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Deutsche Bank Trust Company Americas v. Kendall

Superior Court of Maine, Cumberland

October 4, 2019

DEUTSCHE BANK TRUST COMPANY AMERICAS Plaintiff
v.
JOHN KENDALL et al. Defendants

          AMENDED ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [1]

          A. M. Horton, Justice

         Defendants 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.

         The court elects to decide the Motion without oral argument. See M.R. Civ. P. 7(b)(7).

         Undisputed Background Facts

         On 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.

         In 2009, Defendants were notified that Homecomings Financial had transferred its right to collect payments on the note, as modified, to GMAC Mortgage.

         In 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.

         Later 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 No. CUMSC-RE-13-235.

         There are additional facts but the court does not deem them material to the decision.

         Analysis

         For 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.

         The 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.

         Although 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[2]; 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.

         Defendants 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 ...


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