# US BANK TRUST NATIONAL ASSOCIATION NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR VRMTG ASSET TRUST v. TENPENNY

> District Court, D. Maine · March 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10211730

## Case

- **Court:** District Court, D. Maine
- **Decided:** March 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10211730

## How later opinions describe it (automated extraction)

- concluding that an action against the endorser of a note does not come within an exception to the general six-year statute of limitations
- concluding that enforcement of child support orders falls outside of the six-year period of limitations in section 752 because it is an action to enforce a judgment
- explaining that the doctrine of judicial estoppel applies “only in certain narrow circumstances to protect the integrity of the judicial process” (emphasis added) (citing United States v. Levasseur, 846 F.2d 786, 792 (1st Cir. 1988))

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

US BANK TRUST NATIONAL )
ASSOCIATION, NOT IN ITS )
INDIVIDUAL CAPACITY BUT )
SOLELY AS OWNER TRUSTEE )
FOR VRMTG ASSET TRUST, )
)
Plaintiff, )
)
v. ) Case No. 2:22-cv-00034-JDL
)
LUZ ESMERALDA TENPENNY, )
and STANLEY TENPENNY, )
)
Defendants , )
)
TD BANKNORTH, N.A.; )
MIKE MCDONALD HEATING )
SERVICE LLC, )
)
Parties-in-interest. )

ORDER ON PENDING MOTIONS
Plaintiff US Bank Trust National Association, Not In Its Individual Capacity
But Solely As Owner Trustee For VRMTG Asset Trust, (“US Bank”) originally
brought this action for equitable reformation of mortgage against Luz Esmeralda
Tenpenny and Stanley Tenpenny in the Maine Superior Court (Cumberland County).
In March 2022, after the case was removed to this Court, US Bank amended its
Complaint to include claims for unjust enrichment, quantum meruit, and equitable
subrogation of mortgage (ECF No. 13).
On August 3, 2022, Luz Tenpenny filed a Motion for Judgment on the
Pleadings (ECF No. 37) requesting that this case be dismissed because all of US
Bank’s claims are barred by the six-year statute of limitations provided by 14
M.R.S.A. § 752 (West 2022). Not long after, US Bank filed a Second Motion to Amend
the Complaint, seeking to add a claim of judicial estoppel against Luz Tenpenny and
a claim of fraud against Stanley Tenpenny (ECF No. 38). US Bank also filed a Motion

to Stay, seeking to stay this action so that it could receive approval from the United
States Bankruptcy Court to bring the fraud claim against Stanley, who has been
discharged in Chapter 7 bankruptcy (ECF No. 39). All of these motions are now
pending before the Court.
For the reasons described below, I grant Luz Tenpenny’s Motion for Judgment
on the Pleadings, deny US Bank’s Second Motion to Amend the Complaint, and deny

US Bank’s Motion to Stay.
I. BACKGROUND
For the purposes of the pending motions, I take US Bank’s well-pleaded factual
allegations as true. See LaMarche v. Metro. Life Ins., 236 F. Supp. 2d 50, 54 (D. Me.
2002); see also Lovell v. One Bancorp, 690 F. Supp. 1090, 1096 (D. Me. 1988) (noting
that for the purposes of a motion for judgment on the pleadings, “[t]he factual
allegations in the complaint must be taken as true”).

A. Factual Background
Luz and Stanley Tenpenny, then a married couple, co-owned property in
Cumberland County (“the Property”) beginning in 2004. In 2005, Luz and Stanley
executed a mortgage (“the 2005 mortgage”) on the Property in the amount of $145,000
in favor of Banknorth, N.A.
About a year-and-a-half later, in 2006, Stanley executed a mortgage (“the 2006
mortgage”) on the Property in the amount of $162,8001 in favor of JPMorgan Chase
Bank, N.A., US Bank’s predecessor-in-interest. Luz did not sign the 2006 mortgage

or the promissory note secured by it—both were signed by Stanley alone. She was
also not listed in the granting clause of the 2006 mortgage. Luz and Stanley used the
proceeds of the promissory note secured by the 2006 mortgage, both of which were
signed only by Stanley, to pay off the 2005 mortgage, which was signed by both Luz
and Stanley.
In 2010, Luz was awarded sole ownership of the Property by decree of divorce

and a deed from Stanley.
B. Procedural History
On November 15, 2021, US Bank, which had succeeded to JPMorgan Chase
Bank’s interest in the 2006 mortgage, filed a Complaint (ECF No. 10-15) in the Maine
Superior Court (Cumberland County). The Complaint named both Luz and Stanley
Tenpenny as parties, and it also named several parties-in-interest, including the
United States Internal Revenue Service.2 The Complaint sought to reform the 2006

mortgage to add Luz as a signatory based on the failure to have Luz sign the
mortgage, which, US Bank alleged, was an inadvertent error based on mutual or
unilateral mistake. According to US Bank, reforming the mortgage to add Luz as a

1 A loan modification agreement later modified the unpaid principal balance of the loan to
$162,794.17.

2 Specifically, the Complaint named as parties-in-interest TD Banknorth, N.A.; Maine Revenue
Services; the IRS; and Mike McDonald Heating Service LLC. All of these parties were named because
they claimed, or could claim, an interest in the Property because of a mortgage, tax lien, or judgment
party would “be consistent with the Defendants’ original intention in granting the
Premises as security, and Plaintiff’s and its predecessor’s intention, by accepting as
collateral for a loan, by which loan Defendants directly benefitted.” ECF No. 10-15

at 5, ¶ 27.
Luz answered the Complaint (ECF No. 10-4), asserting a number of affirmative
defenses, including that the action was barred by the six-year statute of limitations
in 14 M.R.S.A. § 752.
The IRS then removed the case to federal court pursuant to 28 U.S.C.A.
§§ 1442 and 1444 (West 2022). After the case was removed, US Bank filed, without

opposition, an Amended Complaint. The Amended Complaint added counts for
unjust enrichment, quantum meruit, and equitable subrogation of mortgage. Luz
answered the Amended Complaint, again raising the statute-of-limitations defense.
Stanley and two of the parties-in-interest did not file answers, and default was
entered against them at US Bank’s request. Two other parties-in-interest, the IRS
and Maine Revenue Services, were later dismissed from the case.3

3 Maine Revenue Services was dismissed by stipulation. The IRS filed a Motion for Judgment on
the Pleadings (ECF No. 34), but the IRS and US Bank reached a consent judgment, which I entered
on October 17, 2022 (ECF No. 52). The IRS was dismissed as a party, and the Motion for Judgment
on the Pleadings filed by the IRS was denied as moot (ECF No. 53). Even though federal jurisdiction
in this case was originally predicated on the presence of the IRS—a party that has since been
dismissed—I have elected to exercise supplemental jurisdiction over the state law claims against the
Defendants because of the extensive briefing in this case and the further delay that remand would
cause. See 28 U.S.C.A. § 1367 (West 2022); Desjardins v. Willard, 777 F.3d 43, 45 (1st Cir. 2015)
(“Whether a court should decline supplemental jurisdiction depends on a ‘pragmatic and case-specific
evaluation of a variety of considerations,’ including ‘the interests of fairness, judicial economy,
1. Luz’s Motion for Judgment on the Pleadings
Luz Tenpenny filed a Motion for Judgment on the Pleadings (ECF No. 37)
pursuant to Fed. R. Civ. P. 12(c), asserting that all of US Bank’s claims are barred by

the six-year statute of limitations in 14 M.R.S.A. § 752. US Bank filed an objection
(ECF No. 44), contending, among other things, that (1) the twenty-year statute of
limitations in 14 M.R.S.A. § 751 (West 2022) applies to its Complaint; (2) even if the
six-year statute of limitations applies, the cause of action did not accrue until Luz
had stopped making payments on the mortgage; and (3) Luz must be precluded from
asserting any defense in this case, including that US Bank’s claims were barred by

the statute of limitations, based on the doctrine of judicial estoppel. With respect to
its last argument, US Bank asserts that in a previous proceeding in the Bankruptcy
Court, Luz represented that her interest in the Property was subject to the mortgage
and that no portion of the Property was not subject to the mortgage.
2. US Bank’s Second Motion to Amend the Complaint
US Bank then filed a Second Motion to Amend the Complaint (ECF No. 38),
requesting to amend the Amended Complaint to add facts supporting its assertion of

judicial estoppel. The Second Motion to Amend also requests that US Bank be
permitted to add a claim of fraud against Stanley and include facts supporting that
claim. US Bank asserts that it discovered Stanley’s fraud while conducting a title
search in 2021.
Luz opposes the Second Motion to Amend the Complaint to the extent that it
seeks to assert judicial estoppel against her, arguing that the claims that she made

in her bankruptcy case are not actually inconsistent with either (1) her
representation in this case that an undivided one-half interest in the Property was
not subject to the 2006 mortgage or (2) her representation in this case that all of the
counts of US Bank’s Amended Complaint were barred by the statute of limitations.

She also argues that her representations in this case would not give her an unfair
advantage, which weighs against the application of judicial estoppel. Therefore, Luz
argues, it would be futile for US Bank to amend the Amended Complaint.
Stanley appeared in the case to object (ECF No. 46) to the Second Motion to
Amend the Complaint. In addition to joining in Luz’s arguments, Stanley asserts
that amending the Amended Complaint would be futile because US Bank’s

predecessor-in-interest knew, or should have known, that Stanley and Luz co-owned
the property because Stanley disclosed his marital status in his 2006 mortgage
application and the deed establishing the joint tenancy between Luz and Stanley was
a matter of public record. Additionally, Stanley argues that the joint ownership—
and, presumably, any alleged fraud—should have been discovered when the mortgage
was signed, when US Bank’s predecessor-in-interest brought a foreclosure complaint,
or when US Bank’s predecessor-in-interest participated in Stanley’s bankruptcy case.

3. US Bank’s Motion to Stay
Finally, US Bank filed a Motion to Stay (ECF No. 39), which is related to its
request to amend the Amended Complaint to add a claim of fraud against Stanley.
US Bank states that because Stanley has been discharged in Chapter 7 bankruptcy,
“it may be necessary for the Plaintiff to obtain relief in his bankruptcy before it can
amend the complaint in this action to allege fraud.” ECF No. 39 at 2, ¶ 7. US Bank

does not explain precisely what relief may be necessary or why it is uncertain that
such relief would be necessary. Because obtaining such relief would take time, US
Bank requests that this matter be stayed.
Luz opposes the Motion to Stay, contending that she would be significantly

prejudiced by a stay because it would deny her “the timely resolution of her motion.”
ECF No. 43 at 2. She further notes that it “strains credibility” for US Bank to assert
that the fraud was not discovered until 2021 because US Bank’s predecessor-in-
interest already brought a foreclosure claim against Stanley over ten years ago, and
the alleged fraud should have been discovered during the title search that was
conducted as part of that action. ECF No. 43 at 3. She further argues that

considerations of equity, hardship, and judicial economy weigh in favor of denying
the request for a stay.
After oral argument, all three pending motions are ready for decision.4
II. LEGAL ANALYSIS
A. Luz’s Motion for Judgment on the Pleadings
1. Legal Standard
A motion for judgment on the pleadings under Rule 12(c) is “treated much like

a Rule 12(b)(6) motion to dismiss.” Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29
(1st Cir. 2008). A Rule 12(c) motion “calls for an assessment of the merits of the case
at an embryonic stage,” so “the court must view the facts contained in the pleadings
in the light most favorable to the nonmovant and draw all reasonable inferences
therefrom.” Id. (quoting R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st

4 The Court held oral argument on the pending motions on November 3, 2022, and, at the argument,
US Bank was ordered to file the bankruptcy documents related to its judicial estoppel arguments. US
Cir. 2006)); see also R.G. Fin. Corp., 446 F.3d at 182 (“There is no resolution of
contested facts in connection with a Rule 12(c) motion: a court may enter judgment
on the pleadings only if the properly considered facts conclusively establish the

movant’s point.”). To survive a Rule 12(c) motion, the pleadings “must contain factual
allegations that ‘raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true.’” Pérez-Acevedo, 520 F.3d at 29
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A motion for judgment
on the pleadings may be granted based on a statute-of-limitations defense if “the
pleader’s allegations leave no doubt that an asserted claim is time-barred.”

LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 509 (1st Cir. 1998); see Rivera-Gomez
v. de Castro, 843 F.2d 631, 632 (1st Cir. 1988).
2. Judicial Estoppel
Luz’s Motion for Judgment on the Pleadings is based on the six-year statute of
limitations in 14 M.R.S.A. § 752. US Bank contends, however, that Luz should be
precluded from raising any defense in this case, including the statute of limitations,
because of the doctrine of judicial estoppel. According to US Bank, Luz previously

represented in her bankruptcy proceeding that her interest in the Property was
entirely subject to the 2006 mortgage, so she should be judicially estopped from
denying that here. For reasons I will explain, I conclude that Luz is not barred by
judicial estoppel from raising a statute-of-limitations defense.
“The equitable doctrine of judicial estoppel is ordinarily applied to ‘prevent[] a
litigant from pressing a claim that is inconsistent with a position taken by that

litigant either in a prior legal proceeding or in an earlier phase of the same legal
proceeding.’” Guay v. Burack, 677 F.3d 10, 16 (1st Cir. 2012) (alteration in original)
(quoting Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 32-33 (1st Cir.
2004)). This is because of the commonsense rule that “[w]here one succeeds in

asserting a certain position in a legal proceeding, one may not assume a contrary
position in a subsequent proceeding simply because one’s interests have changed.”
Id. The doctrine is traditionally, although not exclusively, applied when “a litigant
is ‘playing fast and loose with the courts.’” Id. (quoting Alternative Sys. Concepts,
Inc., 374 F.3d at 33).
As an initial matter, Luz argues that the Maine standard for judicial estoppel

should apply rather than the federal standard because federal jurisdiction in this
case, which involves claims arising under Maine law, was originally premised on the
presence of the IRS, which is no longer a party. According to Luz, the Maine standard
for judicial estoppel is more exacting than its federal counterpart.
The First Circuit has previously noted the difficulty of resolving which judicial
estoppel standard applies in federal courts, but it has not conclusively ruled on the
issue.5 See Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010); Alternative Sys. Concepts,

Inc., 374 F.3d at 32. I need not resolve the issue of which standard applies, though,
because under either standard, US Bank’s assertion that Luz is judicially estopped
from raising a statute-of-limitations defense is unavailing.

5 Other courts have concluded that the federal standard for judicial estoppel should apply in federal
courts, at least in diversity cases. See G-I Holdings, Inc. v. Reliance Ins., 586 F.3d 247, 261 (3d Cir.
2009); Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003); Eastman v. Union Pac. R.R.
Co., 493 F.3d 1151, 1156 (10th Cir. 2007); Flores-Febus v. MVM, Inc., 45 F. Supp. 3d 175, 178 (D.P.R.
Under the federal standard, two conditions, at a minimum, must be satisfied
before judicial estoppel can apply, although the doctrine resists the application of a
mechanical checklist. Alternative Sys. Concepts, Inc., 374 F.3d at 33. The first is that

“the estopping position and the estopped position must be directly inconsistent, that
is, mutually exclusive.” Id. The second is that “the responsible party must have
succeeded in persuading a court to accept its prior position.” Id. Only a “strong”
showing will satisfy this requirement. Perry, 629 F.3d at 11. Additionally, courts
will often consider “whether the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair detriment on the opposing

party if not estopped.” Guay, 677 F.3d at 16 (citing New Hampshire v. Maine, 532
U.S. 742, 751 (2001)). Although it is not strictly required, if unfair advantage is
present, it is a “powerful” factor in favor of applying judicial estoppel. Id. at 16-17.
In considering whether judicial estoppel should apply here, it is useful to
identify precisely what positions Luz has taken in this case and in her earlier
bankruptcy case. First, Luz arguably represented to the Bankruptcy Court that her
interest in the Property was entirely subject to the mortgage owned by US Bank’s

predecessor-in-interest.6 Second, Luz asserts in this case that she possesses an
undivided one-half interest in the Property that is not subject to US Bank’s mortgage.
Third, Luz asserts in this case that all four counts of US Bank’s Amended Complaint

6 Specifically, Luz stated in her Chapter 7 petition to the Bankruptcy Court that (1) she was the sole
owner of real estate property worth $160,000; (2) US Bank’s predecessor-in-interest had a claim
against her in the amount of $183,482, of which $160,000 was secured by the Property; (3) she alone
owed that debt; (4) she intended to retain the property and enter into a reaffirmation agreement; and
(5) there were no other assets, property, or claims that she had not previously listed. Luz did not list
any portion of the Property that was not subject to the mortgage. Taken together, these statements
arguably indicate that Luz asserted to the Bankruptcy Court that her entire interest in the Property
are time-barred because US Bank did not bring these claims within six years of
suffering the alleged injuries.
Luz may be judicially estopped from taking the second position—that she

possesses an undivided one-half interest in the Property—in this case because both
minimum conditions for judicial estoppel appear to be met. First, a representation
that Luz has a one-half undivided interest in the Property that is not subject to US
Bank’s mortgage appears to be directly inconsistent with Luz’s earlier
representations in her bankruptcy case. Additionally, the Bankruptcy Court
discharged Luz’s debt, so she evidently persuaded the court to accept her earlier

representation. But I do not finally decide whether Luz would be judicially estopped
from arguing that her undivided one-half interest in the Property is not subject to US
Bank’s mortgage because, even if she was, that does not control the outcome of this
case for the reasons explained below.
This is because even if Luz is judicially estopped from taking the second
position, she is not estopped from asserting that all four of US Bank’s claims are
barred by the statute of limitations because the first judicial estoppel condition, a

direct inconsistency, is not present. Put simply, there is nothing inconsistent about
Luz simultaneously taking the position in her bankruptcy case that her interest in
the Property was entirely subject to the 2006 mortgage and her arguing here that US
Bank’s claims for equitable reformation, unjust enrichment, quantum meruit, and
equitable subrogation were not timely brought. The two positions are unrelated.
Furthermore, given the lack of an inconsistency between Luz’s earlier

representations and her current invocation of the statute of limitations, Luz does not
gain any unfair advantage from asserting the latter position here, which also weighs
against the application of judicial estoppel.
I also reach the same result under the Maine standard for judicial estoppel.

Under Maine law, judicial estoppel applies if “(1) the position asserted in the
subsequent legal action [is] clearly inconsistent with a previous position asserted; (2)
the party in the previous action [has] successfully convinced the court to accept the
inconsistent position; and (3) the party [has] gain[ed] an unfair advantage as a result
of [his or her] change of position in the subsequent action.” In re Child of Nicholas
P., 2019 ME 152, ¶ 16, 218 A.3d 247 (alterations in original) (quoting Linnehan

Leasing v. State Tax Assessor, 2006 ME 33, ¶ 25, 898 A.2d 408). As noted above, there
is no clear inconsistency between Luz’s representations in her bankruptcy case and
her position here that US Bank’s claims are barred by the statute of limitations.
Additionally, because of the lack of inconsistency, there is no real risk that Luz would
gain an unfair advantage because of her change in position.
US Bank argues that because Luz previously asserted in her bankruptcy case
that her interest in the Property was entirely subject to the 2006 mortgage, she must

be precluded by the doctrine of judicial estoppel from raising any defense in this
action. But US Bank does not cite to any authority for this bald assertion and there
is authority which cuts against US Bank’s position. See O’Rourke v. Jason Inc., 978
F. Supp. 41, 48 (D. Mass. 1997) (explaining that the doctrine of judicial estoppel
applies “only in certain narrow circumstances to protect the integrity of the judicial
process” (emphasis added) (citing United States v. Levasseur, 846 F.2d 786, 792 (1st

Cir. 1988))). There is no reason to conclude that Luz waived her statute-of-limitations
defense by making representations to the Bankruptcy Court about her interest in the
Property being entirely subject to the 2006 mortgage.
For those reasons, I conclude that equitable considerations do not favor the

application of judicial estoppel in this case. Consequently, Luz is not precluded from
asserting that the six-year statute of limitations in 14 M.R.S.A. § 752 bars all of US
Bank’s claims.
3. Statute of Limitations
Having concluded that Luz can raise a statute-of-limitations defense, I turn to
whether each of the claims brought by US Bank is barred by the statute of limitations.

For the reasons articulated below, I conclude that all of US Bank’s claims are time-
barred, and therefore, Luz is entitled to judgment on the pleadings.
(a) Reformation of Mortgage
The Amended Complaint requests equitable reformation of the 2006 mortgage
to add Luz as a signatory. Because Luz raises a statute-of-limitations defense to this
claim, two questions must be resolved: (i) which statute of limitations applies and (ii)
when the cause of action accrued.

(i) Proper Statute of Limitations
Luz contends that the general six-year statute of limitations provided by
14 M.R.S.A. § 752 applies to all claims in the Amended Complaint, including the
count for reformation of mortgage. US Bank disagrees, contending that the twenty-
year statute of limitations for personal actions on mortgages set out by 14 M.R.S.A. §
751 applies. It further contends that section 752 cannot be the applicable statute of

limitations because this is an “action[] on a judgment or decree of any court of record
of the United States” because the Bankruptcy Court gave Luz a judgment in the form
of a discharge.
Title 14 M.R.S.A. § 752 provides that “[a]ll civil actions shall be commenced

within 6 years after the cause of action accrues and not afterwards, except actions on
a judgment or decree of any court of record of the United States, or of any state, . . .
and except as otherwise specially provided.” Accordingly, a six-year statute of
limitations applies unless another statute specifically provides otherwise. See id.;
Est. of Sprague v. Bankers Life & Cas. Co., 2021 ME 64, ¶ 9, 264 A.3d 1243. This
general period of limitations applies to “all civil actions, including equitable claims,

. . . unless another more particularized statute applies.” U.S. Bank Nat’l Ass’n v.
Adams, 2014 ME 113, ¶ 4, 102 A.3d 774.
In contrast, 14 M.R.S.A. § 751 applies in much narrower circumstances. That
statute provides, in relevant part, that “personal actions on contracts or liabilities
under seal, promissory notes signed in the presence of an attesting witness, or on the
bills, notes, or other evidences of debt issued by a bank must be commenced within
20 years after the cause of action accrues.” Id. According to US Bank, the fact that

it seeks to reform an existing mortgage is enough to bring this case within section
751’s reach because the 2006 mortgage is “other evidence of debt.” ECF No. 44 at 3,
¶ 5.
I agree with Luz that US Bank’s reformation-of-mortgage claim is subject to
the six-year statute of limitations provided by 14 M.R.S.A. § 752. Reformation of
mortgage is an equitable remedy, see Bank of N.Y. Mellon v. King, No. RE-16-0054,

2018 Me. Super. LEXIS 124, at *6 (Aug. 24, 2018); Tibbetts v. Pelotte, 427 A.2d 956,
958 (Me. 1981), and, as described above, claims arising in equity are governed by the
six-year statute of limitations in 14 M.R.S.A. § 752, see Adams, 2014 ME 113, ¶ 4,
102 A.3d 774 (concluding that an action to place an equitable lien on a party’s

property was subject to the six-year statute of limitations in 14 M.R.S.A. § 752).
Consequently, the limitations period in section 752 applies to reformation-of-
mortgage claims. King, 2018 Me. Super. LEXIS 124, at *6.7
US Bank contends that section 752 is inapplicable for two reasons. First, it
argues that the proper statute of limitations is section 751, which provides a twenty-
year period in which to bring actions on mortgages. Second, it argues that even if

section 751 does not apply, the six-year period set out in section 752 is inapplicable
because this is an action “on a judgment.” Both arguments are unpersuasive.8
For section 751 to apply, two conditions must be true: (1) there must be a
“personal action[] on” (2) an enumerated document, such as “notes or other evidences
of debt.” See US Bank, N.A., as Tr. for Truman 2013 SC3 Title Tr. v. HLC Escrow,

7 In a 1985 case, the Maine Superior Court reached a different conclusion. See Ward v. Robertson-
Dick, No. CV-82-317, 1985 Me. Super. LEXIS 42, at *3-4 (Feb. 20, 1985). In Ward, the Superior Court
concluded that section 752 did not apply to an action to reform a deed because “[t]raditionally, in
Maine, at least prior to the merger of law and equity, statutes of limitations did not apply to actions
to reform deeds.” Id. at 3. Instead, those actions were governed by the equitable doctrine of laches.
Id. The Ward holding is admittedly inconsistent with my analysis, as well as the Superior Court’s
more recent discussion of the issue in King, 2018 Me. Super. LEXIS 124, at *6. See Woodman v.
Jankowski, 2021 Me. Super. LEXIS 79, at *13 (Sept. 1, 2021) (noting, and not resolving, the
disagreement between King and Ward). US Bank has not cited Ward or invoked the doctrine of laches
at any point in this action. In any event, the analysis in King, which tracks my analysis here, is more
persuasive than the analysis in Ward, whose logic has been undercut by later Law Court cases
explaining that the statute of limitations in section 752 applies to equitable claims, see, e.g., Adams,
2014 ME 113, ¶ 4, 102 A.3d 774.

8 To the extent that US Bank raises these same arguments with respect to the other counts in the
Amended Complaint, they are likewise unpersuasive with respect to those other counts for the reasons
Inc., 919 F.3d 17, 21 (1st Cir. 2019) (alteration in original) (quoting 14 M.R.S.A.
§ 751). Unless both conditions are true, section 751 is inapplicable. See id.
US Bank is correct that the 2006 mortgage qualifies as a “note[] or other

evidence[] of debt issued by a bank.” See id. The real issue is whether a claim for
reformation of mortgage constitutes a “personal action[] on” the 2006 mortgage for
purposes of section 751. Id. I conclude that it does not because courts have, not
surprisingly, construed “personal action[] on” a mortgage to include only proceedings
enforcing a mortgage, rather than any action that relates to a mortgage. See Adams,
2014 ME 113, ¶ 4 n.2, 102 A.3d 774; see also HLC Escrow, Inc., 919 F.3d at 21-22

(citing Adams and concluding that even though an action against a closing agent and
title insurer is related to a mortgage, that is insufficient to bring it within section
751’s reach); Portland Sav. Bank v. Shwartz, 135 Me. 321, 322, 196 A. 405, 406 (1938)
(concluding that an action against the endorser of a note does not come within an
exception to the general six-year statute of limitations).
The Law Court’s decision in U.S. Bank National Association v. Adams, 2014
ME 113, ¶ 4, 102 A.3d 774, is particularly instructive. In Adams, Dorothy Adams

executed a promissory note and mortgage in favor of the plaintiff’s predecessor-in-
interest in 2005, but her brother, defendant Charles Adams, did not sign the
mortgage or note. Id. ¶ 2. Dorothy allegedly used the proceeds from the note to pay
off a loan for which she and Charles were both jointly liable. Id. ¶ 3. In 2012, after
Dorothy defaulted, the plaintiff sought to place an equitable lien on Charles’s interest
in the property because, it asserted, Charles had benefitted when his sister had used
the proceeds of the note to pay off the earlier joint loan. Id. Charles argued the
equitable action was barred by the six-year statute of limitations in section 752. Id.
The Law Court agreed with Charles, noting that all equitable claims, including

the one brought by the plaintiff, were subject to the six-year statute of limitations
unless another more particularized statute applies, id. ¶ 4, and, analogizing to unjust
enrichment, it concluded that the claim accrued when Dorothy signed the contested
note and Charles did not—more than six years earlier. See id. at ¶¶ 4-5. The Law
Court expressly rejected the argument that the twenty-year statute of limitations
under section 751 should apply, noting that “[the plaintiff’s] cause of action involves

an equitable claim against Charles’s ownership interest in the Dedham property and
is not an action to enforce the contested note.” Id. ¶ 4 n.2.
This case is almost on an exact footing with Adams—US Bank has brought an
action in equity seeking to reform the mortgage to include Luz. Much like the action
in Adams, the equitable claim of reformation of mortgage is not an action to enforce
the note or mortgage, so it is subject to the six-year statute of limitations under
section 752 and not the twenty-year statute of limitations under section 751. See id.

¶¶ 4 & n.2, 5.
I also find unpersuasive US Bank’s argument that the six-year statute of
limitations set out in section 752 is inapplicable because this action constitutes an
“action[] on a judgment or decree of [a] court of record of the United States” and
therefore falls within an exception to section 752. ECF No. 44 at 4 (quoting 14
M.R.S.A. § 752). According to US Bank, this case falls within that exception because

the Bankruptcy Court gave Luz a judgment of discharge because Luz’s property was
subject to a mortgage. But this provision of section 752 relates to actions to enforce
prior court judgments. See, e.g., Carter v. Carter, 611 A.2d 86, 87-88 (Me. 1992)
(concluding that enforcement of child support orders falls outside of the six-year

period of limitations in section 752 because it is an action to enforce a judgment);
Cloutier v. Turner, 2012 ME 4, ¶ 9, 34 A.3d 1146 (same); Faith Temple v. DiPietro,
2015 ME 166, ¶ 14, 130 A.3d 368 (noting that claims for debt on a judgment fall
outside of the six-year period of limitations in section 752). Here, US Bank seeks to
reform the 2006 mortgage, not enforce the Bankruptcy Court’s judgment. The mere
fact that US Bank alleges that there is a relationship between the mortgage and the

Bankruptcy Court’s judgment because of judicial estoppel is insufficient to bring this
action within the “action[] on a judgment” exception to section 752, and US Bank has
not pointed to any authority supporting a contrary conclusion.9
Accordingly, I conclude that US Bank’s claim for reformation of mortgage is
subject to the six-year statute of limitations in 14 M.R.S.A. § 752.
(ii) Accrual of the Cause of Action
US Bank next contends that even if Luz is correct that the six-year statute of

limitations applies to the reformation-of-mortgage claim, the cause of action did not
accrue until Luz failed to make her mortgage payments or until Luz’s discharge in
her bankruptcy case. Both arguments are unpersuasive.

9 US Bank’s assertion that this is an action on the Bankruptcy Court’s judgment is also inconsistent
with its earlier pleadings in this case. Luz’s Bankruptcy Court proceedings are not mentioned at all
in the sections of the Amended Complaint or the original Complaint that discuss US Bank’s request
“Maine courts generally consider an action accrued ‘when a plaintiff received
a judicially recognizable injury.’” Wyman v. U.S. Surgical Corp., 456 F. Supp. 3d 224,
245 (D. Me. 2020) (quoting Erlich v. Ouellette, Labonte, Roberge and Allen, P.A., 637

F.3d 32, 35 (1st Cir. 2011)). “In other words, it accrues at ‘the point at which a
wrongful act produces an injury for which a potential plaintiff is entitled to seek
judicial vindication.’” McLaughlin v. Superintending Sch. Comm. of Lincolnville,
2003 ME 114, ¶ 22, 832 A.3d 782 (quoting Williams v. Ford Motor Co., 342 A.2d 712,
714 (Me. 1975)).
Here, for the purposes of reformation of mortgage, the cause of action began to

accrue in 2006, when Stanley signed the mortgage. According to the Amended
Complaint, US Bank seeks (1) a determination that it was an error not to have Luz
sign the 2006 mortgage and (2) reformation of the mortgage to include her because
“at the time of the granting of the subject Mortgage, Luz . . . was an owner . . . and as
such[,] was required to sign the Mortgage” and the failure to have her do so “was a
mutual mistake and/or unilateral mistake.” ECF No. 13 at 6, ¶¶ 24, 27. Accordingly,
by US Bank’s own admission, the alleged injury occurred in 2006 when Luz failed to

sign the mortgage, so that is when the cause of action accrued.
This conclusion is also consistent with case law. In King, 2018 Me. Super.
LEXIS 124, at *6-7, the Superior Court concluded that the cause of action for
reformation based on a mistake accrued when the mistake occurred. And in HLC
Escrow, Inc., 919 F.3d at 22-23, a case involving an erroneous property description in
a mortgage, the First Circuit concluded that the plaintiff’s “unilateral mistake and

negligence claims accrued on the date of the mortgage closing in 2007, or—at the
latest—when [the plaintiff] discovered that the mortgage property description was
incorrect.”10 Additionally, some courts outside of Maine that have confronted similar
issues have reached the same result. See Bank of Am., N.A. v. Darkadakis, 76 N.E.3d

577, 592 (Ohio Ct. App. 2016) (“A cause of action for reformation of a written
instrument based upon mistake accrues upon the execution of the instrument.”
(quoting Bonham v. Hamilton, No. CA2006-02-030, 2007 WL 210587, at *5 (Ohio Ct.
App. Jan. 29, 2007))); Nationstar Mortg., LLC v. Hilpertshauser, 66 N.Y.S.3d 687, 689
(N.Y. App. Div. 2017) (“Reformation based upon a purported mistake is governed by
a six-year statute of limitations that is generally measured from the occurrence of the

mistake.” (quoting Wilshire Credit Corp. v. Ghostlaw, 753 N.Y.S.2d 537, 539 (N.Y.
App. Div. 2002))).
US Bank’s argument that the injury occurred when Luz first defaulted on her
obligations under the loan is unpersuasive. Although that may have been the first
time that US Bank’s financial interest was concretely affected, that does not change
the fact that the actual alleged injury took place earlier, at the time the 2006
mortgage was executed. See Rared Manchester NH, LLC v. Rite Aid of N.H., Inc., 693

F.3d 48, 52 (1st Cir. 2012) (rejecting an argument that a plaintiff’s cause of action for
breach of fiduciary duty and misrepresentation accrued when rent would have been

10 There is no suggestion in US Bank’s pleadings or memoranda of law that it contends that the
failure to have Luz sign the mortgage could not have been discovered until a later time. See Warren
v. Freedenfeld Assocs., Inc. v. McTigue, 531 F.3d 38, 44 (1st Cir. 2008) (discussing the “discovery rule”
doctrine in which “a claim accrues only when a plaintiff knows or has sufficient reason to know of the
conduct upon which the claim is grounded”). And in any event, subject to some exception, “Maine
courts generally consider an action accrued ‘when a plaintiff received a judicially recognizable injury,’
no matter when the injury was discovered.” Erlich, 637 F.3d at 35 (citations omitted) (quoting
McLaughlin, 832 A.2d at 788); see also King, 2018 Me. Super. LEXIS 124, at 7-8 (declining to extend
due under a contract rather than when the contract was executed because the
plaintiff could have brought an action immediately after the contract was executed).
“Injury . . . is not always synonymous with money damages. Under Maine law, a

party is injured when its legal rights have been violated, even if nominal damages or
equitable remedies are the only forms of recourse available to it at that time.” Id.
Here, US Bank’s legal rights were first injured, if at all, when the mistake occurred—
not when Luz’s default occurred.
US Bank’s argument that the injury occurred when Luz’s debts were
discharged in bankruptcy is likewise unpersuasive. Even though Luz’s

representations during the bankruptcy process are arguably inconsistent with her
claim now that her interest in the Property is not entirely subject to the 2006
mortgage, that does not change the fact that the alleged harm for purposes of
reformation of mortgage occurred earlier, when Luz did not sign the 2006 mortgage.
Luz’s representations during the bankruptcy process cannot revive a cause of action
based on that harm.
Because the six-year statute of limitations in 14 M.R.S.A. § 752 applies and

because the cause of action accrued in 2006—more than six years before this action
was filed—I conclude that US Bank’s claim for reformation of mortgage is barred by
the statute of limitations.
(b) Unjust Enrichment
I next address US Bank’s claim of unjust enrichment. US Bank argues that
Luz Tenpenny would be unjustly enriched if the Court did not establish a lien on her

Property because Luz used the money from Stanley’s execution of the note and the
2006 mortgage—without herself signing the mortgage or note—to pay off a prior
mortgage to which she was bound. Unjust enrichment is an equitable doctrine that
“describes recovery for the value of the benefit retained when there is no contractual

relationship, but when, on the grounds of fairness and justice, the law compels the
performance of a legal and moral duty to pay.” Aladdin Elec. Assocs. v. Town of Old
Orchard Beach, 645 A.2d 1142, 1145 (Me. 1994) (quoting A.F.A.B., Inc. v. Town of
Old Orchard Beach, 639 A.2d 103, 105 n.3 (Me. 1994)). “In an unjust enrichment
case[,] the court must decide what constitutes the inequitable retention of a benefit
by the defendant.” Id.

The six-year statute of limitations in section 752 applies to unjust enrichment
claims. See In re Est. of Miller, 2008 ME 176, ¶ 28, 960 A.2d 1140; Me. Mun. Emps.
Health Tr. v. Maloney, 2004 ME 51, ¶ 10, 846 A.2d 336. And for the same reasons as
above, an unjust enrichment claim is not an action on the note or contract, so the
longer statute of limitations in 14 M.R.S.A. § 751 is inapplicable. See Adams, 2014
ME 113, ¶ 4 n.2, 102 A.3d 774; HLC Escrow, Inc., 919 F.3d at 21-22. Therefore, if the
cause of action for unjust enrichment accrued more than six years before the

Amended Complaint was filed, the claim is time-barred.
Here, the claim of unjust enrichment is based on Luz’s use of the proceeds of
the 2006 mortgage, signed only by Stanley, to pay off the earlier 2005 mortgage,
signed by both Stanley and Luz. Consequently, any injury accrued, at the very latest,
on January 11, 2007, when the 2005 mortgage was discharged. See York Cnty. v.
PropertyInfo Corp., 2019 ME 12, ¶ 27, 200 A.3d 803 (“An unjust enrichment claim

accrues when the alleged unjust enrichment occurs.”); Adams, 2014 ME 113, ¶ 5, 102
A.3d 774 (concluding that a claim for unjust enrichment accrued when a party used
the proceeds from a later mortgage to pay off an earlier mortgage on the property);
see also In re Est. of Miller, 2008 ME 176, ¶ 30, 960 A.2d 1140 (concluding that a

claim for unjust enrichment based on a party’s retention of a savings account after
the death of the account’s joint owner accrued when the party was first added to the
account). Therefore, the unjust enrichment claim is time-barred.
(c) Quantum Meruit
US Bank also contends that it is entitled to relief under the doctrine of
quantum meruit because Luz used its money to pay off her earlier 2005 mortgage,

creating a “contract implied in fact” between them. ECF No. 13 at 11.
“[A] claim for relief pursuant to quantum meruit seeks ‘recovery for services or
materials provided under an implied contract.’” Cummings v. Bean, 2004 ME 93, ¶ 9,
853 A.2d 221 (quoting Paffhausen v. Balano, 1998 ME 47, ¶ 6, 708 A.2d 269).
Quantum meruit is not an equitable remedy; instead, it is “an issue triable of right
by a jury” and, thus, an action in law. Id. (quoting Bowden v. Grindle, 651 A.2d 347,
351 (Me. 1994)). “To sustain a claim in quantum meruit, a plaintiff must establish

that ‘(1) services were rendered to the defendant by the plaintiff; (2) with the
knowledge and consent of the defendant; and (3) under circumstances that make it
reasonable for the plaintiff to expect payment.’” Forrest Assocs. v. Passamquoddy
Tribe, 2000 ME 195, ¶ 11, 760 A.2d 1041 (quoting Carvel Co. v. Spencer Press, Inc.,
1998 ME 74, ¶ 12, 708 A.2d 1033).
Quantum meruit is subject to the six-year statute of limitations in section 752

because it is a “civil action” and does not fall within the reach of section 751 or any
other statute. 14 M.R.S.A. § 752; see Est. of Sprague, 2021 ME 64, ¶¶ 6, 9, 264 A.3d
1243 (analyzing whether a number of claims, including a claim for quantum meruit,
were properly dismissed for failure to comply with the six-year statute of limitations);

Baroudi v. Maselli, No. AUBSC-CV-15-021, 2016 Me. Super. LEXIS 144, at *5 (June
15, 2016) (concluding that the six-year statute of limitations in section 752 applied to
all of the plaintiff’s claims, including a quantum meruit claim); Flannery v. Lajoie,
No. BCD-CV-11-34, 2012 Me. Bus. & Consumer LEXIS 20, at *6 (Mar. 7, 2012)
(same).
Furthermore, the cause of action for quantum meruit accrued more than six

years before this action was brought. This conclusion is supported by the elements
of a quantum meruit claim, see Forrest Assocs., 2000 ME 195, ¶ 11, 760 A.2d 1041, as
well as US Bank’s own representations in its Amended Complaint. US Bank’s
Amended Complaint states in relevant part, “Luz Tenpenny received the benefit of
Plaintiff’s money paying off a mortgage that encumbered her property . . . and which
mortgage she had signed[,] and she accepted the benefit from the Plaintiff,” which
gave rise to a “contract implied in fact.” ECF No. 13 at 11. I therefore conclude that

the cause of action for quantum meruit accrued when the 2005 mortgage was
discharged or, at the latest, within a reasonable time after the mortgage was
discharged—well over six years before this action was brought.11 See Flannery, 2012

11 Luz contends that the cause of action for quantum meruit accrued when the 2005 mortgage was
paid off because that is when the cause of action for unjust enrichment accrued. Although this
conclusion is correct, the reasoning is not: in recent years, the Law Court has taken pains to clarify
the differences between quantum meruit and unjust enrichment actions. See, e.g., Dinan v. Alpha
Networks Inc., 2013 ME 22, ¶ 20, 60 A.3d 792; Paffhausen, 1998 ME 47, ¶¶ 6 & n.3, 7, 708 A.2d 269;
Danforth v. Ruotolo, 650 A.2d 1334, 1335 n.2 (Me. 1994); Aladdin Elec. Assocs., 645 A.2d at 1145;
A.F.A.B., Inc., 639 A.2d at 105 n.3. Accordingly, determining at what point a quantum meruit claim
Me. Bus. & Consumer LEXIS 20, at *6 (“When the cause of action accrues depends
on the nature of the claim. In this case, the . . . quantum meruit claim . . . presumably
accrued upon the Defendant’s failure to pay within a reasonable time.”). This

conclusion accords with approaches that other courts have taken in addressing
quantum meruit claims. See, e.g., Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So.
3d 855, 859 (Fla. Dist. Ct. App. 2013) (“Statutes of limitations on . . . quantum meruit
claims generally begin to run upon the occurrence of the event that created the
uncompensated benefit in the defendant, i.e., the plaintiff performed the labor that
benefitted the defendant or the defendant obtained the subject property or goods.”);

Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP, 293 P.3d 55, 58-59 (Colo.
App. 2011) (“The statute of limitations therefore begins to run with respect to a
quantum meruit claim when a plaintiff has conferred a benefit upon the defendant
and the retention of the benefit becomes unjust.”). Accordingly, US Bank’s claim for
quantum meruit is time-barred.
(d) Equitable Subrogation
Finally, US Bank seeks equitable subrogation. Specifically, it argues that it

should be equitably subrogated to the rights of BankNorth, N.A., whose
2005 mortgage was discharged with the proceeds of the 2006 mortgage issued by US
Bank’s predecessor-in-interest.

separate unjust enrichment claim. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C.,
287 P.3d 842, 847 (Colo. 2012) (en banc) (“A quantum meruit claim accrues when a person discovers,
or through the exercise of reasonable diligence should discover, that all the elements of the claim are
“Equitable subrogation is ‘a device adopted by equity to compel the ultimate
discharge of an obligation by him who in good conscience ought to pay it.’” Nappi v.
Nappi Distribs., 1997 ME 54, ¶ 8, 691 A.2d 1198 (quoting United Carolina Bank v.

Beesley, 663 A.2d 574, 576 (Me. 1995)). “It is a ‘concept derived from principles of
restitution and unjust enrichment.’” Id. (quoting N. E. Ins. v. Concord Gen. Mut. Ins.,
433 A.2d 715, 719 (Me. 1981)).
The Law Court has previously applied the doctrine of equitable subrogation in
cases similar to this, noting that “[w]hen a lender advances to a co-tenant money with
which to discharge a mortgage on the common property, it is proper to apply the

doctrine and to subrogate the lender to the discharged mortgage, even as against co-
tenants who were unaware of and did not authorize the transaction.” Beesley, 663
A.2d at 576. “In addition, a mortgagee who, in performing a title search, negligently
fails to uncover an existing lien on the property is not precluded from the remedy of
equitable subrogation.” Id.
But the claim for equitable subrogation must not be time-barred in order for
US Bank to be entitled to the relief it requests. See Yousuf v. Cohlmia, 741 F.3d 31,

44 (10th Cir. 2014) (concluding even though the facts of the case arguably supported
recovery under a theory of equitable subrogation, the equitable subrogation claim was
time-barred by the applicable statute of limitations). Here, the equitable subrogation
claim is time-barred.
Although the Law Court has not yet had occasion to determine which statute
of limitations applies to bringing equitable subrogation claims or when a cause of

action for equitable subrogation accrues, the language of the relevant statutes and
principles of the related doctrine of unjust enrichment guide my analysis.12 By its
plain language, the operative statute of limitations is the six-year general statute of
limitations in section 752, which applies to equitable claims such as unjust

enrichment or equitable subrogation. See 14 M.R.S.A. § 752; Adams, 2014 ME 113,
¶ 4, 102 A.3d 774.
Additionally, the cause of action for equitable subrogation began to accrue
when Luz’s 2005 mortgage was discharged with the proceeds of the 2006 mortgage
signed only by Stanley. In addition to having logical resonance based on the nature
of an equitable subrogation claim, this conclusion is consistent with the point at

which an unjust enrichment claim accrues, see Adams, 2014 ME 113, ¶ 5, 102 A.3d
774,13 and is consistent with conclusions reached by other courts, see, e.g., Gulf Coast
Bank & Tr. Co. v. Virgil Resort Funding Grp., Inc., 119 N.Y.S.3d 618, 621 (N.Y. App.
Div. 2020) (concluding a cause of action for equitable subrogation accrued at the time
a new loan was used to satisfy an existing debt because “[a] cause of action seeking
to establish a lien pursuant to the doctrine of equitable subrogation . . . begins to run

12 Luz cites Maine Municipal Employees Health Trust v. Maloney, 2004 ME 51, 846 A.2d 336, as
support for the proposition that a six-year statute of limitations applies to equitable subrogation
claims. But Maloney presents a subtly different issue than the one in the case. In Maloney, the
defendant’s tort claim to which the plaintiff sought to be equitably subrogated was itself barred by the
six-year statute of limitations. See id. ¶¶ 7-8. The Law Court concluded that because a subrogee could
obtain no greater rights than a subrogor, the plaintiff had waited too long to enforce its equitable
subrogation claim. See id. Thus, I disagree with Luz’s contention that Maloney established that
equitable subrogation actions are subject to the six-year statute of limitations in section 752. But see
Flannery, 2012 Me. Bus. & Consumer LEXIS 20, at *6 (citing Maloney for the proposition that an
equitable subrogation claim is subject to the six-year statute of limitations).

13 Unlike quantum meruit claims, see supra n.11, equitable subrogation actions are derived from
unjust enrichment and, therefore, the statute-of-limitations analysis for unjust enrichment actions is
relevant in determining the point at which the statute of limitations for an equitable subrogation
action begins to run. See Maloney, 2004 ME 51, ¶ 9 n.1, 846 A.2d 336 (“It is not clear that the unjust
upon the occurrence of the wrongful act giving rise to a duty of restitution” (second
alteration in original) (quoting U.S. Bank Nat’l Ass’n v. Salem, 81 N.Y.S.3d 583, 584
(N.Y. App. Div. 2018) (mem.))); Republic Underwriters Ins. v. Fire Ins. Exch., 655 P.2d

544, 546 (Okla. 1982) (concluding that a claim for equitable subrogation was time-
barred because it was not brought within three years after the action could have been
first maintained). US Bank did not bring its equitable subrogation claim within six
years after the cause of action accrued and, therefore, the claim for equitable
subrogation is time-barred.
Because Luz is not judicially estopped from raising a defense that the six-year

statute of limitations in 14 M.R.S.A. § 752 bars all of US Bank’s claims, and because
Luz has demonstrated that all of US Bank’s claims are time-barred, she is entitled to
judgment on the pleadings.
B. US Bank’s Second Motion to Amend the Complaint
1. Legal Standard
A party may amend its pleading once as a matter of course within twenty-one
days after the pleading is served or within twenty-one days after service of a

responsive pleading or motion. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may
amend its pleading only with the consent of the opposing party or with the court’s
leave. Fed. R. Civ. P. 15(a)(2). Such leave will be freely given when “justice so
requires,” id., but the Court need not “mindlessly grant every request for leave to
amend.” Mulder v. Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 20 (1st Cir. 2017) (quoting
Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006)). Instead, the Court

may deny leave to amend when it concludes, based on the totality of the
circumstances, that “the request is characterized by ‘undue delay, bad faith, futility,
[or] the absence of due diligence on the movant’s part.’” Id. (alteration in original)
(quoting Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 389 (1st Cir. 2013)).

Additionally, leave to amend may be denied “if the proposed amendment ‘would serve
no useful purpose.’” Calderón-Serra v. Wilmington Tr. Co., 715 F.3d 14, 19 (1st Cir.
2013) (quoting Aponte-Torres, 445 F.3d at 58).
2. Judicial Estoppel Claim
As to US Bank’s request to amend the pleadings to include facts related to
judicial estoppel, I conclude that the request must be denied because amending the

pleadings in this manner would be futile.
“Whether a proposed amendment is futile is ‘gauged by reference to the liberal
criteria of Federal Rule of Civil Procedure 12(b)(6).’” Amyndas Pharms., S.A. v.
Zealand Pharma A/S, 48 F.4th 18, 40 (1st Cir. 2022) (quoting Juárez v. Select
Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir. 2013)). As such, a motion to
amend should be granted “if the amended complaint ‘contain[s] sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.”’”14

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Rife v. One W. Bank,

14 US Bank did not file a proposed amended complaint along with its Second Motion to Amend,
despite the fact that this is the best practice when moving to amend a pleading. See Bernard v. Town
of Lebanon, No. 2:16-cv-00042-JAW, 2017 WL 1232406, at *7 (D. Me. Apr. 3, 2017) (“[A] plaintiff
seeking leave to amend a complaint should file a separate motion, which should include as an exhibit
the proposed amended complaint.”); Levitt v. Sonardyne, Inc., No. 2:12-cv-00032-JAW, 2012 WL
5350037, at *2 (D. Me. Oct. 29, 2012) (“Requests to amend should be made by separate motion and
should attach the proposed amended complaint so that the Court is able to evaluate the nature of the
proposed amendment and its sufficiency.”). Notwithstanding this omission, I reach the merits of US
Bank’s Second Motion to Amend because the motion itself sets forth, albeit generally, what facts and
claims would be included in a Second Amended Complaint. But see Aponte-Torres, 445 F.3d at 58
(noting that a plaintiff’s filing of only a bare request for leave to amend is a basis for denying that
request).
F.S.B., 873 F.3d 17, 21 (1st Cir. 2017) (“‘Futility’ means that the complaint, as
amended, would fail to state a claim upon which relief could be granted.” (quoting
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996))).

Here, as discussed above, even taking all of the facts asserted by US Bank as
true, these facts are insufficient to show that Luz is judicially estopped from raising
a statute-of-limitations defense or that all of US Bank’s claims against Luz are not
barred by the statute of limitations. Consequently, US Bank’s proposed amendments
fail to state a claim, and it would be futile and serve no purpose to permit US Bank
to amend the Amended Complaint to allege judicial estoppel.15 See Amyndas

Pharms., S.A., 48 F.4th at 40.
Accordingly, US Bank’s Second Motion to Amend the Complaint is denied to
the extent that it seeks to assert a judicial estoppel claim against Luz.
3. Fraud Claim
US Bank also seeks to add a fraud claim against Stanley, contending that
Stanley committed fraud when he signed the 2006 mortgage “under oath affirming
that he owned the subject property entirely, when he knew that Luz owned it with

him.” ECF No. 38 at 4, ¶ 18. According to US Bank, it discovered this alleged fraud
in the course of doing a title search in 2021, so adding a fraud claim would be timely
because under 14 M.R.S.A. § 859 (West 2022), an action for fraud may be brought
within six years of discovery of the fraud.

15 Moreover, to the extent that US Bank seeks to add a separate count for judicial estoppel, judicial
estoppel is a defense and not a separate entitlement to relief. See O’Brien v. Town of Bellingham, 943
F.3d 514, 526 (1st Cir. 2019) (describing judicial estoppel as an “affirmative defense”); Nwachukwu v.
I deny US Bank’s request for leave to amend the pleadings to assert a claim of
fraud against Stanley because of US Bank’s undue and unjustified delay in filing that
request. “[U]ndue delay, on its, own, may be enough to justify denying a motion for

leave to amend.” Hagerty ex rel. U.S. v. Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir.
2016); see also Calderón-Serra, 715 F.3d at 20 (“Appreciable delay alone, in the
absence of good reason for it, is enough to justify denying a motion for leave to
amend.”); Johnson v. Educ. Testing Serv., 754 F.2d 20, 27 (1st Cir. 1985) (“[T]he
district court has discretion to deny leave to amend in the face of ‘extraordinarily long
and essentially unexplained delay.’” (quoting Carter v. Supermarkets Gen. Corp., 684

F.2d 187, 192 (1st Cir. 1982))). In these circumstances, “when ‘a considerable period
of time has passed between the filing of the complaint and the motion to amend,
courts have placed the burden upon the movant to show some valid reason for [its]
neglect and delay.’” Nikitine, 715 F.3d at 390-91 (quoting Hayes v. New Eng.
Millwork Distribs., Inc., 602 F.2d 15, 19-20 (1st Cir. 1979)).
Viewing US Bank’s Second Motion to Amend the Complaint in the context in
which it was filed, I conclude that several factors weigh in favor of denying the Second

Motion to Amend because of undue delay.
First, US Bank has not explained the reason for its delay in seeking to amend
the pleadings to assert a claim of fraud against Stanley. The original Complaint was
filed in the Superior Court in November 2021, and the case was removed to this Court
in February 2022. The Complaint was previously amended without objection in
March 2022. But the first time that US Bank indicated that it wished to add a fraud

claim against Stanley was in August 2022, when the Second Motion to Amend was
filed—more than nine months after the original Complaint was filed. US Bank has
not provided any reason for the dilatory nature of its request.
Nor, in my view, is there such a justification. According to the allegations in

US Bank’s Second Motion to Amend, US Bank discovered the alleged fraud in the
course of doing a title search in 2021. US Bank did not indicate precisely when in
2021 this occurred but given the fact that the original Complaint was filed in
November, it is likely that the fraud was known before the original Complaint was
filed. Even if the alleged fraud was discovered in November or December 2021 (after
the original Complaint was filed), there is still no explanation for why US Bank

waited until August 2022 to press that claim or why it failed to assert that claim
when it first amended its Complaint in March 2022. US Bank’s failure to explain
this delay weighs heavily against permitting it to amend the Complaint again to
assert fraud.16
Second, “[t]his is not a case of new allegations coming to light following
discovery, or of previously unearthed evidence surfacing.” Nikitine, 715 F.3d at 391
(alteration in original) (quoting Villanueva v. United States, 662 F.3d 124, 127 (1st

Cir. 2011)). By US Bank’s own admission, it knew of the alleged fraud when it filed
the original Complaint or, at the very latest, months before it first amended the
Complaint. But it was not until Luz filed a Motion for Judgment on the Pleadings
that US Bank sought to amend the Complaint to add a claim of fraud. Accordingly,

16 US Bank’s failure to explain why it delayed in pressing its fraud claim is especially troubling in
this case. The facts that gave rise to the fraud claim were allegedly discovered during a title search
and, therefore, the alleged fraud was a matter of public record for years before US Bank sought to
this appears to be a case in which US Bank attempted “to devise ‘new theories of
liability [] based on the same facts pled in [its] original complaint’—theories that
could and should have been put forward in a more timeous fashion.” Nikitine, 715

F.3d at 391 (first alteration in original) (citations omitted) (quoting Tiernan v. Blyth,
Eastman, Dillon & Co., 719 F.2d 1, 4 (1st Cir. 1983)). Such a circumstance weighs
against concluding that justice requires US Bank be permitted to amend its
Complaint. See id.; Mulder, 865 F.3d at 21.
Third, this is not the first opportunity that US Bank has had to amend its
Complaint in this case. When a party has already had an opportunity to amend its

complaint, that weighs against a conclusion that justice requires that they have
another opportunity to do so. See Nikitine, 715 F.3d at 390 (“Whether the plaintiff,
by rule or court order, had a prior opportunity to amend is one data point to be taken
into account . . . .”).
Accordingly, because of US Bank’s undue delay in asserting its fraud claim,
the Second Motion to Amend is denied to the extent that it seeks to assert a fraud
claim against Stanley.

C. US Bank’s Motion to Stay
Finally, US Bank seeks a stay of this case so that it can assert a claim of fraud
against Stanley (ECF No. 39). Because I conclude that US Bank is not entitled to
amend its Complaint to assert a claim of fraud against Stanley, I deny this request
as moot. Even if I had decided that US Bank was entitled to amend its Complaint, I
would still reject its request for a stay because US Bank has failed to explain why

such a stay is necessary. According to US Bank, “[s]ince Stanley Tenpenny has been
discharged in Chapter 7 bankruptcy, it may be necessary for the Plaintiff to obtain
relief in his bankruptcy before it can amend the complaint in this action to allege
fraud.” ECF No. 39 at 2. But neither in its pleadings nor at oral argument did US

Bank provide any specifics about whether a stay would in fact be necessary or why it
needed permission from the Bankruptcy Court to assert a claim of fraud against
Stanley. The authority to grant a stay is discretionary, Ryan v. Gonzales, 568 U.S.
57, 73 (2013), and, under these circumstances, I would decline to exercise that
discretion based on the barebones information provided by US Bank.
III. CONCLUSION

Accordingly, Luz Tenpenny’s Motion for Judgment on the Pleadings (ECF No.
37) is GRANTED. US Bank’s Second Motion to Amend the Complaint (ECF No. 38)
is DENIED. US Bank’s Motion to Stay (ECF No. 39) is DENIED.
SO ORDERED.
Dated: March 7, 2023

/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211730. Public record. Not legal advice.