AMENDED ORDER ON DEFENDANTS' MOTION FOR SUMMARY
in this residential foreclosure action, John Kendall and S.
Sherman B. Kendall, have tiled a Motion for Summary Judgment
on statute of limitations grounds. Plaintiff Deutsche Rank
Trust Co. Americas has filed an Opposition and Defendants
have filed a Reply.
court elects to decide the Motion without oral argument.
See M.R. Civ. P. 7(b)(7).
December 29, 2006, the Defendants executed a Fixed/Adjustable
rate Note for $8.60, 000 in favor of Homecomings Financial,
LLC, and a mortgage securing the note upon property at 28
Hammond Road, Falmouth, Maine. Tn May 2009, the Defendants
executed an Adjustable Rate Modification Agreement, modifying
their loan obligation.
2009, Defendants were notified that Homecomings Financial had
transferred its right to collect payments on the note, as
modified, to GMAC Mortgage.
February 2010, GMAC Mortgage sent Defendants a Notice of
Default pursuant to 14 M.R.S. § 6111, advising them of
their right to cure and indicating that the loan would be
accelerated if they did not cure within the time stated.
in 2010, Plaintiff Deutsche Bank commenced a foreclosure
action against the Defendants, seeking the entire balance
alleged to be due on the note. See Deutsche Bank Trust
Co. Americas v. Kendall, Me. Super. Ct., Cum. Cty.,
Docket No. CUMSC-RE-10-465. That case was voluntarily
dismissed without prejudice. There were two more notices of
default sent to the Defendants in 2012 and 2013 and another
foreclosure action commenced, which was also voluntarily
dismissed without prejudice. See Deutsche Bank Trust Co.
Americas v. Kendall, Me. Super. Ct., Cum. Cty., Docket
are additional facts but the court does not deem them
material to the decision.
purposes of this Motion, the Defendants do not challenge
Plaintiffs standing, nor do they contend that the two prior
foreclosures should be given preclusive effect in this case.
(Neither of those matters is conceded; it is only that
neither is put into issue by Defendants' Motion). There
do not appear to be any disputed material facts.
sole issue is whether this third foreclosure action by
Plaintiff against Defendants is barred by the statute of
limitations. Under M.R. Civ. P. 56, the
Defendants' Motion requires them to show that they are
entitled to judgment as a matter of law on that issue.
Defendants argue that the general six-year statute of
limitations applies, see 14 M.R.S. § 752, the
statute of limitations applicable to residential foreclosure
actions is 20 years from the expiration of the time for full
performance of the conditions of the mortgage. See
14 M.R.S. § 6104; see also Johnson v. McNeil, 2002
ME 99, ¶¶ 12-14, 800 A.2d 702. In Johnson,
the Law Court made it clear that the expiration of the
statute of limitations for an action on the note does not
preclude an action to foreclose the mortgage. 2002 ME 99,
¶13, 800 A.2d 702. Defendants contend that the statute
of limitations on the note has expired but that issue need
not be decided here because it does not bear on Plaintiffs
right to pursue foreclosure of the mortgage.
contend that the Law Court's recent decision in
Pushard v. Bank of America,2017 ME 230, 175 Asd
103, changes the analysis and entitles them to summary
judgment. In Pushard, the Law Court decided that
that a judgment in favor of the debtors in a prior
foreclosure action harred relitigation of the debtors'
liability on the note and mortage, because the bank had
accelerated payment on the note before the prior foreclosure,
thereby converting a periodic payment obligation into a