A prominent foreclosure attorney has filed a complaint against a Maine Supreme Judicial Court justice, saying she should have recused herself from a recent ruling that some say upends the state’s foreclosure process. 

In what is considered a rare move for an attorney, Thomas A. Cox, a Yarmouth-based lawyer, filed a complaint with the Maine Committee on Judicial Conduct this month, saying Justice Catherine Connors violated the Maine Code of Judicial Conduct by failing to recuse herself from two January cases that overturned recent precedent.

Justice Catherine Connors Photo courtesy of maine.gov

A handful of foreclosure cases are at the heart of the complaint.

In Maine, to foreclose on a property, a lender must first send a notice of default, which lays out what the borrower owes and how to get up to speed on the loan. State statute has strict requirements on what must be included in the notice.

Because of the statutory requirements for these letters, any mistake or “defective” notice of default essentially costs the bank the lawsuit. And following landmark cases like Pushard v. Bank of America and Federal National Mortgage Association v. Deschaine – both decided unanimously by the Supreme Judicial Court in 2017 – and the legal principle known as res judicata, the mortgage is deemed unenforceable, and banks can never file a foreclosure suit on that property again. It also means the mortgage is discharged and the borrower, in effect, now has a free house – an outcome sometimes referred to as “court as casino.” 

Earlier this month, in Finch v. U.S. Bank, N.A., an almost entirely new Maine Supreme Judicial Court issued what it called a “course correction” and ruled 4-3 that when a lender fails to comply with the requirements of the default notice prior to initiating a foreclosure action, the lender does not lose the right to subsequently enforce the mortgage. In so doing, the court overturned its prior precedent in the Pushard case. 

On Tuesday, the court ruled 5-2 in favor of the bank in a similar case to Finch, J.P. Morgan Chase Acquisition Corp v. Camille J. Moulton.

Connors, a Pierce Atwood attorney in 2017, represented and filed the appellate brief for Bank of America in Pushard and filed an amicus – or friend of the court – brief in the Deschaine case.

“The holding had broad impact both because it required (lenders) to exercise particular care in generating notices of default and because few homeowners realize defense counsel may be available and need scrupulously accurate notices to apprise them of their rights and obligations,” Cox said of the Pushard case. “Finch will also now have similarly broad impact. Affected will not just be Maine homeowners, should mortgage servicers engage again in faulty notice practices, but also former mortgage owner clients of Justice Connors, with interests in the millions of dollars.”

In the Finch case, the dissenting justices said the language and analysis of the majority decision were identical to the one presented in Pushard in 2017, when Connors represented Bank of America.

In his complaint, Cox also claimed Connors was the most active justice challenging the positions of the homeowner’s counsel in the Finch case.

“Had she not participated in the 4-3 holding, the trial court’s judgment for the homeowner would have been upheld,” he wrote. “Even though a decision on this complaint cannot by itself undo the damage resulting from Justice Connors’ conduct, a resolution of the issues raised may prevent further damage.”

THE QUESTION OF RECUSAL

This is not the first time Connors’ involvement in Supreme Court foreclosure cases has been questioned.

During her confirmation hearing in 2020, Connors was asked repeatedly about recusals.

In some cases, including those involving former client Central Maine Power and other former Pierce Atwood clients, Connors said she would recuse herself. Further, she said she would, “when there’s any doubt, defer on the side of recusal,” and expected that there would be “significant recusals” in foreclosure appeal cases before the court.

Jeffrey Evangelos, a former Maine state representative on the Judiciary Committee, formally requested Connors recuse herself before hearing the Moulton case in 2022.

“I voted to confirm her based on those assurances and she has betrayed that trust,” Evangelos said in an interview this week. “These people getting nominated to the supreme court of Maine have to tell the committee the truth and have to keep their word, otherwise their testimony is meaningless.”

According to the Maine Code of Judicial Conduct, if a judge’s impartiality in a case might reasonably be questioned, the judge should recuse him or herself. 

The standard for whether that impartiality may be questioned, according to the code, is an objective standard that mandates recusal. Subjective beliefs about the judge’s impartiality are irrelevant. 

There are some “bright lines” that clearly call for recusal, according to Dmitry Bam, vice dean of the University of Maine School of Law, such as owning stock in a company that is before the court, a relative’s involvement in a case or previous participation the case.

“Those are the easy cases where the judges are required to recuse themselves,” he said. “But then there’s the catch-all question of whether impartiality can be questioned.”

It’s the judge who makes that call, Bam said, and there’s no process for other justices to call for a colleague to recuse themselves.

Cox argues that even if no bias or prejudice were shown, it would still be reasonable to question Connors’ impartiality in the Finch and Moulton cases.

AN UNCOMMON STEP

Every step of the complaint process is confidential, but Cox provided a copy of his complaint to the Press Herald. 

After a complaint is filed, a judicial conduct committee compares the allegations with the Code of Judicial Conduct. If there is no code violation, the complaint is dismissed, according to the committee’s website. If further investigation is required, the judge will be asked to respond. 

If the committee finds there was misconduct serious enough to warrant formal discipline, it will report the complaint to the Supreme Judicial Court, which makes the final determination of whether there was misconduct and what disciplinary action is required. 

On average, it takes about three months to resolve complaints. 

Between 2018 and 2022, the committee received 155 complaints concerning Maine court judges. Of those, only four complaints concerned justices on the Supreme Judicial Court. Data from 2023 was not immediately available.

Bam said such complaints from attorneys are uncommon.

“Most lawyers know the likelihood of winning those is pretty low, and you’re just going to anger the judge,” he said. 

It stands to reason that they’d be even less common in a state like Maine, he said, where there’s a smaller group of lawyers that frequently appear before a judge.

Cox acknowledged that he was hesitant to file the complaint but said he was convinced it was the right thing to do.

One of his clients is discussed in the Finch dissent. If that client is sued again for foreclosure – as a result of the Finch decision – Cox said he’d likely advise him to find a new lawyer “as I will be concerned that even trial court judges may have reactions to my filing of this complaint which could influence their decisions in the cases of my clients.”

A committee representative declined to provide more information about the timeline and when the committee might take up the complaint against Connors. The process is the same, regardless of the level of the court, so the Supreme Judicial Court would still select the discipline for another justice. 

A court spokesperson would neither confirm the existence of the complaint nor discuss the case and Connors’ involvement.