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U.S. Bank, N.A. v. Tannenbaum

Supreme Court of Maine

November 5, 2015

U.S. BANK, N.A.
v.
DAVID R. TANNENBAUM

Submitted On Briefs: September 28, 2015

Lewiston District Court docket number RE-2011-192.

Thomas A. Cox, Esq., Portland, for appellant David Tannenbaum

Paul D. Weinstein, Esq., Bendett & McHugh, P.C., Portland, for appellee U.S. Bank, N.A.

Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

GORMAN, J.

[¶1] David R. Tannenbaum appeals from a judgment in his favor entered in the District Court (Lewiston, Lawrence, J.) on U.S. Bank, N.A.'s (the Bank's) residential foreclosure complaint. Tannenbaum contends that the court erred in expressly reserving in the judgment the Bank's right to relitigate the same issues in a subsequent foreclosure action. We agree and vacate that portion of the judgment, and we affirm in all other respects.

I. BACKGROUND

[¶2] The Bank filed a residential foreclosure complaint against Tannenbaum on August 16, 2011.[1] The Bank alleged that Tannenbaum executed a promissory note and a mortgage securing the note on certain property in Lisbon Falls in 2005; that he defaulted on the note by failing to make monthly mortgage payments due beginning October 1, 2010; and that, through a series of endorsements and assignments, the Bank had acquired rights in the mortgage and authority to enforce the note.

[¶3] After a nonjury trial on September 30, 2014, the court entered a judgment on the merits in Tannenbaum's favor. In its judgment, the court determined that the Bank had failed to provide Tannenbaum with a notice of the default and of his right to cure that met the requirements of 14 M.R.S. § 6111 (2014). Despite entering a judgment in Tannenbaum's favor, however, the court also "reserve[d] to the parties the right to re-litigate all issues in a properly commenced future foreclosure action." Tannenbaum appeals, challenging only that portion of the court's judgment that prospectively reserved to the Bank the right to relitigate a second foreclosure action.[2]

II. DISCUSSION

[¶4] Tannenbaum contends that the District Court did not have the authority to issue a final judgment on the merits in his favor and simultaneously provide that the Bank could relitigate the same issues in a subsequent foreclosure action. The Bank does not appeal from the judgment in Tannenbaum's favor or challenge the court's determination that notice of default was inadequate; it argues only that the court acted within its authority in preserving the Bank's right to bring a second foreclosure action. "The trial court's authority to undertake particular action . . . is an issue of law that we examine de novo." In re Estate of Kingsbury, 2008 ME 79, ¶ 7, 946 A.2d 389.

[¶5] As we have held explicitly, a notice of default that comports with the requirements of section 6111 is a substantive element of proof in a foreclosure action. Bank of Am., N.A. v. Greenleaf (Greenleaf I), 2014 ME 89, ¶¶ 18, 29-31, 96 A.3d 700; Chase Home Fin. LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508; see also Wells Fargo Bank, N.A. v. Girouard, 2015 ME 116, ¶ 7, __ A.3d __. Here, therefore, the court's judgment in Tannenbaum's favor was grounded in a failure of proof-inadequate notice of default-and was a final judgment on the merits.

[¶6] Generally, a subsequent action raising the same issues as an action already adjudicated on the merits would prompt a res judicata analysis. See Portland Water Dist. v. Town of Standish, 2008 ME 23, ¶ 7, 940 A.2d 1097 ("The doctrine of res judicata prevents the relitigation of matters already decided . . . ."). Res judicata "bars the relitigation of claims if: (1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been, litigated in the first action." Wilmington Trust Co. v. Sullivan-Thorne, 2013 ME 94, ¶ 7, 81 A.3d 371 (quotation marks omitted). ...


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