M.R. Civ. P. 93

This Rule shall govern operation of the Foreclosure Diversion Program.

(a) Definitions. As used in this Rule, the following terms shall have the

following meanings:

(1) “Commercial loan” means a loan made to a borrower in which

the proceeds of the loan are not used, in whole or in part, for personal, family

or household purposes, and/or are not used to refinance a loan made in whole

or in part for personal, family or household purposes.

(2) “Foreclosure action” means any civil action initiated pursuant

to title 14, chapter 713 of the Maine Revised Statutes (14 M.R.S. §§ 6101-6325)

to foreclose on a property subject to a mortgage or other note or bond secured

by that property, other than a State mortgage pursuant to 14 M.R.S.

§§ 6151-6153.

(3) “Owner-occupant” means an individual who is the mortgagor of

a residential property that is that individual’s primary residence. The term may

include two or more individuals who are joint mortgagors of that residential

property.

(4) “Primary residence” means a residential property that is an

individual’s principal place of abode.

(5) “Residential property” means a single residential real property

including: (A) not more than four residential units owned by the mortgagor, or

(B) a single condominium unit owned by the mortgagor within a larger

residential condominium property.

(b) Foreclosure Diversion Program Application and Administration.

(1) Actions Covered. This Rule shall govern all foreclosure actions

filed after December 31, 2009, against a defendant who is an owner-occupant.

This Rule shall also govern all foreclosure actions that are filed on or before

December 31, 2009, against defendants who are owner-occupants, and who are

ordered by the court to mediation pursuant to subsection (q) of this Rule.

(2) Manager. The Manager of the Foreclosure Diversion Program,

under the direction of the State Court Administrator or designee, shall manage

the Foreclosure Diversion Program and shall supervise the:

(A) Operation and support of the Foreclosure Diversion Program

state-wide;

(B) Identification and qualification of persons to be mediators in

the Program;

(C) Orientation and certification of individuals to be mediators

pursuant to this Rule;

(D) Trial court clerks’ scheduling of mediations required or

requested pursuant to this Rule;

(E) Payment of mediators for services pursuant to this Rule;

(F) Preparation and filing of reports about mediations conducted

pursuant to this Rule and of such other reports and recommendations

regarding the Foreclosure Diversion Program as may be required by the

Supreme Judicial Court, or the State Court Administrator or designee; and

(G) Development and implementation of policies, procedures, and

forms to manage, evaluate, and report about the Foreclosure Diversion

Program.

(3) Mediators.

(A) Active Retired Justices or Judges may be assigned by the Chief

Justice or Chief Judge of their courts to act as Foreclosure Diversion

Program mediators after meeting program requirements; and

(B) Other persons eligible to be certified as mediators pursuant to

this Rule shall:

(i) Be educated and experienced in the professions of law, real

estate, accounting, banking, or mediation; have work experience that

includes foreclosures, credit and collections work; or have done work on

behalf of creditors or debtors in actions to collect on mortgages, notes, or

debts;

(ii) Have successfully completed orientation provided by the

Foreclosure Diversion Program and continuing education necessary to

remain on the active roster;

(iii) Have received a certificate of qualification to serve as

mediators from the Foreclosure Diversion Program subject to such terms

and conditions as deemed appropriate; and

(iv) Have a laptop computer that is compatible with court printers

for use at all mediation sessions. In the alternative, mediators may use

laptops or other portable computers and portable printers.

(c) Foreclosure Diversion Program Participation Requirements.

(1) Answers: Request for Mediation. Within 20 days after being

served with a summons and complaint each defendant shall (i) serve an answer

to the complaint on the plaintiff, and (ii) file a copy of that answer with the

court. To answer foreclosure complaints and request mediation, defendants

may use the one-page form approved and developed by the Department of

Professional and Financial Regulations, Bureau of Consumer Credit Protection,

or may file an answer that complies with M.R. Civ. P. 12(a) and also requests

mediation. However, if a defendant appears or otherwise requests mediation

in the action within 20 days after service of the summons and complaint, but

does not file an answer to the complaint, mediation shall be scheduled in

accordance with this Rule, and the deadline for filing an answer shall be

extended until 20 days after a final mediator’s report is filed with the court or

until 20 days after the court waives mediation or orders that mediation shall

not occur. A court may schedule mediation in an action in which the defendant

has failed to timely appear, answer, or otherwise request mediation, and/or has

failed to attend an informational session, but has not been defaulted pursuant

to M.R. Civ. P. 55.

(2) Informational Sessions. The Foreclosure Diversion Program is

authorized to design and implement informational sessions regarding

foreclosure proceedings and the diversion process, and the court may, in its

discretion, schedule informational sessions.

(3) Mediation. The court will schedule a mediation session for each

foreclosure action filed against a defendant who is an owner-occupant and who

appears, answers, or otherwise requests mediation in the action within 20 days

after service of the summons and complaint and attends an informational

session.

(4) Financial Forms to be Provided. In addition to the pleading

requirements specified by statute and Court Rules, a plaintiff shall file and serve

with the foreclosure complaint a set of financial forms requesting information

from the defendant that would allow the plaintiff to consider or develop

alternatives to foreclosure or otherwise facilitate mediation of the action.

These forms may be forms designed by individual lenders or standardized

forms developed by the federal government, a state agency, or some other

group, provided that the forms sent by the plaintiff are the forms that it will use

in considering or developing alternatives to foreclosure. With each set of

financial forms served on a defendant, the plaintiff must include an envelope

large enough to contain the forms. The envelope shall be addressed to the

plaintiff’s attorney, to whom this information will be sent. If the mailing

address is a P.O. Box, plaintiff’s attorney’s physical address will also be

provided.

(5) Completion and Return of Forms. Forms and any additional

information required by a plaintiff to review a defendant’s loan for a possible

workout, shall be identified by the plaintiff at mediation and provided to the

plaintiff’s attorney and to the court by the defendant no later than 21 days after

the first mediation session. If a defendant fails to meet this requirement, the

plaintiff’s attorney may file a written motion with the court, with a copy to the

defendant, requesting that the case be returned to the regular docket because

the defendant has failed to provide the requested information. If the defendant

has failed to appear at an informational session and/or mediation session, the

court may return the case to the regular court docket without the filing of a

motion by the plaintiff.

(d) Deferral of Dispositive Motions and Requests for Admissions.

(1) Generally. When a defendant, who is an owner-occupant,

appears, answers, or otherwise requests mediation within 20 days after service

of the summons and complaint in a foreclosure action filed after

December 31, 2009, or when mediation in the Foreclosure Diversion Program

is ordered by the court, no dispositive motions or requests for admissions shall

be filed until five (5) days after mediation is completed and a final mediator’s

report is filed with the court, or until the court orders that mediation shall not

occur.

(2) Exception for Commercial Loans. In any actions where the

mortgage acts as collateral given solely to secure a commercial loan, counsel for

the plaintiff, or the plaintiff, if unrepresented by counsel, may file and serve

with the complaint a motion requesting exemption from the deferral provided

for in section (1). The motion shall be subject to Rule 11(a), and shall include

both the assertion that the loan is a commercial loan, as well as the factual basis

for that assertion. The motion shall be accompanied by a proposed order

setting forth the specific relief requested. In any proceeding to determine

whether section (1) should apply, the plaintiff must establish, by a

preponderance of the evidence, that the mortgage was given solely to secure a

commercial loan. If the court determines that the plaintiff has met this burden,

section (1) shall not apply unless the court concludes that its application is in

the best interests of justice.

(e) Notice of Informational Session and Mediation.

(1) When a case enters the Foreclosure Diversion Program, the

clerk shall send a scheduling notice listing the date, time, and location of the

informational session and first mediation session to the plaintiff, the defendant

and any other party required to attend, and shall provide a copy of that notice

to all parties-in-interest.

(2) Unless the parties agree otherwise or unless the court extends

the deadline pursuant to subsection (i), mediation shall be completed not later

than 90 days after the clerk sends the mediation scheduling notice to the

parties.

(f) Contents of the Foreclosure Mediation Scheduling Notice.

The mediation scheduling notice shall contain scheduling information,

and attached thereto any court forms that the parties are required to file with

the court, exchange with each other in advance, or bring to the mediation

session(s). The completed Plaintiff’s Foreclosure Mediation Information form

must be filed with the court no later than 7 days before the date indicated in

the first Scheduling Notice of the first mediation session.

(g) Mediation Issues.

The mediation shall address all issues of foreclosure, including but not

limited to: (1) proof of ownership of the note and any assignments of the note;

(2) calculation of the sums due on the note for principal, interest, and any costs

or fees, reinstatement of the mortgage, and modification of the loan;

(3) restructuring of the mortgage debt; and (4) nonretention alternatives to

foreclosure. Foreclosure mediations shall utilize the calculations, assumptions

and forms established by the Federal Deposit Insurance Corporation and

published in the Federal Deposit Insurance Corporation Loan Modification

Program Guide, as set out on the Federal Deposit Insurance Corporation’s

publicly accessible website. In the alternative, foreclosure mediations may

utilize a reasonably equivalent system of calculating the value of the loan

modification in each case.

(h) Participation in Mediation.

(1) A mediator shall include in the mediation process any person

the mediator determines is necessary for effective mediation, such as a

potential contributor to the household, a property lien holder, other creditor or

party-in-interest whose participation is essential to resolution of issues in the

foreclosure. Mediation and appearance in person is mandatory for:

(A) the defendant;

(B) counsel for the defendant, if represented;

(C) counsel for the plaintiff; and

(D) the plaintiff, or representative of the plaintiff, who has the

authority to agree to a proposed settlement, loan modification, or

dismissal of the action. When the plaintiff is represented by counsel who

has authority to agree to a proposed settlement and is present, the

plaintiff or its representative may participate by telephone or video.

(2) For persons who are not the plaintiff or the defendant in the

pending civil action, or their attorneys, participation is voluntary and the

mediation shall proceed in the absence of such a person if that person declines

to participate in the mediation.

(3) When a plaintiff participates by telephone, plaintiff’s counsel

shall ensure the quality of the connection is sufficient to allow clear

communication for the duration of the session. Plaintiff’s counsel may be

required to furnish a speakerphone for use in the mediation room, or

elsewhere. When telephone equipment is available, the plaintiff’s counsel shall

make arrangements at plaintiff’s expense for reaching the plaintiff at a toll free

number or through the use of automated conference call services. Plaintiff will

comply with all requests contained in the mediation scheduling order,

including requests for information about telephone participation or video

participation. Requests for video participation must be made at least 10 days

before the scheduled mediation session.

(i) Multiple Sessions.

Mediators are authorized to schedule additional or follow-up sessions, if

necessary. Such sessions will be conducted in the same manner as the original

session, and will not extend the time limit to complete mediation set in

subsection (e)(2) unless the parties agree to such an extension or unless the

court finds that such an extension is necessitated by a plaintiff’s delay.

(j) Good Faith Effort.

If a plaintiff or defendant or attorney fails to attend or to make a good

faith effort to mediate, the mediator shall inform the court, and the court may

impose appropriate sanctions. Sanctions may include, but are not limited to,

tolling of interest and other charges pending completion of mediation,

assessment of costs and fees, assessment of reasonable attorney fees, entry of

judgment, permitting dispositive motions and/or requests for admissions to be

filed, entry of an order that mediation shall not occur, dismissal without

prejudice, dismissal without prejudice with a prohibition on refiling the

foreclosure action for a stated period of time, and/or dismissal with prejudice.

(k) Continuing or Canceling Mediation.

(1) If either party needs to have a mediation session continued, that

party shall file a motion requesting such change with the court and serve a copy

upon all opposing parties. If the motion is granted, the party requesting a

continuance shall inform, in writing, all other parties and the mediator of any

change approved.

(2) If the parties agree to a settlement, and have filed a dismissal of

the action at least 48 hours before the scheduled mediation, mediation will be

cancelled by the clerk.

(3) If the plaintiff or the defendant or the mediator appears at the

original mediation date and time because the party requesting the continuance

failed to timely advise all other parties or the mediator, the offending party or

counsel may be sanctioned.

(l) Location of Mediation Sessions.

Mediation sessions will be held at court locations, whenever possible.

The Foreclosure Diversion Program Manager may approve use of an alternate

site if the parties and mediator agree upon a location, or if courthouse resources

cannot accommodate mediation sessions. The original case file shall not leave

Judicial Branch buildings.

(m) Waiver of Mediation.

A defendant may request that mediation be waived by filing a completed

“motion to waive” form with the court. If the defendant files that motion, the

court may waive mediation only upon a finding by the court that:

(A) there is good cause to waive mediation, and

(B) the defendant is making a free choice to waive mediation after

being informed of the options and services that may be available through

mediation.

(n) Mediator’s Reports.

(1) Not later than 7 days following the mediation session, each

mediator shall complete and file with the court a report for each mediation

session, including follow-up sessions, conducted pursuant to this Rule.

(2) The mediator shall also provide a copy of each mediator’s

report to the parties at the time of submission, and shall provide details of the

mediator’s report to the Foreclosure Diversion Program for purposes of data

tracking and payment for mediation services.

(3) In the final mediator’s report, the mediator shall indicate that

the parties fully completed either the Net Present Value Worksheet found in the

Federal Deposit Insurance Corporation Loan Modification Program Guide or

another reasonable determination of net present value, or explain the reasons

why the parties did not complete this analysis.

(4) If the final mediator’s report indicates a failure to reach

agreement or any result other than a settlement or dismissal of the case, the

final report shall include the outcomes of the Net Present Value Worksheet in

the Federal Deposit Insurance Corporation Loan Modification Program Guide

or other reasonable determination of net present value and must note any

points of agreement reached during the mediation.

(o) No Waiver of Rights.

No party waives any rights in the foreclosure action by participating in

informational sessions or foreclosure mediation.

(p) Information and Confidentiality.

(1) Parties shall submit all information required by the Foreclosure

Diversion Program or Foreclosure Diversion Program mediator.

(2) Admissibility of evidence of statements made or discussions

occurring during mediation is subject to M.R. Evid. 408.

(3) Disclosures by a mediator of statements or actions occurring

during mediation or of information acquired during mediation shall be subject

to the same limitations as are stated in M.R. Civ. P. 16B(k) and M.R. Evid. 514.

A mediator shall keep confidential and not disclose financial documents,

worksheets and information received during the course of the mediation,

except as such information may be used to facilitate the mediation session or

as disclosure is otherwise authorized by court order.

(4) Except for financial information included as part of the

foreclosure complaint or any answer or response filed by the parties, any

financial statement or information provided to the court, a mediator, or to the

parties during the course of mediation is confidential and is not available for

public inspection. Any financial statement or information shall be made

available, as necessary, to the court, the attorneys whose appearances are

entered in the case, the mediator assigned to the matter, and the parties to the

mediation. Any financial statement or information designated as confidential

under this subsection, if filed with the court, shall be sealed and kept separate

from other court papers in the case and may not be used for any purposes other

than mediation.

(q) Optional Availability of Mediation.

(1) In addition to those foreclosure actions for which mediation is

mandatory pursuant to this Rule and 14 M.R.S. § 6321-A, a defendant who is an

owner-occupant in any foreclosure action that was pending but had not yet

resulted in final judgment as of January 1, 2010, may request by motion that the

court order mediation pursuant to this Rule. The court may order mediation

pursuant to this Rule if:

(A) after consulting with the Foreclosure Diversion Program

Manager, the court determines that mediation resources are available to

perform the mediation; and

(B) the court finds that mediation will not unduly delay the

proceedings or result in prejudice to the plaintiff.

(2) When optional mediation is ordered pursuant to paragraph (1):

(A) the court may order the plaintiff to send the financial forms

described in subsection (c)(4) of this Rule to the defendant;

(B) the court may order the parties to attend an informational

session or seek the assistance of a housing counselor prior to mediation;

and

(C) the filing of dispositive motions and requests for admissions

shall be deferred until five days after mediation is completed and a final

mediator’s report is filed with the court.