ORDER ON PLAINTIFF'S MOTION FOR SUMMARY
the court is plaintiff Bank of America's unopposed motion
for summary judgment on its amended complaint for declaratory
judgment, quiet title, and equitable relief. For the
following reasons, the motion is denied.
January 26, 2004, Robert and Ann-Charlott Deutsch executed
and delivered a note to The Mortgage Office. (Supp.'g
S.M.F. ¶¶ 9, 11.) The note was secured by a
mortgage on real property located at 27 Bartol Island Road in
Freeport. (Id. ¶¶ 9-11.) On January 26,
2004, The Mortgage Office assigned the mortgage to defendant.
(Id. ¶¶ 14-15.) Plaintiff has provided an
undated allonge purporting to endorse the note from The
Mortgage Office to defendant. (Id. ¶ 12.) The
note itself reflects a series of endorsements, including an
endorsement from defendant to Countrywide Home Loans, Inc.
and an endorsement in blank from Countrywide. (Id.)
filed a complaint on April 25, 2016. In the complaint,
plaintiff sought one count of equitable assignment and
discharge of mortgage. Defendant did not answer the complaint
and, on May 26, 2016, plaintiff requested an entry of default
and moved for a default judgment. On June 22, 2016, the court
denied plaintiff's request for a default on the ground
that plaintiff had not properly effected service on
defendant. The court denied plaintiff's motion for a
default judgment on the grounds that plaintiff had not joined
the Deutsches as parties and the record did not include the
note, any evidence that plaintiff is the holder of the note
and owner of the mortgage, or any evidence that the Deutsches
had paid the note and mortgage in full. (6/22/16 Order 2-4.)
filed an amended complaint on September 27, 2016. In the
amended complaint, plaintiff sought: count I, declaratory
relief; count II, quiet title; and count III, equitable
relief. Defendant's registered agent was served with the
amended complaint on October 13, 2016. Defendant has not
filed an answer. Plaintiff filed a motion for summary
judgment on November 14, 2016. Defendant has not opposed the
Standard of Review
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any . . . show that there is no
genuine issue as to any material fact." M.R. Civ. P.
56(c). "A material fact is one that can affect the
outcome of the case, and there is a genuine issue when there
is sufficient evidence for a fact-finder to choose between
competing versions of the fact." McIlroy v.
Gibson's Apple Orchard, 2012 ME 59, ¶7, 43 A.3d
948 (citation omitted). Summary judgment rules are enforced
strictly in matters involving mortgage foreclosure.
JPMorgan Chase Bank v. Harp, 2011 ME 5, ¶15,
Motion for Summary Judgment
Count I, Declaratory Judgment
seeks a declaration that defendant holds the mortgage in
trust for the benefit of plaintiff. (Pl's Mot. Summ. J.
8-25.) Maine's Declaratory Judgments Act
empowers the court to "declare rights, status and other
legal relations" when doing so will "terminate the
controversy or remove an uncertainty." 14 M.R.S.
§§ 5953, 5957 (2016). First, it is unclear whether
there is a controversy "between the litigants."
Berry v. Daigle, 322 A.2d 320, 325 (Me. 1974).
"[w]hen declaratory relief is sought, all persons shall
be made parties who have or claim any interest which would be
affected by the declaration and no declaration shall
prejudice the rights of persons not parties to the
proceeding." 14 M.R.S. § 5963 (2016). As the court
explained in its order denying plaintiff's motion for a
default judgment, the Deutsches are necessary parties because
a ruling on the merits could prejudice their rights. (6/22/16
Order 3-4.) Plaintiff has not added the Deutsches as parties
and instead maintains the Deutsches are not necessary parties
because the Deutsches' payments are due to the note
holder, and the declaration plaintiff seeks would affect only
ownership of the mortgage. (Pl's Mot. Summ. J. 2.) As the
mortgagors, the Deutsches have an interest in whether
plaintiff owns the mortgage. See Bank of Am., N.A. v.
Greenleaf, 2014 ME 89, ¶ 9, 96 A.3d 700 (mortgage
ownership and status as note holder give mortgagee standing
to foreclose). If the Deutsches have sold the property, the
current owners also are necessary parties and must be joined.
(Supp.'g S.M.F. ¶ 9 n.2); Bank of Am., N.A. v.
Metro Mortg. Co., 2015 Me. Super. LEXIS 14, at *3 (Jan.
a declaratory judgment as to whether plaintiff owns the
mortgage would not necessarily remove any uncertainty as to
ownership. If the court were to determine that plaintiff does
not own the mortgage, The Mortgage Office and defendant, if
it is still in business, would remain free to litigate
ownership of the mortgage. See 14 M.R.S. § 5958 ...