190 F. Supp.2d 64 (2002) | Cited 0 times | D. Maine | March 8, 2002


Plaintiff claims that a bank and its attorney harassed him with aforeclosure action after he had already satisfied the underlying debt, inviolation of state and federal consumer protection laws. Presentlybefore the Court is Defendants Camden National Corporation and CamdenNational Bank's Motion for Judgment on the Pleadings pursuant toRule 12(c) (Docket #15). For the following reasons, the Court GRANTS INPART and DENIES IN PART Defendant's Motion.


"After the pleadings are closed but within such time as not to delaythe trial, any party may move for judgment on the pleadings."Fed.R.Civ.P. 12(c). In deciding whether to grant judgment for the movingparty, the Court must "accept all of the nonmoving party's well-pleadedfactual averments as true and draw all reasonable inferences in [his]favor." Feliciano v. Rhode Island, 160 F.3d 780, 788 (1st Cir. 1998).Judgment on the pleadings is not appropriate "unless it appears beyonddoubt that the plaintiff can prove no set of facts in support of hisclaim which would entitle him to relief." Rivera-Gomez v. De Castro,843 F.2d 631, 635 (1st Cir. 1988).

In addition to the pleadings themselves, the Court may consider certainattachments to the pleadings without converting the motion into one forsummary judgment. Rubert-Torres ex rel. Cintron-Rubert v. Hospital SanPablo, Inc., 205 F.3d 472, 476 (1st Cir. 2000). Specifically, it mayconsider "documents the authenticity of which are not disputed by theparties; . . . official public records; . . . documents central toplaintiffs' claim; or . . . documents sufficiently referred to in thecomplaint." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).1Plaintiff attached three documents from related proceedings in statecourt to his Complaint. The Court will consider these documents for thepurposes of this Motion because they are public records that are centralto Plaintiff's claim, and neither party disputes their authenticity.2


On June 3, 1993, Plaintiff Andrew Shapiro borrowed $40,000 fromDefendant Camden National Corporation and/or its subsidiary, DefendantCamden National Bank (together, "the Bank"). He secured the loan with amortgage on a residence in Camden, Maine, where he lived with histhen-wife, Carol Shapiro (now Carol Smith). Shapiro and Smith divorced onNovember 2, 1994. In the divorce, Smith was awarded Shapiro's entireinterest in the mortgaged property. Shapiro remained liable on theunderlying debt and was ordered to discharge the promissory note byNovember 28, 2000.

The loan was payable in annual installments due on or about the loan'sanniversary date. The Bank customarily notified Shapiro of the amountdue shortly before each payment date. In 1999, however, Shapiro did notreceive any notice of the payment that would have been due May 27 and didnot make the scheduled payment. The Bank declared the loan in default andaccelerated the debt. On June 8, 2000, the Bank, acting through itsattorney, Defendant Michael Haenn, filed a foreclosure action in MaineDistrict Court against Smith. The lawsuit also sought to collect fromShapiro any amount that remained outstanding on the loan after Smith'sproperty was sold at foreclosure.

On June 9, 2000, Haenn wrote Shapiro that he could avoid foreclosure bypaying the full amount of the debt and associated collection expenses. Inresponse to further inquiry, Haenn told Shapiro's attorney that Shapirocould satisfy his obligation entirely with a payment of $11,597.43 byJune 16, 2000. This figure included principal, interest, late chargesand enforcement costs, including Haenn's attorney fees. On June 16,2000, acting through his attorney, Shapiro tendered a check in therequested amount to an officer of the Bank. On June 21, 2000, the Bankmoved to dismiss the foreclosure action. Soon after, a further disputearose between Shapiro's attorney and Haenn.3 On June 21, 2000,Shapiro's attorney wrote to Haenn and complained that the Bank hadviolated a Maine state statute by failing to provide Shapiro with advancenotice that the loan was in default. Either in this or a later exchangebetween the two attorneys, Shapiro took the position that Haenn and theBank were not entitled to all of the fees and costs that Haenn hadrequested to settle the debt.

In response, Haenn filed a written notice with the Maine District Courtthat the Bank was withdrawing its motion to dismiss. By the time thisnotice was docketed on June 26, however, the court had already grantedthe motion to dismiss by an order docketed on June 23.4Nevertheless, the Bank, through Haenn, continued to prosecute theforeclosure action as though it had not been dismissed. According toShapiro, the Bank did so in order to prevent him from recovering thedisputed fees and costs or pursuing any other claim against the Bank.Shapiro, unaware that the lawsuit had in fact been dismissed, was forcedto defend against foreclosure, including responding to discovery requestsand submitting to a deposition. It was not until November 27, 2000, thatShapiro and his attorney first learned from the state court that thelawsuit had been dismissed several months earlier.

Ultimately, the Bank retained Shapiro's payment of $11,597.43.However, as of May 2001, the Bank had neither discharged the mortgage norprovided Shapiro with the original promissory note indicating that it wassatisfied.

On May 24, 2001, Shapiro filed this action, alleging that DefendantHaenn hadviolated the federal Fair Debt Collection Practices Act,15 U.S.C. § 1692 et seq. (Count I), and the Maine Fair DebtCollection Practices Act, 32 M.R.S.A. § 11001 et seq. (Count II). Healso claims that Defendant Camden National Corporation committed thestate torts of wrongful use of civil proceedings (Count III) and abuse ofprocess (Count IV), and violated the Maine Unfair Trade Practices Act, 5M.R.S.A. § 205-A et seq. (Count V). Finally, he seeks declaratoryjudgment against Defendant Camden National Corporation pursuant to28 U.S.C. § 2201. The Defendants answered on September 14, 2001. OnJanuary 4, 2002, Defendants Camden National Corporation and CamdenNational Bank moved for judgment on the pleadings, pursuant toRule 12(c), on two of Plaintiff's state law claims. Fed.R.Civ.P. 12(c).


A. Wrongful Use of Civil Proceedings5

Plaintiff claims that the Bank committed the state tort of wrongful useof civil proceedings by pursuing the foreclosure lawsuit against himafter he had already repaid his loan in full. Wrongful use of civilproceedings in Maine comprises three elements:

(1) one initiates, continues, or procures civil proceedings without probable cause, (2) with a primary purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based, and (3) the proceedings have terminated in favor of the person against whom they are brought.

Pepperell Trust Co. v. Mountain Heir Fin. Corp., 708 A.2d 651, 656 (Me.1998). The Bank contends that as a matter of law, the foreclosureproceedings did not terminate in Plaintiff's favor and that, therefore,Plaintiff cannot establish the third element of his claim.

Whether the prior proceedings terminated in Plaintiff's favor is aquestion of law. Id. When an earlier case ends in a dismissal instead ofa judgment, the Court must determine whether the dismissal was purelyprocedural or indicates that the lawsuit was groundless on the merits.See Restatement (Second) of Torts, § 674 cmt. j (1977). Forexample, a dismissal on pure statute of limitations grounds is not afavorable termination, Palmer Dev. Corp. v. Gordon, 723 A.2d 881 (Me.1999), but a dismissal because the complaint failed to state an essentialelement of the claim is deemed favorable to the defendant, Adam v. PotterPrescott Jamieson & Nelson, No. CIV. A. CV-99-479, 2000 WL 33675177 (Me.Super. May 19, 2000).

From the pleadings and state court documents, the Court is unable todetermine exactly when and on what basis the underlying foreclosureaction ended. The docket sheet indicates that the state court dismissedthe action on June 23, 2000. However it also reflects that the partiescontinued to file pleadings until November 27, 2000. Furthermore, theinformation currently before the Court does not indicate what issues theparties continued to litigate between June 23 and November 27. Withoutthis information, the Court cannot say beyond doubt that the ultimateresolution of the litigated issues was not favorable to the Plaintiff.Therefore, judgment for the Bank on this Count would be premature.

B. Maine Unfair Trade Practices Act

The Bank also seeks judgment in its favor on Plaintiff's claim that, byfailing to discharge the mortgage and note upon receiving full payment,the Bank violated the Maine Unfair Trade Practices Act, 5 M.R.S.A. 205-Aet seq. (UTPA). The Bank claims that it cannot be liable under the UTPAbecause the statute does not apply to financing transactions such as theone between the Bank and Plaintiff.

The UTPA provides consumers generally with a cause of action againstproviders of goods and services who engage in "[u]nfair or deceptive actsor practices . . . ." 5 M.R.S.A. § 207, § 213.6 However, theunfair and deceptive practices of financial institutions are governed byseparate provisions, found in Chapter 24 of Title 9-B of the MaineRevised Statutes. 9-B M.R.S.A. § 241-43. The Maine legislature hasspecifically exempted financial institutions that are subject to theprovisions of Chapter 24 from the coverage of the UTPA. 9-B M.R.S.A.§ 244. Therefore, as "a corporation organized under the laws of theState of Maine engaged in the business of banking," (see Compl. at¶ 5 (Docket #1); Answer at ¶ 3 (Docket #2)), the Bank is subjectto the provisions of Chapter 24 and exempt from liability under theUTPA. See Viola v. Fleet Bank of Maine, No. 95-141-P-DMC, 1996 WL498390, at *4 (D.Me. Feb. 27, 1996); see also 5 M.R.S.A. § 208(1).


For the above reasons, the Court GRANTS IN PART and DENIES IN PART theBank's Motion for Judgment on the Pleadings. It ORDERS that judgment beentered in favor of Camden National Corporation on Count Five of theAmended Complaint (Unfair Trade Practices Act)7 and DENIES the Motionin all other respects.


1. In deciding whether an attachment converts a Rule 12(c) motion intoa motion for summary judgment, the Court may borrow from casesinterpreting Rule 12(b)(6). Rubert-Torres, 205 F.3d at 475.

2. Specifically, the Court will consider the complaint (Exhibit D tothe Complaint in this action), motion to dismiss (Exhibit I), and docketsheet (Exhibit J) from the state court proceedings.

3. Details of the genesis and scope of this dispute are somewhatsketchy in the Complaint.

4. The record does not indicate whether the parties received notice ofthe dismissal.

5. The Court has federal question jurisdiction over Plaintiff's claimunder the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692et seq. It has supplemental jurisdiction to resolve Plaintiff's statelaw claims, which form part of the same case or controversy as thefederal claim. 28 U.S.C. § 1367.

6. 5 M.R.S.A. § 213. Private remedies.

(1) Court action. Any person who purchases or leases goods, servicesor property, real or personal, primarily for personal, family orhousehold purposes and thereby suffers any loss of money or property,real or personal, as a result of the use or employment by another personof a method, act or practice declared unlawful by section 207 . . . maybring an action either in Superior Court or District Court . . . .

7. The Complaint contains two Counts labeled "Count Five." The Courtorders that judgment in favor of Camden National Bank be entered only onthe first, the full title of which is "COUNT FIVE — CAMDEN NATIONALCORPORATION UNFAIR TRADE PRACTICES ACT (Maine)." The Court takes noaction as to the second Count Five (titled "COUNT FIVE — CAMDENNATIONAL CORPORATION DECLARATORY JUDGMENT (Federal)"), which was not asubject of the Bank's Motion.

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