Quebbeman v. Bank of America

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD~CV -15-01

JONATHAN A. QUEBBEi'vlAN, ) on behnlf of himself and all otbers ) similarly situated ) ) Plaintiff, ) ) ORDER ON DEFENDANT'S MOTION v. ) TO DISlVllSS ) BANK OF A..tv1ERICA, N.A., ) ) Defendant, )

I. INTRODUCTION

Before the Cout1 is Defendant Bank of Americn, N.A's ("BANA") Motion to Dismiss Plaintiff's Cornplnint for failing to state a claim as a matter of law under Rule

12(b)(6) of the Maine R\tles of Civil Procedure. Plaintiff is seeking an award of exemplory damages, court costs, and legal fees for Defendant's alleged violation of 3J M.R.S. § 551 ("Section 551 "). The statute requires a mortgage lender to mail original recorded mortgage releases to their botTowers within thirty days after receiving them back from ·the registry of deeds. 1 Defendant asserts that the language in the Complaint "merely parrots the language of the statute, without any factual detail whatsoever concerning BANA's supposed conduct giving rise to this specific alleged violation." (Def.'s Mot. 2.)

Defendant faults the Plaintiff's f(lilure to (IIJege when or even if BANA received the original mortgage release from the Cumberland County Registry of Deeds, or when

1 The case is brought os n c!oss !let ion pursuant to Rule 23(b)(3) of the Moine Civil Rules on behnlf of nll persons who did not timely receive their oliginnl mortgogc releases within the time frame required by the stotute.

BANA mailed the original mortgage release to the Plaintiff Because of these defects, Defendant asks the Court to dismiss the Complaint with prejudice.

ll. STANDARD OF REVillW

Rule 8(n) of the Maine Rules of Civil Procedure requires a "short and plain statement of the claim showing thnt the pleader is entitled to relief' and a "demnnd for judgment for the relief which the pleader seeks." Notice pleading under State law has as its purpose giving "fair notice" to the Defendant of the clnim. Shcnl' v. S. Aroostook Ctnty. Sch. Dist, 683 A.2d 502, 503 (Me. 1996). DismissAl of a claim is warmnted only "wllen it appears beyond doubt that the plAintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Bonney v. Stephens Mem '! Hosp., 2011 .WIE 46, ,, 16, 17 A .3d 123 (citing Saunders v. Tisher, 2006 "NIB 94, ~ 8, 902 A.2d 830, 832).

Defendant's counsel stated !It or11l argument that he was not argLJing for tills Court to adopt the more sttingent federal standard, but did refer the Court to cases where the · Law Court hils suggested that a certain level of particularity is required, and that "merely reciting the elements of ll claim is not enough." America v. Sunspray Condo. Ass 'n, 2013 ME 19, ~ 13, 61 AJd 1249. The Law Court hils affirmed dismissal when basic elements of a claim are recited without also alleging specific supporting facts. Ramsey v. Baxter Title Co., 2012lviE J 13, ~~ 6-!0, 54 A.3d 710.

Plaintiff refers the Court to cases with language which suggest a more forgiving approach, including Nadeau v. FJy(!Jych, where the Law Court stated that a complaint would be sufficient if it set forth "elements of a cause of action or alleges facts thnt would entitle the plaintiff to relief pursuant to some legal theory." ,2014 lvffi 154, ~ 5, 108 A.3d

1254 (citing McC'ormick v. Cmne, 2012 lvffi 20, ,)5, 37 A.3d 295). Plaintiff argues 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 stah.1tory violation itself." White v. G.C. Servs. LP, 2012 WL 4747156, at *2 (D. Nev. Oct. 2, 2012). Plaintiff asserts that is precisely what he has done in this case. He has alleged facts, which are incorporated into the language of the stah.lle such that any reference to the facts (here, that a release was not sent within thirty days) necessarily states the language of the statt1tc. Plaintiff states that «factual assertions <~rc not magically transformed into legal conclusions simply because they track the language of a statute." (Pl.'s Opp. Mot. 4.)

ill. ANALYSIS

The Court agrees with the Defendant that the Complaint does not allege llllY facts as to whether the Registiy of Deeds retumed the original mortgage release to BANA, and if so when it was returned. It also does not indicate when BANA mailed the original mortgage release to the Plaintiff. The Complaint in~tead asserts that Plaintiff is entitled to relief under Section 551 because BANA did not mflil an original recorded release to him within thirty days after receiving it from the Cumberland County Registry of Deeds. (Compl. ~ 16.)

The Court hfls concluded that this is a sitl.Hition where the Plaintiff has alleged facts incorporated into the language of a statute such that reference to the facts does indeed simply state the language of the statute. Under the federal Nevada decision cited

by Plaintiff this would be sufficient. The Law Court has not, however, addressed this

situation directly. 2

Because this issue has not been directly dealt with by the Law Court, and because

this is a case where the Plaintiff bas simply alleged facts incorporated into the language

of a statute, the Court will order the Plaintiff to provide more specificity as to any facts

that it has in his possession as to whether the Registry of Deeds retumed the original

mortgage rele11se to BANA, and if so when; and to provide more specificity ns to any

facts that it has in his possession liS to when BA.t~A mailed the original mortgage release,

or when (or if) Pl11intiff ever received it. The Court would note that Plniutiff expressed

its willingness to 11mend its Complaint to provide further notice to the Defendnnt as to

how it nllegedly violated Section 551. (Pl.'s Opp. Mot. n. 2.)

IV. CONCLUSION

THE ENTRY 'WILL BE: Defendant's Motion to Dismiss is DENJED. Plaintiff bas 14 days from the date of thls Order to provide fw1her 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. MICHAELA MUlU'HY, JUSTICE BUSINESS AND CONSUlYIER COURT 2 Although Defendont repeotedly urges the Court to rely upon longungc in1/merlca v. Suuspmy Condo. Ass '11, .2013 ME 19, ~ 13 which requires fncts be pi ended "with sufficient pnrticulnrity so thnt, if lllle, they give rise to 11 cnuse of nctioo," thnl cnse tumed on the failure of the Plninliff to allege particulnrized injury. Defendant nlso cites to Ramsey v. Bnxtar Ti tie Co., 2012 iVfE II 3 ~~ 6-10 which denll with the fnilure to properly plend fncts with enough p01ticutnrity to establish u fiduciary relationship. IJ1yan R. v. Watclllower Bible & Tmct Soc. ofN. J'. Inc., 1999 ME I44, ~ 22, 738A2d 839. None of these cnses den! with n slntule where nssertions of facts mndc in the comp1nint urc facts which nrc ini::orpomtcd into the lnngm1ge of n stntutc.

Entered on the Docket: 'l/1b[' 4 \.ories sr.nt via Maii ___ Eieclronically~

Jonathan A. Quebbeman on behalf of himself and all others similarly situated v. Bank of America, N.A.

BCD-CV-2015-01

Jonathan A. Quebbeman on behalf of himself 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

Bank of America, N.A. Defendant

Counsel: John Aromando Merrills Wharf 254 Commercial Street Portland, ME 04101