WELLS FARGO BANK N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006-OPT1, Asset Backed Pass Through Certificates, Series 2006-OPT1, Plaintiff
BRADFORD WHITE, Defendant
Thomas D. Warren Justice, Superior Court.
This is an action brought by plaintiff Wells Fargo Bank seeking to foreclose a mortgage securing a loan to defendant Bradford White. Before the court is Wells Fargo's motion for summary judgment.
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Tohnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id . Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997ME 99 ¶ 8, 694 A.2d 924, 926.
The Law Court has suggested in a series of recent cases that the summary judgment standards must be scrupulously followed in mortgage foreclosure cases. Applying those standards in this case, Wells Fargo has not adequately established that it is entitled to summary judgment. This is true for several reasons, including but not necessarily limited to the following:
1.The moving affidavit in this case is submitted by Tonya Hopkins, an employee of the servicer of the loan. While summary judgment may be based upon the affidavit of a servicer where appropriate, it is unclear the extent to which the motion is relying on business records as to which Ms. Hopkins can provide an adequate foundation. The court accepts that Ms. Hopkins has established that the records of Homeward Residential Inc. (formerly American Home Mortgage Servicing Inc.) are business records but her affidavit (¶ 4) suggests that she may also be relying on business records of prior holders of the note and/or prior servicers. To the extent this is true, she has not established that it was the regular practice of the prior entities to make such records or that those records were made at or near the time of the events recorded by a person with knowledge.
2. Ms. Hopkins asserts (¶ 7) that Wells Fargo "is the holder of the note or is otherwise entitled to enforce it." (emphasis added). This leaves open the possibility that Wells Fargo is not the holder. If Wells Fargo is not the holder, the court has not been presented with any facts that would support Ms. Hopkins's legal conclusion that Wells Fargo is otherwise entitled to enforce the note.
Those issues are sufficient to require that summary judgment be denied. As a result the court does not have to reach the following issues at this time:
1. Whether, since the corrective assignment of the mortgage is signed by an officer of "Sand Canyon Corporation f/k/a Option One Mortgage Corporation, " Wells Fargo would have to make an additional factual showing that Option One became Sand Canyon prior to the corrective assignment.
2. Whether Wells Fargo has made a sufficient showing that White received the notice of default. Specifically, there is no showing that White signed a certified mail receipt, 14 M.R.S. § 6111(3)(A), and Wells Fargo has not submitted a certificate of mailing to establish proof of receipt by ordinary mail. 14 M.R.S. § 6111(3)03). It is possible that in the case of certified mail, the "track and confirm" email from the Postal Service might be admissible as either a business or public record but the document submitted by Wells Fargo does not show that a return receipt was requested.
3.Whether Wells Fargo has made a sufficient showing as to the amount due. In this respect the business records upon which Wells Fargo relies are less than clear. In particular, the court cannot understand how Wells Fargo has calculated an accrued interest figure of $99, 734.61 as of June 2012.
4. Whether White has raised a genuine issue for trial as to whether there were any Truth in Lending violations in this case or whether the loan transaction in this case would qualify as unconscionable. In this connection, the court recognizes that some of the facts offered by White on this issue in his affidavit are not supported by his deposition testimony but does not need to rule on whether White's remaining factual assertions would be sufficient to defeat summary judgment.
Not included in the above list are certain factual issues sought to be raised by counsel for White based on documents obtained from various sources on the internet. Factual assertions and allegations drawn from the internet do not constitute evidence that "would be admissible in evidence" under Rule 56(e) and those would not preclude summary judgment.
Finally, the court notes that plaintiffs summary judgment motion refers to an answer and affidavit submitted by party in interest Portfolio Recovery Associates LLC. See plaintiff's statement of material facts ¶ 14. Neither that answer nor the affidavit is contained in the court file. It therefore appears as if Portfolio Recovery Associates served papers upon plaintiff's counsel but neglected to file them with the court.
The entry shall be:
Plaintiff's motion for summary judgment is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
A non-jury trial was held in the above-captioned mortgage foreclosure action on May 31, 2013 and December 12, 2013. Most of the six and one half month interval between the days of trial resulted from a serious medical condition that defendant White experienced which affected scheduling of the second day of trial. The court finds as follows:
1. Ownership of Note
Wells Fargo produced the original note at trial. Although White questioned whether he signed the note that was offered at trial, the court - based on White's previous deposition testimony - concludes that defendant White did sign the note produced at trial.
The original note is made payable to Option One Mortgage Corporation. Accompanying the three-page note is an undated one page allonge constituting an endorsement in blank. The note and allonge are contained in a folder, attached by a two prong metal fastener. They are the only items in the folder. The pages of the note and the allonge are attached together by the metal fastener of the folder. The allonge refers to Bradford White and refers to the same property ...