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Mechanics Savings Bank v. Lessard

Superior Court of Maine, Androscoggin

April 6, 2016

MECHANICS SAVINGS BANK, Plaintiff, SUPEF
v.
STEPHEN P. LESSARD, Defendant, and CAPITAL ONE BANK (USA), N.A. and FORD MOTOR CREDIT COMPANY Parties-in-Interest.

          ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION AND FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

          MaryGay Kennedy Justice

         Presently before the court is Plaintiff Mechanics Savings Bank's motion for reconsideration and for findings of fact and conclusions of law.

         On 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 judgment.

         The 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 motion.").

         On February 17, 2016, Plaintiff filed a motion for reconsideration and for findings of fact and conclusions of law. [1]Based on the following, Plaintiffs motion for reconsideration is granted in part and denied in part. Summary judgment is entered for the Defendant.

         I. STANDARD OF REVIEW

         Motions 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).

         Additionally, 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).

         II. FINDINGS OF FACT

         On 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.)

         On 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.)

         The 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 this notice.

(Id.) The next paragraph of the Notice went on to state:

You have the right to reinstate the your loan after acceleration until a judgment is entered if you meet the following conditions:
(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 italics:

Complete satisfaction of the terms set forth in the preceding paragraph is required to avoid acceleration and foreclosure.

(Id.) (emphasis original).

         Plaintiff 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.

         In its 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 ...


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