PERKINS'THOMPSON

ATTORNEYS & COUNSELORS AT LAw

VIA FEDERAL EXPRESS May 25,2012
PHILIP C. HUNT JOHN S. UPTON PEGGY L McGEHEE MELISSA HANLEY MURPHY JOHN A HOBSON JAMES N. KATSIARCAS TIMOTHY J GORDON P BENOIT JR

Of·IE Cf\NA.L PLAZA PO BOX -+26 PORTLAND ME 0·1112 TEL 207.774.2635 :'AX 207.871.8026 .vv"/vv. er!{in~ t:hnn','pson .con1 p

Penny H. Reckards, Clerk Penobscot County Superior Court Attn: Civil Clerk for Real Estate Matters 78 Exchange Street, Suite 350 Bangor, ME 04401 Re: TD Bank, N.A. v. Twila A. Wolf, et al. Civil Action Docket No. RE-l 0-187

SCANNELL

FRED W BOPP III MARK P. SNOW WILLIAM

J SHEILS

Dear Penny: Enclosed please find the following motions for filing: 1. Entry of Appearance on Behalf ofTD Bank, N.A., flk/a First Massachusetts Bank, N.A., Plaintiff; and 2. Plaintiffs Opposition to Defendant's Objection to Plaintiffs Late and Untimely Response and Motions Concerning Defendant's Objections and Responsive Motions to Plaintiffs Motion to Lift Stay and Final Summary Judgment and Incorporated Motion to Strike and Memorandum of Law. If you have any questions about this, please let me know.

DAVID B McCONNELL PAUL D PlETROPAOLI HOPE CREAL JACOBSEN RANDY J CRESWELL JULIANNE C RAY DAWN CHRJSTOPHER ANTHONY M. HARMON M. DARGIE J MANHART

STEPHANIE A WILLIAMS PETER

J McDONELL

KEITH J. DUNLAP SARA N. MOPPIN JEFFREY A COHEN SHAWN K LEYDEN

JOSEPlH G. TALBOT LAUREN B. vV[UVER

OF COUNSEL DOUGLAS S. CAM

Joseph G. Talbot Enclosure cc: Twila Wolf Butler Charlton A. Butler, Jr.

JOHN A CIRALDO 1956-2010

(PO 128799.1 )

STATE OF MAINE PENOBSCOT, SS.

SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-I0-187 ) ) )
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TD BANK, N.A., f/k/a First Massachusetts Bank, N.A., Plaintiff, v. TWILA A. WOLF,

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)

ENTRY OF APPERANCE ON BEHALF OF TD BANK, N.A., fIkIa FIRST MASSACHUSETTS BANK, N.A., PLAINTIFF

Defendant, and MAINE STATE HOUSING AUTHORITY, CITY OF BANGOR, and LVNV FUNDING, LLC, Parties- In-Interest.

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)

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) ) ) )

Title to Real Estate Involved

The Clerk will please enter my appearance as counsel for Plaintiff, TD Bank, N.A. in the above-captioned matter. Dated at Portland, Maine, this 25th day of May, 2012.
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.. ~----~--------------------Joseph G. Talbot., Maine Bar No. 4868 Attorney for Plaintiff, TD Bank, N.A., f/kJa First Massachusetts Bank, N.A.

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Perkins Thompson, P.A. One Canal Plaza, PO Box 426 Portland, ME 04112-0426 (207) 774-2635

{POI28392.I}

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21-23; Motion at p. 13. Alternatively, Defendant asserts that she filed a motion for summary judgment in this matter and that Plaintiff, in failing to oppose that motion, has defaulted. Motion at ~~ 18, 55-57. Defendant further claims that Plaintiffs default has resulted in final judgment being entered against TD Bank. Motion at ~ 18. However, as set forth fully below, Defendant's arguments are unsupported by law and TD Bank requests that this Court deny the Motion. ARGUMENT
I.

Default judgment

is not available to Defendant in this matter

"A default occurs when a party against whom affirmative relief is sought ... fails to file an answer or otherwise defend." 3 Harvey, Maine Civil Practice § 55.2 at 200-01 (3d ed. 2011) (emphasis added); M.R. Civ. P. 55. Because Defendant has not filed any counterclaims against Plaintiff in this matter, TD Bank is not a party "against whom affirmative relief is sought." To the extent that Defendant attempts to raise a counterclaim against Plaintiff for breach of a fiduciary duty, Defendant failed to timely include this allegation as a counterclaim in her initial answer as required by M.R. Civ. P. 12, and did not timely amend her answer to include any counterclaims pursuant to M.R. Civ. P. 15. As a result, Defendant has waived this counterclaim and cannot raise it at this late juncture. Cf Blue Spruce Co. v. Parent, 365 A.2d 797,801 (Me. 1976) (failure to plead an affirmative defense in a party's answer waived that defense); Morse Bros., Inc. v. Mason, 2001 ME 5, ~ 5, 764 A.2d 267,269 (failure to assert a compulsory counterclaim precludes that party from maintaining another action on the claim). In the absence of any proper counterclaims against TD Bank, any request for default against Plaintiff is misplaced and without merit.

Incorporated Motion for Sanctions [and] Declaratory and Injunctive Relief and Memorandum of Law; and (4) Objection to Plaintiffs Motion to Lift Stay and Motion for Final Judgment with Incorporated Motion for Sanctions, Declaratory Relief and Memorandum of Law (collectively, "Defendant's Prior Motions"); Plaintiff has addressed those issues and points of law in its oppositions already filed with this Court.
{P01227BIJ}

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II.

Defendant has not filed a motion for summary judgment

Defendant proposes the novel argument that her prior motions in this matter, none of which were titled a motion for summary judgment, or otherwise comply with M.R. Civ. P. 56, have "been converted automatically to motions for summary judgment" because Defendant raised the issue of standing. Motion at ,-r55. Defendant argues that "all of Defendants (sic) motions ... have been/are Summary Judgment motions." Id. Defendant further states that "every motion of Defendants has been, simultaneously, a motion for Summary Judgment, as Defendants, have raised the issue of standing in every pleading/ objection/affirmation and or

motion made thus far." Id. at,-r 59. Therefore, Defendant states that she is entitled to a default judgment against Plaintiff "since no defense [to her purported summary judgment motions] had been pled." Id. at,-r 57. Contrary to her argument, Defendant has not filed a motion for summary judgment in these proceedings. The Maine Rules of Civil Procedure explicitly set forth the required form and content of a motion for summary judgment. See M.R. Civ. P. 7(b) and 56. In particular,

"Ia]

motion for summary judgment shall be supported by a separate, short, and concise statement of material facts, set forth in numbered paragraphs ... supported by a record citation." M.R. Civ. P.56(h)(1). "A properly prepared motion for summary judgment will also normally include 3 Harvey, Maine Civil Practice § 56:4 at 234

supporting affidavits and relevant attachments."

(3d ed. 2011); M.R. Civ. P. 56(e). These requirements "must be respected" and will be strictly enforced. Dyer v. Dep 't of Transp., 2008 ME 106, ,-r16, 951 A.2d 821, 826. Pro se litigants will be held to these strict standards. See Dufort v. Bangs, 664 A.2d 6, 7 (Me. 1994) ("We hold pro se litigants to the same standards as represented parties"),

{POI2278U}

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CONCLUSION WHEREFORE, Plaintiff, TD Bank, N.A., flk/a First Massachusetts Bank, N.A. respectfully requests that this Court (i) deny Defendant, Twila A. Wolfs Objection to Plaintiffs (sic) Late and Untimely Response and Motions Concerning Defendants (sic) Objections and Responsive Motions to Plaintiffs (sic) Motion to Lift Stay and Final Judgment [and] Incorporated Motion to Strike and Memorandum of Law; and (ii) grant Plaintiff such other relief as is just and equitable. Dated at Portland, Maine this fi
/7

,.Y-

day of May, 2012.

David B. McConneU, Esq., Maine Bar No. 8133 Stephanie A. Williams, Esq., Maine BarNo. 10012 Joseph G. Talbot, Esq., Maine Bar No. 4868 Attorneys for TD Bank, N.A. and Maine State Housing Authority
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Perkins Thompson, P.A. One Canal Plaza, PO Box 426 Portland, Maine 04112-0426 (207) 774-2635

(POI22781J)

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