CourtListener 10346178•Carrington Mortgage Services, LLC v. Brisley
Carrington Mortgage Services, LLC v. Brisley
CourtListener 10346178Mesuperct10 janv. 2023
Texte intégral
STATE OF MAINE SUPERIOR COURT
AROOSTOOK, ss. CIVIL ACTION
DOCKET NO. CARSC-RE-19-70
CARRINGTON MORTGAGE SERVICES,
LLC
PLAINTIFF
V. ORDER ON MOTION TO
DISMISS
ROY L. BRISLEY
DEFENDANT
AND
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
PARTY-IN
INTEREST
Defendant has filed a three-prong motion to dismiss related to Plaintiff's
Complaint for Foreclosure. Defendant's contentions are as follows:
1. Plaintiff is not a real party in interest to the loan;
2. Plaintiff has breached its duty of good faith; and
3. Plaintiff lacks standing to enforce the promissory note and mortgage (fashioned
as a motion for judgment as a matter of law).
The motion to dismiss is DENIED based upon the following findings of fact and
conclusions of law related thereto:
The Plaintiff is the owner and holder of a certain promissory note in the original
principal amount of $84,042.00 given by Roy L. Brisley to Key Financial Corporation, its
successors and assigns (the "Note"). Key Financial Corporation executed an allonge
attached to the original Note, rendering the Note payable to Countrywide Bank, FSB,
which executed an endorsement appearing on the allonge to Bank of America, N.A.
Thereafter, Bank of America, N.A. executed an endorsement in blank appearing on the
allonge, rendering the Note enforceable by the party that is in possession of the original
Note. The Plaintiff is the party in possession of the original Note. Therefore, Plaintiff has
standing to enforce the note and is the real party in interest as it relates to the Note.
Defendant is correct that several of the purported Assignments of Mortgage were
ineffective to transfer title in the Mortgage to the Plaintiff. As those assignments were
ineffective, the court need not determine whether the attorney-in-fact had authority to
execute the Assignments. However, the Quitclaim Assignment from Key Financial
Corporation to Carrington Mortgage Services, LLC dated September 4, 2019 recorded on
September 10, 2019 in Book 5934, Page 253, was effective to transfer title in the Mortgage
to Plaintiff. As noted in the judgment of even date, the court finds that the former
corporate officer of Key Financial Corporation did have authority to execute and deliver
insh·uments on behalf of the corporation to wind up its affairs pursuant to Fla. Stat. §
607.1420 (5). Therefore, Plaintiff has standing to enforce the Note and Mortgage. 1
The motion to dismiss as it relates to the claim of a breach of duty of good faith
appears to focus on the timing of filing of witness and exhibit lists. In this matter, no
discovery was conducted and neither party made any request of the court related to any
discovery disputes or motions to continue the trial that were related to witness or exhibit
1 The court has analyzed the other requirements related to a foreclosure action by separate order.
disclosures. When the court conducted a pretrial conference on January 7, 2022, the court
ordered that any updates to witness or exhibit lists "must be filed at least 1 week prior to
trial." In this matter, the Plaintiff filed witness and exhibit lists on February 24, 2022 and
March 1, 2022, in compliance with the court's order. Further, Plaintiff's Supplemental
Witness and Amended Exhibit list filed on March 1, 2022, specifically listed the Power of
Attorney dated January 25, 2018 and included the Mortgage Servicing Rights Purchase
and Sale Agreement. The court is left unclear as to precisely what other action Defendant
is asserting was violative of the duty of good faith. The court finds that there has not
been a showing that the Plaintiff violated the duty of good faith. 14 M.R.S. §6113(2).
The Clerk is directed to enter this Order upon the civil docket by reference
pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.
Dated:
JJistice, Maine Superior Court
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