Wells Fargo Banks, National Association v. John H. Bump

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 2
Docket: Han-20-125
Argued: December 8, 2020
Decided: January 12, 2021

Panel: GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and HJELM, A.R.J.

WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR OPTION
ONE MORTGAGE LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES,
SERIES 2006-3

v.

JOHN H. BUMP et al.

JABAR, J.

[¶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.

1The plaintiff’s full name, as stated in its complaint, is Wells Fargo Bank, National Association as
Trustee for Option One Mortgage Loan Trust 2006-3, Asset-Backed Certificates, Series 2006-3.
2

I. BACKGROUND

[¶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

Thus, it was an action for the accelerated debt. Acceleration of the loan means the advancing
2

of a loan agreement’s maturity date so that the payment of the entire debt is due immediately.
Pushard v. Bank of America, N.A., 2017 ME 230, ¶ 24 n.11, 175 A.3d 103.
3

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

3 Bump had no notice of Wells Fargo’s motion until January 28, 2015, the day the court issued
the order on Wells Fargo’s motion, because Wells Fargo’s counsel had not sent a copy of the motion
to Bump.
4

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

At the hearing the court stated it had “improvidently grant[ed] [the] motion to dismiss without
4

prejudice before [Bump’s] counsel had an opportunity to respond to it.”
5Bump’s stated reasoning for doing this is that “he believed this further assured the finality of
the [2013] judgment.”
5

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

6 It is apparent from the answer to the complaint, the opening statements and discussions with
the court, and closing argument that the issue of res judicata would be addressed though post-trial
briefing rather than in court on the day of the trial.
6

[¶11] Wells Fargo presented its case, which included one witness.

Bump did not call any witnesses or present any evidence in defense.7

Although 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.

7 At the close of evidence, the court stated, “There’s functionally a motion to dismiss, I think,

based on the prior judgment, or there is that issue that is not specifically generated by the
testimony and exhibits that were received today. So I need . . . to know when you want to submit
these and what you want to observe for a sequence.” Both parties filed written closing arguments
and reply briefs.
7

[¶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).

II. DISCUSSION

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 judicata9 because seventeen

months after final judgment was entered in 2013, the first case was dismissed

without prejudice in 2015 pursuant to M.R. Civ. P. 41(a)(2). Wells Fargo

argues that the 2013 final judgment was vacated by the 2015 dismissal

8On this appeal, Wells Fargo does not challenge or raise any issue regarding the court’s
application of Pushard, 2017 ME 230, 175 A.3d 103.
9The term “res judicata” encompasses two different legal theories, claim preclusion, or “bar”;
and issue preclusion, or “collateral estoppel.” Beegan v. Schmidt, 451 A.2d 642, 643-644 (Me. 1982).
Because Bump’s defense depends on the legal effect of the judgment entered against Wells Fargo on
its 2009 foreclosure complaint as opposed to particular factual issues litigated in connection with
that claim, the question here involves claim preclusion. See Pushard, 2017 ME 230, ¶ 19, 175 A.3d
103.
8

without prejudice and therefore there is no judgment on the merits that

would trigger a res judicata bar.

[¶15] The effect of a prior judgment on a present action is a question of

law that we review de novo. Thibeault v. Brackett, 2007 ME 154, ¶ 7, 938 A.2d

27.

[¶16] Wells Fargo does not appeal the propriety of the court’s res

judicata analysis or argue that, if the 2013 judgment was not vacated, it was

inappropriate for it to be applied to the current action. Rather, Wells Fargo

argues only that the 2015 voluntary dismissal vacated the 2013 judgment and

permitted it to proceed in 2016 with a foreclosure action on the same

promissory note and mortgage.

[¶17] The court’s 2013 judgment was a final judgment on the merits in

Bump’s favor on Wells Fargo’s complaint for foreclosure. See Estate of Banks

v. Banks, 2009 ME 34, ¶ 9, 968 A.2d 525 (“The court’s signature is the defining

moment for a judgment’s finality, regardless of the level of agreement between

the parties. . . .” (emphasis added)); see also M.R. Civ. P. 58 (“The notation of a

judgment in the civil docket in accordance with Rule 79(a) constitutes the

entry of judgment . . . [and] is effective and enforceable upon signature by the

court. . . .”); see also Michaud v. Mut. Fire, Marine & Inland Ins. Co., 505 A.2d
9

786, 790 (Me. 1986) (“A judgment becomes final when it completely disposes

of an action, leaving no question that requires future action by the court.”).

[¶18] A final judgment can be set aside only in accordance with M.R.

Civ. P. 60(b), which provides for relief from final judgment in certain

circumstances.10 “Rule 60(b) collects in a single rule all of the ways to obtain

relief from a final judgment.” M.R. Civ. P. 60 Reporter’s Notes Dec. 1, 1959

(emphasis added); see Willette v. Umhoeffer, 268 A.2d 617, 618 (Me. 1970).

We held in MacPherson v. Estate of MacPherson that M.R. Civ. P. 41 does not

give a party “the right to dismiss an action that [is] no longer pending.” 2007

ME 52, ¶ 8, 919 A.2d 1174. Courts and the public have an interest in “a sound

application of res judicata to the end that there be stability in a final judgment

rendered on the merits and that repetitive litigation be avoided.” Beegan v.

Schmidt, 451 A.2d 642, 646 n.6 (Me. 1982) (quotation marks omitted).

[¶19] Wells Fargo never sought relief from the 2013 judgment

pursuant to M.R. Civ. P. 60(b). While Bump did consent to the 2015 dismissal,

it does not change the fact that the dismissal did not have any legal effect

10 None of the circumstances enumerated in Rule 60(b) are applicable to a later dismissal
without prejudice because M.R. Civ. P. 41 is a pre-judgment procedure, available before the matter
has proceeded to a final judgment, not a post-judgment remedy.
10

equivalent to a ruling on a properly filed M.R. Civ. P. 60(b) motion—the only

vehicle that allows a party to obtain relief from final judgment.

[¶20] The 2015 dismissal without prejudice was a legal nullity that did

not alter the preclusive effect of the 2013 final judgment. The court did not

err in concluding that the 2015 dismissal without prejudice did not affect the

2013 final judgment, and the court properly concluded that the preclusive

effect of the 2013 judgment bars the present action.

B. Judicial Notice

[¶21] Wells Fargo also contends that it was an abuse of discretion for

the trial court to take judicial notice of the 2013 judgment. Here, we review

the decision by the trial court to take judicial notice under M.R. Evid. 201 for

abuse of discretion.11 See In re Jonas, 2017 ME 115, ¶ 37, 164 A.3d 120. “A

court has the discretion to judicially notice a fact that is not subject to

reasonable dispute when it is either generally known within the territorial

jurisdiction of the trial court or capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned.” Finn

v. Lipman, 526 A.2d 1380, 1381 (Me. 1987) (quotation marks omitted); see

11Here, we apply the abuse of discretion standard, not the clear error standard, because the
judicially noticed fact—a judgment issued by the same trial court that took judicial notice of the
judgment—is not subject to reasonable dispute. Indeed, Wells Fargo does not contest the accuracy
of the 2013 judgment.
11

also In re Children of Anthony L., 2019 ME 62, ¶ 9 n.4, 207 A.3d 624 (“A judge

may take judicial notice of any matter of record when that matter is relevant

to the proceedings at hand.” (quotation marks omitted)). M.R. Evid. 201(c)(1)

provides that the court “[m]ay take judicial notice on its own.” As we have

stated in particular, “[c]ourts may take judicial notice of pleadings, dockets,

and other court records where the existence or content of such records is

germane to an issue in the same or separate proceedings.” Cabral v.

L’Heureux, 2017 ME 50, ¶ 10, 157 A.3d 795.

[¶22] Here, the court and Bump, at Wells Fargo’s request, agreed to

address in post-trial memoranda the issue of res judicata and the effect of the

2013 judgment. Although during the hearing Bump offered the court a copy of

the 2013 judgment, it never became part of the record and Bump never

requested that the court take judicial notice of the judgment.12 The court

concluded that because Bump had not explicitly requested that the court take

12 As counsel for Bump attempted to label the prior judgment and enter it into evidence as an
exhibit, the court stated “I don’t think it’s necessary since it’s a . . . decision, particularly of this []
venue. I could go in the other room and find it. So that will be fine.” Later, counsel for Bump again
mentioned entering the prior judgment into evidence as an exhibit and stated, “[D]o I need to . . . I
mean I think I can ask the court to take judicial notice of the underlying pleadings in the 2009
action, but I’m not even sure whether that 2009 file is in storage or not.” The court stated that it
had the judgment, and counsel for Wells Fargo confirmed that he had retrieved it from the clerk’s
office that morning as well.
12

judicial notice, the court would be doing so on its own because “the earlier

judgment was referred to and in fact read aloud at trial.”

[¶23] It was proper for the court to take judicial notice on its own

pursuant to M.R. Evid. 201(c)(1). The court fully complied with M.R.

Evid. 201(e) by notifying the parties that it intended to take judicial notice of

the entire 2009 foreclosure action, including the original complaint for the

acceleration of all of the mortgage debt, which was adjudicated in the 2013

final judgment, and by giving the parties an opportunity to be heard on

whether judicial notice of the judgment was proper. Because a court’s

judgment is a proper subject of judicial notice and the court satisfied the

procedural requirements created in Rule 201, the court did not abuse its

discretion in taking judicial notice of the prior judgment.

The entry is:

Judgment affirmed.

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

Ellsworth District Court docket number RE-2016-65
FOR CLERK REFERENCE ONLY