Wells Fargo Bank, National Association v. Bump, 011221 MESC, Han-20-125

Docket NºHan-20-125
Opinion JudgeJABAR, J.
AttorneyBrett L. Messinger, Esq. (orally), and Elizabeth M. Lacombe, Esq., Duane Morris LLP, Portland, for appellant Wells Fargo Bank NA Arthur J. Greif, Esq. (orally), Gilbert & Greif, P.A., Bangor, for appellee John H. Bump
Judge PanelPanel: GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and HJELM, A.R.J.
Case DateJanuary 12, 2021
CourtSupreme Judicial Court of Maine

2021 ME 2



JOHN H. BUMP et al.

No. Han-20-125

Supreme Court of Maine

January 12, 2021

Argued: December 8, 2020

Brett L. Messinger, Esq. (orally), and Elizabeth M. Lacombe, Esq., Duane Morris LLP, Portland, for appellant Wells Fargo Bank NA

Arthur J. Greif, Esq. (orally), Gilbert & Greif, P.A., Bangor, for appellee John H. Bump



[¶1] Wells Fargo Bank1 appeals from the District Court's (Ellsworth, Mallonee, J.) entry of judgment in favor of John H. Bump on Wells Fargo's foreclosure complaint, contending that the court erred by concluding that a 2015 order dismissing without prejudice Wells Fargo's earlier action seeking foreclosure on the same mortgage did not vacate the final judgment in Bump's favor that had been entered in 2013 in that same case. Wells Fargo also contends it was an abuse of discretion for the court to take judicial notice of the 2013 judgment. We disagree and affirm the judgment.


[¶2] On November 29, 2006, Option One Mortgage Corporation issued a loan to John H. Bump, in exchange for which Bump executed and delivered to Option One a $226, 000 promissory note, secured by a mortgage recorded against Bump's property in Lamoine, Maine. Wells Fargo Bank, N.A., as trustee for Option One, is the owner and current holder of the note and the mortgage. Bump defaulted on his loan by failing to make the payment due on August 1, 2008, and failing to make all payments due after that.

A. The First Foreclosure Action (2009)

[¶3] Wells Fargo filed a foreclosure action in the District Court on February 12, 2009. Wells Fargo demanded the entire amount of the debt, including principal and interest.[2]

[¶4] The court (Cuddy, J.) held a bench trial on September 27, 2013, and on the same day entered judgment on the merits in favor of Bump. The court found that Wells Fargo's right-to-cure letter did not meet the requirements of 14 M.R.S. § 6111 (2020). At the trial, Wells Fargo acknowledged that it would be unable to prove its case without evidence that it had properly notified Bump of his right to cure as required by statute and case law and rested their case. On September 27, 2013, the court entered final judgment for Bump on this complaint due to Wells Fargo's failure of proof. Wells Fargo did not appeal the judgment.

[¶5] Fifteen months later, on December 31, 2014, Wells Fargo, through new counsel, filed a motion to dismiss the 2009 action without prejudice pursuant to M.R. Civ. P. 41.

[¶6] On January 28, 2015, the court (Mallonee, J.) granted the motion to dismiss.3 The next day, Bump filed an objection to the motion to dismiss, arguing that given the resolution of the matter at trial, the court should dismiss the matter with prejudice. In order to afford Bump an opportunity to provide his objections to the motion to dismiss, the court scheduled a hearing for February 27, 2015.

[¶7] On February 24, 2015, Wells Fargo, through another counsel, filed a motion to voluntarily withdraw the motion to dismiss and voluntarily vacate the January 28, 2015, order on the motion to dismiss, on the grounds that the dismissal was unnecessary in view of the 2013 final judgment. On February 25, 2015, Bump filed a notice withdrawing his objection to the dismissal of the case without prejudice.

[¶8] At the motion hearing4 Wells Fargo's counsel appeared by phone stating the motion to dismiss filed on December 31, 2014, was a mistake. The new counsel stated that the prior counsel in December improperly filed the motion and that because the case had proceeded to trial and ended in 2013 when final judgment was entered, there was no reason to file a motion to dismiss. Wells Fargo asked the court to ignore the improperly filed motion to dismiss and leave the 2013 final judgment that had been entered in favor of Bump in place. However, Bump's counsel asked that the dismissal without prejudice remain in effect.5 The court issued an order stating that due to the withdrawal of Bump's objections, the dismissal without prejudice remained in effect.

B. The Second Foreclosure Action (2016)

[¶9] On September 16, 2016, Wells Fargo filed a new action to foreclose on the same mortgage that was the subject of the prior action. On November 8, 2016, Bump filed an answer and affirmative defenses, which included that (1) "[Wells Fargo] has already litigated this claim and failed to prove it and is barred from litigating the claim by virtue of res judicata"; and (2) "[Wells Fargo] is barred from bringing this action by virtue of M.R. Civ. P. 41, having litigated the claim and lost and having thereafter dismissed the claim."

[¶10] A one-day bench trial was held on October 31, 2019. At the trial, Bump's entire opening statement was dedicated to discussing the prior final judgment and its res judicata effect. Counsel for Wells Fargo was unfamiliar with the prior judgment ("I haven't seen this before") but reviewed it during a recess and acknowledged that the prior judgment would have an effect on Wells Fargo's ability to proceed with its case. The court stated that because the case was three years old, "we're going to do something" today, and suggested that "the most efficient way to proceed, given the unusual way this has developed, would be to make ... a factual record and then [the court] will certainly provide reasonable . . . deadlines for written arguments, and then we'll go from there."6

[¶11] Wells Fargo presented its case, which included one witness. Bump did not call any witnesses or present any evidence in defense.7Although the 2013 judgment was discussed and Bump asked the court if he should mark a copy of the judgment as an exhibit, the court stated that there was no need for him to do that because the court had access to the original court file from the 2009 action.

[¶12] On February 12, 2020, several weeks after the trial was held, the court issued an interim order, notifying the parties that it intended to take judicial notice of the prior 2013 judgment, pursuant to M.R. Evid. 201(c)(1), and offered the parties the opportunity to submit written argument, within fourteen days, on the issue of judicial notice pursuant to M.R. Evid. 201(e). Both parties submitted written argument in response to the court's invitation to be heard on the court's intention to take judicial notice. Wells Fargo argued that the 2015 dismissal without prejudice vacated the 2013 final judgment and therefore there was no judgment on the merits to which res judicata could attach.

[¶13] On March 19, 2020, the court entered judgment in favor of Bump. In a written decision, the court stated that it took judicial notice of the 2013 final judgment and concluded that the 2015 order of dismissal without prejudice did not operate to vacate that judgment. The court then cited to Pushard v. Bank of America, N.A., 2017 ME 230, 175 A.3d 103, to support its determination that Wells Fargo's entire claim was barred by res judicata given the 2013 judgment.8 Wells Fargo has timely appealed. See M.R. App. P. 2B(c)(1).


A. Effect of Rule 41 Dismissal

[¶14] Wells Fargo contends that the court erred when it entered judgment in Bump's favor on the basis of res judicata...

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