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Bank of Maine v. Jones

Superior Court of Maine, Cumberland

October 8, 2014

THE BANK OF MAINE, Plaintiff
v.
THOMAS E. JONES, Defendant and ATLANTIC REGIONAL FEDERAL CREDIT UNION, and ARTHUR POWERS, III, Parties-in-interest

ORDER ON PLAINTIFF'S SECOND MOTION FOR SUMMARY JUDGMENT AND MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT

Nancy Mills, Justice, Superior Court.

Before the court is plaintiff's second motion for summary judgment in a foreclosure action brought pursuant to 14 M.R.S. § § 6321-6325 (2013) and a request for entry of default and default judgment. See M.R. Civ. P. 55, 56. Neither the defendant nor either party-in-interest filed an opposition to plaintiff's motions. For the following reasons, the motions are denied.

Summary Judgment

Plaintiff's motion for summary judgment is subject to Rule 56(j), which imposes detailed requirements for granting summary judgment in foreclosure actions. M.R. Civ. P. 56(j).[1] The court is required to determine independently if those requirements have been met and is also required to determine whether the mortgage holder has set forth in its statement of material facts the evidence necessary for a judgement of foreclosure. See Bank of Am., N.A. v. Greenleaf , 2014 ME 89, ¶ 18, 96 A.3d 700 (citing Chase Home Fin. LLC v. Higgins , 2009 ME 136, ¶ 11, 985 A.2d 508) (listing the elements of proof necessary to support a judgment of foreclosure).

After review, the court concludes plaintiff has failed to provide: (1) evidence of properly served notice of default and mortgagor's right to cure that complies with statutory requirements or the inapplicability of such notice requirements pursuant to 14 M.R.S. § 6111; (2) proof of exemption from the mediation requirements of 14 M.R.S. § 6321-A; (3) compliance or exemption from the notice requirements of section 6321-A(2); and (3) any amounts that may be due to other parties-in-interest. See 14 M.R.S. § § 6111; 6321-A; 6321-A(2); Greenleaf, 2014 ME 89, ¶ 18, 96 A.3d 700; Lubar v. Connelly , 2014 ME 17, ¶ 38, 86 A.3d 642.

The first three deficiencies in proof cited above result from the plaintiff's allegation that the property at issue is a " commercial/business property, " thus relieving plaintiff from its obligation to provide notice in compliance with 14 M.R.S. § 6111 and 6321-A(2) as well as the mediation requirements of 14 M.R.S. § 6321-A(6). (See Supp. S.M.F. ¶ ¶ 14, 17; Bean Aff. ¶ ¶ 14, 17; Pl.'s Ex. D.) Neither the note nor the mortgage supports plaintiff's allegation.[2] (Pl.'s Exs. A, B.) To the contrary, the mortgage provides that it was " made and executed by [defendant], whose address is 89 Pleasant Street, Brunswick, ME 04011, " the address of the mortgaged property.[3] (Pl.'s Ex. B.)

Plaintiff alleges in its statement of material facts that defendant " is of Brunswick, County of Cumberland and State of Maine." (Supp. S.M.F. ¶ 2.) This statement does not clarify whether the loan was for commercial purposes or whether defendant resides at the property. Plaintiff's allegation in its statement of material fact that the property is a " commercial/business property" at which the defendant does not reside is not properly supported by a record citation. See M.R. Civ. P. 56(e); (Supp. S.M.F. ¶ 17.) This statement refers to the affidavit of the plaintiff's employee, Erica Bean. (Supp. S.M.F. ¶ 17; Bean Aff. ¶ 17.) Ms. Bean does not reference any of plaintiff's records to support the allegation that the property is commercial in nature and that defendant does not reside there.[4] (Pl.'s Aff. ¶ 17.)

In foreclosure actions it is imperative that an affiant cite to a business record for every assertion when the affiant claims her knowledge of the facts set forth in the affidavit are derived from a review of the plaintiff's records. See HSBC Mortg. Servs., Inc. v. Murphy , 2011 ME 59, ¶ 9, 19 A.3d 815 (in foreclosure actions, " the information supplied by the affidavits is largely derivative because it is drawn from a business's records, and not from the affiant's personal observation of events."); (Bean Aff. ¶ ¶ B-E.) Ms. Bean's assertions, without more, are insufficient to establish the facts regarding the nature of the property and defendant's residence. Accordingly, plaintiff has not demonstrated compliance with the statutory notice requirements. 14 M.R.S. § § 6111, [5] 6321, 6321-A(2).

Additionally, plaintiff's statement of material fact regarding the amount due to party-in-interest Arthur Powers, III, is not supported by the record reference. Plaintiff cites to Mr. Powers's answer to plaintiff's complaint to support its assertion that Mr. Powers is entitled to $10, 236. (Supp. S.M.F. ¶ 20(c).) Mr. Powers's answer dated November 12, 2013, does not contain any numbers.[6] See HSBC Bank USA, N.A. v. Gabay , 2011 ME 101, ¶ 9, 28 A.3d 1158. Plaintiff has failed to establish any amounts that may be due to other parties-in-interest. See Lubar , 2014 ME 17, ¶ 38, 86 A.3d 642.

Entry of Default and Default judgment

Because of the deficiencies discussed, plaintiff has not established that it complied with or is exempt from the notice requirements of 14 M.R.S. § 6111. Entry of default or a default judgment is not warranted. See M.R. Civ. P. 55(a).[7]

The entry is

Plaintiff's Second Motion for Summary Judgment and Motion for an Entry of Default and Default Judgment are DENIED.


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