Pushard v. Bank of America, N.A.

          Argued: February 7, 2017

          Joshua Klein-Golden, Esq. (orally), Clifford & Golden, PA, Lisbon Falls, for appellants Heidi M. Pushard and Jeffrey A. Pushard

          John J. Aromando, Esq., and Catherine R. Connors, Esq., Pierce Atwood LLP, Portland, and Elizabeth P. Papez, Esq. (orally), Winston & Strawn LLP, Washington, D.C., for appellee Bank of America, N.A.

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶1] Heidi M. Pushard and Jeffrey A. Pushard appeal from summary judgments entered in the Business and Consumer Docket [Horton, J.) in favor of Bank of America, N.A. (the Bank), on the Pushards' claims against the Bank for declaratory and injunctive relief, slander of title, and damages pursuant to 33 M.R.S. § 551 (2016). We do not disturb the judgments on the Pushards' claims for slander of title, damages pursuant to section 551, and injunctive relief. We vacate the judgment on the Pushards' claim for declaratory relief and remand the case for entry of summary judgment in the Pushards' favor on that claim.

         I. BACKGROUND

         [¶2] In October 2011, the Bank initiated a foreclosure action against the Pushards in the Superior Court (Androscoggin County, MG Kennedy, J.). In its amended complaint, filed in May 2013, the Bank made the following allegations:

• In December 2006, the Pushards executed a promissory note in favor of Countrywide Home Loans, Inc., (Countrywide) in the amount of $145, 000.

• As security for the note, the Pushards executed a mortgage on their property in Wales in favor of Mortgage Electronic Registration Systems, Inc. (MERS), "as nominee for" Countrywide.

• The Pushards failed to make the monthly mortgage payment due on April 1, 2008, and have failed to make all subsequent monthly mortgage payments.

• In 2008, MERS assigned the mortgage to Countrywide. In 2011, Countrywide assigned the mortgage to the Bank.

• The Bank became the holder of the promissory note.

• In May 2011, the Bank sent the Pushards notice of their default and of their right to cure the default "in conformity with Maine law." The Pushards received the notice in June 2011.

• The amount due "[a]s of September 6, 2011, " was $191, 717.91, including the "principal balance" of $142, 882.25, an "escrow balance, " interest, fees, and late charges.

         [¶3] The Bank sought judicial foreclosure of the Pushards' mortgage.^[1] Among other documents attached to its complaint, the Bank included copies of the note and the mortgage. Included in the note was a provision stating:

If [the Pushards are] in default, the Note Holder may send [them] a written notice telling [them] that if [they] do not pay the overdue amount by a certain date, the Note Holder may require [them] to pay immediately the full amount of Principal which has not been paid and all the interest that [they] owe on that amount.

         The mortgage contained a provision stating that the lender

may require that [the Pushards] pay immediately the entire amount then remaining unpaid under the Note and under this Security Instrument... if all of the following conditions are met:

(a) [The Pushards] fail to keep any promise or agreement made in this Security Instrument, including the promises to pay when due the Sums Secured;

(b) Lender sends to [the Pushards] ... a notice that [meets various requirements];... and

(c) [The Pushards] do not correct the default stated in the notice from Lender by the date stated in that notice.

         [¶4] After a trial on the Bank's foreclosure complaint, the court entered a judgment in the Pushards' favor in October 2014. The court determined that the Bank had failed to meet its burden to prove three of the eight elements of a foreclosure action: (1) a breach of a condition of the mortgage; (2) the amount due; and (3) that the notice of default that it sent to the Pushards complied with statutory requirements.^[2] See Bank of Am., N.A. v. Greenleaf, 2014 ME 89, ¶ 18, 96 A.3d 700 ("A plaintiff seeking a foreclosure judgment must comply strictly with all steps required by statute.") (quotation marks omitted). Neither the Bank nor the Pushards appealed from the judgment.

         [¶5] Five months later, in March 2015, the Pushards initiated the action giving rise to this appeal.^[3] In an amended complaint, based on the judgment in their favor in the Bank's foreclosure action and the Bank's failure to subsequently discharge the mortgage, the Pushards averred that they owe nothing on the note and sought a declaration that they are entitled to (1) a discharge of the mortgage and (2) an order enjoining the Bank from enforcing the note and mortgage and compelling the Bank to record a release of the mortgage. They also asserted a claim for slander of title, alleging that the Bank's failure to discharge the mortgage prevents them from transferring clean title to the property or using it as collateral, and a claim for damages pursuant to 33 M.R.S. § 55l.^[4] The Bank counterclaimed for breach of contract, unjust enrichment, and a declaratory judgment.

         [¶6] The Pushards moved for summary judgment on all of their claims. See M.R. Civ. P. 56(a). In their statement of material facts, see M.R. Civ. P. 56(h)(2), they described, with reference to supporting evidence, the procedural history and outcome of the Bank's foreclosure action. Specifically, the Pushards asserted that (1) the Bank had "sought the entire amount due on the note and foreclosure of the mortgage"; (2) the court ...