ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION
AND FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
MaryGay Kennedy Justice
before the court is Plaintiff Mechanics Savings Bank's
motion for reconsideration and for findings of fact and
conclusions of law.
February 3, 2016, the court issued an order on Plaintiffs
motion for summary judgment in this foreclosure action. The
Court found several elements of Plaintiff s statement of
material facts and supporting affidavits to be defective.
Accordingly, the court denied Plaintiffs motion for summary
court also found that Plaintiffs notice of default and right
to cure failed to strictly comply with 14 M.R.S. § 6111.
Because compliance with 14 M.R.S. § 6111 is an essential
element of foreclosure, the court determined that Plaintiff
would be unable to prove its substantive claim and entered
summary judgment for Defendant Stephen P. Lessard pursuant to
Maine Rule of Civil Procedure 56(c). Wells Fargo Bank,
N.A. v. Girouard, 2015 ME 116, ¶ 9, 123 A.3d 216;
M.R. Civ. P. 56(c) ("Summary judgment, when appropriate,
may be rendered against the moving party"); see
also 3 Harvey, Maine Civil Practice §
56.10 at 251 (3d ed. 2011) ("Although permissible, a
cross-motion is not necessary in order for a summary judgment
to be entered in favor of the party opposing the original
February 17, 2016, Plaintiff filed a motion for
reconsideration and for findings of fact and conclusions of
law. Based on the following, Plaintiffs
motion for reconsideration is granted in part and denied in
part. Summary judgment is entered for the Defendant.
STANDARD OF REVIEW
for reconsideration are permitted to bring to the court's
attention an error, omission, or new material that could not
previously have been presented. M.R. Civ. P. 7(b)(5). A
motion to reconsider a judgment shall be treated as motion to
alter or amend the judgment. M.R. Civ. P. 59(e). The court
will grant a motion to amend the judgment if "it is
reasonably clear that prejudicial error has been committed or
that substantial justice has not been done." Cates
v. Farrington, 423 A.2d 539, 541 (Me. 1980).
Maine Rule of Civil Procedure 52 provides that upon the
request of a party, the court may make find the facts
specially and state separately its conclusions of law. M.R.
Civ. P. 52(a).
FINDINGS OF FACT
January 30, 2009, Defendant executed and delivered a
promissory note to Plaintiff with an original principal
amount of $405, 000.00. (Pl. Supp. S.M.F. ¶ 1.) The
promissory note was secured by a mortgage on property located
at 39 Longley Road in Greene, Androscoggin County, Maine.
(Id. ¶¶ 1-2.)
November 3, 2014, Plaintiff mailed Defendant a notice of
default and right to cure pursuant to 14 M.R.S. § 6111
(the "Notice"). (Id. ¶ 9.) The Notice
stated that the "AMOUNT NOW DUE" on the mortgage
was $89, 866.19. (Therrien Aff. Ex. C.) According to a
footnote in the Notice, the basis for calculating the
"AMOUNT NOW DUE" was shown in a separate
attachment. (Id.) The attached document contains an
itemized list of all past due monthly mortgage payments from
May 1, 2012 through November 1, 2014. (Id.) The
attached document also listed late charges of $2, 112.60,
postage expenses of $2.49, and a "Fee Balance" of
$4, 961.00. (Id.) The attached document did not
state what charges or fees were included in the "Fee
Balance" amount. (Id.)
Notice also stated the following:
You have the right to cure such defaults by (a) full payment
of all amounts that are due without acceleration, ... In
order to avoid the consequences described here-in-below, you
must tender to the Mechanics Savings Bank the AMOUNT NOW DUE
not later than thirty five (35) days after the receipt of
(Id.) The next paragraph of the Notice went on to
You have the right to reinstate the your loan after
acceleration until a judgment is entered if you meet the
(1) You pay to Lender the full amount that then would be due
under this Security Instrument and the Note as if immediate
payment in full had never been required;
(3) You pay all of Lender's reasonable expenses in
enforcing this Security Instrument including, for example,
reasonable attorneys' fees, property inspection and
valuation fees, and other fees incurred for the purpose of
protecting Lender's interest in the property and rights
under this Security Instrument;...
(Id.) The Notice further stated, emphasized with
Complete satisfaction of the terms set forth in the
preceding paragraph is required to avoid acceleration and
(Id.) (emphasis original).
filed its complaint for foreclosure on January 12, 2015.
(Compl. 1.) Plaintiff filed a motion for summary judgment on
July 8, 2015 (Pl. Mot. Summ. J. 1.) In support on its motion
for summary judgment, Plaintiff submitted a statement of
material facts, a sworn affidavit by Gerald Therrien, a
Collection/Workout Manager with Plaintiff, and a sworn
affidavit by Plaintiffs counsel. The following exhibits were
attached to Therrien's affidavit: a copy of the note
(Exhibit A), a copy of the mortgage (Exhibit B), a copy of
the notice of default and right to cure and its attachments
(Exhibit C), and account statements (Exhibit D). Attached to
counsel's affidavit were copies of invoices counsel's
firm to Plaintiff.
statement of material facts, Plaintiff averred that the
mortgage was recorded in the Androscoggin County Registry of
Deeds in Book 7615, Page 236. (Pl. Supp. S.M.F. ¶ 3.)
Plaintiff cited Therrien's affidavit and Exhibit B, a
copy of the ...