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U.S. Bank Trust National Association v. Bouras

Superior Court of Maine, Cumberland

November 16, 2016

U.S. BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR WATERFALL OLYMPIC MASTER FUND GRANTOR TRUST, SERIES I, Plaintiff,
v.
DIMITRI J. BOURAS, Defendant.

         Judgment 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

          A.M. HORTON, JUSTICE

         Before the court are (1) Defendant's motion to dismiss Plaintiffs complaint for commercial foreclosure and breach of contract, (2) Plaintiffs motion for summary judgment.[1]The court elects to decide both motions without oral argument. See M.R. Civ. P. 7(b)(7).

         For the following reasons, Defendant's motion is denied and Plaintiffs motion is granted.

         I. Background

         On 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.

         Plaintiff 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, 14.)

         Plaintiff 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 27, 2016.

         The case went to foreclosure mediation, but was removed from the foreclosure diversion program because the property is not the Defendant's primary residence.

         Plaintiff 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.

         II. Analysis

         A. Motion to Dismiss

         Defendant 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.

         B. Motion for Summary Judgment

         Summary 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 ...


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