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Deutsche Bank National Trust Co. v. Thibodeau

United States District Court, D. Maine

September 14, 2017

Deutsche Bank National Trust Company, as Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-AR1 Plaintiff
v.
Joanha Thibodeau Defendant Gerald C. Burns; and The City of Lewiston. Parties-In-Interest NO. 2

          JUDGMENT OF FORECLOSURE AND SALE

          JON D. LEVY U.S. DISTRICT JUDGE

         This matter came before the Court for a testimonial hearing on Plaintiff's Motion for Default Judgment on August 31, 2017. Plaintiff, Deutsche Bank National Trust Company, as Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-AR1, was present and represented by John A. Doonan, Esq. Defendant Joanha Thibodeau did not appear. Nine (9) exhibits were introduced into evidence. Marc Berninger testified.

         All persons interested having been duly notified in accordance with the law, and after hearing, the Plaintiff's Motion for Default Judgment is GRANTED. Count II - Breach of Note, Count III - Breach of Contract, Money Had and Received, Count IV - Quantum Meruit, and Count V - Unjust Enrichment, are hereby DISMISSED without prejudice at the request of the Plaintiff. JUDGMENT on Count I - Foreclosure, is hereby ENTERED as follows:

1. If the Defendant or her heirs or assigns pays Deutsche Bank National Trust Company, as Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-AR1 (“Deutsche Bank”) the amount adjudged due and owing ($248, 542.65) within 90 days of the date of the Judgment, as that time period is calculated in accordance with 14 M.R.S.A. § 6322, Deutsche Bank National Trust Company shall forthwith discharge the Mortgage and file a dismissal of this action on the ECF Docket.
2. If the Defendant or her heirs or assigns does not pay Deutsche Bank the amount adjudged due and owing ($248, 542.65) within 90 days of the Judgment, as that time period is calculated in accordance with 14 M.R.S.A. § 6322, her remaining rights to possession of the Lewiston Property shall terminate, due to her breach of the subject mortgage dated April 8, 2005, and recorded in Book 6293, Page 174, and Deutsche Bank shall conduct a public sale of the Lewiston Property in accordance with 14 M.R.S.A. § 6323, disbursing the proceeds first to itself in the amount of $248, 542.65, after deducting the expenses of the sale, with any surplus to be disbursed pursuant to Paragraph 5 of this Judgment, and in accordance with 14 M.R.S.A. § 6324.
3. Pursuant to 14 M.R.S.A. § 2401(3)(F), the Clerk shall sign a certification after the appeal period has expired, certifying that the applicable period has expired without action or that the final judgment has been entered following appeal.
4. The amount due and owing is $248, 542.65.
5. The priority of interests is as follows:
a) Deutsche Bank National Trust Company, as Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-AR1 has first priority, in the amount of $248, 542.65, pursuant to the subject Note and Mortgage.
b) Gerald C. Burns has the second priority behind the Plaintiff pursuant to a Mortgage dated April 8, 2005, in the amount of $8, 850.00, and recorded in the Androscoggin County Registry of Deeds in Book 6293, Page 195.
c) The City of Lewiston has the third priority behind the Plaintiff pursuant to a Security Agreement dated November 24, 2010, in the amount of $5, 000.00, and recorded in the Androscoggin County Registry of Deeds in Book 8082, Page 341. As of June 30, 2017, the amount owed under the Security Agreement is $5, 696.13.
c) Joanha Thibodeau has the fourth priority behind the Plaintiff.
6. No public utility easements survive the foreclosure.
7. The prejudgment interest rate is 5.350%, see 14 M.R.S.A. ยง 1602-B, and the post-judgment interest rate is 6.65%, ...

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