ARCHIBALD et al v. GMAC MORTGAGE LLC

Filing 98

CERTIFICATE OF QUESTION OF STATE LAW TO THE MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT - By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICOLLE BRADBURY,

ET AL.,

PLAINTIFFS
v.
GMAC MORTGAGE, LLC.,
DEFENDANT

)
)
)
)
)
)
)
)
)

NO. 2:10-cv-458-DBH

CERTIFICATE OF QUESTION OF STATE LAW
TO THE MAINE SUPREME JUDICIAL COURT
SITTING AS THE LAW COURT
The United States District Court for the District of Maine finds that this
case involves a question of law of the State of Maine that may be determinative
of the cause and that there are no clear controlling precedents thereon in the
decisions of the Maine Supreme Judicial Court sitting as the Law Court.
Accordingly, this court hereby CERTIFIES a question to the Maine
Supreme Judicial Court sitting as the Law Court and respectfully requests the
Law Court to provide instructions concerning the question of state law
pursuant to 4 M.R.S.A. § 57 and Maine Rule of Appellate Procedure 25(a).
PROCEDURAL BACKGROUND
In this lawsuit brought originally in the Maine Superior Court, the
plaintiffs asserted Maine state law claims based upon the conduct of the
defendant GMAC Mortgage, LLC in the course of judicial foreclosure
proceedings in the courts of Maine against Maine homeowners. The defendant
removed the case to this federal court, basing federal jurisdiction upon

diversity of citizenship.

I granted the defendant’s motion to dismiss all the

common law claims in the First Amended Complaint for failure to state a claim
upon which relief could be granted. In doing so, I referred in dictum to Maine’s
absolute judicial proceedings privilege.

Thereafter, the defendant moved to

dismiss the sole remaining claim, a Maine statutory claim based upon the
Unfair Trade Practices Act (“UTPA”), seeking both damages and equitable relief.
The defendant argues that the absolute judicial proceedings privilege gives it an
affirmative defense to that claim, apparent on the face of the First Amended
Complaint. In my Order dated May 9, 2011, I observed that there is no clear
controlling Maine precedent on whether the absolute judicial proceedings
privilege, a privilege created at common law, applies to a statutory claim under
the UTPA.
STATEMENT OF FACTS
The Law Court may consider as true the following assertions based upon
the First Amended Complaint. (The defendant GMAC Mortgage, LLC contests
the assertions but maintains that the plaintiffs’ Unfair Trade Practices Act
claim must fail as a matter of law even if the assertions are true.)
The plaintiffs are Maine homeowners or former homeowners against
whom foreclosure proceedings have been brought in the courts of Maine. The
defendant GMAC Mortgage, LLC handled those judicial foreclosure proceedings
both for mortgage loans that it owns and for those that it services for other
entities.

In the course of those judicial proceedings, GMAC Mortgage, LLC

employees executed and filed summary judgment affidavits and certifications of
ownership of mortgages and mortgage notes. Employee Jeffrey Stephan, who
2

signed summary judgment affidavits and certifications of ownership, lacked
personal knowledge of the facts necessary to support such affidavits and
certifications (including whether documents he had were true and correct
copies; and the amounts actually due for attorneys fees and collection costs).
The affidavits and certifications asserted falsely that Stephan had under his
custody and control the records relating to the mortgage transactions in
question, that the facts set forth in the affidavit were derived from his personal
knowledge of the records, and that the records were made at or near the time of
the transaction or came from information transmitted by someone with
personal knowledge. He did not fully read the affidavits, and did not verify all
the information. Moreover, the notarization on the documents falsely stated
that Stephan personally appeared and swore before the notary, when he did
not. GMAC Mortgage, LLC has previously been sanctioned for such practices
in another state court, but has continued the practices, and they are
widespread and continuing. GMAC Mortgage, LLC’s conduct has resulted in
loss of plaintiffs’ homes to foreclosure proceedings, unfair charges for attorney
fees and costs, and unfair imposition of expenses incurred in defending against
the actions.
QUESTION OF LAW TO BE ANSWERED1
This lawsuit is not an effort to vacate particular Maine foreclosure
judgments based upon false affidavits or certifications.2 Instead, the plaintiffs

1 I am not certifying any question concerning the common law claims for abuse of process and
fraud on the court, because I have concluded that Maine law is clear as to what is necessary to
state a claim upon which relief can be granted for those claims. The plaintiffs agreed to
dismissal of their common law claim for breach of good faith and fair dealing. Pls.’ Opp’n to
Def.’s Mot. to Dismiss Compl. at 1 (Docket Item 59).

3

seek damages in this separate lawsuit, as well as an injunction against the use
of affidavits and certifications that do not comply with procedural rules in
judicial foreclosure proceedings, an injunction against further foreclosure
actions, home sales, and evictions, and other equitable relief.

The plaintiffs

contend that the false certifications and affidavits that GMAC Mortgage, LLC
used in the Maine judicial foreclosure proceedings amounted to an unfair trade
practice under the Maine Unfair Trade Practices Act and that they are entitled
to relief under 5 M.R.S.A. § 213.
The defendant seeks dismissal of the last remaining claim, Count I, the
UTPA claim, on the basis that the statements it made in these affidavits and
certifications in judicial foreclosure filings are absolutely privileged from the
relief requested in this separate lawsuit.

The judicial proceedings privilege

developed at common law. See Dineen v. Daughan, 381 A.2d 663, 664 (Me.
1978); Dunbar v. Greenlaw, 128 A.2d 218 (1956); Garing v. Fraser, 76 Me. 37
(1884); Barnes v. McCrate, 32 Me. 442 (1851); JACK H. SIMMONS, DONALD N.
ZILLMAN & DAVID G. GREGORY, MAINE TORT LAW § 17:09 at 17-21 (2004 ed.).
There is no Law Court precedent addressing whether it applies to a statutory
cause of action such as was created by the UTPA.

The UTPA says nothing

about it one way or the other. Decisions from other jurisdictions are limited
and divided.

Compare Plymale v. City of Fresno, No. 09-0802, 2009 WL

1810765, at *17 (E.D. Cal. June 25, 2009), Waterloov Gutter Prot. Sys. Co.,
Inc. v. Absolute Gutter Prot., LLC, 64 F. Supp. 2d 398, 415 (D.N.J. 1999), and

This lawsuit is therefore unlike the recent Law Court case, HSBC Mortg. Servs., Inc. v.
Murphy, 2011 Me. 59 (Me. 2011).
2

4

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384
(Fla. 2007), with Brown v. Constantino, No. 09-00357, 2009 WL 3617692, at *5
(D. Utah Oct. 27, 2009).

Moreover, there is disagreement over whether the

privilege extends beyond damages to equitable relief.

Compare Bakhtiari v.

Beyer, No. 06-1489, 2009 WL 877884 (E.D. Mo. Mar. 30, 2009) (Missouri law;
yes), Boss v. Kelly, No. 07-2113, 2007 WL 2412261 (S.D.N.Y. Aug. 23, 2007)
(New York law; yes), and Rubin v. Green, 847 P.2d 1044 (Cal. 1993) (California
law; yes, by split decision), with Huftile v. Farmer, No. 03-0585, 2006 WL
335470 (E.D. Cal. Feb. 10, 2006), aff’d, 2006 WL 707403 (E.D. Cal. Mar. 17,
2006) (refusing to apply judicial proceedings privilege in California to injunctive
relief because of Pulliam v. Allen, 466 U.S. 522 (1984), without referring to
Rubin, 847 P.2d 1044 (Cal. 1993)).
If the Maine Law Court were to find that the judicial proceedings privilege
provides absolute immunity as to the remedies sought under the Maine Unfair
Trade Practices Act for these documents filed in state judicial foreclosure
proceedings, then the lawsuit will be dismissed in its entirety.
In order for this court to rule on the Motion to Dismiss Count 1, the
following question of Maine Law must be answered:
Is Maine’s common law judicial proceedings privilege an available
defense to both legal and equitable claims brought under the
Maine Unfair Trade Practices Act based upon statements made in
court filings of affidavits and certifications in state judicial
foreclosure proceedings?

5

In accordance with Maine Rule of Appellate Procedure 25(b), I
respectfully suggest that the plaintiffs be treated as the appellants before the
Law Court.
The Clerk is hereby DIRECTED to cause twelve (12) copies of this Order to
be certified, under official seal, to the Maine Supreme Judicial Court sitting as
the Law Court. It is FURTHER ORDERED that the Clerk of this Court be, and is
hereby, authorized and directed to provide, without any cost, to the Law Court,
upon written request of the Chief Justice or the Clerk thereof, copies of any
and all filings of the parties herein and of the docket entries pertaining to this
case.
SO ORDERED.
DATED THIS 17TH DAY OF JUNE, 2011

/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

6