United States District Court, D. Maine
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
E. Walker U.S. District Judge
mortgage foreclosure procedures provide that “[t]he
mortgagee shall sell the premises to the highest bidder at
the public sale and deliver a deed of that sale … to
the purchaser.” 14 M.R.S. § 6323. Plaintiff
Infinity Real Estate LLC was the second highest bidder at the
public sale for certain Kittery, Maine realty. Only the
defaulting mortgagor outbid Plaintiff. When the defaulting
mortgagor failed to close the sale, Defendant Deutsche Bank
National Trust Company offered to sell the property to
Plaintiff and Plaintiff accepted. Although Plaintiff and
Defendant executed a Purchase and Sale Agreement, Defendant
later reneged. Plaintiff contends it is entitled to specific
performance of the agreement, and Defendant maintains it
cannot sell the property to Plaintiff because a sale to
Plaintiff would violate Maine law.
matter is before me on cross-motions for summary judgment.
Defendant also requests that I strike a summary judgment
affidavit filed by Plaintiff in support of Plaintiff's
summary judgment reply memorandum.
parties submitted their motions on a stipulated record, which
recites the following facts. On April 19, 2012, Deutsche Bank
obtained a judgment of foreclosure and sale against Fancesco
Rotondo and realty located at 1 Tudor Drive, Kittery, Maine,
January 17, 2017, Deutsche Bank held a foreclosure auction to
sell the property. In addition to Deutsche Bank, six other
registered bidders attended the foreclosure auction. Among
the registered bidders were Francesco Rotondo, the previous
mortgagor and owner of the property, and Aaron Additon, the
owner and sole member of Infinity Real Estate LLC.
foreclosure auction, Deutsche Bank provided bidders with the
Terms and Conditions for the Public Sale. Ex. A-3 (ECF No.
27-3). The Terms and Conditions, which purported to contain
“all of the terms set forth in the Purchase and Sale
Agreement form included in the bidder's prospectus and
provided to registered bidders at the time of registration to
bid, ” Ex. A-3 § D, included the following
provision governing Defendant's right to close the sale
with someone other than the highest bidder:
(F) … In the event that there is a failure to close
the sale with any person who executes a Purchase and Sale
Agreement, The Lender reserves the right to either hold a new
sale or to contact the next highest bidder and allow that
party to purchase the property as assignee of the interests
of the highest bidder.
end of the foreclosure auction, Francesco Rotondo was the
highest bidder and Aaron Additon of Infinity Real Estate,
LLC, the second highest bidder. On January 17, 2017, Francesco
Rotondo executed a Purchase and Sale Agreement with Deutsche
Bank for a purchase price of $755, 000. However, Mr. Rotondo
failed to close the sale of the Property.
Mr. Rotondo's failure to close, counsel for Deutsche Bank
offered to sell the Property to Infinity Real Estate LLC for
$590, 024.19. Infinity Real Estate accepted this offer and on
July 24, 2017, Mr. Additon signed a Purchase and Sale
Agreement prepared by Deutsch Bank for the sale of the
property. Ex. A-4 (ECF No. 27-4). Infinity Real Estate then
paid the $5000 deposit.
Real Estate was ready, willing, and able to close on the sale
of the property. However, Deutsche Bank unilaterally refused
to close the sale. Deutsche Bank does not contest that its
refusal to honor the Purchase and Sale Agreement with
Infinity Real Estate constituted a breach of that contract.
Def.'s Opp. to Mot. Summ. J. 4, n.2.
judgment is appropriate “if the movant shows 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). As cautioned by the Supreme Court,
“the 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). A material fact is one that has the
potential to determine the outcome of the litigation.
Id. at 248; Oahn Nguyen Chung v.
StudentCity.com, Inc., 854 F.3d 97, 101 (1st
Cir. 2017). To raise a genuine issue of material fact, the
party opposing the summary judgment motion must demonstrate
that the record contains evidence that would permit the
finder of fact to resolve the material issues in their favor.
See Triangle Trading Co. v. Robroy Indus.,
Inc., 200 F.3d 1, 2 (1st Cir. 1999) (“Unless
the party opposing a motion for summary judgment can identify
a genuine issue as to a material fact, the motion may end the
motion for summary judgment, Defendant asserts that the
“sole issue . . . is whether 14 M.R.S.A. § 6323
bars Deutsche Bank's sale of the Property to Plaintiff,
insofar as the Maine foreclosure statute requires that
property sold at a foreclosure auction must be conveyed to
the ‘highest bidder,' which was indisputably not
the Plaintiff here.” Def.'s Mot. 1-2. Plaintiff, on
the other hand, moves for summary judgment based on the Terms
and Conditions of the Public Sale, which allowed for Deutsche
Bank to contact the next highest bidder upon the highest
bidder's failure to close, to refuse any irregular bids,
and to determine the highest bidder. Pl.'s Mot. 5.
Construing the Statute
foreclosure statute provides that the seller “shall
sell the premises to the highest bidder.” 14 M.R.S.
§ 6323(1). When interpreting the meaning of a
statute, Maine courts endeavor to give effect to legislative
intent as expressed, ideally, in the plain language of the
statute. Wawenock, LLC v. Dep't of
Transp., 187 A.3d 609, 612 (Me. 2018). If the plain
language leaves room for interpretation, then courts will
seek to avoid readings that are absurd, inconsistent,