HEIDI M. PUSHARD et al.
BANK OF AMERICA, N.A
Argued: February 7, 2017
Klein-Golden, Esq. (orally), Clifford & Golden, PA,
Lisbon Falls, for appellants Heidi M. Pushard and Jeffrey A.
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.
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
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.
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.
The Bank sought judicial foreclosure of the Pushards'
mortgage. 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.
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
(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.
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. 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
Five months later, in March 2015, the Pushards initiated the
action giving rise to this appeal. 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. The Bank counterclaimed for breach of
contract, unjust enrichment, and a declaratory judgment.
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 ...