STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. RE-10-307 I ,. J .i\j'' "--· '-' / ' 'f otL~
DEUTSCHE BANK NATIONAL TRUST COMrANY,
Plaintiff
v. ORDER ON MOTION
ANDREW G. LUDE, et al.,
Defendants
The Court has carefully considered the arguments and affidavits submitted.
The Court concludes that this motion should be evaluated under Rule 60(b) instead of
Rule 59.
To establish relief under Rule 60(b )(1) for mistakes, it is also required that the
moving party establish why there was justification for the mistake being made. See
e.g., Merrill/Norstar Bank v. Sites, 592 A.2d 1077 (Me. 1991).
In this case the mistake was the belief that the Plaintiff was not in fact the proper
plaintiff according to the Wells Fargo database. This was appropriately brought to the
court's attention by counsel rather than going through with a trial.
A review of Ms. Decaro's affidavit indicates she had acted diligently in accessing
the Wells Fargo database including consulting with a Wells Fargo paralegal. The
mistake occurred as a consequence of a relatively complicated accounting process,
which shifted future payments to prior holders. The Court concludes that due to the complexity of this portion of the Wells Fargo
database that there was adequate justification to explain this mistake.
Based on the history of this case, it would likely not have been an abuse of
discretion to deny this motion, but the court concludes the motion should be granted
for the reasons stated above. There had remained counterclaims in place and no
additional trial burden would be placed on the court as all issues are interwoven.
Accordingly, the court orders as follows:
1. Motion granted. Complaint to be reinstated with matters to be set for trial.
2. Counsel for Defendants to be awarded their counsel fees in trial preparation for July 11, 2012 including court appearance and fees for opposing the motion for voluntary dismissal.
3. Clerk may incorporate this order by reference on the docket.
Dated: November ~ , 2012
John H. O'Neil, Jr. Justice, Superior Court
I : ATTORNEYS FOR PLAINTIFF: MARK A DARLING ESQ LITCHFIELD CAVO LLP 6 KIMBALL LANE SUITE 200 LYNNFIELD MA 01940
NEIL S HIGGINS ESQ FLAGG LAW PLLC 93 MIDDLE STREET PORTSMOUTH NH 03801
ATTORNEY FOR DEFENDANT: S JAMES LEVIS JR ESQ LAW OFFICE OF S JAMES LEVIS JR PA 5 WEBHANNET PLACE BOX 12 KENNEBUNK ME 04043
ATTORNEYS FOR PARTIES-IN-INTEREST: MOLLY BUTLER BAILEY ESQ DAVID WEYRENS ESQ THE HALLETT LAW FIRM PO BOX 7508 PORTLAND ME 04112 STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. RE-10-1-% ,.., .• 1 - ''-fi;.i/ • ''VIV ,- ' '- . -., 30 7 • " .• ·- •.-1 DEUTSCHE BANK NATIONAL ) '-' i v ,..._ /? ""i7!5 TRUST CO:MP ANY, as Trustee for ) Morgan Stanley Capital I Inc. Trust ) 2006-NC2, a banking corporation ) duly organized and existing under ) the laws of the State of California ) JUDGMENT OF and having a place of business in ) FORECLOSURE AND SALE Irvine, California, ) ORDER ) Plaintiff, ) ) v. ) ) ANDREW G. LUDE ) ) Defendant, et al, ) )
I. Background
Defendant/Counterclaim Plaintiff ("Defendant"), Andrew Lude, executed a note
and mortgage in favor of New Century Mortgage Corporation in November of 2005 on
the property located at 346 Elm St. in Biddeford, Maine. On September 1, 2006, New
Century Mortgage filed a foreclosure complaint in York Superior Court against
Defendant on the 346 Elm St. property. On May 28, 2010, the Court found that New
Century Mortgage had failed to prove that it existed as a legal entity or that it was the
holder of the note with standing to enforce it.
On November 18, 2010, a "Corrective Assignment" was issued and recorded on
the mortgage on the 346 Elm St. property from New Century Mortgage to Deutsche Bank
National Trust Company, as Trustee for Morgan Stanley Capital I Inc. Trust 2006-NC2.
On June 4, 2012, Deutsche Bank National Trust Company, as Trustee for Morgan Stanley
Capital I Inc. Trust 2006-NC2 ("Plaintiff') filed a complaint for foreclosure on the 346
1 Elm St. property. Trial was set for July 11, 2012 in that matter. However, Plaintiffs
counsel indicated that the named Plaintiff was the wrong party and it would not be able to
prove its case. Plaintiff moved for voluntary dismissal pursuant to Me. R. Civ. P.
41(a)(2). The Court granted dismissal of the action on July 13, 2012 with prejudice.
Plaintiff moved the Court for relief from dismissal, which was granted on November 6,
2012. Trial on the merits was held on March 4, 2013.
II. Discussion
In order to succeed in a mortgage foreclosure action, the plaintiff must be able to
show, at least,
• "the existence of the mortgage, including the book and page number of the
mortgage, and an adequate description of the mortgaged premises, including
the street address, if any,
• properly present proof of ownership of the mortgage note and the mortgage,
including all assignments and endorsements of the note and the mortgage,
• a breach of condition in the mortgage note, including any reasonable attorney
fees and court costs
• the order. of priority and any amounts that may be due to other parties in
interest, including any public utility easements,
• evidence of properly served notice of default and mortgagor's right to cure in
compliance with statutory requirements,
2 • after January 1, 2010, proof of completed mediation (or waiver or default of
mediation), when required, pursuant to the statewide foreclosure mediation
program rules, and
• if the homeowner has not appeared in the proceeding, a statement, with a
supporting affidavit, of whether or not the defendant is in military service in
accordance with the Servicemembers Civil Relief Act."
Chase Home Finance LLC v Higgins, 2009 ME 136, ,-r11, 985 A2d 508, (citations
omitted). A party seeking to foreclose must strictly comply with all statutory steps.
Camden Nat'l Bank v. Peterson, 2008 ME 85, ,-r21, 948 A2d 1251. Plaintiffhas shown
that a mortgage exists, that it is the owner of both the note and the mortgage, that there
was a breach of condition of the mortgage, that notice was served, and that neither
mediation nor the Servicemembers Civil Relief Act apply to Defendant. Therefore,
Plaintiffs Motion for Judgment will be granted.
Plaintiff has shown evidence of the existence of and ownership of the mortgage
and note. See 14 M.R.S. § 6321(2012). Plaintiff presented evidence that the note was
properly endorsed in blank and that Plaintiff is the current holder of the note. Plaintiff
produced the original mortgage note, endorsed in blank by Stephen Nagy ofNew
Century, along with the mortgage, on the day of trial.
Defendant has defaulted on the terms of the mortgage agreement. Defendant has
not made a loan payment since March 2006. Defendant testified to the default.
The property is not Defendant's primary residence, therefore Defendant is not
entitled to mediation on the matter. 14 M.R.S. §6321-A (2012). Additionally, Plaintiff is
3 not currently a member of the military, therefore not entitled to relief under the
Servicemembers Civil Relief Act. 37-B M.R.S. § 389-A (2012).
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. RE-10-307 I ,. J .i\j'' "--· '-' / ' 'f otL~
DEUTSCHE BANK NATIONAL TRUST COMrANY,
Plaintiff
v. ORDER ON MOTION
ANDREW G. LUDE, et al.,
Defendants
The Court has carefully considered the arguments and affidavits submitted.
The Court concludes that this motion should be evaluated under Rule 60(b) instead of
Rule 59.
To establish relief under Rule 60(b )(1) for mistakes, it is also required that the
moving party establish why there was justification for the mistake being made. See
e.g., Merrill/Norstar Bank v. Sites, 592 A.2d 1077 (Me. 1991).
In this case the mistake was the belief that the Plaintiff was not in fact the proper
plaintiff according to the Wells Fargo database. This was appropriately brought to the
court's attention by counsel rather than going through with a trial.
A review of Ms. Decaro's affidavit indicates she had acted diligently in accessing
the Wells Fargo database including consulting with a Wells Fargo paralegal. The
mistake occurred as a consequence of a relatively complicated accounting process,
which shifted future payments to prior holders. The Court concludes that due to the complexity of this portion of the Wells Fargo
database that there was adequate justification to explain this mistake.
Based on the history of this case, it would likely not have been an abuse of
discretion to deny this motion, but the court concludes the motion should be granted
for the reasons stated above. There had remained counterclaims in place and no
additional trial burden would be placed on the court as all issues are interwoven.
Accordingly, the court orders as follows:
1. Motion granted. Complaint to be reinstated with matters to be set for trial.
2. Counsel for Defendants to be awarded their counsel fees in trial preparation for July 11, 2012 including court appearance and fees for opposing the motion for voluntary dismissal.
3. Clerk may incorporate this order by reference on the docket.
Dated: November ~ , 2012
John H. O'Neil, Jr. Justice, Superior Court
I : ATTORNEYS FOR PLAINTIFF: MARK A DARLING ESQ LITCHFIELD CAVO LLP 6 KIMBALL LANE SUITE 200 LYNNFIELD MA 01940
NEIL S HIGGINS ESQ FLAGG LAW PLLC 93 MIDDLE STREET PORTSMOUTH NH 03801
ATTORNEY FOR DEFENDANT: S JAMES LEVIS JR ESQ LAW OFFICE OF S JAMES LEVIS JR PA 5 WEBHANNET PLACE BOX 12 KENNEBUNK ME 04043
ATTORNEYS FOR PARTIES-IN-INTEREST: MOLLY BUTLER BAILEY ESQ DAVID WEYRENS ESQ THE HALLETT LAW FIRM PO BOX 7508 PORTLAND ME 04112 STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. RE-10-1-% ,.., .• 1 - ''-fi;.i/ • ''VIV ,- ' '- . -., 30 7 • " .• ·- •.-1 DEUTSCHE BANK NATIONAL ) '-' i v ,..._ /? ""i7!5 TRUST CO:MP ANY, as Trustee for ) Morgan Stanley Capital I Inc. Trust ) 2006-NC2, a banking corporation ) duly organized and existing under ) the laws of the State of California ) JUDGMENT OF and having a place of business in ) FORECLOSURE AND SALE Irvine, California, ) ORDER ) Plaintiff, ) ) v. ) ) ANDREW G. LUDE ) ) Defendant, et al, ) )
I. Background
Defendant/Counterclaim Plaintiff ("Defendant"), Andrew Lude, executed a note
and mortgage in favor of New Century Mortgage Corporation in November of 2005 on
the property located at 346 Elm St. in Biddeford, Maine. On September 1, 2006, New
Century Mortgage filed a foreclosure complaint in York Superior Court against
Defendant on the 346 Elm St. property. On May 28, 2010, the Court found that New
Century Mortgage had failed to prove that it existed as a legal entity or that it was the
holder of the note with standing to enforce it.
On November 18, 2010, a "Corrective Assignment" was issued and recorded on
the mortgage on the 346 Elm St. property from New Century Mortgage to Deutsche Bank
National Trust Company, as Trustee for Morgan Stanley Capital I Inc. Trust 2006-NC2.
On June 4, 2012, Deutsche Bank National Trust Company, as Trustee for Morgan Stanley
Capital I Inc. Trust 2006-NC2 ("Plaintiff') filed a complaint for foreclosure on the 346
1 Elm St. property. Trial was set for July 11, 2012 in that matter. However, Plaintiffs
counsel indicated that the named Plaintiff was the wrong party and it would not be able to
prove its case. Plaintiff moved for voluntary dismissal pursuant to Me. R. Civ. P.
41(a)(2). The Court granted dismissal of the action on July 13, 2012 with prejudice.
Plaintiff moved the Court for relief from dismissal, which was granted on November 6,
2012. Trial on the merits was held on March 4, 2013.
II. Discussion
In order to succeed in a mortgage foreclosure action, the plaintiff must be able to
show, at least,
• "the existence of the mortgage, including the book and page number of the
mortgage, and an adequate description of the mortgaged premises, including
the street address, if any,
• properly present proof of ownership of the mortgage note and the mortgage,
including all assignments and endorsements of the note and the mortgage,
• a breach of condition in the mortgage note, including any reasonable attorney
fees and court costs
• the order. of priority and any amounts that may be due to other parties in
interest, including any public utility easements,
• evidence of properly served notice of default and mortgagor's right to cure in
compliance with statutory requirements,
2 • after January 1, 2010, proof of completed mediation (or waiver or default of
mediation), when required, pursuant to the statewide foreclosure mediation
program rules, and
• if the homeowner has not appeared in the proceeding, a statement, with a
supporting affidavit, of whether or not the defendant is in military service in
accordance with the Servicemembers Civil Relief Act."
Chase Home Finance LLC v Higgins, 2009 ME 136, ,-r11, 985 A2d 508, (citations
omitted). A party seeking to foreclose must strictly comply with all statutory steps.
Camden Nat'l Bank v. Peterson, 2008 ME 85, ,-r21, 948 A2d 1251. Plaintiffhas shown
that a mortgage exists, that it is the owner of both the note and the mortgage, that there
was a breach of condition of the mortgage, that notice was served, and that neither
mediation nor the Servicemembers Civil Relief Act apply to Defendant. Therefore,
Plaintiffs Motion for Judgment will be granted.
Plaintiff has shown evidence of the existence of and ownership of the mortgage
and note. See 14 M.R.S. § 6321(2012). Plaintiff presented evidence that the note was
properly endorsed in blank and that Plaintiff is the current holder of the note. Plaintiff
produced the original mortgage note, endorsed in blank by Stephen Nagy ofNew
Century, along with the mortgage, on the day of trial.
Defendant has defaulted on the terms of the mortgage agreement. Defendant has
not made a loan payment since March 2006. Defendant testified to the default.
The property is not Defendant's primary residence, therefore Defendant is not
entitled to mediation on the matter. 14 M.R.S. §6321-A (2012). Additionally, Plaintiff is
3 not currently a member of the military, therefore not entitled to relief under the
Servicemembers Civil Relief Act. 37-B M.R.S. § 389-A (2012).
The Court finds that this action is not barred by claim preclusion or issue
preclusion. In order to determine whether a claim is precluded, the court has laid out
a three part test: "(1) the same parties or their privies are involved in both actions; (2) a
valid final judgment was entered in the prior action; and (3) the matters presented for
decision in the second action were, or might have been litigated in the first action."
Johnson v. Samson Constr. Corp., 704 A.2d 866, 868 (Me. 1997). Issue preclusion
applies if, "the identical issue was determined by a prior final judgment, and ... the party
estopped had a fair opportunity. Macomberv. MacQuinn-Tweedie, 2003 ME 121,23,
834 A.2d 131. A final judgment was entered in a proceeding between New Century
Mortgage and Defendant on May 28, 2010, which held that New Century Mortgage did
not own the note and mortgage and therefore could not foreclose. Because the named
Plaintiff is different, and because the chain of title has since been altered, the Court finds
that the parties are not the same and the matters to be decided in the current action are not
the same and could not have been decided in the prior action. Plaintiffs claim is not
barred.
ill. Conclusion
Defendant, Andrew G. Lude is in default under the terms of a certain Promissory
note given to New Century Mortgage Corporation dated November 24, 2005, that is held
by Plaintiff, and has received notice of right to cure said default. Plaintiff is owed the
following from Defendants:
4 a. Principal balance: $180,646.00 b. Accrued interest through December 20, 2012 $114,764.84 c. Escrow advances $ 36,722.08
The order of priority and the amount of the claim of each party appearing and
proving its claim against the proceeds of the sale is as follows: $180,646.00 plus accrued
interest in the amount of $114,764. 84; plus any amounts advanced by Plaintiff to protect
its mortgage security, including insurance premiums and real estate taxes; surplus. If any,
to Defendants.
WHEREFORE, it is hereby Ordered and Decreed that if Defendant Andrew G.
Lude, his heirs and assigns, do not pay Plaintiff the amounts adjudged to be due to
Plaintiff above within ninety (90) days from the date of entry of this Order, Plaintiff
(through its attorneys) shall proceed with a sale of the real estate described in the
mortgage deed recorded in the Y ark County Registry of Deeds in Book 1497 6 at Page
0374, pursuant to 14 M.R.S.A. §§ 6321 to 6324, free and clear of all liens, except liens
senior to Plaintiff's mortgage, and shall pay the proceeds of the sale, after satisfying
expense of sale, in the priority order and amounts set forth above.
If Defendants fail to redeem by paying the above amounts adjudged to be due on
or before ninety (90) days from the date of entry of this Order, Plaintiff shall then be
entitled to exclusive possession of the real estate described in said mortgage.
An execution shall issue against Defendant, Andrew G. Lude.
Pursuant to M.R. Civ. P. 79(a), at the direction of the Court, this order may be
incorporated by reference on the civil docket.
Dated: John O'Neil, Jr. Justice, Superior Court
5 ATTORNEYS' FOR PLAINTIFF: MARK A. DARLING, ESQ. LITCHFIELD CAVO, LLP 6 KIMBALL LANE, SUITE 200 LYNNFIELD, MA 01940
JONATHAN M. FLAGG, ESQ. FLAGG LAW, PLLC 93 MIDDLE STREET PORTSMOUTH, NH 03801
ATTORNEY FOR DEFENDANT: S. JAMES LEVIS, JR., ESQ. LAW OFFICES OF S. JAMES LEVIS, JR., P.A. 5 WEBHANNET PLACE, #12 KENNEBUNK, ME 04043
ATTORNEYS' FOR PARTY-IN-INTEREST: MOLLY BUTLER BAILEY, ESQ. DAVID WEYRENS, ESQ. THE HALLETT LAW FIRM PO BOX 7508 PORTLAND, ME 04112