Bank of New York Trust Co. v. Taggert

Maine Superior

Bank of New York Trust Co. v. Taggert

DecidedJuly 20, 2009

DocketCUMre-08-246

StatusUnpublished

This text of Bank of New York Trust Co. v. Taggert (Bank of New York Trust Co. v. Taggert) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of New York Trust Co. v. Taggert, (Me. Super. Ct. 2009).

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Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: RE-08-246' r ., ) "--, ,

\ '..... _~'

THE BANK OF NEW YOmODq JUL 2 a A iO: I b TRUST COMPANY, N.A.,

Plaintiff,

v. ORDER

CONNIE TAGGERT,

Defendant

And

IAN LANE,

Party-In-Interest

This case comes before the Court on Plaintiff's motion for summary

judgment pursuant to M.R. Civ. P. 56.

BACKGROUND

On December 13, 2005, the Defendant executed and delivered to

Residential Mortgage Services, Inc. (RMS) a promissory Note in the amount of

$387,200.00 (herein lithe Note"). Plaintiff's Statement of Material Fact (PSlIIF) err 1;

Exhibit A to the Complaint. To secure this Note, the Defendant executed and

delivered a mortgage (herein lithe Mortgage") with Mortgage Electronic

Registrations Systems, Inc. (MERS), as nominee for RMS, giving MERS an interest

in 24 Stony Ride Road in Cumberland, Maine. PSMF err 1; Exhibit A to the

Complaint. Subsequently, on November 21, 2008, MERS assigned its interest in

the Mortgage to Plaintiff Bank of New York (herein BNy).l PSMF err 1.

I While BNY filed the present complaint on November 21, 2008, the copy of the mortgage assignment from MERS, as nominee for RMS, to BNY attached to the motion for summary BNY alleges that the Defendant is currently in default on the Note, having

failed to make the required payments due on and after August 1, 2008. PSMF err 2.

Defendant denies this allegation. Defendant's Opposing Statement of Material

Facts (OSMF) err 2. BYN further alleges that by letter dated September 10, 2008, it

notified the Defendant that she was in default and demanded that she cure such

default, but that Defendant has thus far failed or refused to cure this default.

PSMF err 3; See Exhibit C to the Complaint. Defendant denies this allegation.

OS1VIF err 3. BYN alleges that, as of November 13,2008, Defendant owes

$388,711.54 under the Note, with a per annum interest amount of 6.875% plus

attorney fees. PSMF err 7. As she alleges that she is not in default, Defendant

denies this allegation. OSMF err 7.

Defendant alleges that she received a notice of default and right to cure

some time in October 2008 from SunTrust Mortgage, Inc., BNY's mortgage

servicing agent. Defendant's Additional Statement of Material Facts (ASMF) err 2.

The notice and cure letter, dated October 7,2008, asks Defendant to "remit the

amount due of $11,888.92 today in guaranteed funds to the address shown above.

Once your account is referred to the Foreclosure Attorney, legal fees may be

added to this amount effective immediately. At that point, only the total amount

due including any fees and costs will be accepted to reinstate your loan." ASMF err

3; Exhibit B to Taggart Affidavit.

Defendant alleges that on October 27, 2008, party-in-interest Ian Lane sent

a check in the amount of $11,889.92 to SunTrust. ASMF err 4. On November 4,

judgment reflects that MERS did not assign its interest in the Mortgage to BNY until November 21, 2008, or one week after BNY filed the present complaint for civil foreclosure. While Defendant argues that this raises a question of standing, this Court is satisfied that BNY will receive a corrective assignment that will reflect an assignment date of November 6,2008. As such, BNY has standing to bring the present action.

2 2008, SunTrust returned the check because the check amount, $11,889.92, did not

constitute a full payment of the money due under the Note and Mortgage at that

time. ASMF 15; See also Exhibit D to Taggart Affidavit. The letter went on to

state that if the Defendant wished to obtain information regarding the full

reinstatement amount, she could contact the attorney assigned to her loan. ASMF

15; Exhibit D to Taggart Affidavit.

Defendant alleges that prior to sending the check on October 27, 2008,

Party-in-Interest Ian Lane, despite several attempts to do so, was unable to obtain

the information regarding the actual full reinstatement amount from Plaintiff or

the attorney assigned to the loan. 2 ASNIF 1 7.

DISCUSSION

1. Motion for Summary Judgmenf

A. Standard of Review

Summary judgment is proper where there exist no genuine issues of

material fact such that the moving party is entitled to judgment as a matter of

law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77,14,770

A.2d 653, 655. A genuine issue is raised "when sufficient evidence requires a fact-

finder to choose between competing versions of the truth at trial." Parrish v.

Wright, 2003 ME 90, 1 8, 828 A.2d 778, 781. A material fact is a fact that has "the

2 The record reflects that between September 29,2009 and October 17,2009, Mr. Lane

contacted both SunTrust and the foreclosure attorney's office on five separate occasions. ASMF ~7; Exhibit E to the Lane Affidavit. 3 It must first be noted that both Plaintiffs and Defendant's counsels made procedural mistakes in filing their respective motion for and opposition to summary judgment. M.R. Civ. P. 7 and 56 outline the time in which a motion, opposition, and reply are to be filed, however Defendant's reply was filed well after the 21-day period set by Rule 7 had expired, and further, Plaintiffs reply to Defendant's opposition was filed almost four months after Defendant filed her opposition to BNY motion for summary judgment, also in violation of Rule 7. However, in the pursuit of judicial economy, this Court will ignore these defects and analyze the substantive issues raised by the parties.

3 potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84,

A.2d 573, 575. "If material facts are disputed, the dispute must be resolved

through fact-finding." Curtis v. Porter, 2001 ME 158,

stage, the facts are reviewed "in the light most favorable to the nonmoving party."

Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24,

B. Foreclosure by Civil Act

14 M.R.S. §§ 6321-6325 (2007) governs foreclosures by civil action. Under

the pertinent sections of Section 6322, the court's role is to determine whether

there has been a breach of the mortgage agreement and "the amount due thereon,

including reasonable attorney's fees and court costs." BNY contends that it has

alleged and proven all the necessary requirements under 14 M.R.S.A. § 632l.

Specifically, it point to the fact that it has a mortgage on specific real estate owned

by the Defendant, that the mortgage secures a debt under a promissory note, and

that the Defendant is in default under the Note. Thus, BNY has demanded

foreclosure by civil action.

In looking at the Defendant's opposition, she denies any suggestions made

by BNY in its statement of material facts that she was in default of the Note and

Mortgage. She bases this denial on the fact that (1) under the Mortgage, she is

given the opportunity to cure all defaults prior to foreclosure, and (2) all such

deficiencies were cured when SunTrust received Mr. Lane's payment of

$11,888.92. Based on these two facts, the Defendant claims that BNY should have

reinstated her Mortgage.

Defendant is incorrect in arguing that Mr. Lane's payments cured the

default on her mortgage. In looking at the evidence the Defendant and Mr. Lane

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