MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2016 ME 10

Docket: Han-14-534

Submitted

 On Briefs: September 28, 2015

Decided: January 14, 2016

Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

THE BANK OF NEW YORK, AS TRUSTEE FOR THE 

CERTIFICATEHOLDERS OF CWALT, INC. ASSET-BACKED 

CERTIFICATES, SERIES 2003-15T2

v.

JOHN B. DYER et al.

PER CURIAM

[¶1] John B. Dyer appeals from an order entered by the District Court 

(Ellsworth, Mallonee, J.) dismissing The Bank of New York’s complaint, in which

the Bank sought to foreclose on Dyer’s real property in Bar Harbor, after the Bank 

acknowledged that it could not prove that it had the requisite standing to pursue its 

claim. Dyer contends that the court erred in dismissing the complaint without 

prejudice, and in declining to award him his full attorney fees and costs.

We affirm the order.

I. BACKGROUND

[¶2] On May 29, 2003, Dyer gave a $997,000 promissory note and a 

mortgage on property in Bar Harbor securing the note to Countrywide Home 
2

Loans, Inc. The mortgage contained language naming Mortgage Electronic 

Registration Systems, Inc. (MERS) as lender’s nominee—language that we found 

to be problematic in Bank of America, N.A. v. Greenleaf (Greenleaf I), 

2014 ME 89, ¶ 13-15, 96 A.3d 700.

[¶3] In July 2008, the Bank filed a complaint for foreclosure in the 

District Court, asserting that Dyer had stopped making payments on the note as of 

June 2007, and that he then owed the Bank $1,014,869.91. The Bank’s motion for 

summary judgment and Dyer’s cross-motion for summary judgment were denied, 

as was the Bank’s second motion for summary judgment.

[¶4] The case proceeded to trial on three separate days:

• January 4, 2013 (Mallonee, J.): The Bank was unable to produce the 

original note, and, given the limited knowledge of the Bank’s witness, the 

court sustained Dyer’s objection to the admission of a copy. The court took 

the Bank’s motion for a continuance under advisement. Dyer objected and 

asked for a dismissal with prejudice. On January 11, the court granted the 

continuance, but as a sanction it ordered the Bank to pay Dyer’s costs and 

attorney fees for the first day of the trial in the amount of $4,090.61.

• October 11, 2013 (D. Mitchell, J.): Because of judicial scheduling issues, a 

different judge presided at the second day of the trial. After the Bank’s 

witness was sworn but before testimony began, the Bank moved to amend its 

complaint to add Countrywide Home Loans as a party-in-interest; Dyer 

objected. The court then continued the trial on its own motion. The motion 

to amend was later granted.

• November 20, 2014 (Mallonee, J.): On September 22, 2014, two months 

before the third day of the trial, the Bank filed a motion to dismiss its 

complaint without prejudice on the ground that
3

the subject mortgage appears to fall under the scope of 

the Supreme Judicial Court’s recent decision in 

[Greenleaf I]. . . . [U]nder the present time constraints of 

proceeding forward to trial in this case, and 

notwithstanding Plaintiff’s counsel[’s] efforts, Plaintiff 

maintains that it will not be able to gather the additional 

witness testimony and evidence needed prior to trial to 

establish standing to foreclose.

Dyer filed a lengthy written objection requesting that (1) any 

dismissal be with prejudice, and (2) he be awarded his attorney fees 

and costs.

At the outset of the third day of trial, the parties argued the motion to 

dismiss. The Bank acknowledged that “at this point in time we are 

unable to establish that we have [] standing.” The court took the 

motion to dismiss under advisement.

[¶5] Subsequently, by written order, the court granted the Bank’s motion to 

dismiss without prejudice and declined to award additional attorney fees or costs.

1

Dyer appealed.

II. DISCUSSION

[¶6] Dyer asserts that after three attempts at a trial “the District Court . . . 

has granted [the Bank] a million dollar mulligan when its inability to perfect a 

foreclosure is the result of its own substantive and evidentiary shortcomings.” We 

review the dismissal without prejudice for an abuse of discretion. See U.S. Bank 

Nat’l Ass’n v. Manning, 2014 ME 96, ¶ 12, 97 A.3d 605.

 1

 We review the court’s determination that awarding Dyer his first-day costs and attorney fees was 

sufficient for an abuse of discretion. Jandreau v. LaChance, 2015 ME 66, ¶ 29, 116 A.3d 1273. Finding 

none, we do not discuss further Dyer’s contention that he should have been awarded additional sums.
4

[¶7] The briefs in this appeal were filed before we issued our opinions in 

three recent foreclosure cases: Homeward Residential, Inc. v. Gregor, 

2015 ME 108, 122 A.3d 947; Wells Fargo Bank, N.A. v. Girouard, 2015 ME 116, 

123 A.3d 216; and Bank of America, N.A. v. Greenleaf (Greenleaf II), 

2015 ME 127, 124 A.3d 1122. Each of those decisions addressed the distinction

between standing and jurisdiction, and, in Gregor and Greenleaf II, the proper 

result when a party seeking to foreclose cannot establish standing.

[¶8] In Girouard, we took note of

the predicate requirement that a putative mortgagee establish standing, 

which is a demonstration that that party holds the rights necessary to 

get through the courthouse door and pursue the claim in the first 

place. . . . [A] party’s lack of standing is not a jurisdictional problem, 

but rather it is an issue of justiciability that precludes a party from 

invoking the court’s jurisdiction.

2015 ME 116, ¶ 8 n.3, 123 A.3d 216.

[¶9] Gregor indicated the consequence of a foreclosure plaintiff’s lack of 

standing:

[T]he record wholly supports the court’s determination that [the 

plaintiff] failed to demonstrate that [it] had standing to maintain the 

foreclosure action. Although the court maintained jurisdiction over 

the parties and subject matter, it could not decide the merits of the 

case when the plaintiff lacked standing pursuant to [14 M.R.S.] 

section 6321. Instead, the court could only dismiss the action. 

Because the court addressed the merits of the complaint for 

foreclosure in its judgment, we vacate the judgment in its entirety and 

remand for an entry of a dismissal without prejudice.
5

2015 ME 108, ¶¶ 23-24, 122 A.3d 947 (citation omitted).

[¶10] Finally, Greenleaf II confirmed that when a plaintiff lacks standing, 

although the court retains jurisdiction, dismissal of the complaint without prejudice 

is the proper result:

Because standing is a threshold concept dealing with the 

necessity for the invocation of the court’s power to decide true 

disputes, it is an issue cognizable at any stage of a legal proceeding, 

even after a completed trial. When discovered, a standing defect does 

not affect, let alone destroy, the court’s authority to decide disputes 

that fall within its subject matter jurisdiction. A plaintiff’s lack of 

standing renders that plaintiff’s complaint nonjusticiable—i.e., 

incapable of judicial resolution.

Here, the court could not have entered a judgment . . .

addressing the merits of the Bank’s foreclosure claim because the 

Bank failed to show the minimum interest that is a predicate to 

bringing that claim in the first place. Under these circumstances, the 

court properly disposed of the case by entering a dismissal without 

prejudice.

2015 ME 127, ¶¶ 8-9, 124 A.3d 1122 (alteration, citations, and quotation marks 

omitted).

[¶11] The logic of the Greenleaf II holding is evident when applied in this 

case. A dismissal with prejudice “operate[s] as an adjudication on the merits.” 

Johnson v. Samson Constr. Corp., 1997 ME 220, ¶ 8, 704 A.2d 866 (quotation 

marks omitted). Because there is no dispute that the Bank lacked standing and 

therefore never had “the rights necessary to get through the courthouse door and 

pursue [its] claim in the first place,” Girouard, 2015 ME 116, ¶ 8 n.3, 
6

123 A.3d 216, the trial court’s power to make any adjudication on the merits of 

that claim, including a dismissal with prejudice, was not invoked. Accordingly, a 

dismissal without prejudice, which disposed of the case without exploring its 

merits, was the required result.

The entry is:

Order of dismissal without prejudice affirmed.

On the briefs:

George J. Marcus, Esq., Jennie L. Clegg, Esq., and Andrew C. 

Helman, Esq., Marcus, Clegg & Mistretta, P.A., Portland, for 

appellants John B. Dyer and William Purcell

David W. Merritt, Esq., Houser & Allison, APC, Boston, 

Massachusetts, for appellee The Bank of New York

Ellsworth District Court docket number RE-2008-120

FOR CLERK REFERENCE ONLY