US BANK NATIONAL ASSOCIATION v. RICHMOND et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
U.S. BANK NATIONAL ASSOCIATION, AS )
TRUSTEE, ON BEHALF OF THE 	)
HOLDERS OF THE ASSET BACKED 	)
SECURITIES CORPORATION HOME 	)
EQUITY LOAN TRUST, SERIES NC 2005- 	)
HE8, ASSET BACKED PASS-THROUGH 	)
CERTIFICATES, SERIES NC 2005-HE8, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 2:21-cv-00208-JAW
)
ERIC RICHMOND, a/k/a ERIC H. 	)
RICHMOND 	)
)
and 	)
)
CITIMORTGAGE, INC., f/k/a CITIGROUP 	)
MORTGAGE, INC. 	)
)
Defendants. 	)
AMENDED1 ORDER DENYING DEFENDANT’S PENDING MOTIONS
TO PROCEED IN FORMA PAUPERIS ON APPEAL
A defendant brings two motions to proceed in forma pauperis pursuant to
Federal Rule of Appellate Procedure 24(a)(1) and 28 U.S.C. § 1915(a)(1) on his two
pending 	interlocutory 	appeals. 	The 	Court 	denies 	both 	motions 	because 	the
defendant’s appeals are frivolous.
1 	This Amended Order corrects a typographical error in the original order, issued April 15,
2022, which is titled “Order Denying Plaintiff’s Pending Motions to Proceed In Forma Pauperis on
Appeal.” This Amended Order substitutes the word “Defendant’s” for “Plaintiff’s” in the document
title.
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I. 	BACKGROUND
On July 29, 2021, U.S. Bank National Association, as trustee, on behalf of the
holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series
NC 2005-HE8, Asset Backed Pass-Through Certificates, Series NC 2005-HE8 (U.S.
Bank) filed a complaint against Eric Richmond and CitiMortgage, Inc., f/k/a CitiCorp
Mortgage, Inc. (CitiMortgage), seeking a foreclosure and sale of property located at
66 Back Meadow Road, Nobleboro, Maine, and alleging other legal theories, including
breach of note, breach of contract, quantum meruit, and unjust enrichment. Compl.
(ECF No. 1).
On September 23, 2021, U.S. Bank filed a summons, confirming that it had
served Mr. Richmond on September 13, 2021, by leaving the summons with Corey
Richard at 66 Back Meadow Road, Nobleboro, Maine. 	Summons in a Civil Action
(ECF No. 6). Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), Mr. Richmond was
required to serve an answer within twenty-one days of being served with the
summons and complaint. F ED. R. CIV. P. 12(a)(1)(A)(i). Applying this twenty-one-day
rule, Mr. Richmond’s answer deadline was October 4, 2021.
On October 5, 2021, the day after Mr. Richmond’s answer was due, U.S. Bank
filed a motion for entry of default. Pl.’s Mot. for Entry of Default as to Eric Richmond
a/k/a Eric H. Richmond (ECF No. 9). 	Once U.S. Bank filed its motion for default,
the Clerk entered a default against Mr. Richmond pursuant to Federal Rule of Civil
Procedure 55(a). 	Order Granting Mot. for Entry of Default (ECF No. 10). 	Shortly
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after the Clerk entered a default against Mr. Richmond, his motion to strike portions
of the Complaint arrived in the Clerk’s Office. 	Def.’s Mot. to Strike Portions of the
Compl. Pursuant to FRCP 12(F) (ECF No. 11). On October 6, 2021, the Court vacated
the Clerk’s entry of default. 	Order (ECF No. 13). 	On December 1, 2021, after
resolving 	other 	pending 	motions, 	the 	Court 	dismissed 	without 	prejudice 	Mr.
Richmond’s motion to strike, concluding that a motion to strike was not the proper
vehicle for him to challenge U.S. Bank’s standing to bring a foreclosure action. Order
on Mot. to Strike Portions of the Compl. at 1 (ECF No. 21) (Order on Mot. to Strike).
The Court subsequently set December 17, 2021, as Mr. Richmond’s new deadline to
answer the Complaint. Dec. 3, 2021, Docket Entry.
On December 17, 2021, Mr. Richmond filed a motion to extend time to file a
pre-answer motion to dismiss. 	Def.’s Mot. for Extension of Time to File Pre-Answer
Mot. to Dismiss Pursuant to [] Federal Rules of Civil Procedure 6(b)(1)(A) (ECF No.
22) (Def.’s Mot. to Extend). On February 14, 2022, the Court denied Mr. Richmond’s
motion to extend time to file a pre-answer motion and ordered Mr. Richmond to
answer the Complaint within twenty-one days. Order Denying Def.’s Mot. to Extend
Time to File a Pre-Answer Mot. to Dismiss at 7 (ECF No. 25) (Order Denying Mot. to
Extend). 	Upon docketing of the order, the Court re-set Mr. Richmond’s deadline to
file his answer to March 7, 2022. Feb. 14, 2021, Docket Entry.
On March 2, 2022, Mr. Richmond filed a motion to vacate the Court’s December
1, 2021, order dismissing his motion to strike, and the Court’s February 14, 2022,
order denying his motion to extend time to file a pre-answer motion. 	Def.’s Mot. to
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Vacate Docket #21 and Docket #25 Pursuant to Federal Rules of Civil Procedure
60(b)(1), 60(b)(3), 60(b)(4), 60(b)(5) and 60(b)(6) and for Judicial Notice Pursuant to
Federal Rules of Evidence Rule 201 Judicial Notice of Adjudicative Facts that
December 8, 2021 Comes Before December 20, 2021 (ECF No. 26) (Def.’s Mar. 2, 2022,
Mot.). On March 9, 2022, after Mr. Richmond’s March 7, 2022, deadline for answering
the Complaint lapsed, the Court denied Mr. Richmond’s motion to vacate its prior
orders but sua sponte granted Mr. Richmond an additional seven days in which to
answer the Complaint. Order (ECF No. 27)
On March 14, 2022, Mr. Richmond filed a motion to vacate the Court’s March
9, 2022, order denying his motion to vacate the Court’s December 1, 2021, and
February 14, 2022 orders, which the Court denied that same day. 	Def.’s Mot. to
Vacate Docket #27 Pursuant to Federal Rules of Civil Procedure 60(b)(1), 60(b)(4) and
60(b)(6) and for Judicial Notice Pursuant to Federal Rules of Evidence Rule 201
Judicial Notice of Adjudicative Facts (ECF No. 28); Order (ECF No. 29). 	On March
15, 2022, U.S. Bank filed a motion for entry of default judgment, as Mr. Richmond
had not answered the Complaint. Pl.’s Mot. for Entry of Default as to Def. (ECF No.
31). 	On March 23, 2021, the Deputy Clerk granted U.S. Bank’s motion for entry of
default against Mr. Richmond. Order (ECF No. 31).
On March 24, 2022, Mr. Richmond filed a motion to vacate the Court’s March
14, 2022, order denying his latest motion to vacate. Def.’s Mot. to Vacate Docket #29,
#30, #31 Pursuant to Federal Rules of Civil Procedure 60(b)(1), 60(b)(4) and 60(b)(6)
and for Judicial Notice Pursuant to Federal Rules of Evidence Rule 201 Judicial
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Notice of Adjudicative Facts (ECF No. 32). On March 25, 2022, the Court denied Mr.
Richmond’s March 24, 2022, motion to vacate. Order (ECF No. 33).
On April 6, 2022, Mr. Richmond filed an opposition to U.S. Bank’s motion for
default. Def.’s Opp’n to Pl. Mot. for Entry of Default (ECF No. 34). On April 8, 2022,
Mr. Richmond appealed the Court’s February 14, 2022, order denying his motion to
extend time to file a pre-answer motion and filed a motion to proceed on appeal in
forma pauperis. 	Notice of Appeal (ECF No. 35) (Def.’s First Notice of Appeal); Def.’s
Mot. for Permission to Appeal In Forma Pauperis (ECF No. 36) (Def.’s First Mot. for
IFP). 	That same day, U.S. Bank filed a motion for default judgment as to Mr.
Richmond and CitiMortgage. 	Pl.’s Mot. for Entry of Default J. as to Defs. (ECF No.
37). 	Finally, on April 13, 2022, Mr. Richmond filed a second notice of interlocutory
appeal, appealing the Court’s March 9, 2022, order denying his motion to vacate the
Court’s February 14, 2022, and December 1, 2021, orders, and a second motion to
proceed on appeal in forma pauperis. 	Notice of Appeal (ECF No. 40) (Def.’s Second
Notice of Appeal); Def.’s Mot. for Permission to Appeal in Forma Pauperis (ECF No.
41) (Def.’s Second Mot. for IFP).
As of April 15, 2022, nearly nine months after U.S. Bank filed its Complaint
and nearly seven months after U.S. Bank served Mr. Richmond, Mr. Richmond has
still not filed an answer to U.S. Bank’s Complaint.
II. 	LEGAL STANDARDS
Federal Rule of Appellate Procedure 24(a)(1) provides that “a party to a
district-court action who desires to appeal in forma pauperis must file a motion in the
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district court.” 	F ED. R. APP . P. 24(a)(1). 	To their motion, the “party must attach an
affidavit that: (A) shows . . . the party’s inability to pay or to give security for fees and
costs; (B) claims an entitlement to redress; and (C) states the issues that the party
intends to present on appeal.” Id. 24(a)(1)(A)-(C). A party who meets this standard
may proceed in forma pauperis on appeal unless “the district court – before or after
the notice of appeal is filed – certifies that the appeal is not taken in good faith or
finds that the party is not otherwise entitled to proceed in forma pauperis and states
in writing its reasons for the certification or finding.” Id. 24(a)(3)(A).
“Good faith is demonstrated when an applicant seeks appellate review of any
issue that is not frivolous.” United States v. Stile, No. 1:11-cr-00185-JAW, 2013 U.S.
Dist. LEXIS 64960, at *7 (D. Me. May 7, 2013) (quoting In re Ravida, 296 B.R. 278,
282 (1st Cir. 2003)); see also Harris v. United States, No. 12-cv-444-JL, 2021 U.S. Dist.
LEXIS 94994, at *1-2 (D.N.H. Mar. 17, 2021) (“[T]o determine that an appeal is in
good faith, a court need only find that a reasonable person could suppose that the
appeal has some merit” (quoting Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)).
“An appeal is frivolous and is not taken in objective good faith if it lacks any rational,
arguable basis in law or fact.” 	Harris, 2021 U.S. Dist. LEXIS 94994, at *2 (citing
Santiago-Lugo v. United States, 94 F. Supp. 3d 156, 158 (D.P.R. 2015)). 	The Court
may dismiss Mr. Richmond’s motion to proceed in forma pauperis “if [his] claim is
based on an indisputably meritless legal theory or factual allegations that are clearly
baseless.” 	Stile, 2013 U.S. Dist. LEXIS 64960, at *8 (alteration in Stile) (quoting
Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991) (per curiam)).
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III. 	DISCUSSION
These interlocutory appeals arise from (1) the Court’s February 14, 2022,
denial of Mr. Richmond’s motion to extend time to file a pre-answer motion to dismiss,
and (2) the Court’s March 9, 2022, denial of Mr. Richmond’s motion to vacate the
Court’s orders denying his motion to extend time and his motion to strike portions of
the Complaint.
A. 	Eric Richmond’s First Motion to Proceed In Forma Pauperis on
Appeal
Turning to Mr. Richmond’s first interlocutory appeal, in his motion to extend
time, Mr. Richmond requested that the Court grant him an extension until June 1,
2022, to file his pre-answer motion to dismiss, so that he could review 20,000
bankruptcy documents. 	Def.’s Mot. to Extend at 2-3. 	Applying Alternative Energy,
Inc. v. St. Paul Fire & Marine Insurance Company, 267 F.3d 30 (1st Cir. 2001), the
Court concluded it would not be able to consider the documents Mr. Richmond sought
extra time to review in deciding his contemplated pre-answer motion to dismiss
because those documents were not included, referenced, or otherwise incorporated in
the Complaint and did not meet any of the limited exceptions for considering
documents extrinsic to the Complaint on a motion to dismiss under First Circuit law.
Order Denying Mot. to Extend at 5.
The Court concluded that, because it would likely be unable to consider any of
the 20,000 documents, Mr. Richmond did not have good cause for an extension of time
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under Federal Rule of Civil Procedure 6(b)(1)(A).2 Because Mr. Richmond still lacks
good cause for his requested extension of time, and his request is supported by neither
fact nor law, Mr. Richmond’s appeal of the order denying the extension of time is
frivolous and not made in good faith.
In addition, Mr. Richmond’s interlocutory appeal runs afoul of the final
judgment rule. “Generally speaking, appeals are permitted only from final judgments
of the district court.” U.S. Fid. & Guar. Co. v. Arch Ins. Co., 578 F.3d 45, 54 (1st Cir.
2009) (quoting Lee-Barnes v. Puerto Ven Quarry Corp., 513 F.3d 20, 25 (1st Cir. 2008))
(quotation marks and citation omitted). The final judgment rule “minimizes dilatory,
piecemeal litigation, and promotes judicial efficiency.” 	Id. (quoting United States v.
Kouri-Perez, 187 F.3d 1, 5 (1st Cir. 1999)). Only a “limited set of district-court orders
are reviewable though short of final judgment.” 	Id. (quoting Ashcroft v. Iqbal, 556
U.S. 662, 671 (2009)).
The United States Supreme Court explained that the orders within the narrow
category of appealable interlocutory orders are “immediately appealable because they
‘finally determine claims of right separable from, and collateral to, rights asserted in
the action, too important to be denied review and too independent of the cause itself
to 	require 	that 	appellate 	consideration 	be 	deferred 	until 	the 	whole 	case 	is
adjudicated.’” 	Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (quoting Cohen v.
2 	The Court pointed out that its “conclusion does not foreclose Mr. Richmond from seeking to
obtain documents from the New Century Combined bankruptcy and later presenting legal arguments
based on his discovered documents in the form of a motion for summary judgment.” Order Denying
Mot. to Extend at 6. 	The Court’s order only meant that Mr. Richmond must answer U.S. Bank’s
Complaint. Id.
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Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). Mr. Richmond’s concededly
interlocutory appeal falls short of the standards for a permissible exception to the
final judgment rule and therefore is procedurally frivolous apart from its merits.
Mr. Richmond is accordingly not entitled to proceed in forma pauperis on his
appeal of the Court’s February 14, 2022, order denying his motion to extend time to
file a pre-answer motion. See Def.’s First Notice of Appeal at 1.
B. 	Eric Richmond’s Second Motion to Proceed In Forma Pauperis
on Appeal
Mr. Richmond’s second request to proceed in forma pauperis on appeal
concerns the Court’s March 9, 2022, order denying his March 2, 2022, motion to
vacate the Court’s denial of both his motion to extend time and his motion to strike
portions of the complaint. 	In his March 2, 2022, motion to vacate, Mr. Richmond
argued that U.S. Bank improperly served filings in the case at his Nobleboro, Maine,
address and not his proper Saco, Maine, address, despite the fact that he identified
his Saco, Maine, address as his primary address when he filed his Notice of
Appearance. Def.’s Mar. 2, 2022, Mot. at 1-2. Accordingly, Mr. Richmond argued that
U.S. Bank’s failure to serve its opposition to his motion to strike portions of the
Complaint (ECF No. 11), and opposition to his motion to extend (ECF No. 22) at the
correct address deprived him of due process. Id. at 2; id., Attach. 1, Mem. of L. Prelim.
Statement, at 3-4. Mr. Richmond also contended that the Court erroneously deprived
him of an opportunity to reply to U.S. Bank’s opposition to the motion to strike
because the Court treated the “additional attachments” filed on the docket on
December 30, 2021 (ECF No. 24), as a reply when the document was actually post-
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marked December 9, 2021, prior to U.S. Bank filing its opposition. See Def.’s Second
Notice of Appeal at 2.
The Court denied Mr. Richmond’s March 2, 2022, motion to vacate because Mr.
Richmond’s motion to extend time was meritless regardless of errors in his address
and alleged docketing delays. Order (ECF No. 27). Furthermore, Mr. Richmond had
failed to raise any arguments in his motion to vacate as to why the Court could
consider any of the 20,000 documents he hoped to review pursuant to the Alternative
Energy exceptions. Nor did Mr. Richmond address the Court’s finding that a motion
to strike was an improper vehicle to contest the validity of the mortgage assignment
at issue in this case. 	See Order on Mot. to Strike at 4-5. 	Ultimately, the Court
concluded 	that 	Mr. 	Richmond 	failed 	to 	meet 	his 	burden 	to 	show 	a 	mistake,
inadvertence, misrepresentation, or any other reason justifying relief under Rule 60
of the Federal Rules of Civil Procedure. 	Order (ECF No. 27); see F ED. R. CIV. P.
60(b)(1)-(6).
Moreover, as with his April 8, 2022, notice of appeal, Mr. Richmond’s April 13,
2022, notice of appeal is, as he concedes, an interlocutory appeal. Def.’s Second Notice
of Appeal at 2. 	Like his April 8, 2022, notice of appeal, his April 13, 2022, notice of
appeal runs afoul of the final judgment rule for the same reasons the Court has
discussed. 	Thus, like his April 8, 2022, notice of appeal, Mr. Richmond’s April 13,
2022, notice of appeal falls short of the standards for a permissible exception to the
final judgment rule and therefore is procedurally frivolous apart from its merits.
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Because the Court concludes that Mr. Richmond’s filings lack merit and have
no rational basis in law or fact, Mr. Richmond’s appeal is frivolous, and the Court
concludes that it is not made in good faith. Mr. Richmond is accordingly not entitled
to proceed in forma pauperis on his appeal of the Court’s March 9, 2022, order denying
his March 2, 2022, motion to vacate. See Def.’s Second Notice of Appeal at 1.
IV. 	CONCLUSION
Because the Court concludes that both of Mr. Richmond’s interlocutory appeals
are frivolous, the Court DENIES his motions to proceed on appeal in forma pauperis
(ECF Nos. 36 & 41).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of April, 2022
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