Bayview Loan Servicing v. St.Louis

• Court: Superior Court of Maine
• Decided: October 6, 2010
• Docket: PENre-10-003
• Status: Unpublished

Opinion

I STATE OF MAINE PENOBSCOT, SS: SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-IO-003 . f. . ~ 1"') ..... . ~ J f I:, ;" ~ 'L),' •• _' v ...... , / /1,,_/ ~ ,? BAYVIEW LOAN SERVICING, LLC, ) ) Plaintiff ) ) v. ) ) JUDGMENT OF FORECLOSURE AND BRENDA S. ST. LOUIS, ) SALE ) Defendant ) 125 Middle River Rd., Greenbush, Maine ) and ) Mortgage Recorded in Book 6785, Page 100 ) BANKERS TRUST COMPANY OF ) CALIFORNIA, N.A., ) ) Party-in-Interest )

Upon Motion for Summary Judgment filed by Plaintiff in connection with its Complaint

for Foreclosure by Civil Action and in consideration ofthe pleadings, affidavits, admissions

and/or deemed admissions ofrecord, it appearing that there is no genuine issue as to any material

fact, Plaintiff is entitled to judgment on its Complaint. The Court fmds as follows:

1. Defendant has breached the conditions of Plaintiffs mortgage originally in. favor of Small

Business Administration and recorded in Penobscot County Registry of Deeds in Book

6785, Page 100. Said Mortgage is amended by Amendment to Mortgage and Statement

of Additional Advance, which is recorded in the Penobscot County Registry of Deeds in

Book 6848, Page 314. Said Mortgage was assigned to Wachovia Bank, N.A. as Trustee

for Bayview Series 2002-D, dated February 16, 2002, and recorded in the Penobscot

Registry of Deeds in Book 8551, Page 191. By subsequent Assignment undertaken,

Bayview Loan Servicing, LLC has become the holder of said note and mortgage and is

entitled to enforcement ofthe terms thereof Said Assignment is evidenced by written assignment, dated December 11, 2009, and recorded in the Penobscot Registry of Deeds

in Book 12014, Page 273, entitling Plaintiff to a JUdgment of Foreclosure regarding the

premises described therein, also as described in attached Exhibit A hereto and

incorporated herewith.

2. As of September 15, 2009, there is due and owing Plaintiff on its said mortgage from

Defendant the following:

a. Principal balance of$ll, 838.83; b. Accrued interest in the amount of$153.63 at the rate of3.8l % per annum per tbe subject note; c. Per diem interest in the amount of$1.24 at the rate of3.8l % per annum per the subject note; d. Anticipated Attorneys fees and expenses of$2,206.60; e. Escrow balance in the amount of$l ,019.51; f Additional attorney's fees, real estate taxes, costs and amounts advanced to protect the security of Plaintiffs mortgage up to and including the date of redemption or sale.

WHEREFORE, it is hereby Ordered and Decreed that a Judgment of Foreclosure and

Order of Sale is hereby entered in favor of Plaintiff, against Defendants, their successors, heirs

and assigns, and if Defendants do not pay to P1aintiffthe amounts adjudged to be due under

Plaintiffs mortgage dated June 13, 2008, as set forth in paragraph 1 above, the balance of which

is set forth in paragraph 2 above, with interest accruing thereon and costs as set forth in

paragraph 2 above within ninety (90) days from the date of entry hereof, then Plaintiff shall sell

Defendant's real estate free and clear of all liens and encumbrances pursuant to 14 M.R.S.A.

§632l, et seq. It js ordered that Plaintiff cause notice of public sale of the premises to be

republished once jn each ofthree (3) successive weeks and shall hold said sale not less than

thirty (30) days nor more than (45) days after the first date of that publication, all as according to

Title 14 M.R.S.A. ~6323 and shall disburse the proceeds of such sale in the following amounts

and priorities: a. The fIrst $15,222.28, plus $1.24 per day after September 15, 2009, plus attorneys' fees, additional late charges, real estate taxes, costs, expenses of sale and amounts advanced to protect the security of Plaintiffs mortgage up to and including the fIling of the report of disbursement of foreclosure sale proceeds and any objections thereto, to the Plaintiff, Bayview Loan Servicing, LLC; b. Any remaining funds to Defendants.

Judgment and execution shall enter and issue against Defendants for any deficiency,

provided that the statutory requirements are met. Provided, however, that in the event that

Defendants have either currently fIled for protection or have been discharged under the

provisions of the U.S. Bankruptcy Code then no judgment or execution shall issue against

Defendants for any defIciency.

In the event Defendants have not redeemed within the ninety (90) day period as aforesaid and have not vacated the premises, Defendants are ordered to vacate the premises. Plaintiff is granted exclusive possession ofthe real estate and a Writ of Possession shall issue upon request of Plaintiff, its successors or assigns.

All parties have been properly served and given notice ofthe proceedings giving rise to this judgment in accordance with the applicable provisions of the Maine Rules of Civil Procedure and if notice has been served or given pursuant to an order ofthe Court, including service by publication, then that notice has been served or given pursuant to such order.

The names and address of all parties to the action, including counsel of record insofar as they are known to the Court are as follows:

Defendant: Brenda S. St.Louis; 647 Caribou Rd., Apt. 15, EnfIeld, ME 04493

Party-in-Interest: Bankers Trust Co.; 1761 E. St. Andrews Pl., Santa Ana, CA 92704

Plaintiff: Bayview Loan Servicing, LLC c/o David E. Stearns, Esq.; P.O. Box 2412, South Portland, ME 04116-2412

As permitted in Rule 54(b)(1) and fInding that there is no just reason for delay, this judgment shall be entered as a fInal judgment as to the claims and parties involved notwithstanding the existence and/or pendency of any other claim(s), counterclaim(s) or cross­ claim(s).

Acceptance of partial payment ofthe Defendants' indebtedness and application to the Defendants' indebtedness of any funds or proceeds, including, without limitation, any insurance proceeds, rents or profIts from the property or realization of proceeds from the exercise of rights under Article 9 of the Uniform Commercial Code at any time before or after the date ofthis judgment, docs not and shall not constitute a waiver of any of Plaintiffs rights in this action or as set ibrth in this judgment.

Plaintiffs counsel may cause an attested copy ofthis judgment to be recorded in the Registry of Deeds in the county or counties in which the subject property is located.

The Clerk is specifically directed pursuant to Rule 79(a) ofthe Maine Rules of Civil Procedure to enter this Order on the civil docket by notation incorporating it by reference.

Dated: ,c_f'----I--!.'(---'-C' _ Superior Court Justfe Kirk Studstrup ENTERED ON: 10/6/10 -----------

CERTIFICATE BY THE CLERK

I, , Clerk of the Penobscot County Superior Court, pursuant to 14 M.R.S.A. §2401 (3)(F) as amended, do hereby certify that the applicable time period for appeal from the above Judgment of Foreclosure and Order of Sale has expired without action. lK 678 ~5 PGT UL~ Na);~: ST. LOUIS, Bren~a ~~rL~RO'-~. Robert L. " • l ~ ---~ ­

C~ntrol No. I Loan No: 3062-02028 I DLH 21230440-06

EXHIBIT "A"

A certain lot of land with the buildings thmeon, situate In Greenbush, Penobscot County, Maine, bounded and described as follows, to wit:

Beglnnfng on tho southeasterly sldo of tha County Rand which leads through said Greenbush from Baogor, along the bank of Penobscot River, saId paint of beginning beIng the point where said road llno Is Intorsected by the south line ot river lot numbered thirty one (311, to wit, by the south line of the premises conveyed to Darius L. Comstock by lucy .J. Harriman and Hiram Harriman by deed dated Docomber 12, 1899, and recorded In Penobscot Registry of Deeds In Book 691 1 Page-347i thonce northeastward by said road line IIfty four (54) rods to a stake -and stones; thance southeastward twenty six rods to a stako and stones; thence southward thirty six (36) rods to a stake and stones upon the aforesaid south line of lot numbered thirty ana 131}; thenco westward by the last namod south Iino fifty flve (55) rods to the point of bBglnnlng.

For current title see Deed dated May 28. J 997 and recorded at Book 6411, Page 074.

Premises more commonly known as Middle River Road, Greenbush, Maine 04423.

PENOBSCOT. 55 RECEIVED

Nq3 hUG 18 P 12; 2l

~JI~. t. /Su1~ PaUl} 5 REGISTER