets. A limitedliability company shall not continuebusiness except so far as necessary forits winding up.Cal. Corp. C. § 17707.06. As in Kendall, the Court isnot aware of any authority under the California statute orotherwise to support a conclusion that SPS had authorityto assign the mortgage on New Century's behalf followingNew Century's cancellation of business operations after itsbankruptcy and withdrawal from the state of Maine in 2007,and further cannot conclude that New Century retainedownership rights of the mortgage by the time SPS purportedlyassigned it to U.S. Bank on New Century's behalf in 2012.See Kendall, RE-17-303, slip op. at 5-6 (Me. Super. Ct., Cum.Cnty, Feb. 7, 2024). The Kendall Court aptly described thesituation in its statement: “[t]he court simply does not knowthe ownership of the mortgage coming out of the bankruptcy.”Id. at 6.*17 In its post-trial brief, U.S. Bank directs the Court to 33M.R.S. § 353-A, which it submits “specifically provides thatan assignment recorded for at least two years “may not beheld invalid by reason of: A. The lack of authority ... for theirexecution or delivery.” Pl.’s Brief at 5 (quoting 33 M.R.S.§ 353-A(3)) (citation corrected) (Plaintiff's alterations). Thiscitation is inapposite for several reasons. First, this statute,titled “Miscellaneous Defects,” contemplates actions takenby defectively formed corporations, not whether an agentcan continue to act on a principal's behalf after the principalhas ceased to exist. Second, the subsection cited by Plaintiffapplies to “[a] corporation or other legal entity organized orattempted to be organized under the laws of this State for morethan 20 years and not yet declared to be invalid ....” 33 M.R.S.§ 353-A(3). Here, New Century was organized under the lawsof California, not Maine, it registered to do business in thestate of Maine less than twenty years ago in 1996, and it hadwithdrawn its ability to validly do business in 2007 prior to thecontested action. See Mortgage at 18; Appl. of Withdrawal.Finally, again replicating the circumstances of Kendall, U.S.Bank in this case posits two alternative pathways from whichownership of the mortgage was transferred from New Centuryto U.S. Bank; however, in so doing, Plaintiff presents twomutually exclusive chains of title. Plaintiff seeks to have
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.15the Court conclude both that New Century transferred themortgage to CSFB in 2007, at which time it was placed in the2005-HE8 trust where it remains to date, and also that NewCentury assigned the mortgage to U.S. Bank as trustee for the2005-HE8 trust in 2012. See Pl.’s Brief at 4-5. “Both cannotbe true. Either the mortgage somehow got to [CSFB] and wastransferred into the Trust in [2005] or [New Century], despitebankruptcy, still had some interest in the mortgage to conveyin [2012]. Neither is convincing.” Kendall, RE-17-303, slipop. at 6 (Me. Super. Ct., Cum. Cnty., July 15, 2024).For the foregoing reasons, the Court concludes U.S. Bankhas failed to establish its ownership of the mortgage and“the court should [ ] dismiss[ ] the case without prejudicefor lack of standing. Kendall, Mem-25-54, 2025 Me. Unpub.LEXIS 55 at *1-2 (May 13, 2025) (citing Greenleaf II,2015 ME 127, ¶¶ 6-9, 124 A.3d 1122). Under Maine law, amortgagee must prove a legal interest in both the promissorynote and mortgage to succeed in a statutory foreclosure action.Greenleaf I, 2014 ME 89, 9, 96 A.3d 700. As U.S. Bankhas failed to prove its interest in the mortgage, it fails in itsforeclosure count.VI. STATUS OF THE CASEAs the Court noted, in Kendall, the Superior Court had entereda judgment in favor of the mortgagors and, in its decision, theMaine Supreme Judicial Court held this was in error. Kendall,Mem-25-54, 2025 Me. Unpub. LEXIS 55 at *1-2 (May 13,2025). The Kendall Court wrote:Rather than entering a judgment infavor of the Kendalls, however, thecourt should have dismissed the casewithout prejudice for lack of standing.Id. at 1 (citations omitted). Following the Law Court's leadin Kendall, the Court dismisses Count One – the foreclosurecount – of Plaintiff's Complaint without prejudice.There are four other counts in U.S. Bank's complaint: CountTwo – Breach of Note; Count Three – Breach of Contract,Money Had and Received; Count Four – Quantum Meruit;and Count Five – Unjust Enrichment. Compl. at 6-11. Atthe outset of the trial, the Court discussed with counselfor U.S. Bank and with Mr. Richmond, the disposition ofthe remaining counts. Bench Trial Tr. at 13:19-16:19. Mr.Richmond claimed he had the right to a jury trial on all counts,including the foreclosure, and U.S. Bank argued that therewas no right to a jury trial on any of the counts. Id. The Courtruled that there is no right to a jury trial in the foreclosureaction and confirmed that U.S. Bank was proceeding solelyon the foreclosure count at the time. Attorney Longoriarepresented that if U.S. Bank prevailed on the foreclosurecount, she would dismiss the remaining counts. Id. The Courtstated that if U.S. Bank did not prevail, it would resolvewhether there is a right to a jury trial on the remaining counts.Id.*18 During this colloquy, Attorney Longoria asserted thatthere is no right to a jury trial under the contract actionfor the note, unjust enrichment, and the other counts, sincethey “all fall under the Court's equity jurisdiction.” Id.at 16:3-12. Unless controlled by a statute, the commonlaw rules on entitlement to a jury trial prevail under theSeventh Amendment. U.S. CONST., amend. VII (“In Suitsat common law ... the right to trial by jury shall bepreserved”). This phrase means suits in which “legal rights”rather than “equitable rights” were determined. Feltner v.Columbia Pictures Television, Inc., 523 U.S. 340, 348 (1998);Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41 (1989).“Thus, whether a defendant is entitled to trial by jury dependson whether his suit will resolve legal or equitable rights.”Iantosca v. Benistar Admin. Servs., 843 F. Supp. 2d 148, 152(D. Mass. 2012). “The determination hinges on 1) whetherthe action is, or is analogous to, an action that would havebeen brought in a court of law or equity and 2) whether thenature of the remedy sought is legal or equitable.” Id. (citingTull v. United States, 481 U.S. 412, 417-18 (1987)). “Thesecond stage of the inquiry is more important than the first.”Id. (citing Tull, 481 U.S. at 417-18). “[T]he right to a jury trialin the federal courts is to be determined as a matter of federallaw in diversity as well as other actions.” Simler v. Conner,372 U.S. 221, 222 (1963).5The line between equitable and legal claims is well known.Under federal law, breach of contract claims are “essentiallylegal [in] nature.” Simler, 372 U.S. at 223; NACM-NewEngland, Inc. v. Nat'l Ass'n of Credit Mgmt., 927 F.3d 1,8 (1st Cir. 2019). A claim of failure to pay in accordancewith the terms of a promissory note is a form of breach ofcontract and is therefore legal in nature as well. In HealthCare Mgmt. v. Magnolia-Tall Pines Realty LLC, No. 1:25-cv-00020-SDN, 2025 U.S. Dist. LEXIS 114938 (D. Me. June17, 2025), the district court wrote that “promissory notes ‘arecontracts to which basic principles of contract law apply.’ ”
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.16Id. at *4 (quoting Briggs v. Briggs, 1998 ME 120, 6, 711A.2d 1286). Quantum meruit is variously described as a legaland an equitable remedy. See Tourangeau v. Nappi Distribs.,No. 2:20-cv-00012-JAW, 2023 U.S. Dist. LEXIS 123151, at*7 (D. Me. July 18, 2023); Bowden v. Grindle, 651 A.2d347, 351 (Me. 1994) (“Quantum meruit was the commonlaw count for work and labor in an action of assumpsit, and,thus, in Maine it is necessarily an issue triable of right by ajury”) (citation omitted). Unjust enrichment is an equitableremedy. Tourangeau, 2023 U.S. Dist. LEXIS 123151, at *7;Sunshine v. Brett, 2014 ME 146, 22, n.11, 106 A.3d 1123(Alexander, J. dissent) (“[U]njust enrichment is an equitableclaim upon which there is no jury trial right”). As the sameissues in the unjust enrichment count are likely to be triedbefore a jury on Counts Two through Four, it seems moreefficient to submit the unjust enrichment claim to the juryfor an advisory verdict. Tourangeau, 2023 U.S. Dist. LEXIS123151, at *7-8.6 Finally, the law usually does not allow theassertion of equitable claims, such as quantum meruit andunjust enrichment, if there is a valid contract that covers thesame subject matter and defines the obligations of the parties.See Guldseth v. Family Med. Assocs. LLC, 45 F.4th 526, 541(1st Cir. 2022) (applying Massachusetts law).*19 To this end, the Court preliminarily concludes there isa right to a jury trial on the breach of note and breach ofcontract claims (Counts Two and Three) and likely on thequantum meruit count. If U.S. Bank disagrees with this ruling,the Court ORDERS U.S. Bank to show cause within fourteendays of the date of this order on whether there is a rightto a jury trial on the remaining counts. If U.S. Bank files amemorandum on these issues, Mr. Richmond may file a replywithin seven days of U.S Bank's filing of their response.VII. CONCLUSIONThe Court concludes that U.S. Bank National Association, astrustee, on behalf of the holders of the Asset Backed SecuritiesCorporation Home Equity Loan Trust, Series NC 2005-HE8,Asset Backed Pass-Through Certificates, Series NC 2005-HE8, failed to establish that it has standing to proceed withCount One, the foreclosure action, against Eric Richmond,and therefore the Court DISMISSES without prejudice CountOne of the Plaintiff's Complaint.Concluding preliminarily Eric Richmond has a right to a jurytrial on Counts Two and Three of Plaintiff's Complaint, likelyhas a right to a jury trial on Court Four, and determining thatthe Court will use the jury as advisory on Count Five, theCourt will proceed to jury trial on Counts Two through Fiveand ORDERS the Clerk's Office to place this case on the nextavailable civil jury list. If U.S. Bank maintains its position onthe absence of the right to a jury trial in this case, the CourtORDERS U.S. Bank within fourteen days to show cause whythere is no right to a jury trial as to Counts Two and Four ofthe Complaint. The Court withholds deciding on the sanctionsto be imposed on Mr. Richmond for his response to the orderto show cause until the resolution of this case.SO ORDERED.Dated this 27th day of October, 2025.All CitationsSlip Copy, 2025 WL 3002049Footnotes1In light of four years of fiercely contested litigation and well over two hundred docket entries, the Court limitsthe procedural background in this order to the filings relevant to the final disposition of the foreclosure countin this case. The Court provided a comprehensive recitation of the case's entire procedural history shortlybefore the bench trial in its June 11, 2025 order on motion for leave to file and objection to trial schedulingorder. See Order on Mot. for Leave to File and Obj. to Trial Scheduling Order at 2-9 (ECF No. 182).2Although late, the Court permitted Mr. Richmond's filing because of his interchange with a Deputy Clerk ofCourt. On September 10, 2025, Mr. Richmond called the Clerk's Office explaining that Federal Rule of CivilProcedure 6(d) allows a pro se litigant an additional three days to file his reply. Because the third day fell ona Saturday, Mr. Richmond claimed, he would have his reply post marked by the next business day, Monday,
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.17September 15, 2025. Although Mr. Richmond is mistaken, as explained below, he discussed the proper duedate with the Deputy Clerk, and the Court accepts his reply. Mr. Richmond, however, should be aware thatwhen the Court sets a date for a filing, it is his obligation to docket the filing by that date and Rule 6(d) doesnot give him an extra three days to do so.Even though it was cited by Mr. Richmond to support his late filing, Rule 6(d) does not apply to Mr. Richmond'sreply. First, Rule 6(d) says nothing about special deadlines for pro se litigants. Second, Rule 6(d) grants aparty receiving certain forms of service (e.g., by mail) an extra three days to act, not that the party effectingservice. Rule 6(d) lists “the modes of service that allow 3 [extra] days to act after being served.” Notes ofAdvisory Committee of 2016 Amendments (emphasis supplied). To the contrary, Mr. Richmond's reading“would mean that a party who is allowed a specified time to act after making service can extend the time bychoosing one of the means of service specified in the rule, something that was never intended by the originalrule or the [2005] amendment.” Id. (explaining that the 2005 Amendment to Rule 6(d) removed ambiguouslanguage that implied the rule extended “not only to a party that has been served but also to a party that hasmade service”). In other words, Federal Rule of Civil Procedure Rule 6(d) does not apply to Mr. Richmond,because he is not acting upon one of the modes of service applicable to Rule 6(d). Rather, he reads Rule 6(d)to give him an extra three days beyond the extension the Court already granted him – outside the purviewof Rule 6(d).3Plaintiff provided all its exhibits in a binder with sequential Bates pagination. As the Bates pagination is theonly page number included on many documents, the Court adopts the Bates numbering to cite particularpages of Plaintiff's exhibits.4In his post-trial brief, Mr. Richmond cited cases in support of the proposition that a complaint must containthe word, “certify” or its equivalent to satisfy the requirements of 14 M.R.S. § 6321. Def.’s Post-Trial Br. at30. However, as the Court described in its order to show cause, Mr. Richmond's citations were erroneous.O.S.C. at 8-10.5The same principle applies under Maine law. DiCentes v. Michaud, 1998 ME 227, 719 A.3d 509 (“Becausematters in equity were never triable of right to a jury, the right to a jury does not exist for claims sounding inequity”); accord DesMarais v. Desjardins, 664 A.2d 840, 844 (Me. 1995).6Even though the law usually does not allow the assertion of equitable claims, such as unjust enrichment, ifthere is a valid contract that covers the same subject matter and defines the obligations of the parties, seeGuldseth v. Family Med. Assocs. LLC, 45 F.4th 526, 541 (1st Cir. 2022) (applying Massachusetts law), herethe parties contest whether there is a valid contract and therefore the issues may be presented to the juryin the alternative.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access