United States District Court, D. Maine
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff,
MARC R. BERUBE and DONNA G. BERUBE, Defendants. JAND, INC., d/b/a/ SERVPRO OF LEWISTON-AUBURN, ST. MARY'S REGIONAL MEDICAL CENTER, MAINE REVENUE SERVICES Parties-In-Interest.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ON DEFENDANT'S COUNTERCLAIM
Z. Singal United States District Judge.
the Court is Plaintiff U.S. Bank Trust, N.A., as Trustee for
LSF9 Master Participation Trust's Motion for Summary
Judgment on Defendant Marc R. Berube's Counterclaim (ECF
No. 25). For the reasons briefly explained herein, the Court
GRANTS Plaintiff's Motion.
a party is entitled to summary judgment if, on the record
before the Court, it appears “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). An issue is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. A “material
fact” is one that has “the potential to affect
the outcome of the suit under the applicable law.”
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701,
703 (1st Cir. 1993).
party moving for summary judgment must demonstrate an absence
of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In determining whether this burden is met, the Court must
view the record in the light most favorable to the nonmoving
party and give that party the benefit of all reasonable
inferences in its favor. Santoni v. Potter, 369 F.3d
594, 598 (1st Cir. 2004).
the moving party has made this preliminary showing, the
nonmoving party must “produce specific facts, in
suitable evidentiary form, to establish the presence of a
trialworthy issue.” Triangle Trading Co., Inc. v.
Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)
(internal quotation marks and punctuation omitted); see
also Fed.R.Civ.P. 56(e). “Mere allegations, or
conjecture unsupported in the record, are
insufficient.” Barros-Villahermosa v. United
States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting
Rivera-Marcano v. Normeat Royal Dane Quality A/S,
998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v.
Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011)
(“A properly supported summary judgment motion cannot
be defeated by conclusory allegations, improbable inferences,
periphrastic circumlocutions, or rank speculation.”).
“As to any essential factual element of its claim on
which the nonmovant would bear the burden of proof at trial,
its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment for
the moving party.” In re Ralar Distribs.,
Inc., 4 F.3d 62, 67 (1st Cir. 1993).
following facts, taken from the summary judgment record
before the Court, are undisputed. On August 25, 2008, Marc and
Donna Berube executed a Note and Mortgage in favor of
Countrywide Bank, FSB. The Mortgage encumbered property in
Minot, Maine (hereinafter, “the Property.”) On
August 29, 2014, Marc filed for Chapter 13 Bankruptcy, which
triggered an automatic stay pursuant to 11 U.S.C. §
362(a). On October 23, 2015, Plaintiff U.S. Bank Trust, N.A.,
as Trustee for LSF9 Master Participation Trust (“U.S.
Bank”), a successor-in-interest to Countrywide Bank,
filed a motion for relief from the automatic stay. On
December 15, 2015, the Bankruptcy Court vacated the automatic
stay “as to [U.S. Bank]'s interests in the Property
to allow [U.S. Bank]'s enforcement of its rights in, and
remedies in and to, including but not limited to foreclosure
of the mortgage lien on the Property; negotiating a
settlement or by entering into a loan workout with [Marc
Berube].” (Ex. 3 to Pl.'s Statement of Material
Facts (ECF No. 26-3), Page ID # 294.) The Bankruptcy Court
further ordered “that [U.S. Bank] shall promptly report
and turn over to the case trustee any surplus monies realized
by any sale of the Property.” (Id.)
August 4, 2016, U.S. Bank filed a Complaint against Marc
Berube, Donna Berube, and parties-in-interest JAND, Inc.,
d/b/a Servpro of Lewiston-Auburn, St. Mary's Regional
Medical Center, and Maine Revenue Services, to foreclose on
the Property. The Complaint alleged, inter alia, that the
Berubes had defaulted on the Note and that the Property was
subject to foreclosure. The Complaint specifically stated
that Marc Berube's “liability is subject to, and
limited by his Bankruptcy Docke[t] No.: 14-20704.”
(Compl. (ECF No. 1), Page ID # 5, ¶ 20.) In the Prayer
for Relief, U.S. Bank requested “subject to the
bankruptcy of Marc R. Berube at Docket No.: 14-20704”
that the Court, in part, “issue a money judgment
against the Defendants . . . in the amount of . . . ($243,
654.05) dollars, the total debt owed under the Note plus
interest and costs, including attorney's fees and
costs.” (Id., Page ID #s 12-13.)
August 19, 2016, counsel for Marc Berube emailed counsel for
U.S. Bank expressing displeasure with the fact that U.S. Bank
had filed a foreclosure action in federal court and stating:
The demands for a money judgment plus costs and fees . . .
well, I am ccing the Trustee because the claims for
violations of the automatic stay belong, in part, to the
bankruptcy estate. I understand the ease in using form
complaints. But that can get clients into trouble.
(Ex. 4 to Pl.'s Statement of Material Facts (ECF No.
26-4), Page ID # 297.) On August 24, 2016, counsel for U.S.
Bank responded with an email stating, in part:
It is not my intention to seek any sort of personal money
damages against your client and I would refer you to
Paragraph 20 of our complaint and the initial portion of the
prayer for relief which both reference your client's
bankruptcy. I am happy to make any reasonable changes to the
complaint to make that clearer. . . . Thank you for your time
and please let me know if there are specific changes you
would like to see to make it clearer that there is no
personal liability on the part of Marc Berube.
(Id., Page ID # 298.) On August 26, 2016, Marc
Berube filed his Answer to U.S. Bank's Complaint, which
included a Counterclaim alleging that U.S. Bank had violated
the automatic stay. Notably, the Answer also admitted the
allegation in paragraph 20 of the Complaint that Marc
Berube's “liability is subject to, and limited by
his Bankruptcy Docke[t] No.: 14-20704.” (Answer (ECF
No. 8), Page ID # 123.) ...