U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF8 MASTER PARTICIPATION TRUST
BEVIN L. (HOOPER) MACKENZIE
Submitted On Briefs: May 26, 2016
Clinton Boothby, Esq., Boothby Perry, LLC, Turner, for
appellant Bevin L. (Hooper) Mackenzie.
Leonard F. Morley, Jr., Esq., William B. Jordon, Esq., and
Corey S. Hadley, Esq., Shapiro & Morley, LLC, South
Portland, for appellee U.S. Bank Trust, N.A., as Trustee for
LSF8 Master Participation Trust.
ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
In this foreclosure action brought by U.S. Bank Trust, N.A.,
as Trustee for LSF8 Master Participation Trust (the Bank),
Bevin L. (Hooper) Mackenzie-the mortgagor-moved for summary
judgment on the ground that, inter alia, the requisite
notices of default and right to cure were deficient. Although
the District Court (Lewiston, Dow, J.) agreed with
Mackenzies contention, it entered an order dismissing the
complaint without prejudice, expressly reserving to the Bank
the right to commence a new action if it were to issue a
statutorily compliant notice of default and right to cure. On
this appeal by Mackenzie, she argues that she is entitled to
a summary judgment rather than merely a dismissal of the
matter without prejudice because the defective notices of
right to cure constitute a substantive defect in the Banks
cause of action. In the absence of a cross-appeal by the
Bank, we affirm the dismissal of the complaint but remand
with instructions for the court to revise its order so that
it is with prejudice but does not establish the parties
rights in any future litigation.
In its complaint, the Bank alleges the following facts, which
we recite to provide some context for our discussion of the
procedural issues in this case.
In 2001, Mackenzie and Jim B. Hooper acquired two parcels of
real property located in Leeds. In September 2004, Hooper
executed a loan repayment and security agreement with
Beneficial Maine, Inc. To secure Beneficials right to receive
payments under the loan agreement, Mackenzie and Hooper
executed a mortgage deed in favor of Beneficial.
Having received no payments since 2011 toward the loan
obligation, in December 2013 Beneficial sent separate but
substantively identical notices of default and right to cure
to Hooper and Mackenzie. See 14 M.R.S. § 6111
(2014). After sending the notices, Beneficial
still did not receive any payments, and in March 2014, it
filed a complaint in the District Court against Mackenzie and
Hooper, alleging a default for failure to make payments
required under the loan agreement and seeking to foreclose on
the mortgaged properties. See 14 M.R.S.
§§6321-6326 (2015). Beneficial attached copies of
the notices of right to cure as exhibits to the complaint.
While the action was pending, Beneficial assigned the loan
agreement and mortgage to the Bank, and the court
(Schneider, J.) granted Beneficials motion to
substitute the Bank as the plaintiff. Following two
unsuccessful mediation sessions, Mackenzie filed a motion for
summary judgment supported by a statement of material facts.
See M.R. Civ. P. 56. In her motion, Mackenzie
argued, among other things, that the notices of right to cure
were deficient because they did not satisfy the requirements
of section 6111(1-A). The Bank opposed the motion and argued in
part that the motion for summary judgment should be denied
because Mackenzies statement of material facts failed to
establish that her factual assertions would be admissible in
evidence and therefore did not comply with the requirements
of M.R. Civ. P. 56(e). The Bank also argued that the notices
of right to cure were sufficient. In her reply, Mackenzie
filed an amended statement of material facts in an apparent
attempt to rectify the formal deficiencies in her original
After holding a hearing on the motion, in July 2015 the court
(Dow, J.) issued an order concluding that "the
notice of right to cure did not comply with statutory
requirements." On that basis, the court dismissed the
complaint without prejudice "so that [the Bank] may send
notice in compliance [with] 14 M.R.S. § 6111 at least