Bank of America, N.A. v. Lavery

• Court: Superior Court of Maine
• Decided: June 6, 2014
• Docket: CUMre-12-0014
• Status: Unpublished

Opinion

( ( IN I I Hf D JUL 2 8 2014

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-12~~1i

BANK OF AMERICA, N.A., NfM-rMW\-~-11+ Plaintiff ORDER ON PARTIAL v. MOTION FOR SUMMARY JUDGMENT PAULINE A. LAVERY,

Defendant

and

GERALD S. LAVERY, and PNC BANK, N.A., Parties-in-Interest

Before the court is plaintiff's motion for partial summary judgment. Plaintiff

seeks summary judgment on counts II, III, and IV of the complaint. 1 The defendant

Pauline A. Lavery and party-in-interest Gerald S. Lavery filed an opposition to

plaintiff's motion. For the following reasons, the motion is denied.

The plaintiff's motion for summary judgment is subject to Rule 56, which sets

forth requirements for granting summary judgment. M.R. Civ. P. 56. Summary

judgment "is appropriate when review of the parties' statements of material facts

and the referenced record evidence indicates no genuine issue of material fact that is

in dispute and, accordingly, the moving party is entitled to judgment as a matter of

law." Dyer v. Dep't of Transp., 2008 ME 106, 9I 14, 951 A.2d 821; M.R. Civ. P. 56( c).

Summary judgment should not be granted when record evidence or

necessary documentation to support a fact essential to a claim is lacking in the

movant's statement of material facts, or if the documentation is not properly

1 Plaintiff seeks mortgage reformation (count II), subrogation (count III), and equitable lien (count IV). (Pl.'s Compl.<[<[ 2-4.) ( (

authenticated in the record. See FIA Card Servs., N.A. v. Saintonge, 2013 ME 65, <]I 3,

70 A.3d 1224; M.R. Civ. P. 56(e). 2 Also, although a non-moving party's "failure to

properly controvert statements of fact generally renders those facts deemed

admitted, such facts will not be deemed admitted if the statements of facts

themselves are not properly supported by record references." FIA Card Servs., N.A.,

2013 ME 65, <]I 2, 70 A.3d 1224; see M.R. Civ. P. 56(h)(4); Cach, LLC v. Kulas, 2011 ME

70, <]I 9, 21 A.3d 1015.

After review, the court concludes that the requirements for summary

judgment have not been met. The plaintiff has not complied with the requirements

of Rule 56. Plaintiff's statement of material facts does not include record references.

See M.R. Civ. P. 56(h)(1); Pl.'s S.M.F. <]I<]I 1-20. Although defendant and party-in- ./

interest Lavery did not include record citations in their opposing statement of facts,

plaintiff did not properly support its own statement of material facts, and the

assertions are, therefore, not deemed admitted. See M.R. Civ. P. 56(h)(2); FIA Card ./

Servs., N.A., 2013 ME 65, <]I 2, 70 A.3d 1224; Cach, LLC, 2011 ME 70, <]I 9, 21 A.3d

1015. Further, the supporting affidavit does not include copies of all referenced o/ documents. See M.R. Civ. P. 56(e); FIA Card Servs., N.A., 2013 ME 65, <]I 3, 70 A.3d

1224.

Finally, plaintiff does not set forth such facts as would be admissible in

evidence. See M.R. Civ. P. 56(e). The plaintiff submitted a supporting affidavit from o/

Bradley Lown, plaintiff's counsel. No affidavit was submitted from a representative

from the banlc The affidavit does not "show affirmatively that the affiant is

competent to testify to the matters stated therein." M.R. Civ. P.56(e). It is unlikely, v

2 Rule 56(e) provides, in part, that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." M.R. Civ. P. 56( e).

2 ( (

and it has not been shown, Mr. Lown has personal knowledge of the matters

discussed in his affidavit, such as the intent of the parties. Further, no foundation

has been established to qualify Mr. Lown to testify about plaintiff's business records.

See Lown Aff. 11 5-7; M.R. Civ. P. 56(e); M.R. Evid. 803(6); Beneficial Me., Inc. v. ~ Carter, 2011 ME 77, 1115-16, 25 A.3d 96; HSBC Mortg. Servs., Inc. v. Murphy, 2011

ME 59, 110, 19 A.3d 815.

The entry is

The Plaintiff's Motion for Partial Summary Judgment is DENIED.

Date: June 6, 2014