WELLS FARGO BANK, N.A.
ANTOINE A. GIROUARD et al
Submitted on Briefs July 1, 2015.
The orders of dismissal and partial summary judgment are vacated. Remanded for entry of full summary judgment for the Girouards.
On the briefs: Joshua Klein-Golden, Esq., Clifford & Golden, PA, Lisbon Falls, for appellant Antoine and Jessica Girouard.
Kevin P. Polansky, Esq., Nelson Mullins Riley Scarborough LLP, Boston, Massachusetts, for appellee Wells Fargo Bank, N.A.
Panel: ALEXANDER, GORMAN, JABAR, and HJELM, JJ.
[¶1] After Wells Fargo Bank, N.A. commenced this action to foreclose on property owned by Antoine and Jessica Girouard, the Girouards moved for summary judgment, arguing that the statutorily
mandated notice of default issued by Wells Fargo was defective. Wells Fargo agreed with that contention, and the District Court (Lewiston, Lawrence, J.,) granted summary judgment to the Girouards but then, on Wells Fargo's motion, issued an amended order granting summary judgment in part and simultaneously dismissing Wells Fargo's complaint without prejudice. On this appeal by the Girouards, they argue that the court erred by granting less than full summary judgment and by dismissing the foreclosure action without prejudice. We agree and vacate the amended order of partial summary judgment and dismissal, and we remand for reinstatement of the initial entry of full summary judgment in favor of the Girouards.
[¶2] Although, in an appeal from an order granting a motion for summary judgment, we ordinarily view the facts in the light most favorable to the nonprevailing party, see Allen v. McCann, 2015 ME 84,
¶ 8, 120 A.3d 90, the facts of this case are not in dispute. The Girouards own property located in Lewiston. In September 2004, they executed a note and mortgage deed in favor of a third party, and after several transactions, all rights created by the instruments were assigned to Wells Fargo. In December 2012, Wells Fargo issued to the Girouards a notice of default and right to cure. See 14 M.R.S. § 6111 (2014). The notice informed the Girouards that, in order to cure the default, they were required to pay $8,848.81, " plus any additional monthly payments, late charges and other charges that may be due under applicable law after the date of [the] notice and on or before thirty-five (35) days from the date of [their] signed receipt of [the notice]." When the Girouards failed to cure the default, Wells Fargo purported to accelerate the mortgage, and in July 2013 it initiated this action for foreclosure.
[¶3] More than a year later, on July 14, 2014, shortly after we issued our decision in Bank of Am., N.A. v. Greenleaf, the Girouards moved for summary judgment, arguing that the notice of default did not comply with section 6111 as interpreted in Greenleaf. See 2014 ME 89,
¶¶ 29-31, 96 A.3d 700 (holding that to comply with the statute, a notice of default must state the precise amount that the mortgagor must pay to cure the default, without allowing for accrual of any additional amount during the cure period). Wells Fargo filed a " limited opposition" to the Girouards' motion, agreeing that the demand letter did not meet the requirements of section 6111 and stating that " defendants' Motion for Summary Judgment should be granted for failure to properly accelerate the loan and this matter dismissed without prejudice." In September 2014, the court granted the Girouards' motion and entered summary judgment for them. In the same order, however, the court also dismissed the foreclosure action without prejudice.
[¶4] The Girouards then filed three post-judgment motions: (1) a motion to correct a " clerical mistake," see M.R. Civ. P. 60(a), in which they argued that the order dismissing the complaint was such an error; (2) a motion to alter or amend the judgment, see M.R. Civ. P. 59(e), so that it would constitute a summary judgment without reference to a dismissal of Wells Fargo's complaint; and (3) a motion for findings of fact and conclusions of law, see M.R. Civ.
¶ 52(a). The court issued an amended order granting the motions in part, concluding that Wells Fargo had not complied with section 6111 as ...