48 Bramhall St Condo Ass'n v. Stone

Opinion

tJJI STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. Docket No. RE-13-0150 uA vJ ~- CC({Y'r /-;i.J/'!S./20!_~ 48BRA~ALLSTREET CONDOMINIUM ASSOCIATION, r- fl@.~;ttff: o;:: .·. r· , , ,- ,Jcrr, ·' '·Snr:! -- ·':""\~:./c: _ ORDER ON MOTION v. -- _ - , Off FbR SUMMARY JUDGMENT 1 ·""', ·~·I ,;oe,

---- -' '-< ··~ KELLY MOSES STONE,

Before the court is a motion by plaintiff 48 Bramhall Street Condominium

Association for summary judgment in an action for foreclosure brought pursuant to 33

M.R.S. § 1603-116(a) and 14 M.R.S. § 6321, et seq. No opposition to the motion has been

filed.

Under Maine law, a condominium association may enforce a lien for assessments

against a condominium unit through foreclosure upon the unit in the same manner as a

mortgage on real property. 33 M.R.S.A. § 1603-116(a). Thus, the plaintiff's motion for

summary judgment is subject to Rule 56. See M.R. Civ. P. 56. Summary judgment is

appropriate when review of the statements of material facts and the record evidence to

which the statements refer, considered in the light most favorable to the non-moving

party, demonstrates that there is no genuine issue of material fact that is in dispute and

the moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 2010

ME 20, 111, 989 A.2d 733; Dyer v. Dep't ofTransp., 2008 ME 106, 114, 951 A.2d 821.

After reviewing the file, the court concludes that the requirements for a summary

judgment have not been met for the following reasons:

First, the plaintiff has not properly supported all of the factual assertions in its

Statement of Material Facts. M.R. Civ. P. 56(e), 56(h); (Pl.'s S.M.F. 12). Rule 56 provides

that each statement in a statement of material facts must be supported by a record citation. M.R. Civ. P. 56(h). Additionally, supporting affidavits "shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify to the matters stated

therein." M.R. Civ. P. 56(e). Here, the plaintiff asserts that the defendant is a member of

the 48 Bramhall Street Condominium Association, citing to Anne Dalphin's Affidavit

("Dalphin Affidavit"). (Pl.'s S.M.F.

that "[t]he records maintained by the Association reflect that Defendant is a resident of

Portland, Maine, and is a member of the Association." (Dalphin Aff.

however, does not cite to any business records as evidence of the defendant's

membership. Id. As Dalphin states that her "knowledge as to the facts set forth in [her]

Affidavit is derived from [her] personal knowledge of [the plaintiff's] records," she

must attach the relevant business records. See M.R. Evid. 803(6).

Additionally, the plaintiff has not adequately established that the defendant has

breached her obligations as a member of the 48 Bramhall Street Condominium

Association. In its Statement of Material Facts, the plaintiff makes the vague assertion

that the plaintiff perfected a lien on the defendant's unit "for failure to pay common

expenses in the amount of $8,500.00," and the plaintiff also asserts that the defendant

owes $13,975.00 in unpaid expenses. (Pl.'s S.M.F.

Facts does not include an explanation or description of the expenses the defendant

failed to pay, or any assertions regarding when the defendant failed to pay the

expenses. (Pl.'s S.M.F. 1-3.) While the Dalphin Affidavit does refer to a "Violation of

Rules and Regulations Summary," it is unclear to the court whether the document,

2 dated April 26, 2013, 1 was created in anticipation of litigation and whether the summary

satisfies the requirements of M.R. Evid. 803(6). (Dalphin Aff. Ex. D.)

The entry shall be:

Plaintiff's motion for summary judgment is DENIED. The Clerk is directed to

incorporate this Order into the docket by reference pursuant to Maine Rule of Civil

Procedure 79(a).

~eA. Dated: December 13, 2013 Wheeler J ·ce, Superior Court

48 Bramhall Street-Christopher Brooks Kelly M Stone-Richard Bryant esq Esq

1 Plaintiff filed its Complaint for Foreclosure by Civil Action on April16, 2013. (Pl.'s Compl. 1.)