Drouin et al v. Wells Fargo Bank, N.A., Trustee
Filing
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ORDER denying 4 Motion to Void Dismissal and Continue Case and for Related Relief. So Ordered by District Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Drouin
and Kathleen Drouin
v.
Civil No. 14-cv-271-LM
Opinion No. 2014 DNH 240
Wells Fargo Bank, N.A.,
as Trustee for Option One
Mortgage Loan Trust 2004-2,
Asset-Backed Certificates,
Series 2004-2
O R D E R
For several years, Michael and Kathleen Drouin
(“Plaintiffs”) have fought in the state and federal courts to
enjoin the defendant, Wells Fargo Bank, N.A. (“Wells Fargo”),
from foreclosing on their mortgaged property.
The present issue
arose when Wells Fargo removed a suit filed by the Plaintiffs
from state court to federal court, completely unaware that the
state court had already entered an order dismissing the action.
The Plaintiffs have now filed a Motion to Void Dismissal and
Continue Case and for Related Relief which, for the reasons that
follow, is denied.
Factual Background
While a contested foreclosure is not uncommon in this
court, the specific circumstances involved in this case are
rather unusual.
Plaintiffs filed an ex parte petition for a
temporary restraining order and a request for preliminary
injunction on May 19, 2014, in the Rockingham County Superior
Court, seeking to enjoin Wells Fargo from foreclosing on their
home.
Ultimately, the superior court (Delker, J.) issued an
order denying the preliminary injunction and dismissing the case
with prejudice on grounds of collateral estoppel and res
judicata.
Although the superior court order was signed on May 28,
2014, by Judge Delker, the clerk of court did not mail it to the
parties until June 18, 2014.
On the very same day, June 18,
2014, Wells Fargo filed a removal petition in this court based
on diversity jurisdiction, unaware that the case had been
dismissed.
Upon receiving notice of the superior court’s order
two days later, on June 20, 2014, Wells Fargo filed a notice of
dismissal with this court and the case was closed.
Plaintiffs then filed the instant motion, contending that
the superior court’s order of dismissal is unenforceable because
the case was removed to this court at, or prior to, the time
that the order of dismissal took effect.
Discussion
“It is axiomatic that an order is effective from the time
it is signed by the court.”
State v. Martin, 761 A.2d 516, 519
(N.H. 2000); see also Depuy v. Hoeme, 775 P.2d 1339, 1343 (Okla.
2
1989) (“A judgment or order is rendered and begins its legal
life as soon as it is pronounced from the bench and before it is
ever reduced to writing for entry of record by the clerk . . .
[A]ny judgment or order is operative from the moment it is
announced . . . .”).
It is not disputed that the superior court’s order of
dismissal was signed by Judge Delker on May 28, 2014.
Judge
Delker’s order became effective on that date, regardless of the
time that elapsed between the date on which the order was signed
and the date on which the clerk of court mailed copies to the
parties.
Wells Fargo’s unwitting petition for removal on June
18, 2014, does not invalidate the effectiveness of the superior
court’s dismissal.
Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Void
Dismissal and Continue Case and for Related Relief (doc. no. 4)
is denied.
Wells Fargo’s request for fees and costs is denied.
SO ORDERED.
_____________________________
Landya B. McCafferty
United States District Judge
November 17, 2014
cc:
Michael J. DiCola, Esq.
Paula-Lee Chambers, Esq.
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