US BANK NATIONAL ASSOCIATION v. RICHMOND et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
U.S. BANK NATIONAL ASSOCIATION, AS )
TRUSTEE, ON BEHALF OF THE 	)
HOLDERS OF THE ASSET BACKED 	)
SECURITIES CORPORATION HOME 	)
EQUITY LOAN TRUST, SERIES NC 2005- 	)
HE8, ASSET BACKED PASS-THROUGH 	)
CERTIFICATES, SERIES NC 2005-HE8, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 2:21-cv-00208-JAW
)
ERIC RICHMOND, a/k/a ERIC H. 	)
RICHMOND 	)
)
and 	)
)
CITIMORTGAGE, INC., f/k/a CITIGROUP 	)
MORTGAGE, INC. 	)
)
Defendants. 	)
ORDER DENYING DEFENDANT’S MOTION, ENTERING GENERAL
DENIAL, AND IMPOSING “COK” WARNING
The Court has elsewhere extensively described the frustrating history of this
foreclosure action and Eric Richmond’s stubborn refusal to comply with the orders of
the Court. See Order on Mot. to Dismiss and Order to Answer Compl. (ECF No. 88)
(May 9, 2023 Order). 	Mr. Richmond’s latest disobedience of a court order occurred
when he failed, once again, to file an answer to the foreclosure complaint that U.S.
Bank National Association served on him on September 13, 2021. Id. at 4. In its May
9, 2023 order, the Court expressly ordered Mr. Richmond to file an answer to the
foreclosure complaint within seven days of the date of the order. 	Id. at 14. 	Under
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the order, Mr. Richmond’s answer was due by May 16, 2023. Id. Mr. Richmond not
only failed to file an answer to the foreclosure complaint, but he also filed a new
motion, entitled “Motion for Judicial Notice, Pursuant to the Federal Rules of
Evidence (FRE) Rule 201 Judicial Notice of Adjudicative Facts and to Alter Judgment
of Docket # 88: Order on Motion to Dismiss Pursuant to Federal Rules of Civil
Procedure 59(e).” (ECF No. 90).
Enough is enough. 	Regarding his motion for judicial notice, this is Mr.
Richmond’s fourth motion for judicial notice, and this Court has denied them all. See
Order on Pl.’s Mot. for Entry of Default and Def.’s Mot. for Judicial Notice at 4-8 (ECF
No. 79). 	The Court denies his latest motion for judicial notice on the same grounds
as its previous denials. 	Id. 	Regarding his Rule 59(e) motion to dismiss, Rule 59(e)
does not apply because no judgment has entered. F ED. R. CIV. P. 59(e) (“A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of
judgment”). 	The Court 	DENIES 	Eric Richmond’s 	Motion 	for Judicial Notice,
Pursuant to the Federal Rules of Evidence (FRE) Rule 201 Judicial Notice of
Adjudicative Facts and to Alter Judgment of Docket # 88: Order on Motion to Dismiss
Pursuant to Federal Rules of Civil Procedure 59(e) (ECF No. 90).
The question is what to do about Mr. Richmond’s conduct of this case. Based
on his persistent refusal to obey the Court’s repeated orders to file an answer in this
case, his repetitious filing of motions previously denied, his refusal to follow the
opinions of the Maine Supreme Judicial Court, his attacks upon this and other courts,
and his multiple interlocutory appeals, the Court reluctantly concludes that Mr.
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Richmond is a frivolous and contentious litigant, whose filings are solely for the
purpose of delay. As the Court explained in its May 9, 2023 order, in Cok v. Family
Court, 	985 	F.2d 	32 	(1st 	Cir. 	1993), 	the 	First 	Circuit 	required 	trial 	courts
contemplating imposing filing restrictions against a party to warn or give notice that
filing restrictions are being contemplated. May 9, 2023 Order at 13 (citing Cok, 985
F.2d at 35). 	To date, the Court has been reluctant to conclude that a Cok order is
necessary; however, with Mr. Richmond’s latest failure to file an answer to the
complaint and his filing instead of another frivolous motion combined with the long
history of his vexatious filings in this case, the Court finds that Mr. Richmond is a
frivolous and abusive litigant. 	Consistent with Cok, the Court expressly warns Mr.
Richmond that “filing restrictions may be in the offing.” Cok. 985 F.2d at 35. At the
same time, the Court acknowledges that the First Circuit requires a court to warn a
litigant before imposing filing restrictions. Id.
To remedy this egregious situation, the Court takes the following actions.
First, it directs the Clerk of Court to enter for Mr. Richmond a general denial of the
allegations in the Complaint with no affirmative defenses so that the Court may issue
a scheduling order and move this long-delayed foreclosure action to fruition. Second,
the Court expressly places Mr. Richmond on notice that his filings to date have been
frivolous and unacceptable. 	If he files any such non-meritorious motions in the
future, the Court will promptly dismiss them. Third, the Court places Mr. Richmond
on notice that it is contemplating issuing a judgment against Mr. Richmond as a
sanction for abusive litigation. 	If this conduct continues, Mr. Richmond may be
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subject to a default judgment and other sanctions pursuant to Cok. 	Finally, unless
Mr. Richmond alters his litigation tactics, the Court may impose filing restrictions
against him, requiring him to obtain the permission of the Court before it accepts any
of his filings on the docket.
U.S. Bank has filed another motion for entry of default. Pl.’s Mot. for Entry of
Default As To Eric Richmond, a/k/a Eric H. Richmond (ECF No. 89). For the reasons
the Court has previously described, the Court does not conclude that a default may
be entered against Mr. Richmond because he has clearly indicated an intention to
defend the foreclosure complaint. To enter a default in the circumstances here would
be essentially a sanction and, under Cok, the Court is first warning Mr. Richmond to
cease his vexatious conduct before imposing a sanction. 	However, if his conduct
persists, the Court may impose a range of sanctions against Mr. Richmond, including
the entry of a default judgment in favor of the Plaintiff. For the time being, the Court
DISMISSES without prejudice Plaintiff’s Motion for Entry of Default As To Eric
Richmond, a/k/a Eric H. Richmond (ECF No. 89).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 5th day of June, 2023
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