FEDERAL NATIONAL MORTGAGE ASSOCIATION v. POMELOW et al

Filing 17

ORDER ON TIMOTHY POMELOW'S MOTION TO DISMISS granting in part and denying in part 11 Motion to Dismiss By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FEDERAL NATIONAL MORTGAGE )
ASSOCIATION,
)
)
Plaintiff,
)
)
v.
)
)
KERRY POMELOW and
)
TIMOTHY POMELOW,
)
)
Defendants.
)

1:19-cv-00342-JAW

ORDER ON TIMOTHY POMELOW’S MOTION TO DISMISS
On July 22, 2019, Federal National Mortgage Association (Federal National)
filed a complaint in this Court against Kerry Pomelow and Timothy Pomelow,
alleging that it is entitled to foreclosure on the Pomelows’ Canaan, Maine residence,
that the promissory note was breached, that the Pomelows breached a contract for
money had and received, that Federal National is entitled to judgment under the
legal theory of quantum meruit, and that Federal National is entitled to judgment
under the legal theory of unjust enrichment. Compl. (ECF No. 1). On July 23, 2019,
Federal National filed an amended complaint against Ms. Pomelow and Mr.
Pomelow. Am. Compl. (ECF No. 4). On August 31, 2019, Mr. Pomelow sent a letter
to the United States District Court for the District of Maine seeking to be dismissed
from the case. Letter from Timothy Pomelow to U.S. District Court (ECF No. 11)

(Def,’s Mot.); id., Attach. 1. 1 To date, Federal National has not responded to Mr.
Pomelow’s motion.
The Amended Complaint alleges that Mr. Pomelow (and Kerry Pomelow) are
in default on both a promissory note and a mortgage.

Am. Compl. ¶ 35 (“The

Defendants, Kerry Pomelow and Timothy Pomerlow, are presently in default on said
Mortgage and Note . . ..”), ¶¶ 56-57, 60, 69-70. However, the promissory note Federal
National attached to its Complaint does not contain Mr. Pomelow’s signature. Compl.
Attach. 3 at 3 (Note). By contrast, the mortgage Federal National attached to the
Complaint does contain his signature. Id. Attach. 4, Mortgage at 17-18 (Mortgage).
Mr. Pomelow’s motion states that he “never signed any promissory note
involved in this case,” that he and his wife were divorced in 2005, and that his wife
“received all property rights for the . . . property [at issue].” Def.’s Mot. at 1. Mr.
Pomelow does not discuss the fact that he signed the mortgage at issue in this case,
Mortgage at 17, nor does he state that there has been any novation of that contract
or that he has been otherwise released from the mortgage since his 2005 divorce.
Federal National has neither responded to Mr. Pomelow’s motion nor requested an
extension of time to respond in the more than twenty-one days that have passed since
the motion was filed.
By failing to respond to Mr. Pomelow’s motion within twenty-one days, Federal
National has waived objection to Mr. Pomelow’s Motion to Dismiss. See D. ME. LOC.
R. 7(b).

However, under First Circuit authority, the Court may not grant Mr.

In light of Mr. Pomelow’s pro se status, the Court interprets this letter as a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Pomelow’s motion without conducting an independent examination of the Amended
Complaint to determine whether it is formally sufficient to state a claim.

See

Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004) (“the mere
fact that a motion to dismiss is unopposed does not relieve the district court of the
obligation to examine the complaint itself to see whether it is formally sufficient to
state a claim” (quoting Vega-Encarnacion v. Babilonia, 344 F.3d 37, 41 (1st Cir.
2003))).
Reviewing the Amended Complaint in a manner consistent with Pomerleau,
the Court agrees with Mr. Pomelow that, to the extent Federal National is seeking to
hold Mr. Pomelow liable under a promissory note he has not signed, the Court should
dismiss these allegations against him; however, taking the allegations of the
Amended Complaint as true for purposes of the motion to dismiss, Mr. Pomelow has
offered no ground for the Court to conclude that he did not sign the mortgage or that
Federal National is barred from proceeding against him under the terms of the
mortgage. Therefore, the Court deems any objection to Mr. Pomelow’s Motion to
Dismiss waived and grants Mr. Pomelow’s motion insofar as Federal National seeks
to hold Mr. Pomelow liable under the Promissory Note but denies it insofar as Federal
National seeks to hold Mr. Pomelow liable under the Mortgage.
The Court GRANTS in part Timothy Pomelow’s Motion to Dismiss (ECF No.
11) insofar as Federal National seeks to hold him liable under the Promissory Note

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and DENIES it in part insofar as Federal National seeks to hold him liable under the
Mortgage.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 4th day of October, 2019

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