U.S. BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR WATERFALL OLYMPIC MASTER FUND GRANTOR TRUST, SERIES I, Plaintiff,
DIMITRI J. BOURAS, Defendant.
of Foreclosure and Sale Title to Real Estate is Involved 11
Town Hall Place & 8 Pleasant St. Brunswick, ME 04011
Cumberland County Registry of Deeds, Book 25946, Page 1
ORDER AND JUDGMENT
the court are (1) Defendant's motion to dismiss
Plaintiffs complaint for commercial foreclosure and breach of
contract, (2) Plaintiffs motion for summary
judgment.The court elects to decide both motions
without oral argument. See M.R. Civ. P. 7(b)(7).
following reasons, Defendant's motion is denied and
Plaintiffs motion is granted.
March 31, 2008, Defendant executed and delivered to Banco
Popular North America ("Banco") a promissory note
in the amount of $420, 000.00. (Supp. S.M.F. ¶ 2.) To
secure the note, Defendant executed and delivered to Banco a
mortgage on property located at 11 Town Hall Place and 8
Pleasant Street, which does not serve as Defendant's
primary residence. (Id. ¶¶ 3-4, 12.) Also
on March 31, 2008, Defendant executed and delivered to Banco
an assignment of rents collected at 11 Town Hall Place and 8
Pleasant Street. (Id. ¶¶ 5-6.) On October
2, 2014, Banco endorsed the note to Sutherland Asset I, LLC,
which subsequently endorsed the note in blank. (Id.
¶ 7.) On December 16, 2014, Banco assigned the mortgage
and assignment of rents to Waterfall Olympic Master Fund
Grantor Trust, Series I. (Id. ¶¶ 8-9.)
Plaintiff U.S. Bank Trust National Association brings this
action as Trustee for Waterfall Olympic Master Fund Grantor
Trust, Series I.
alleges that Defendant has defaulted on the note, mortgage,
and assignment of rents and that, as a result, Defendant
owes: the remaining principal balance of $388, 492.20, plus
interest of $63, 518.18, late fees of $2, 051.03, processing
fees of $850.00, advances of $8, 724.92, and attorneys'
fees and costs of $7, 527.65. (Id. ¶¶ 11,
filed a complaint on May 5, 2016. In the complaint, Plaintiff
alleged: count I, foreclosure and count II, breach of
contract. Also on May 5, 2016, Plaintiff filed a motion for
appointment of a receiver. On June 10, 2016, the court
appointed Kevin O'Donovan to act as receiver. Defendant
was served on June 8, 2016 and answered the complaint on June
case went to foreclosure mediation, but was removed from the
foreclosure diversion program because the property is not the
Defendant's primary residence.
filed a motion for summary judgment on August 29, 2016.
Defendant has not filed an opposition to Plaintiffs motion.
Defendant filed a motion to dismiss with prejudice on October
11, 2016. Plaintiff filed an opposition to Defendant's
motion on October 28, 2016.
Motion to Dismiss
argues that the court should dismiss Plaintiffs complaint
with prejudice because Mr. O'Donovan allegedly identified
himself as the owner of 11 Town Hall Place and 8 Pleasant
Street, broke into these properties, changed the locks, and
negotiated a lease for an apartment at 8 Pleasant Street.
(Def.'s Mot. Dismiss 1.) Defendant's allegations do
not offer a basis for dismissal. See M.R. Civ. P.
12(b)(1)-(7). Further, the court has appointed Mr.
O'Donovan to act as receiver in this case, and his
alleged actions are not inconsistent with his
responsibilities as receiver. (See 6/10/16 Order
(2)(b)-(c), (h).) On this record, there is no foundation for
dismissing Plaintiffs complaint with prejudice.
Motion for Summary Judgment
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
dispute of material fact and that any party is entitled to
judgment as a matter of law. M.R. Civ. P. 56(c). A genuine
dispute exists "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth
at trial." Parrish v. Wright,2003 ME 90,
¶ 8, 828 A.2d 778. "To avoid a summary judgment,
the nonmoving party must respond by filing (1) a memorandum
of law in opposition to the motion for summary judgment; (2)
a statement of material facts in ...