Pamela A. DENUTTE
U.S. BANK, N.A.
February 5, 2019
Meredith C. Eilers, Esq. (orally), Michael R. Bosse, Esq.,
and Daniel J. Mitchell, Esq., Bernstien Shur, Portland, for
appellant Pamela A. Denutte
M. Brochin, Esq. (orally), Morgan, Lewis & Bockius LLP,
Miami, Florida, and Jeff Goldman, Esq., Morgan, Lewis &
Bockius LLP, Boston, Massachusetts, for appellee U.S. Bank,
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
After borrowing money from a financial institution and
executing a mortgage to secure the loan, Pamela A. Denutte
fully performed her obligations arising from the transaction.
She alleges that despite her performance, U.S. Bank,
N.A.— the servicer of the mortgage— did not
fulfill its statutory duty when it came time for the
mortgage to be discharged. See 33 M.R.S. § 551
(2018). She filed a complaint against U.S. Bank based on that
alleged statutory violation, but, on motion filed by U.S.
Bank, the Business and Consumer Docket (Murphy, J. )
dismissed the complaint as time-barred. Denutte appeals from
that judgment, which we now affirm.
In her complaint, Denutte alleged the following facts, which
we treat as admitted for the purpose of determining whether
the allegations state a viable claim for relief. See
Sabina v. JPMorgan Chase Bank, N.A., 2016 ME 141, ¶
2, 148 A.3d 284.
In December of 2008, Denutte obtained a loan from Merrimack
Mortgage Company, Inc. Denuttes promise to satisfy
her loan obligations was secured by a mortgage encumbering
real property she owned in South Portland. After Denutte
fully performed her obligations, Merrimack discharged the
mortgage by executing a written release dated May 17, 2013.
U.S. Bank, acting as the servicer of Merrimacks
mortgage-secured loans, recorded the release in the
Cumberland County Registry of Deeds. The recording was timely
as measured by 33 M.R.S. § 551, which requires a mortgagee to
record a written release of a mortgage "[w]ithin 60 days
after full performance of the conditions of the
mortgage." On June 6, 2013, the registry mailed the
original recorded mortgage release to U.S. Bank, and U.S.
Bank received the recorded instrument no later than three
business days later. In early September of 2013—
approximately three months after it received the original
recorded mortgage release back from the registry— U.S.
Bank mailed the release to Denutte.
Four years later, on September 27, 2017, Denutte filed a
complaint in the Superior Court (Cumberland County) alleging
that U.S. Bank had violated another portion of 33 M.R.S. §
551— the mailing obligation, which requires a
mortgagee to mail the original recorded mortgage
release to the mortgagor within thirty days after the
mortgagee receives the recorded release back from the
registry of deeds. See Sabina, 2016 ME
141, ¶ 9, 148 A.3d 284. In her complaint, Denutte asserted
that, because of the statutory violation, U.S. Bank is liable
to her as the statute provides— for "exemplary
damages" of $500 and her reasonable attorney fees and
The case was transferred to the Business and Consumer Docket,
and soon after, in December of 2017, U.S. Bank moved to
dismiss Denuttes complaint as time-barred and therefore
failing to state a claim upon which relief may be granted,
see M.R. Civ. P. 12(b)(6). In its motion, U.S. Bank
contended that Denuttes claim for a violation of section
551s mailing obligation was subject to and barred by the
one-year statute of limitations provided in 14 M.R.S. § 858
(2018) for "[a]ctions for any penalty or forfeiture on a
penal statute." Denutte responded that the statutory
mailing obligation is remedial rather than penal and is
therefore controlled, not by the one-year limitation period
of section 858, but by the six-year period of limitations
that applies more generally to civil claims, see 14
M.R.S. § 752 (2018) ("All civil claims shall be
commenced within 6 years after the cause of action accrues
... except as otherwise specially
In March of 2018, the court issued a judgment determining
that the portion of section 551 creating the mailing
requirement is a penal statute, that an award of damages for
its violation is a penalty, and that a claim for violating
the mailing requirement is therefore subject to the one-year
statute of limitations prescribed in section 858. The court
concluded that the complaint was time-barred because Denutte
filed her complaint more than one
year after the alleged violation. Denuttes motion for
reconsideration was denied by the court, see M.R.
Civ. P. 7(b)(5), 59(e), and she then filed this timely