H. JOSEPH BARTHOLD, II, SOLE TRUSTEE OF BARTHOLD FAMILY TRUST, Plaintiff,
WARREN M. TURNER and ANNE L. TURNER, Defendants, and STATE OF MAINE, UNITED STATES OF AMERICA, SCOTT DUGAS TRUCKING & EXCAVATION, INC, SCOTT DUGAS, ROBERT HAAS, and 7-9 WEST MAIN STREET ASSOCIATES, Parties-in-interest.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON AMENDED CROSS CLAIM
Joyce Wheeler Justice, Superior Court
Before the Court is Plaintiffs motion for summary judgment for breach of contract based on two promissory notes and for foreclosure of two mortgages securing those notes. Also before the Court is Defendant Anne Turner's motion for summary judgment on her amended cross claim. For the reasons discussed below, Plaintiffs motion is DENIED and Defendant Anne Turner's motion is GRANTED as to Count I and DENIED as to Counts II and III.
Defendants Warren Turner and Anne Turner were granted the property located at 570 East Elm Street, Yarmouth, Maine as joint tenants on November 8, 1982. (Def.'s S.M.F. ¶ 1.) On May 1, 1986, Defendants executed a promissory note in the principal amount of $40, 000 (the "1986 Note"). (Pl's S.M.F. ¶ 1.) Also on May 1, 1986, Defendants executed a mortgage deed (the "1986 Mortgage"), which included as collateral the property at 570 East Elm Street. (Id. ¶ 2.) On September 4, 1990, Defendants executed a second promissory note in the principal amount of $40, 000 (the "1990 Note"). (Id. ¶ 4.) Also on September 4, 1990, Defendants executed a mortgage deed (the "1990 Mortgage"), which included as collateral the property at 570 East Elm Street. (Id. ¶ 5.)
On May 4, 2010, the Internal Revenue Service ("IRS") recorded a Notice of Federal Tax Lien. (Id. ¶ 9.) The IRS recorded a second Notice of Federal Tax Lien on August 18, 2010. (Id. ¶ 10.) Scott Dugas, individually and on behalf of Scott Dugas Trucking & Excavating, Inc., recorded an order for attachment and trustee process on February 16, 2011. (Id. ¶ 11.) Maine Revenue Services ("MRS") recorded a Notice of State Tax Lien on September 13, 2011. (Id. ¶ 12.) Robert Haas, individually and on behalf of 7-9 West Main Street Associates, recorded a writ of execution on January 20, 2012. (Id. ¶ 13.) MRS recorded a second Notice of State Tax Lien on May 4, 2012, a third notice on August 30, 2012, a fourth notice on September 25, 2012, and a fifth notice on September 26, 2012. (Id. ¶¶ 14-17.)
Plaintiff asserts that it sent a notice of right to cure to Defendants on September 22, 2014. (Id. at ¶ 20.) Plaintiff also asserts that, as of September 22, 2014, Defendants owed Plaintiff $40, 000 of principal and $236, 927.66 in interest under the 1986 Note and $40, 000 of principal and $377, 589.28 in interest under the 1990 Note. (Id. ¶¶ 32-33.) Plaintiff claims that Defendants have not made payments to Plaintiff. (Id. ¶ 23.)
On October 28, 2014, Plaintiff commenced this civil foreclosure action. Anne Turner filed a cross claim against Warren Turner and the parties-in-interest alleging three counts: breach of contract, contribution, and declaratory judgment. On March 19, 2015, Plaintiff moved for summary judgment. None of the parties-in-interest filed an opposition to the Plaintiffs motion. Anne Turner moved to join Plaintiffs motion for summary judgment and admitted Plaintiffs statement of material facts. On July 9, 2015, Anne Turner moved for summary judgment on her cross claim. Warren Turner has not appeared in this action.
A. Plaintiffs Motion for Summary Judgment
The Court denies the Plaintiffs motion because the Plaintiff has failed to establish the necessary elements of proof. Maine Rule of Civil Procedure 56(j) provides:
No summary judgment shall be entered in a foreclosure action filed pursuant to Title 14, Chapter 713 of the Maine Revised Statutes except after review by the court and determination that (i) the service and notice requirements of 14 M.R.S. § 6111 and these rules have been strictly performed; (ii) the plaintiff has properly certified proof of ownership of the mortgage note and produced evidence of the mortgage note, the mortgage, and all assignments and endorsements of the mortgage note and the mortgage; and (iii) mediation, when required, has been completed or has been waived or the defendant, after proper service and notice, has failed to appear or respond and has been defaulted or is subject to default.
M.R. Civ. P. 56Q); see also 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) (setting forth the essential elements of proof necessary to support a judgment of foreclosure).
The Court must first determine whether the Plaintiff strictly complied with the notice requirements of 14 M.R.S. § 6111. The Plaintiffs statement of material facts avers that on September 22, 2014, the Plaintiff sent the Defendants notice of their right to cure in strict compliance with section 6111. (Pl's S.M.F. ¶ 20.) The assertion that the notice complied with the requirements of section 6111 is a legal conclusion that the Court may disregard. See Diversified Foods, Inc. v. First
Nat'l Bank, 605 A.2d 609, 612 (Me. 1992) (holding that statements of material fact that "consist of legal arguments and conclusions rather than factual allegations" may be excluded from consideration). Because the Plaintiff and the Plaintiffs affiant did not attach a copy of the notice that was allegedly sent to the Defendants, the Court cannot determine whether that notice complied with section 6111.
Additionally, the Plaintiff asserts that it is the "holder" of the 1986 Note and the 1990 Note. (Pl's S.M.F. ¶ 25.) The assertion that the Plaintiff is the "holder" is a legal conclusion that the Court may exclude. See Diversified Foods, Inc., 605 A.2d at 612. Furthermore, the documentation underlying this assertion does not support the Plaintiffs conclusion that it is the "holder" of both notes. A holder is "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession[.]" 11 M.R.S. § 1-1201(21)(a) (2014) (emphasis added). The 1986 Note is payable to Lee and Carol Barthold in their individual capacities. Lee and Carol Barthold executed an "assignment" purporting to assign their interests in the note to the Plaintiff but did not indorse the note and therefore the 1986 Note is not payable to ...