Rule 60(b) Motion

8/3/2019 Rule 60(b) Motion

http://slidepdf.com/reader/full/rule-60b-motion 1/17

STATE OF MAINE

CUMBERLAND ss.

DISTRlCT COURT

CIVIL ACTION: PORTLAND

Docket No. RE-l 0-401

CITIMORTGAGE, INC.Plaintiff,

v.

))

)

)

)

)

)

)

DEFENDANT'S MOTION FOR

RELIEF FROM JUDGMENT AND

MOTION TO DISMISS OR TO

PERMIT DEFENDANT TO

ANSWER COMPLAINT AND

PLEAD COUNTERCLAIMS

AND DEFENSES

SHEILA A. FRANK, a/k/a

SHEILA A. FLANDERS,

Defendant

SHEILA FRANK, by and through undersigned counsel, moves this Court for an Order

for Relief from Judgment, pursuant to M.R.Civ.P. 60, vacating the Judgment of Forec1osure and

Sale entered in this matter on November 9,2010 and dismissing Plaintiffs Complaint. In the

alternative, Ms. Frank moves for an Order vacating the Judgment of Forec1osure and Sale and

permitting her to answer Plaintiffs Complaint and to plead Counterclaims and Defenses. Ms.

Frank bases her Motion for Relief from Judgment on Rule 60(b)(4), contending that the

judgment is void because the Court lacked subject matter and inpersonam jurisdiction; that

CitiMortgage ("Citi" or "Plaintiff') lacked standing to bring suit; and that Citi waived its right to

foreclose by accepting and retaining payments made during the period of Ms. Frank's statutory

right to redeem the mortgage. Ms. Frank also seeks relief from judgment pursuant to Rule

60(b)(3), on grounds of fraud, misrepresentation, and other misconduct by Citi preceding and

during the course of litigation. In support of her motions, Ms. Frank submits her Affidavit and

attached exhibits, and the following Statement of Facts and Memorandum of Law.

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STATEMENT OF FACTS

Sheila Frank built the home which forms the subject matter of this action in 1973,

and has lived there for the past 38 years. (Frank Affidavit ~ 2, ~ 34). In 2006, she refinanced a

mortgage on her home with Aegis Wholesale Corporation, which subsequently conveyed her

promissory note and mortgage to Aegis Mortgage Corporation, thence to Citi. (Frank Affidavit ~

3).

In March, 2009, Ms. Frank applied for a modification of her mortgage under provisions

of the federal Home Affordable Modification Program ("HAMP"), because she was concerned

that a disability might make it difficult for her to make future payments. (Frank Affidavit ~ 4).

The HAMP initiative was created by the Department of Treasury to assist homeowners

struggling to make mortgage payments, acting pursuant to powers granted to the Treasury by

Congress in the Emergency Economic Stabilization Act of2008, 12 U.S.C § 5021 et seq., as

amended by the American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 116,

February 17,2009.

Ms. Frank had not missed any payments at the time she made a HAMP application, but

was advised by Citi not to make her regular mortgage payments while her application was being

reviewed, a process Citi told her would take only thirty to sixty days. (Frank Affidavit , - r 6).

When Citi did not respond within its estimated timeframe, Ms. Frank called repeatedly, and was

told that Citi was behind because of being swamped with HAMP applications. (Frank Affidavit

, - r 8).

Finally, in July, 2009, Ms. Frank received a Trial Period Plan ("TPP"), which is the first

step in the loan modification process under HAMP, and which required her to make three

monthly payments of $634.26 each commending in October, 2009. (Frank Affidavit , - r 7, Exhibit

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1). The TPP agreement stated that if Ms. Frank complied with its terms, "[Citi] will modify

your mortgage loan and you can avoid foreclosure." (Frank Affidavit, Exhibit 1).

Ms. Frank made each of the three payments required by the TPP before its due date, and

also sent all documents requested by Citi, retaining proof of her submissions by way of fax cover

sheets. (Frank Affidavit ~ 5, ~ 7, Exhibit 2). Citi itself thanked Ms. Frank for the timeliness of

her payments in a December 11, 2009 letter. (Frank Affidavit ~ 11). Nonetheless, on May 14,

2010 Citibank denied a HAMP modification on the false grounds that Ms. Frank had not

provided the requested documents. (Frank Affidavit ~ 14).

On May 17, 2010, three days following denial of the HAMP modification, Citi wrote to

Ms. Frank, thanking her for sending her financial information and advising her of Citi's

"Workable Solutions" in-house loan modification program. (Frank Affidavit, ~ 15). Ms. Frank

understood this letter to mean that Citi had located the information it had said was missing, and

that she was still under consideration for HAMP modification of her mortgage. (Frank Affidavit

~ 15).

Ms. Frank communicated with personnel in the Citi Loss Mitigation Department on

several occasions during the summer of 2010, in effort to complete a mortgage modification.

She was told at one time that her application had gone to Citi's underwriter, and at another time

that it had not. She was then told that her application had been closed because of another loss of

faxed materials, then told it had it been reopened, only to be later told that it had been reopened

incorrectly. (Frank Affidavit ~ 16, ~18, ~19). Finally, on August 16, 2010, Ms. Frank was

assured that her paperwork was in review for modification. (Frank Affidavit ~ 19).

In September, 2010 Ms. Frank left horne for a time to be with a son in Parsonsfield,

Maine, after which she spent time with relatives in North Carolina, staying until late November.

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On September 10, while she was away from home, Citi served one of her sons with a copy of the

Summons and Complaint in the present action. This son was not residing in her home at the time

of service, nor did anyone but Ms. Frank reside in her home. The son did not send the Complaint

to Ms. Frank in Parsonsfield or North Carolina, nor did he inform her about it. As a result, Ms.

Frank had no knowledge of the foreclosure suit until she returned home in late November. By

then Citi had moved for summary judgment (October 4, 2010) and had obtained a Judgment of

Foreclosure and Sale (November 9, 2010). (Frank Affidavit ~ 21).

Ms. Frank was alarmed on finding that she had been sued, but believed there must have

been an error, because Christina Wamsley of the CitiMortgage Executive Office had written her

on November 17, 2010 to inform her that documents to modify her mortgage had been sent on

November 8, 2010. (Frank Affidavit ~ 22, Exhibit 3). Nothing was communicated by Wamsley

or any other Citi personnel at this or any other time to indicate that suit had been filed or that

judgment had been entered. Among other consequences, Ms. Frank never had the opportunity to

exercise her right to mediation.

Rather than inform Ms. Frank that it had proceeded with foreclosure, on November 19,

2010, Citi offered Ms. Frank a Stipulated Special Forbearance Plan Agreement in which it

assured Ms. Frank that it would "forbear from further collection (and/or foreclosure, if

applicable), action on the condition that [she make] all regularly scheduled payments due under

the Note and Deed of Trust/Mortgage and arrears payments under this agreement, including the

down payment." (Frank Affidavit ~ 23, Exhibit 4) (Emphasis supplied). Ms. Frank

immediately signed and returned this forbearance agreement on November 20,2010.

Under terms of the agreement, Ms. Frank was required to make payments of $634.25

each month. She complied by sending teller's checks, each of which Citi received and cashed or

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deposited. (Frank Affidavit ~ 24, Exhibit 5). But despite these payments, on January 3, 2011, a

representative of Citi denied any knowledge of the forbearance plan, or that Ms. Frank's

payments had been received. (Frank Affidavit ~ 25). Fearing she might lose her home, Ms.

Frank immediately contacted Christina Wamsley, who emailed that she had been on leave and

that Ms. Frank's submissions might not have been accounted for because they had gone to an

office that was closing. (Frank Affidavit ~ 27). Wamsley promised to correct the lender's

records, emailing "Not a problem, dear," and reassuring Ms. Frank that she had already set up

another forbearance plan. Wamsley also emailed to say that the new plan would "keep the house

in safe status as long as docs and payments are returned. " (Frank Affidavit ~ 22, Exhibit 5).

As a result of these communications, Ms. Frank believed that Citi would not foreclose her

mortgage and sell her home. Wamsley confirmed the new plan in a letter dated January 3, 2011,

in which she enclosed another Stipulated Special Forbearance Plan Agreement that contained the

same assurances as the agreement Ms. Frank had signed the previous November. (Frank

Affidavit ~ 26).

As she had done to comply with the November agreement, Ms. Frank sent monthly

payments (of$635.00) to Citibank as called for in the January 3 agreement. All of these

payments were received and deposited. (Frank Affidavit ~ 28, Exhibit 8). Indeed, on January

29,2011, Ms. Frank received an email from Citi stating "01118 /2011 We received your

complete modification document" and advising her to continue making future payments as

detailed in the agreement. The modification details contained in this email specified a monthly

payment of $634.26, the same payment she had made under the 2009 RAMP TPP and the

November 20,2010 forbearance plan. This email further advised Ms. Frank of a proposed

reduction in her mortgage interest rate to 2% and a significant reduction in the principal balance

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on her mortgage--exactly the same terms and dollar amounts that Citi had discussed when Ms.

Frank first sought a HAMP modification in March, 2009. The email also referred to an "Award

Letter," suggesting Citi had finally accounted for the materials Ms. Frank had sent in 2009, and

was finally accepting her HAMP application. (Frank Affidavit ~ 29, Exhibit 9).

Notwithstanding Ms. Frank's payments and submissions to Citi, and its repeated

assurances to her to continue making payments under its forbearance plans, on April 4, 2011,

Citi wrote to Ms. Frank denying a loan modification on grounds that her income was insufficient

to meet modification requirements set by Freddie Mac. (Frank Affidavit ~ 27). Besides rejecting

the agreements she had made with Citi in November, 2010 and January, 2011, and with which

Ms. Frank had complied, this letter was the first to clearly indicate to Ms. Frank that her

mortgage was owned by Freddie Mac and not by Citi. Ms Frank subsequently confirmed this

fact on Fredde Mac's loan lookup website. (Frank Affidavit ~ 30, Exhibit 10. See also Exhibit 1,

Freddie Mac Form 1123).

On April 18, 2011, Citi tendered a check to Ms. Frank for $1,268.52 (representing two of

her monthly payments), stating that it could not accept her funds because they were insufficient

to cure her delinquency, although this was a false statement since Citi had already accepted and

deposited all of her payments. (Frank Affidavit ~ 32, Exhibit 11). This check represented only

two of eight payments Ms. Frank had made under the TPP and two forbearance agreements.

When she called Citi on April 21, 2010 to inquire why her agreements had been rejected, she

learned for the first time that Citi had not only proceeded with the foreclosure, but intended to

sell her home at auction on May 3rd (since re-set for June 2nd). Citi has not canceled or delayed

this sale date, even though Citi acknowledges that is presently reviewing Ms. Frank's new

submissions for a HAMP modification.

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MEMORANDUM OF LAW

1. The Court may order relief from judgment pursuant to M.R.Civ.P 60(b)

notwithstanding a motion for relief filed after the mortgagor's statutory right of

redemption has expired.

Maine's foreclosure statute affords a mortgagor a 90-day period following entry of a

foreclosure judgment to redeem the mortgage. 14 M.R.S.A. § 6322. The redemption period for

Ms. Frank's mortgage commenced on November 9,2010 and expired on February 7, 2011.

Ordinarily, once the right to redemption has been extinguished, it cannot be revived, nor can it be

enlarged. Smith v. Varney, 307 A.2d 229,232 (Me. 1973). However, the Law Court has decided

that under exceptional circumstances, a court of equity may provide relief pursuant to

M.R.Civ.P. 60(b), even after the 90-day redemption period has expired. Keybankv. Sargent,

2000 Me 153, ~ 10), 758 A. 2d 528 at 532. The Law Court observes in Keybank that "Rule 60(b)

itself provides that equity may be invoked to provide relief from judgment." rd. at ~ 11.

Based on her Affidavi and the arguments set forth below, Ms. Frank submits that there

are manifold grounds under M.R.Civ.P 60 on which the Court is justified in relieving her from

the judgment entered in this matter. Ms. Frank also submits that that if the judgment is vacated

but the Court does not dismiss Citi's suit and allows the matter to proceed, she has meritorious

defenses and counterclaims, including inter alia, violations by Citi of Maine's Unfair Trade

Practices Act, 5 M.R.S.A. §§ 205A -214.

2. The judgment in this matter should be vacated pursuant to M.R.Civ.P 60(b)(4)

and the Plaintiffs Complaint should be dismissed because the Court lacked subject matter

jurisdiction to enter judgment, and because Plaintiff lacked standing to bring the litigation.

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A. Subject Matter Jurisdiction

Maine's foreclosure statute sets forth threshold requirements that a mortgagee must meet

in order to proceed with a foreclosure. Among these, 14 M.R.S.A. § 6321 mandates that the

"mortgagee shall certify proof of ownership of the mortgage note." (Emphasis supplied) The

statute further requires that" [s]ervice of process on all parties in interest and all proceedings

must be in accordance with Maine Rules of Civil Procedure." Id . The Law Court has ruled, in

tum, that a trial court cannot enter summary judgment for a mortgagee absent "proof of

ownership of the mortgage note and mortgage." Chase Home Finance v. Higgins, 2009 ME 136

~ 11, 985 A.2d 508,510-11 (citing M.R.Civ. 56G»). Moreover, "in order to effect a legal

foreclosure all steps required by the statute must be strictly performed." Winter v. Casco Bank

and Trust Co., 396 A.2d. 1020, 1024 (Me., 1979) (Emphasis supplied). The Law Court has

"repeatedly emphasized 'the importance of applying summary judgment rules strictly in the

context of residential foreclosures.'" HSBC Mortgage Services, Inc. v.Murphy, 2011 ME 59, ~ 9,

_ A. 2d _quoting Camden National Bank v. Peterson, 2008 ME 85, 29, 948 A.2d 1251,

1259. "[T]echnical errors in procuring a judgment of foreclosure may render that judgment

void." Keybank v. Sargent, 2000 ME 153 ~ 36, 758 A.2d 528, 537 (citing Winter and Stafford v.

Morse, 97 Me. 222 (1902»).

Nowhere in its Complaint nor in its Motion for Summary Judgment, Statement of

Material Facts, or Affidavit Concerning the Interests of Parties Named in This Action does Citi

allege or offer proof that it is the owner of Ms. Frank's promissory note or the owner of her

mortgage. Nor does the Judgment of Foreclosure and Sale procured by Citi from the district

court contain any recitation that Citi owns Ms. Frank's note and mortgage, despite the explicit,

mandatory directive ofM.R.C.P 56(j) that [n]o summary judgment shall be entered in a

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foreclosure action ... except after a review by the court and determination that. .. (ii) the

plaintiff has properly certified proof of ownership of the mortgage note." Indeed, Citi could not

and cannot make this essential showing, nor can it satisfy the requirement in Higgins that it owns

the mortgage, because it is evident from Exhibit 10 attached to Ms. Frank's Affidavit that Freddie

Mac owns the mortgage in this controversy.

The power of the courts of Maine to foreclose mortgages is established by the legislature,

not by an inherent power of the courts. Maine foreclosure statutes, 14 M.R.S.A. §§ 6321-6325,

demark the boundaries of judicial authority to foreclose mortgages. Absent certification by Citi

that it owned Ms. Frank's mortgage note, the District Court never had subject matter jurisdiction

to proceed. Nor could Citi confer such power. See, e.g., Dobbs, Decline of Jurisdiction by

Consent, 40 N.C.L.Rev. 49 (1961-62) n. 1 (parties cannot give court subject matter jurisdiction

by consent or acquiescence). This matter should never have proceeded. The Court should

declare the judgment void for want of subject matter jurisdiction.

B. Lack of Standing to Bring Suit

A person's standing to bring suit depends on whether the person has a "sufficient personal

stake in the controversy to obtain judicial resolution of that controversy." Halfway House Inc. v.

City of Portland, 670 A.2d 1377, 1379 (Me. 1996) (citation omitted). In this matter, even if the

Court should determine that it had subject matter jurisdiction proceed, Citi did not have standing

to bring suit. It's stake in this litigation appears to have been no more than that of a mortgage

servicer, an insufficient interest for it to have standing within the meaning of Halfway House

and 14 M.R.S.A. §§ 6321-6325.

The Law Court had occasion recently to consider whether a nominal stakeholder could

sue to foreclose. The Court decided it could not. In Mortg. Elec. Registration Sys., Inc. v.

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Saunders, 2010 ME 79412,2 A.3d 289 (Me. 2010) suit was maintained by Mortgage Electronic

Registration Systems, Inc., ("MERS") a corporation whose purpose is to act solely as a nominee

for a lender or its successors and assigns. Id. at 419,2 A.3d at 294. The Court found that MERS'

interest in the defendant's mortgage and promissory note amounted to no more than "bare legal

title" for the purpose of recording the mortgage with the Registry of Deeds, because the

covenants and rights conferred within the mortgage ran to the lender rather than to MERS. Id. at

4110, 2 A.3d at 295 Moreover, since MERS, as the complaining party, could not show injury

traceable to the mortgagor, it had no standing to enforce the mortgage. Id. at 4114,4115,2 A.3d at

296-7 (citing Collins v. State, 2000 ME 85,416,750 A. 2d 1257, 1260 and Mort. Elec.

Registration Sys., Inc. v. Neb. Dep't of Banking & Fin., 704 N.W. 2d 784, 788 (Neb. 2005)

(stating "MERS has no independent right to collect on any debt because MERS itself has not

extended credit, and none of the mortgage debtors owe MERS any money").

In the present action, Citi's standing to sue as mortgagee derives entirely from an

assignment of the mortgage made by MERS. But for the identity of the original lender, Aegis

Wholesale Mortgage Corporation, the provisions in Ms. Frank's mortgage document are identical

to those considered and rejected by the Court in Saunders. As in Saunders, Ms. Frank

mortgaged, granted, and conveyed her property to MERS "solely as nominee for Lender and

Lender's successors and assigns," with the "understand[ing] and agree[ment] that MERS holds

only legal title to the rights granted by [Ms. Frank]." (Cf. Saunders, 2010 ME 79 419,2 A3d. at

294, and Affidavit of Lender in Support of Motion for Summary Judgment, Exhibit B). As in

Saunders, each reference to MERS in Ms. Frank's mortgage describes MERS solely as a

nominee. Id.

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Of course, Citi is not MERS. But its standing to bring suit against Ms. Frank as

mortgagee is entirely derivative from MERS. In its Affidavit of Lender in Support of Motion for

Summary Judgment, Citi purports to establish its authority as mortgagee by an assignment from

MERS, attached as Exhibit C. It is elementary that an assignee acquires no greater rights by an

assignment than those possessed by the assignor. See, e.g., 11 M.R.S.A. § 9-1404, Secured

Transactions, Rights acquired by assignee; claims and defenses against assignees. Nowhere in

its pleadings, motions, affidavits and supporting documents does Citi offer a shred of evidence to

suggest that its interest in this matter is any greater than that of its assignor, MERS.

Saunders was decided on August 12,2010, nearly a month before Citi filed its Complaint

in the present action, and well before Citi filed a motion for summary judgment on October 4,

2010. Saunders was also a closely-followed case, both by advocates for homeowners and by

mortgage servicers. The Saunders Court decided that the standing issue had been overcome

because a substitution of parties during the course of litigation cured the jurisdictional defect,

and because, as the Court had not previously spoken about MERS' capacity to bring suit,

prosecution of the case in the wrong name was understandable. (2010 ME 79 ~ 19,2 A.3d at

298-9 (citing M.R.Civ.P 17(a)). But after Saunders, Citi had no basis in law to bring or

maintain this action as MERS' assignee. The Judgment of Foreclosure and Sale should be

vacated and the suit dismissed, and Ms. Frank should be awarded attorney fees for having to

defend against a groundless action. M.R.Civ. P 11.


and the Plaintiff's Complaint should be dismissed because the district court lacked in

personam jurisdiction.

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Service of Citi's summons and complaint in this matter was attempted by personal service

at Ms. Frank's home. Although M.R.Civ.PA (d)(l) provides that process can be accomplished

by personal service on a person of suitable age and discretion at the defendant's dwelling house,

the individual must be residing there. In her affidavit, Ms. Frank makes clear that she was away

from home when process was served, and that no one else was living there, including the son

who happened to be at the house on the day that the sheriff attempted to serve the Summons and

Complaint. (Frank Affidavit ~ 19).

The requirement that the person served must be living in the dwelling place is calculated

to ensure that the person served communicates actual and timely notice to the named defendant.

Because Ms. Frank's son was not living at her home, she did not discover that she had been sued

until she returned home in late November, 2010, long after her answer was due, and indeed, after

the Judgment of Foreclosure and Sale had been entered. (Frank Affidavit ~ 19).

Although Citi cannot be faulted for failing to discover that Ms. Frank's son was not living

in her home, its lack of knowledge cannot substitute for due process. See. e.g., Nature's First,

Inc. v. Nature's First Law, D. C. Conn. 2006, 436 F. Supp. 2d 368 (default judgment obtained by

defective service held void); Howard v. Jenny's Country Kitchen, Inc., D.C. Kan. 2004,223

F.R.D. 559 (default judgment void because of defective service, even if defendant otherwise

amenable to jurisdiction). Because service of the Summons and Complaint in the present matter

was defective, Ms. Frank was denied notice and a reasonable opportunity to be heard. She

should be granted relief from the Judgment of Forec1osure and Sale because the judgment itself

is void.

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and Plaintiff's complaint should be dismissed, because Citi waived its entitlement to

foreclosure by accepting payments.

Maine law protects mortgagors from foreclosure in certain instances where mortgagees

accept payments after the commencement of foreclosure proceedings. 14 M.R.S.A. § 6321

provides in pertinent part that

"[t]he acceptance, before the expiration of the right of redemption and after the

commencement of foreclosure proceedings of any mortgage of real property, of anything

of value to be applied on or to the mortgage indebtedness by the mortgagee or any person

holding under the mortgagee constitutes a waiver of the foreclosure unless an agreement

to the contrary in writing is signed by the person from whom the payment is accepted or

unless the bank returns the payment to the mortgagor within 10 days of receipt.(Emphasis supplied)

Citi brought its foreclosure suit on September 8, 2010. Ms. Frank's right of redemption

expired on February 7, 2011. During the intervening five-month period, Citi accepted Ms.

Frank's monthly payments of$634.26 on November 26 and December 12, 2010, and $635 on

January 14,2011. (Frank Affidavit ~ 21, ~ 25). Citi had earlier accepted all of Ms. Frank's

payments required under her HAMP Trial Period Plan, as well as payments of$635 in February

and March, 2011, after the period of redemption had expired. (Frank Affidavit ~ 25).

The payments Ms. Frank made between September 8, 2010 and February 7, 2011 were

made in accordance with the two Stipulated Special Forbearance Plans discussed in preceding

paragraphs. Each of these agreements, containing identical provisions, advised Ms. Frank that

Citi would forbear further foreclosure action so long as she made payments. (Frank Affidavit,

Exhibits 4 and 7). In no way does the language of these agreements convey to the ordinary

mortgagor that by signing them, the mortgagee is securing the right to collect payments while

actively continuing to pursue foreclosure. Indeed, Citi's own attempt to reimburse Ms. Frank for

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payments it received constitutes clear evidence that Citi itself understood, the agreements

notwithstanding, that it would waive its right to foreclose if it accepted payments. (Frank

Affidavit j28, Exhibit 11) Moreover, Citi's proffered repayment accounted for only two of the

payments Ms. Frank made before expiration of the right of redemption. Also, the proffer was

made on April 18, 2011, well beyond 10 days from Citi's receipt of Ms. Frank's payments.

The consequences are clear for mortgagees who take payments without following the

statutory requisites set forth in 14 M.R.S.A. §6321. The foreclosure suit itself is waived.

Pursuant to M.R.Civ. 60(b)( 4), the court should declare the judgment in this matter void and

dismiss the Plaintiffs action.

S. The judgment in this matter should be vacated pursuant to M.R.Civ.P 60(b)(3)

because of fraud, misrepresentation, and other misconduct by Citi prior to and during the

course of litigation.

When Sheila Frank sought a modification of her mortgage in March, 2009, she was

current on her mortgage payments. (Frank Affidavit j4). Citi expressly advised her not to

continue making her regular payments, because she could expect to receive a HAMP mortgage

modification in the next thirty to sixty days. (Frank Affidavit ~ 7). Instead, over the course of

the next two years, Citi not only failed to modify her loan, despite receiving every payment it

demanded, but also deliberately mislead Ms. Frank by false assurances that it would not

foreclose her mortgage if she made the promised payments. Ms. Frank relied on these

assurances justifiably and to her detriment, by honoring every request that Citi made for

documents, and by signing and faithfully discharging her obligations under the TPP and two

forbearance agreements in which Citi expressly promised not to pursue foreclosure if she met

their terms.

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Citi's false and misleading statements occurred not only prior to the institution of suit, but

during the course of the litigation itself. Each agreement that Citi tendered promising

forbearance was dated October 28, 2010, in the very midst of Citi's pending motion for summary

judgment. (Frank Affidavit, Exhibits 4 and 7). When Ms. Frank discovered in late November,

2010 that she had been sued, she reasonably relied on assurances by Christina Wamsley ofCiti's

Executive Office, that documents to modify her loan had been sent on November 8, 2010. In

fact the court entered judgment against Ms. Frank on November 9. Even during the period of

redemption following the judgment of foreclosure, when Ms. Frank might have taken action, Citi

accepted Ms. Frank's payments and assured her that it would forbear. Walmsley herself wrote

that Citi's forbearance plan would "keep the house in a safe status as long as docs and payments

are returned." (Frank Affidavit, ~ 25, Exhibit 6).

Rule 60(b)(3) is remedial, and is to be liberally construed. Hesling v. CSX Transp., Inc.,

396 F.3d 448,455-56 (6th Cir. 2005). Ms. Frank submits that the statements by Christina

Walmsley, as well as the forbearance agreements extended to her, constitute clear and

convincing evidence of a manifest deception practiced by Citi and intended to misrepresent or

conceal Citi's true intention, which was to hinder and delay a modification of Ms. Frank's

mortgage while extracting service fees and penalties, and to ultimately foreclose her mortgage

and sell her horne. Because of this deception and the false promises on which Ms. Frank

justifiably relied, she was deterred from entering her appearance in this matter, and from fully

and fairly presenting her case. The judgment was thus unfairly obtained and should be vacated.

General Universal Systems, Inc. v. Lee, 379 F.3d 131, 156 (5th Cir. 2004).

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CONCLUSION

For the reasons set forth in the foregoing arguments, Ms. Frank requests an Order

vacating the Judgment of Foreclosure and Sale entered in this matter and dismissing Plaintiffs

Complaint. In the alternative, she requests an Order vacating the judgment and permitting her to

file an Answer, Defenses, and Counterclaims to Plaintiffs Complaint.

DATED this 23rd day of May, 2010.

L. Scott Gould, Esq., Maine Bar

'a~11()ll1;A. Cox, Esq. Maine Bar No. 1248

Attorneys for Defendant

L. Scott Gould, Esq.

25 Hunts Point Road

Cape Elizabeth, Maine 04107

(207) 799-9799

Thomas A. Cox, Esq.

P. O. Box 1314

Portland, Maine 04104-1314

(207) 749-6671

RULE 7(b) NOTICE

Pursuant to M.R.Civ.P 7(b)(1)(A), opposition to Defendant's Motion For Relief From Judgmentand Motion to Dismiss or to Permit Defendant to Answer Complaint and Plead Counterclaims

and Defenses would ordinarily be required to be filed within 21 days of filing of the said

motions. PLEASE TAKE NOTE THAT DEFENDANT HAS FILED HEREWITH A MOTION

FOR AN ORDER TO STAY THE FORECLOSURE SALE AND GRANT AN EXPEDITED

HEARING.

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STATE OF MAINE

CUMBERLAND ss.

DISTRICT COURT

CIVIL ACTION: PORTLAND

Docket No. RE-l 0-40 1

CITIMORTGAGE, INC.

Citilvlortgage,

)

)

)

)

)

)

)

)

ORDER ON DEFENDANT'S MOTION

FOR RELIEF FROM JUDGMENT

AND MOTION TO DISMISS OR TO

PERMIT DEFENDANT TO

ANSWER COMPLAINT AND

PLEAD COUNTERCLAIMS

AND DEFENSES

v.

SHEILA A. FRANK, a1k/a

SHEILA A. FLANDERS,

Defendant

The Court, having considered Defendant's Motion for Relief from Judgment and Motion

to Dismiss or to Permit Defendant to Answer Complaint and Plead Counterclaims and Defenses,

and finding good cause therefor,

It is hereby ORDERED that Defendant's Motion for Relief from Judgment is hereby

GRANTED, and the Judgment of Forec1osure and Sale entered in this matter on November 9,

2010, is hereby VACATED; and it is

FURTHER ORDERED that Plaintiffs Complaint in this matter is hereby DISMISSED.

DATED this day of May, 2010

Judge, District Court

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Rule 60(b) Motion

Documents

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