Sabina v. Wells Fargo Home Mortgage

STATE OF 1\t1AJNE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Localion: Portland becket No.: BCD-CV-14-26 .j

ALEC T. SABINA and EMN.lA L. ) SABINA, ) on behalf of themselves and all others ) similarly situated ) ) Plaintiffs, ) ORDER ON DEFENDANrS MOTION ) TO DIS.MISS v. ) ) WELLS FARGO HOl'v!E ) MORTGAGE, INC., )

Defendant.

I. llYfRODUCTION

Before tile Court is Defendant Wells Fargo Home Mortgage, Inc.'s ("Wells F11rgo") Motion to Dismiss Plaintiffs' Complaint for failing to state a claim for which relief can be granted under Rule 12(b)(6) of the M11ine Rules of Civil Procedul'e. Plaintiffs seek an award of exemplary damages, court costs, and legal fees for Defendant's alleged violation of 33 M.R.S. § 551 ("Section 551 "). The statute requires a mortgage lender to record a valid llUd complete release of the mortgage together within 60 d~ys afier full performance of the conditions of the mortgage. 1 The lender also has to sen4 the release by first-class mail to the borrower within 30 days after receiving it back from the registry of deeds. 2

1 If the mortgnge secures 1111 opeu-ended line of credit, the 60 dny period to deliver tile rclense commences nfter the mortgngor delivers to the nddress clesignnted for pnyments under the line of credit n written request to tcnni.nnte the line of credit together with pnyments iu U1ll of oll muounts secured by the mortgnge. See 33 M.R.S. § 551 2 The cnse is brougb~ os.n clnss nction pursunnt to Rule 23(b)(3) of the Mnine Civil Rules on behnlf of oil persons who did not timely receive their originnlmortgnge relenses within Ute time frnme required by the stntute.

Defendant falllts the Plaintiffs' failure to allege when or even if Defendant received the original mortgage release from the registry of deeds, or when Wells Fargo mailed the original mortgage release to the Plaintiffs. Defendant also Mgues that it h11s no obligation under Section 551 of any kind unless the Plaintiffs delivered a written request to tenninate the line of credit together with payments in full. Because of these alleged defects, Defendant asks the Court to dismiss the Complaint.

IT. ANALYSIS

The Collrt on tllis date issued its decision on a similar Motion to Dismiss in BCD-CV -15-01, Jonathan A. Quebbeman v. Bank of America. The Court denied the motion but required Plaintiff in that matter to provide more specificity with regards to facts in his possession as to whether the Registry returned the mortgage release to the Defendant in that case (Bank of America, N.A.) and if so, when. In addition, the Court ordered the Plaintiff to provide more specificity as to when the Defendant mailed the release to the Plaintiff, or when (or it) Plaintiff ever received it. After reviewing the arguments made in this matter, the Court can see no renson here to apply a different analysis or come to a different conclusion.

R\1lc 8(a) of the Maine Rules of Civil Procedure requires a "short and plain statement of the c~aim showing that the pleader is entitled to relief" and a "demand for judgment for the relief which the pleader seeks." Notice pleading under State law has ns its purpose giving "fair notice" to the Defendnnt of the claim. Shaw l'. S. Aroostook Cmty. Sch. Dist, 683 A.2d 502, 503 (Me. 1996). Dismissal of a claim is warranted only "wheu it nppears beyond doubt that the plaintiff is not entitled to relief under nny set of facts that )le might prove in support of his claim." Bo11ney v. Stephens Melli 'I Hosp.,

2011 NIE 46, ~ 16, 17 A.Jd 123 (citing Saunders v. Tisher, 2006 ME 94, ~ 8, 902 A.2d 830, 832).

The Court acknowledges that there are cases where tbe Law Court hns suggested that a certai·n level of particularity is required, and that "merely reciting the elements of a claim is not enough." America v. Sunspray Condo. Ass'n, 2013 ME 19, ~ 13, 61 A.3d 1249. The Lnw Court has also allowed dismissal of claims by a trial court when basic elements of a claim are recited without also aJJeging specific supporting facts. Ramsey v. Baxter Title Co., 20 12 lviE 113, ~~ 6-10, 54 A.3d 710.

The most recent Law Court decision, Nadeau v. F!J1Cflych, however, suggests a more forgiving stnndnrd, whe1·e it was held sufficient when the complaint sets out "elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursunnt to some legal theory." 2014 lviE 154, ~ 5, 108 A.Jd 1254 (citing McCormick v. Crane, 2012 ME 20, ~ 5, 37 A.3d 295). Nadeau presented the Law Court with its most recent opporhmity to adopt the more demanding federal standard, but that did not happen.

This Court in Quebbeman also noted that even under the federal standard, reciting the elements of a cause of action may be sufficient when "the required facts are sufficiently incorporated into the language of the common law or the stahltory violation itself." .FVhlle v. G.C. Sen's. LP, 2012 WL 4747156, Ill *2 (D. Nev. Oct. 2, 2012). Here, Plaintiffs hllve alleged facts, which are incorporated into the language of the statute such that any reference to the facts (here, that a release wos not sent within 30 days) necessarily states the language of the statute.

In addi lion, as the Court noted in Quebbemcm, the cases relied upon by D,efcndnnt, Americct v. Sunspray Condo. Ass '11, 20 I 3 lVIE, 99, ~ 13, and Ramsey v. Bctxler

Title Co .. 2012 will I I 3, 1m 6-10 are not pArticularly npplicable. Sunspray turned on the failure of the Plflintiff to HI lege particulari.zed injury, and Ramsey addressed the need in a claim alleging breach of fiduciary duty for a Plaintiff to plead facts that would establish existence of such a relationship. B1:ym1 R. v. Walchlower Bible and Tract Soc. of N. Y Inc., !999 ME 144, ~ 22, 738 A.2d 839. None of these cases dealt with a situation where nsse11ions of facts made in a complaint are facts incorporated into the language of a statute.

Finally, the Court does not agree with the Defendant that the decision on its motion should tum on the fc1ct th11t the mortgage here was secured by an open-ended line of credit. A plAin reading of the statute does not support the Defendant's position that it has no obligations of nny kind under Section 551 unless the mortgagor delivers a written request to the lender to temtinate the line of credit and the mortgage, together with payment in full. The Court interprets Section 551 to place the same obligation to send the release to the lender within 30 days after it is received by the lender from the regist1y, whether the mortgage secures an open-ended line of credit or whether it is a conventional mortgage. As Plaintiffs note, while the written request by the lender to tenninate the line of credit llHlY be a necessary precursor to the delivery of the release to the registry, once the release hns been recorded, "that ship lias sailed." (Pis.' Opp. Mot. 5.) It is undisputed in this case that the release was recorded. (Def. 'sEx. C.)

Because this is a case where the Plaintiffs have simply alleged facts incorporated into the language of a statute, and becnuse the Law Court has not directly addressed such a situation, the Court will order the Plaintiffs to provide more specificity as to any facts that it has in his possession ns to whether the,Registry of Deeds returned the original *5 mortgage release to Wells Fargo, and if so when; and to provide more specificity as to any facts that it has in his possession as to when Wells Fargo mailed the original mortgage release, or when (or if) Plaintiffs ever received it. The Court would note that Plaintiffs expressed their willingness to amend its Complaint to provide fm1her notice to the Defendant as to how it allegedly violated Section 551. (Pis.' Opp. Mot. n. 5.)

ill. CONCLUSION

THE El\T'fRY WILL BE: Defendant's Motion to Dismiss is DEl'UED. Plaintiffs have 14 days from the date of this Order to provide f\1rther specificity as described in the preceding paragraph.

This Order may be noted on the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.

DATE M.~~JUSTICE BUSINESS AND CONSU.IVIER COURT

Entered on the Docket: '1/'lfs-__ Copies sent via Maii_Electronically1

Alec T Sabina and Emma L Sabinam on behalf of themselves and all others similarly situated v. Wells Fargo Home Mortgage, Inc.

BCD-CV-2014-26

Alec T Sabina and Emma L Sabinam on behalf of themselves and all others similarly situated Plaintiff

Counsel: Peter Van Hemel, Esq. Meredith Eilers, Esq. Michael Bosse, Esq. Daniel Mitchell, Esq. 100 Middle Street PO Box 9729 Portland, ME 04104-5029

Wells Fargo Home Mortgage, Inc. Defendant

Counsel: Daniella Massimilla, Esq. 6 Kimball Lane, Suite 200 Lynnfield, MA 01940