Carrington Mortgage Services, LLC v. Brisley

STATE OF MAINE SUPERIOR COURT
AROOSTOOK, ss. CIVIL ACTION
DOCKET NO. CARSC-RE-19-70

CARRINGTON MORTGAGE SERVICES,
LLC
PLAINTIFF
V. ORDER ON MOTION TO
DISMISS
ROY L. BRISLEY
DEFENDANT

AND

DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
PARTY-IN­
INTEREST

Defendant has filed a three-prong motion to dismiss related to Plaintiff's

Complaint for Foreclosure. Defendant's contentions are as follows:

1. Plaintiff is not a real party in interest to the loan;
2. Plaintiff has breached its duty of good faith; and
3. Plaintiff lacks standing to enforce the promissory note and mortgage (fashioned
as a motion for judgment as a matter of law).

The motion to dismiss is DENIED based upon the following findings of fact and

conclusions of law related thereto:

The Plaintiff is the owner and holder of a certain promissory note in the original

principal amount of $84,042.00 given by Roy L. Brisley to Key Financial Corporation, its

successors and assigns (the "Note"). Key Financial Corporation executed an allonge

attached to the original Note, rendering the Note payable to Countrywide Bank, FSB,
which executed an endorsement appearing on the allonge to Bank of America, N.A.

Thereafter, Bank of America, N.A. executed an endorsement in blank appearing on the

allonge, rendering the Note enforceable by the party that is in possession of the original

Note. The Plaintiff is the party in possession of the original Note. Therefore, Plaintiff has

standing to enforce the note and is the real party in interest as it relates to the Note.

Defendant is correct that several of the purported Assignments of Mortgage were

ineffective to transfer title in the Mortgage to the Plaintiff. As those assignments were

ineffective, the court need not determine whether the attorney-in-fact had authority to

execute the Assignments. However, the Quitclaim Assignment from Key Financial

Corporation to Carrington Mortgage Services, LLC dated September 4, 2019 recorded on

September 10, 2019 in Book 5934, Page 253, was effective to transfer title in the Mortgage

to Plaintiff. As noted in the judgment of even date, the court finds that the former

corporate officer of Key Financial Corporation did have authority to execute and deliver

insh·uments on behalf of the corporation to wind up its affairs pursuant to Fla. Stat. §

607.1420 (5). Therefore, Plaintiff has standing to enforce the Note and Mortgage. 1

The motion to dismiss as it relates to the claim of a breach of duty of good faith

appears to focus on the timing of filing of witness and exhibit lists. In this matter, no

discovery was conducted and neither party made any request of the court related to any

discovery disputes or motions to continue the trial that were related to witness or exhibit

1 The court has analyzed the other requirements related to a foreclosure action by separate order.
disclosures. When the court conducted a pretrial conference on January 7, 2022, the court

ordered that any updates to witness or exhibit lists "must be filed at least 1 week prior to

trial." In this matter, the Plaintiff filed witness and exhibit lists on February 24, 2022 and

March 1, 2022, in compliance with the court's order. Further, Plaintiff's Supplemental

Witness and Amended Exhibit list filed on March 1, 2022, specifically listed the Power of

Attorney dated January 25, 2018 and included the Mortgage Servicing Rights Purchase

and Sale Agreement. The court is left unclear as to precisely what other action Defendant

is asserting was violative of the duty of good faith. The court finds that there has not

been a showing that the Plaintiff violated the duty of good faith. 14 M.R.S. §6113(2).

The Clerk is directed to enter this Order upon the civil docket by reference

pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.

Dated:
JJistice, Maine Superior Court