STATE OF MAINE CUMBERLAND ss.

DISTRICT COURT CIVIL ACTION: PORTLAND Docket No. RE-10-401

CITIMORTGAGE, INC. Plaintiff, v. SHEILA A. FRANK, a/k/a SHEILA A. FLANDERS, Defendant

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DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT AND MOTION TO DISMISS OR TO PERMIT DEFENDANT TO ANSWER COMPLAINT AND PLEAD COUNTERCLAIMS AND DEFENSES

SHEILA FRANK, by and through undersigned counsel, moves this Court for an Order for Relief from Judgment, pursuant to M.R.Civ.P. 60, vacating the Judgment of Foreclosure and Sale entered in this matter on November 9, 2010 and dismissing Plaintiff's Complaint. In the alternative, Ms. Frank moves for an Order vacating the Judgment of Foreclosure and Sale and permitting her to answer Plaintiff's Complaint and to plead Counterclaims and Defenses. Ms. Frank bases her Motion for Relief from Judgment on Rule 60(b)(4), contending that the judgment is void because the Court lacked subject matter and in personam jurisdiction; that CitiMortgage ("Citi" or "Plaintiff") lacked standing to bring suit; and that Citi waived its right to foreclose by accepting and retaining payments made during the period of Ms. Frank's statutory right to redeem the mortgage. Ms. Frank also seeks relief from judgment pursuant to Rule 60(b)(3), on grounds of fraud, misrepresentation, and other misconduct by Citi preceding and during the course of litigation. In support of her motions, Ms. Frank submits her Affidavit and attached exhibits, and the following Statement of Facts and Memorandum of Law.

STATEMENT OF FACTS Sheila Frank built the home which forms the subject matter of this action in 1973, and has lived there for the past 38 years. (Frank Affidavit 2, 34). In 2006, she refinanced a mortgage on her home with Aegis Wholesale Corporation, which subsequently conveyed her promissory note and mortgage to Aegis Mortgage Corporation, thence to Citi. (Frank Affidavit 3). In March, 2009, Ms. Frank applied for a modification of her mortgage under provisions of the federal Home Affordable Modification Program ("HAMP"), because she was concerned that a disability might make it difficult for her to make future payments. (Frank Affidavit 4). The HAMP initiative was created by the Department of Treasury to assist homeowners struggling to make mortgage payments, acting pursuant to powers granted to the Treasury by Congress in the Emergency Economic Stabilization Act of 2008, 12 U.S.C 5021 et seq., as amended by the American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 116, February 17, 2009. Ms. Frank had not missed any payments at the time she made a HAMP application, but was advised by Citi not to make her regular mortgage payments while her application was being reviewed, a process Citi told her would take only thirty to sixty days. (Frank Affidavit 6). When Citi did not respond within its estimated timeframe, Ms. Frank called repeatedly, and was told that Citi was behind because of being swamped with HAMP applications. (Frank Affidavit 8). Finally, in July, 2009, Ms. Frank received a Trial Period Plan ("TPP"), which is the first step in the loan modification process under HAMP, and which required her to make three monthly payments of $634.26 each commending in October, 2009. (Frank Affidavit 7, Exhibit

1). The TPP agreement stated that if Ms. Frank complied with its terms, "[Citi] will modify your mortgage loan and you can avoid foreclosure." (Frank Affidavit, Exhibit 1). Ms. Frank made each of the three payments required by the TPP before its due date, and also sent all documents requested by Citi, retaining proof of her submissions by way of fax cover sheets. (Frank Affidavit 5, 7, Exhibit 2). Citi itself thanked Ms. Frank for the timeliness of her payments in a December 11, 2009 letter. (Frank Affidavit 11). Nonetheless, on May 14, 2010 Citibank denied a HAMP modification on the false grounds that Ms. Frank had not provided the requested documents. (Frank Affidavit 14). On May 17, 2010, three days following denial of the HAMP modification, Citi wrote to Ms. Frank, thanking her for sending her financial information and advising her of Citi's "Workable Solutions" in-house loan modification program. (Frank Affidavit, 15). Ms. Frank understood this letter to mean that Citi had located the information it had said was missing, and that she was still under consideration for HAMP modification of her mortgage. (Frank Affidavit 15). Ms. Frank communicated with personnel in the Citi Loss Mitigation Department on several occasions during the summer of 2010, in effort to complete a mortgage modification. She was told at one time that her application had gone to Citi's underwriter, and at another time that it had not. She was then told that her application had been closed because of another loss of faxed materials, then told it had it been reopened, only to be later told that it had been reopened incorrectly. (Frank Affidavit 16, 18, 19). Finally, on August 16, 2010, Ms. Frank was assured that her paperwork was in review for modification. (Frank Affidavit 19). In September, 2010 Ms. Frank left home for a time to be with a son in Parsonsfield, Maine, after which she spent time with relatives in North Carolina, staying until late November.

On September 10, while she was away from home, Citi served one of her sons with a copy of the Summons and Complaint in the present action. This son was not residing in her home at the time of service, nor did anyone but Ms. Frank reside in her home. The son did not send the Complaint to Ms. Frank in Parsonsfield or North Carolina, nor did he inform her about it. As a result, Ms. Frank had no knowledge of the foreclosure suit until she returned home in late November. By then Citi had moved for summary judgment (October 4, 2010) and had obtained a Judgment of Foreclosure and Sale (November 9, 2010). (Frank Affidavit 21). Ms. Frank was alarmed on finding that she had been sued, but believed there must have been an error, because Christina Wamsley of the CitiMortgage Executive Office had written her on November 17, 2010 to inform her that documents to modify her mortgage had been sent on November 8, 2010. (Frank Affidavit 22, Exhibit 3). Nothing was communicated by Wamsley or any other Citi personnel at this or any other time to indicate that suit had been filed or that judgment had been entered. Among other consequences, Ms. Frank never had the opportunity to exercise her right to mediation. Rather than inform Ms. Frank that it had proceeded with foreclosure, on November 19, 2010, Citi offered Ms. Frank a Stipulated Special Forbearance Plan Agreement in which it assured Ms. Frank that it would "forbear from further collection (and/or foreclosure, if applicable), action on the condition that [she make] all regularly scheduled payments due under the Note and Deed of Trust/Mortgage and arrears payments under this agreement, including the down payment." (Frank Affidavit 23, Exhibit 4) (Emphasis supplied). Ms. Frank

immediately signed and returned this forbearance agreement on November 20, 2010. Under terms of the agreement, Ms. Frank was required to make payments of $634.25 each month. She complied by sending teller's checks, each of which Citi received and cashed or

deposited. (Frank Affidavit 24, Exhibit 5). But despite these payments, on January 3, 2011, a representative of Citi denied any knowledge of the forbearance plan, or that Ms. Frank's payments had been received. (Frank Affidavit 25). Fearing she might lose her home, Ms. Frank immediately contacted Christina Wamsley, who emailed that she had been on leave and that Ms. Frank's submissions might not have been accounted for because they had gone to an office that was closing. (Frank Affidavit 27). Wamsley promised to correct the lender's records, emailing "Not a problem, dear," and reassuring Ms. Frank that she had already set up another forbearance plan. Wamsley also emailed to say that the new plan would "keep the house in safe status as long as docs and payments are returned." (Frank Affidavit 22, Exhibit 5). As a result of these communications, Ms. Frank believed that Citi would not foreclose her mortgage and sell her home. Wamsley confirmed the new plan in a letter dated January 3, 2011, in which she enclosed another Stipulated Special Forbearance Plan Agreement that contained the same assurances as the agreement Ms. Frank had signed the previous November. (Frank Affidavit 26). As she had done to comply with the November agreement, Ms. Frank sent monthly payments (of $635.00) to Citibank as called for in the January 3 agreement. All of these payments were received and deposited. (Frank Affidavit 28, Exhibit 8). Indeed, on January 29, 2011, Ms. Frank received an email from Citi stating "01/18/2011 We received your complete modification document" and advising her to continue making future payments as detailed in the agreement. The modification details contained in this email specified a monthly payment of $634.26, the same payment she had made under the 2009 HAMP TPP and the November 20, 2010 forbearance plan. This email further advised Ms. Frank of a proposed reduction in her mortgage interest rate to 2% and a significant reduction in the principal balance

on her mortgage--exactly the same terms and dollar amounts that Citi had discussed when Ms. Frank first sought a HAMP modification in March, 2009. The email also referred to an "Award Letter," suggesting Citi had finally accounted for the materials Ms. Frank had sent in 2009, and was finally accepting her HAMP application. (Frank Affidavit 29, Exhibit 9). Notwithstanding Ms. Frank's payments and submissions to Citi, and its repeated assurances to her to continue making payments under its forbearance plans, on April 4, 2011, Citi wrote to Ms. Frank denying a loan modification on grounds that her income was insufficient to meet modification requirements set by Freddie Mac. (Frank Affidavit 27). Besides rejecting the agreements she had made with Citi in November, 2010 and January, 2011, and with which Ms. Frank had complied, this letter was the first to clearly indicate to Ms. Frank that her mortgage was owned by Freddie Mac and not by Citi. Ms Frank subsequently confirmed this fact on Fredde Mac's loan lookup website. (Frank Affidavit 30, Exhibit 10. See also Exhibit 1, Freddie Mac Form 1123). On April 18, 2011, Citi tendered a check to Ms. Frank for $1,268.52 (representing two of her monthly payments), stating that it could not accept her funds because they were insufficient to cure her delinquency, although this was a false statement since Citi had already accepted and deposited all of her payments. (Frank Affidavit 32, Exhibit 11). This check represented only two of eight payments Ms. Frank had made under the TPP and two forbearance agreements. When she called Citi on April 21, 2010 to inquire why her agreements had been rejected, she learned for the first time that Citi had not only proceeded with the foreclosure, but intended to sell her home at auction on May 3rd (since re-set for June 2nd). Citi has not canceled or delayed this sale date, even though Citi acknowledges that is presently reviewing Ms. Frank's new submissions for a HAMP modification.

MEMORANDUM OF LAW 1. The Court may order relief from judgment pursuant to M.R.Civ.P 60(b) notwithstanding a motion for relief filed after the mortgagor's statutory right of redemption has expired. Maine's foreclosure statute affords a mortgagor a 90-day period following entry of a foreclosure judgment to redeem the mortgage. 14 M.R.S.A. 6322. The redemption period for Ms. Frank's mortgage commenced on November 9, 2010 and expired on February 7, 2011. Ordinarily, once the right to redemption has been extinguished, it cannot be revived, nor can it be enlarged. Smith v. Varney, 307 A.2d 229, 232 (Me. 1973). However, the Law Court has decided that under exceptional circumstances, a court of equity may provide relief pursuant to M.R.Civ.P. 60(b), even after the 90-day redemption period has expired. Keybank v. Sargent, 2000 Me 153, 10), 758 A. 2d 528 at 532. The Law Court observes in Keybank that "Rule 60(b) itself provides that equity may be invoked to provide relief from judgment." Id. at 11. Based on her Affidavi and the arguments set forth below, Ms. Frank submits that there are manifold grounds under M.R.Civ.P 60 on which the Court is justified in relieving her from the judgment entered in this matter. Ms. Frank also submits that that if the judgment is vacated but the Court does not dismiss Citi's suit and allows the matter to proceed, she has meritorious defenses and counterclaims, including inter alia, violations by Citi of Maine's Unfair Trade Practices Act, 5 M.R.S.A. 205A -214. 2. The judgment in this matter should be vacated pursuant to M.R.Civ.P 60(b)(4) and the Plaintiff's Complaint should be dismissed because the Court lacked subject matter jurisdiction to enter judgment, and because Plaintiff lacked standing to bring the litigation.

A. Subject Matter Jurisdiction Maine's foreclosure statute sets forth threshold requirements that a mortgagee must meet in order to proceed with a foreclosure. Among these, 14 M.R.S.A. 6321 mandates that the "mortgagee shall certify proof of ownership of the mortgage note." (Emphasis supplied) The statute further requires that "[s]ervice of process on all parties in interest and all proceedings must be in accordance with Maine Rules of Civil Procedure." Id. The Law Court has ruled, in turn, that a trial court cannot enter summary judgment for a mortgagee absent "proof of ownership of the mortgage note and mortgage." Chase Home Finance v. Higgins, 2009 ME 136 11, 985 A.2d 508, 510-11 (citing M.R.Civ. 56(j)). Moreover, "in order to effect a legal foreclosure all steps required by the statute must be strictly performed." Winter v. Casco Bank and Trust Co., 396 A.2d. 1020, 1024 (Me., 1979) (Emphasis supplied). The Law Court has "repeatedly emphasized 'the importance of applying summary judgment rules strictly in the context of residential foreclosures.'" HSBC Mortgage Services, Inc. v. Murphy, 2011 ME 59, 9, ___ A. 2d __quoting Camden National Bank v. Peterson, 2008 ME 85, 29, 948 A.2d 1251, 1259. "[T]echnical errors in procuring a judgment of foreclosure may render that judgment void." Keybank v. Sargent, 2000 ME 153 36, 758 A.2d 528, 537 (citing Winter and Stafford v. Morse, 97 Me. 222 (1902)). Nowhere in its Complaint nor in its Motion for Summary Judgment, Statement of Material Facts, or Affidavit Concerning the Interests of Parties Named in This Action does Citi allege or offer proof that it is the owner of Ms. Frank's promissory note or the owner of her mortgage. Nor does the Judgment of Foreclosure and Sale procured by Citi from the district court contain any recitation that Citi owns Ms. Frank's note and mortgage, despite the explicit, mandatory directive of M.R.C.P 56(j) that [n]o summary judgment shall be entered in a

foreclosure action . . . except after a review by the court and determination that. . . (ii) the plaintiff has properly certified proof of ownership of the mortgage note." Indeed, Citi could not and cannot make this essential showing, nor can it satisfy the requirement in Higgins that it owns the mortgage, because it is evident from Exhibit 10 attached to Ms. Frank's Affidavit that Freddie Mac owns the mortgage in this controversy. The power of the courts of Maine to foreclose mortgages is established by the legislature, not by an inherent power of the courts. Maine foreclosure statutes, 14 M.R.S.A. 6321-6325, demark the boundaries of judicial authority to foreclose mortgages. Absent certification by Citi that it owned Ms. Frank's mortgage note, the District Court never had subject matter jurisdiction to proceed. Nor could Citi confer such power. See, e.g., Dobbs, Decline of Jurisdiction by Consent, 40 N.C.L.Rev. 49 (1961-62) n. 1 (parties cannot give court subject matter jurisdiction by consent or acquiescence). This matter should never have proceeded. The Court should declare the judgment void for want of subject matter jurisdiction. B. Lack of Standing to Bring Suit A person's standing to bring suit depends on whether the person has a "sufficient personal stake in the controversy to obtain judicial resolution of that controversy." Halfway House Inc. v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996) (citation omitted). In this matter, even if the Court should determine that it had subject matter jurisdiction proceed, Citi did not have standing to bring suit. It's stake in this litigation appears to have been no more than that of a mortgage servicer, an insufficient interest for it to have standing within the meaning of Halfway House and 14 M.R.S.A. 6321-6325. The Law Court had occasion recently to consider whether a nominal stakeholder could sue to foreclose. The Court decided it could not. In Mortg. Elec. Registration Sys., Inc. v.

Saunders, 2010 ME 79 2, 2 A.3d 289 (Me. 2010) suit was maintained by Mortgage Electronic Registration Systems, Inc., ("MERS") a corporation whose purpose is to act solely as a nominee for a lender or its successors and assigns. Id. at 9, 2 A.3d at 294. The Court found that MERS' interest in the defendant's mortgage and promissory note amounted to no more than "bare legal title" for the purpose of recording the mortgage with the Registry of Deeds, because the covenants and rights conferred within the mortgage ran to the lender rather than to MERS. Id. at 10, 2 A.3d at 295 Moreover, since MERS, as the complaining party, could not show injury traceable to the mortgagor, it had no standing to enforce the mortgage. Id. at 14, 15, 2 A.3d at 296-7 (citing Collins v. State, 2000 ME 85, 6, 750 A. 2d 1257, 1260 and Mort. Elec. Registration Sys., Inc. v. Neb. Dep't of Banking & Fin., 704 N.W. 2d 784, 788 (Neb. 2005) (stating "MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money"). In the present action, Citi's standing to sue as mortgagee derives entirely from an assignment of the mortgage made by MERS. But for the identity of the original lender, Aegis Wholesale Mortgage Corporation, the provisions in Ms. Frank's mortgage document are identical to those considered and rejected by the Court in Saunders. As in Saunders, Ms. Frank mortgaged, granted, and conveyed her property to MERS "solely as nominee for Lender and Lender's successors and assigns," with the "understand[ing] and agree[ment] that MERS holds only legal title to the rights granted by [Ms. Frank]." (Cf. Saunders, 2010 ME 79 9, 2 A3d. at 294, and Affidavit of Lender in Support of Motion for Summary Judgment, Exhibit B). As in Saunders, each reference to MERS in Ms. Frank's mortgage describes MERS solely as a nominee. Id.

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Of course, Citi is not MERS. But its standing to bring suit against Ms. Frank as mortgagee is entirely derivative from MERS. In its Affidavit of Lender in Support of Motion for Summary Judgment, Citi purports to establish its authority as mortgagee by an assignment from MERS, attached as Exhibit C. It is elementary that an assignee acquires no greater rights by an assignment than those possessed by the assignor. See, e.g., 11 M.R.S.A. 9-1404, Secured Transactions, Rights acquired by assignee; claims and defenses against assignees. Nowhere in its pleadings, motions, affidavits and supporting documents does Citi offer a shred of evidence to suggest that its interest in this matter is any greater than that of its assignor, MERS.

Saunders was decided on August 12, 2010, nearly a month before Citi filed its Complaint in the present action, and well before Citi filed a motion for summary judgment on October 4, 2010. Saunders was also a closely-followed case, both by advocates for homeowners and by mortgage servicers. The Saunders Court decided that the standing issue had been overcome because a substitution of parties during the course of litigation cured the jurisdictional defect, and because, as the Court had not previously spoken about MERS' capacity to bring suit, prosecution of the case in the wrong name was understandable. (2010 ME 79 19, 2 A.3d at 298-9 (citing M.R.Civ.P 17(a)). But after Saunders, Citi had no basis in law to bring or maintain this action as MERS' assignee. The Judgment of Foreclosure and Sale should be vacated and the suit dismissed, and Ms. Frank should be awarded attorney fees for having to defend against a groundless action. M.R.Civ. P 11.

3. The judgment in this matter should be vacated pursuant to M.R.Civ.P 60(b)(4) and the Plaintiff''s Complaint should be dismissed because the district court lacked in personam jurisdiction.

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Service of Citi's summons and complaint in this matter was attempted by personal service at Ms. Frank's home. Although M.R.Civ.P.4 (d)(1) provides that process can be accomplished by personal service on a person of suitable age and discretion at the defendant's dwelling house, the individual must be residing there. In her affidavit, Ms. Frank makes clear that she was away from home when process was served, and that no one else was living there, including the son who happened to be at the house on the day that the sheriff attempted to serve the Summons and Complaint. (Frank Affidavit 19). The requirement that the person served must be living in the dwelling place is calculated to ensure that the person served communicates actual and timely notice to the named defendant. Because Ms. Frank's son was not living at her home, she did not discover that she had been sued until she returned home in late November, 2010, long after her answer was due, and indeed, after the Judgment of Foreclosure and Sale had been entered. (Frank Affidavit 19). Although Citi cannot be faulted for failing to discover that Ms. Frank's son was not living in her home, its lack of knowledge cannot substitute for due process. See. e.g., Nature's First, Inc. v. Nature's First Law, D. C. Conn. 2006, 436 F. Supp. 2d 368 (default judgment obtained by defective service held void); Howard v. Jenny's Country Kitchen, Inc., D.C. Kan. 2004, 223 F.R.D. 559 (default judgment void because of defective service, even if defendant otherwise amenable to jurisdiction). Because service of the Summons and Complaint in the present matter was defective, Ms. Frank was denied notice and a reasonable opportunity to be heard. She should be granted relief from the Judgment of Foreclosure and Sale because the judgment itself is void.

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4. The judgment in this matter should be vacated pursuant to M.R.Civ.P 60(b)(4) and Plaintiff's complaint should be dismissed, because Citi waived its entitlement to foreclosure by accepting payments. Maine law protects mortgagors from foreclosure in certain instances where mortgagees accept payments after the commencement of foreclosure proceedings. 14 M.R.S.A. 6321 provides in pertinent part that "[t]he acceptance, before the expiration of the right of redemption and after the commencement of foreclosure proceedings of any mortgage of real property, of anything of value to be applied on or to the mortgage indebtedness by the mortgagee or any person holding under the mortgagee constitutes a waiver of the foreclosure unless an agreement to the contrary in writing is signed by the person from whom the payment is accepted or unless the bank returns the payment to the mortgagor within 10 days of receipt. (Emphasis supplied)

Citi brought its foreclosure suit on September 8, 2010. Ms. Frank's right of redemption expired on February 7, 2011. During the intervening five-month period, Citi accepted Ms. Frank's monthly payments of $634.26 on November 26 and December 12, 2010, and $635 on January 14, 2011. (Frank Affidavit 21, 25). Citi had earlier accepted all of Ms. Frank's payments required under her HAMP Trial Period Plan, as well as payments of $635 in February and March, 2011, after the period of redemption had expired. (Frank Affidavit 25). The payments Ms. Frank made between September 8, 2010 and February 7, 2011 were made in accordance with the two Stipulated Special Forbearance Plans discussed in preceding paragraphs. Each of these agreements, containing identical provisions, advised Ms. Frank that Citi would forbear further foreclosure action so long as she made payments. (Frank Affidavit, Exhibits 4 and 7). In no way does the language of these agreements convey to the ordinary mortgagor that by signing them, the mortgagee is securing the right to collect payments while actively continuing to pursue foreclosure. Indeed, Citi's own attempt to reimburse Ms. Frank for
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payments it received constitutes clear evidence that Citi itself understood, the agreements notwithstanding, that it would waive its right to foreclose if it accepted payments. (Frank Affidavit 28, Exhibit 11) Moreover, Citi's proffered repayment accounted for only two of the payments Ms. Frank made before expiration of the right of redemption. Also, the proffer was made on April 18, 2011, well beyond 10 days from Citi's receipt of Ms. Frank's payments. The consequences are clear for mortgagees who take payments without following the statutory requisites set forth in 14 M.R.S.A. 6321. The foreclosure suit itself is waived. Pursuant to M.R.Civ. 60(b)(4), the court should declare the judgment in this matter void and dismiss the Plaintiff's action. 5. The judgment in this matter should be vacated pursuant to M.R.Civ.P 60(b)(3) because of fraud, misrepresentation, and other misconduct by Citi prior to and during the course of litigation. When Sheila Frank sought a modification of her mortgage in March, 2009, she was current on her mortgage payments. (Frank Affidavit 4). Citi expressly advised her not to continue making her regular payments, because she could expect to receive a HAMP mortgage modification in the next thirty to sixty days. (Frank Affidavit 7). Instead, over the course of the next two years, Citi not only failed to modify her loan, despite receiving every payment it demanded, but also deliberately mislead Ms. Frank by false assurances that it would not foreclose her mortgage if she made the promised payments. Ms. Frank relied on these assurances justifiably and to her detriment, by honoring every request that Citi made for documents, and by signing and faithfully discharging her obligations under the TPP and two forbearance agreements in which Citi expressly promised not to pursue foreclosure if she met their terms.

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Citi's false and misleading statements occurred not only prior to the institution of suit, but during the course of the litigation itself. Each agreement that Citi tendered promising forbearance was dated October 28, 2010, in the very midst of Citi's pending motion for summary judgment. (Frank Affidavit, Exhibits 4 and 7). When Ms. Frank discovered in late November, 2010 that she had been sued, she reasonably relied on assurances by Christina Wamsley of Citi's Executive Office, that documents to modify her loan had been sent on November 8, 2010. In fact the court entered judgment against Ms. Frank on November 9. Even during the period of redemption following the judgment of foreclosure, when Ms. Frank might have taken action, Citi accepted Ms. Frank's payments and assured her that it would forbear. Walmsley herself wrote that Citi's forbearance plan would "keep the house in a safe status as long as docs and payments are returned." (Frank Affidavit, 25, Exhibit 6). Rule 60(b)(3) is remedial, and is to be liberally construed. Hesling v. CSX Transp., Inc., 396 F.3d 448, 455-56 (6th Cir. 2005). Ms. Frank submits that the statements by Christina Walmsley, as well as the forbearance agreements extended to her, constitute clear and convincing evidence of a manifest deception practiced by Citi and intended to misrepresent or conceal Citi's true intention, which was to hinder and delay a modification of Ms. Frank's mortgage while extracting service fees and penalties, and to ultimately foreclose her mortgage and sell her home. Because of this deception and the false promises on which Ms. Frank justifiably relied, she was deterred from entering her appearance in this matter, and from fully and fairly presenting her case. The judgment was thus unfairly obtained and should be vacated. General Universal Systems, Inc. v. Lee, 379 F.3d 131, 156 (5th Cir. 2004).

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CONCLUSION

For the reasons set forth in the foregoing arguments, Ms. Frank requests an Order vacating the Judgment of Foreclosure and Sale entered in this matter and dismissing Plaintiff's Complaint. In the alternative, she requests an Order vacating the judgment and permitting her to file an Answer, Defenses, and Counterclaims to Plaintiff's Complaint. DATED this 23rd day of May, 2010.

_________________________ L. Scott Gould, Esq., Maine Bar No. 8798

___________________________ Thomas A. Cox, Esq. Maine Bar No. 1248 Attorneys for Defendant

L. Scott Gould, Esq. 25 Hunts Point Road Cape Elizabeth, Maine 04107 (207) 799-9799

Thomas A. Cox, Esq. P. O. Box 1314 Portland, Maine 04104-1314 (207) 749-6671

RULE 7(b) NOTICE Pursuant to M.R.Civ.P 7(b)(1)(A), opposition to Defendant's Motion For Relief From Judgment and Motion to Dismiss or to Permit Defendant to Answer Complaint and Plead Counterclaims and Defenses would ordinarily be required to be filed within 21 days of filing of the said motions. PLEASE TAKE NOTE THAT DEFENDANT HAS FILED HEREWITH A MOTION FOR AN ORDER TO STAY THE FORECLOSURE SALE AND GRANT AN EXPEDITED HEARING.

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STATE OF MAINE CUMBERLAND ss.

DISTRICT COURT CIVIL ACTION: PORTLAND Docket No. RE-10-401 ) ) ) ) ) ) ) )

CITIMORTGAGE, INC. CitiMortgage, v. SHEILA A. FRANK, a/k/a SHEILA A. FLANDERS, Defendant

ORDER ON DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT AND MOTION TO DISMISS OR TO PERMIT DEFENDANT TO ANSWER COMPLAINT AND PLEAD COUNTERCLAIMS AND DEFENSES

The Court, having considered Defendant's Motion for Relief from Judgment and Motion to Dismiss or to Permit Defendant to Answer Complaint and Plead Counterclaims and Defenses, and finding good cause therefor, It is hereby ORDERED that Defendant's Motion for Relief from Judgment is hereby GRANTED, and the Judgment of Foreclosure and Sale entered in this matter on November 9, 2010, is hereby VACATED; and it is FURTHER ORDERED that Plaintiff's Complaint in this matter is hereby DISMISSED.

DATED this _______________ day of May, 2010

_____________________________ Judge, District Court

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