U.S. Bank v. Thomes
| Decision Date | 22 September 2021 |
| Docket Number | 2:19-cv-00477-JAW |
| Parties | U.S. BANK NATIONAL ASSOCIATION, as Trustee for Specialty Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed Certificates Series 2006-BC2, Plaintiff, v. THEODORE W. THOMES, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
ORDER ON PENDING MOTIONS FOR SUMMARY JUDGMENT
U.S Bank brings two motions for summary judgment, one against Theodore Thomes' twelve counterclaims, and the other in favor of U.S. Bank's claim for equitable partition. Applying the traditional summary judgment standard, the Court concludes that U.S. Bank is entitled to summary judgment on all counterclaims and on its equitable partition count.
On October 17, 2019, U.S. National Bank Association, as trustee for Specialty Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed Certificates, Series 2006-BC2 (U.S. Bank), filed a one-count complaint in the United States District Court for the District of Maine against Theodore W Thomes, S. James Levis, Jr., and Donald P. Penta seeking equitable partition of property located at 135 Smith Road in Windham, Maine (the Property) pursuant to 14 M.R.S. § 6051(7). Compl. ¶ 17(a) (ECF No. 1). U.S. Bank seeks an order to have the Property sold with proceeds divided equitably among the parties. Compl. ¶ 17(b). Summonses were issued as to all Defendants on October 17, 2019. Summons Issued as to S. James Levis, Jr., Donald P. Penta, Theodore W. Thomes (ECF No. 3).
On October 23, 2019, S. James Levis, answered the Complaint and filed a crossclaim against Theodore W. Thomes. Answer to Complaint of Defendants S. James Levis, Jr. and Cross Claim Against Theo[]dore W. Thomes (ECF No. 4) (Def. Levis Answer/Cross-cl.). In the crossclaim Mr. Levis alleges that Mr. Thomes delivered to him a promissory note in the amount of $60, 000, secured by a mortgage on the Property. Id. at 3. Pursuant to the Levis crossclaim, if the Court orders a partition sale, Mr. Levis seeks the proceeds otherwise due to Mr. Thomes and asks that the proceeds be applied to the note and mortgage owed by Mr. Thomes. Id.
On November 8, 2019, upon Mr. Thomes' motion, the Court ordered Mr. Thomes to answer the Complaint by November 13, 2019, later extended to December 20, 2019, by the Magistrate Judge. Order Granting Mot. to Extend Time to File Resp. to Compl. (ECF No. 9). On November 27, 2019, Mr. Penta filed his answer. Answer Filed by Def. Donald P. Penta (ECF No. 11). On December 23, 2019, U.S. Bank filed a motion for entry of default against Mr. Thomes alleging that Mr. Thomes had failed to appear pursuant to Federal Rule of Civil Procedure Rule 55(a). Mot. for Entry of Default (ECF No. 16). On December 23, 2019, the Deputy Clerk entered an order granting U.S. Bank's motion for entry of default as to Mr. Thomes. Order (ECF No. 19). Later that same day, Mr. Thomes answered the Plaintiff's Complaint and filed a counterclaim against U.S. Bank. Answer to Compl. and Countercl. (ECF No. 20) (Def.'s Countercl.).
In his counterclaim, Mr. Thomes sets forth twelve counts: (1) that U.S. Bank executed a mortgage on Ms. Thomes' interest and failed to disclose that it would be tenants in common with Mr. Thomes; (2) that U.S. Bank asserted undue influence over Mr. and Ms. Thomes in doing so; (3) that U.S. Bank refused to allow Mr. Thomes to purchase the Bank's interest at fair market value; (4) that U.S. Bank's execution of the mortgage on Ms. Thomes' one-half interest of the Property led to thousands of dollars in legal costs for Mr. Thomes; (5) that publication of Mr. Thomes' name in the newspaper for the purposes of the public auction ruined Mr. Thomes' credit rating; (6) that U.S. Bank committed malicious abuse of legal process; (7) that U.S. Bank failed to pay adequate consideration for Ms. Thomes' one-half interest in the public sale; (8) that Mr. Thomes was harmed as a result of U.S. Banks' failure to pay adequate consideration; (9) that U.S. Bank exercised exclusive possession of the Property before it had satisfied the court's conditions on the judgment; (10) that the Property has declined in value since U.S. Bank exercised exclusive possession; (11) that U.S. Bank's agent Casco Bay Cleaning committed theft of Mr. Thomes' personal property on August 23, 2018; and (12) that Mr. Thomes is owed accrued compensation for home improvements on the Property made since the mortgage appraisal. Id. at 9-12.
On January 13, 2020, U.S. Bank filed an answer to Mr. Thomes' counterclaims. Answer to Countercls. (ECF No. 25). On March 17, 2020, S. James Levis, Jr., filed a motion for entry of default on his crossclaims, Application to Clerk for Entry of Default Pur[s]usant to Fed.R.Civ.P. 55(a) (ECF No. 28), which the Deputy Clerk granted on March 19, 2020. Order Granting Mot. for Entry of Default (ECF No. 29).
On July 24, 2020, U.S. Bank filed a motion to dismiss Mr. Thomes' counterclaims for failure to follow procedural requirements. Mot. to Dismiss the Countercls. of Theodore and Renee Thomes for Failure to Attend Disposition and Other Procedural Deficiencies (ECF No. 49). That same day, U.S. Bank also filed a notice of intent to file a summary judgment motion and requested a pre-filing conference under Local Rule 56(h). Notice of Intent to File Mot. for Summ. J. (ECF No. 50). On October 7, 2020, Mr. Thomes responded to U.S. Bank's motion to dismiss the counterclaims, Resp. to Mot. to Dismiss Countercl. (ECF No. 62), to which U.S. Bank replied on October 21, 2020. Reply to Obj. to Mot. to Dismiss (ECF No. 63). On November 2, 2021, Magistrate Judge Nivison recommended that the Court deny the Bank's motion to dismiss as to Mr. Thomes, grant the motion to dismiss as to Ms. Thomes, and impose sanctions on Mr. Thomes for failing to comply with discovery requirements. R&R on Mot. to Dismiss/Order on Show Cause Order (ECF No. 64). The Court affirmed the recommended decision on November 30, 2020. Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 67).
On December 7, 2020, U.S. Bank filed its Rule 56(h) pre-filing conference memorandum. Countercl. Def.'s Pre-filing Conference Mem. (ECF No. 69). A prefiling conference was held before the Magistrate Judge on January 13, 2021. Min. Entry (ECF No. 74). On March 8, 2021, U.S. Bank filed two motions for summary judgment, one as to Mr. Thomes' counterclaims, Mot. for Summ. J. (ECF No. 77) (Counter Def.'s Mot.); Statement of Material Facts (ECF No. 78) (CDSMF), and the other as to its Complaint seeking equitable partition of the Property. Mot. for Summ. J. (ECF No. 79) (Pl.'s Mot.); Statement of Material Fact in Support of Pl.'s Mot. for Summ. J. (ECF No. 80) (PSMF). On March 19, 2021, Mr. Levis consented to the entry of judgment in favor of U.S. Bank that “does not provide for any payment to Levis out of the proceeds of the partition and/or sale of the property which is subject to the mortgage of Levis.” Notice of Dismissal of Crosscla[i]m of Def./Cross-Claimant Levis at 1 (ECF No. 87); Statement of Material Facts and Additional Material Facts Filed by Def. Donald P. Penta ¶ 10 (ECF No. 96) (Penta Additional SMF).
On March 26, 2021, Mr. Penta filed a response to U.S. Bank's motion for summary judgment as to equitable partition. Resp. to Mot. for Summ. J. (ECF No. 93) (Penta Resp.); Penta Additional SMF.
On April 22, 2021, Mr. Thomes filed his response to U.S. Bank's motions for summary judgment with a corresponding statement of facts. Answer to Summ. J. (ECF No. 97) (Counter Pl.'s Opp'n); Statement of Material Facts (ECF No. 97) (CPSMF). U.S. Bank filed its reply to Mr. Thomes' response on May 6, 2021. Reply Mem. (ECF No. 99).
“Consistent with the conventional summary judgment praxis, [the Court] recount[s] facts in the light most hospitable to the [nonmoving party's] theory of the case, consistent with record support.” Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 17 (1st Cir. 2002). However, in deciding whether there are any genuine issues of material fact, the Court is constrained by the Local Rules of this District. The Rules require that the moving party set forth a series of “separate, short, concise statement[s] of material facts, each set forth in separately numbered paragraph(s), as to which the moving party contends there is no genuine issue of material fact to be tried.” D. ME. LOC. R. 56(b).
The non-moving party is then required to “submit with its opposition a separate, short, and concise statement of material facts.” D. ME. LOC. R. 56(c). With its reply, the non-moving party “shall admit, deny or qualify such additional facts by reference to each numbered paragraph of the moving party's statement of material facts.” D. ME. LOC. R. 56(c). If a party denies or qualifies a fact, the party must support each denial or qualification with a record citation. Id. The Rule specifically states that the non-movant's reply statement “shall begin with the designation ‘Admitted,' ‘Denied,' or ‘Qualified.'” Id.
The Local Rules similarly address the consequences of failing to comply with the Rules: “Facts contained in a supporting or opposing statement of material facts, if supported by record citations . . . shall be deemed admitted unless properly controverted.” D. ME. LOC. R. 56(f). If a party asserts a fact unsupported by a record citation, or asserts “[c]onclusory allegations, improbable inferences, and unsupported speculation, ” the Court “may disregard [this] statement of fact.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)); D. ME. LOC. R 56(f); see also D. ME. LOC. R. 56(c)(1) Annotations (“A Court will refuse to...
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