The opinion
STATE OF MAINE SUPERIOR COURT
CMLACTION
YORK, ss. DOCKET NO. RE-13-63
BANK OF AMERICA, N.A.,
Plaintiff
V. ORDER
MARIA E. MARTINEZ and
REINALDO MARTINEZ,
Defendants
The Clerk placed three motions on the April 8, 2015 civil motion list. The
motion for sanctions was not heard at this time as an order of May 14, 2014 indicated
that it would be heard at the same time as any hearing on the complaint and
counterclaim. The motion to join and motion for judgment on the pleadings were
argued and are ready for decision.
The defendants are native Spanish speakers who borrowed funds in 2004 for the
purchase of their home. They eventually fell behind on their payments and a
foreclosure action was brought. As their primary, and only, residence was involved
the case was referred to mediation. A loan modification was not offered for one or two
possible reasons. Bank of America serviced the loan for Federal National Mortgage
Association also known as Fannie Mae. Bank of America may have indicated that
Fannie Mae, as trustee of a Real Estate Mortgage Investment Conduit (REMIC) trust,
was not permitted and would not permit a loan modification because of its agreement
with the purchasers of the mortgages securitized through the REMIC trust. The Bank
may also have indicated that a loan modification was not available as Maria Martinez
and Reinaldo Martinez did not have enough income.
The first motion is the defendants' motion to join Fannie Mae. Normally I
would deny the motion as the Bank of America, as the loan servicer, is a proper party to
bring this action. A representative of Fannie Mae could provide discovery responses
and be a witness at the trial. It has been represented that Fannie Mae officials will only
participate fully if Fannie Mae is a party. Given that a key question is whether a loan
modification, despite 2009 Maine legislation establishing a foreclosure mediation
program and requiring mediation, see 14 M.R.S. §6321-A, can be denied because of
provisions in earlier documents where this mortgage and many others were combined
and sold to investors. We will need to know, among other things, what those
documents are, what they say and whether exceptions are or can be granted. The only
practical way to fully explore those issues, which are very important to the defendants
and potentially other borrowers, is to have Fannie Mae joined as a plaintiff. Should
Fannie Mae not join as a plaintiff it will be made a defendant.
The second motion is the plaintiffs motion for judgment on the pleadings on the
defendants' counterclaim. In the counterclaim the defendants have alleged that the
original lender, which was not Bank of America, breached a duty of good faith by not
giving them sufficient time to review and understand the documents. Regardless of
whether the claim is against the wrong entity, or brought too late, see 14 M.R.S. §§ 752 &
865, the claim cannot be brought as an independent action. See Chartier v. Farm Family
Life Insurance Co., 2015 ME 29, <][7. No contractual or other provision was breached.
Judgment will be entered for the plaintiff on the counterclaim.
2
The entries are:
Defendants' motion for joinder of entity needed for just adjudication is
granted.
Plaintiff's motion for judgment on the pleadings against defendants'
counterclaim is granted.
Dated: April9, 2015
Paul A. Fritzsche
Justice, Superior Court
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RE-13-63
ATTORNEY FOR PLAINTIFF:
JAMES GARNET
SHECHTMAN HALPERIN SAVAGE LP
1080 MAIN STREET
PAWTUCKET RI 02860
ATTORNEY FOR DEFENDANT:
MARK A KEARNS
LAW OFFICE OF MARK KEARNS
PO BOX 17915
PORTLAND ME 04112
ATTORNEY FOR 3RD PARTY DEFENDANT:
RUFUS BROWN
BROWN & BURKE
POBOX7530
I PORTLAND ME 04112