STATE OF MAINE SUPERIOR COURT
Cumberland, ss.
DEUTSCHE BANK TRUST COMPANY AMERICAS
Plaintiff
V. Civil Action Docket No. CUMSC-RE-17-303
JOHN KENDALL et al.
Defendants
AMENDED ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 1
Defendants in this residential foreclosure action, John Kendall and S. Sherman
B. Kendall, have filed a Motion for Summary Judgment on statute of limitations
grounds. Plaintiff Deutsche Bank Trust Co. Americas has filed an Opposition and
Defendants have filed a Reply.
The court elects to decide the Motion without oral argument. See M.R. Civ. P.
7(b )(7).
Undisputed Background Facts
On December 29, 2006, the Defendants executed a Fixed/ Adjustable rate Note
for $850,000 in favor of Homecomings Financial, LLC, and a mortgage securing the
note upon property at 28 Hammond Road, Falmouth, Maine. In May 2009, the
1 This Order amends the October 1, 2019 Order to correct a reference to the Law Court's Pushard decision. See M.R. Civ. P. 60(a).
Office ATTORNEYS: 1 Andrew Schaefer, Esq. (for plaintiff) Peter Clifford, Esq. (for defendants) Defendants executed an Adjustable Rate Modification Agreement, modifying their
loan obligation.
In 2009, Defendants were notified that Homecomings Financial had transferred
its right to collect payments on the note, as modified, to GMAC Mortgage.
In February 2010, GMAC Mortgage sent Defendants a Notice of Default
pursuant to 14 M.R.S. § 6111, advising them of their right to cure and indicating that
the loan would be accelerated if they did not cure within the time stated.
Later in 2010, Plaintiff Deutsche Bank commenced a foreclosure action against
the Defendants, seeking the entire balance alleged to be due on the note. See Deutsche
Bank Trust Co. Americas v. Kendal~ Me. Super. Ct., Cum. Cty., Docket No. CUMSC-
RE-10-465. That case was voluntarily dismissed without prejudice. There were two
more notices of default sent to the Defendants in 2012 and 2013 and another
foreclosure action commenced, which was also voluntarily dismissed without
prejudice. See Deutsche Bank Trust Co. Americas v. Kendal~ Me. Super. Ct., Cum. Cty.,
Docket No. CUMSC-RE-13-235.
There are additional facts but the court does not deem them material to the
decision.
Analysis
For purposes of this Motion, the Defendants do not challenge Plaintiffs
standing, nor do they contend that the two prior foreclosures should be given
preclusive effect in this case. (Neither of those matters is conceded; it is only that
2 neither is put into issue by Defendants' Motion). There do not appear to be any
disputed material facts.
The sole issue 1s whether this third foreclosure action by Plaintiff against
Defendants is barred by the statute of limitations. Under M.R. Civ. P. 56, the
Defendants' Motion requires them to show that they are entitled to judgment as a
matter oflaw on that issue.
Although Defendants argue that the general six-year statute of limitations
applies, see 14 M.R.S. § 752, the statute of limitations applicable to residential
foreclosure actions is 20 years from the expiration of the time for full performance of
the conditions of the mortgage. See 14 M.R.S. § 6104 2 ; see also Johnson v. McNeil, 2002
ME 99, ~~12-14, 800 A.2d 702. In Johnson, the Law Court made it clear that the
expiration of the statute oflimitations for an action on the note does not preclude an
action to foreclose the mortgage. 2002 ME 99, ~ 13, 800 A.2d 702. Defendants
contend that the statute oflimitations on the note has expired but that issue need not
be decided here because it does not bear on Plaintiffs right to pursue foreclosure of
the mortgage.
2 Section 6104 is an unusual statute oflimitations in that it does not set a definite limit in years for commencement of a residential foreclosure action. Rather, once twenty years have passed from the maturity date of the debt obligation, the mortgagor may commence what could be deemed a declaratory judgment action in Superior Court for the mortgage to be declared no longer valid. Id. Once the Superior Court has rendered judgment in that action, "[t]hereafter no action shall be brought by any person to enforce a title under said mortgage." Id. If the mortgagor does not initiate any such action, there would appear to be no limit on when the foreclosure action could be commenced.
3 Defendants contend that the Law Court's recent decision in Pushard v. Bank ef
America, 2017 ME 230, 175 A.3d 103, changes the analysis and entitles them to
summary judgment. In Pushard, the Law Court decided that that a judgment in favor
of the debtors in a prior foreclosure action barred relitigation of the debtors' liability
on the note and mortage, because the bank had accelerated payment on the note before
the prior foreclosure, thereby converting a periodic payment obligation into a "unitary
obligation" that had been adjudicated on its merits in the prior judgment. 2017 ME
230, ~35, 175 A.3d 103.
The Law Court's Pushard decision had nothing to do with statute oflimitations
issues, but it could mean that the first acceleration of the debt in 2010 created a
"unitary obligation" at that point, which in turn could indicate that the subsequent
notices of default and subsequent accelerations were surplus or null. That question
need not be decided here.
Because it is clear that the six-year statute oflimitations does not apply and no
deadline for commencement of this action has expired, IT IS ORDERED:
Defendants' Motion for Summary Judgment is hereby denied.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated October 4, 2019
A. M. Horton, Justice
4 STATE OF MAINE SUPERIOR COURT
DEUTSCHE BANK TRUST CO. AMERICAS as Trustee
V. Civil Action Docket No. CUMSC-RE-17-SOS
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants in this residential foreclosure action, John Kendall and S. Sherman
B. Kendall, have filed a Motion for Summary Judgment on statute of limitations
grounds. Plaintiff Deutsche Bank Trust Co. Americas has filed an Opposition and
The court elects to decide the Motion without oral argument. See M.R. Civ. P.
On December 29, 2006, the Defendants executed a Fixed/ Adjustable rate Note
for $850,000 in favor of Homecomings Financial, LLC, and a mortgage securing the
note upon property at 28 Hammond Road, Falmouth, Maine. In May 2009, the
Defendants executed an Adjustable Rate Modification Agreement, modifying their
1 In 2009, Defendants were notified that Homecomings Financial had transferred
its right to collect payments on the note, as modified, to GMAC Mortgage.
In February 2010, GMAC Mortgage sent Defendants a Notice of Default
pursuant to 14 M.R.S. § 6111, advising them of their right to cure and indicating that
the loan would be accelerated if they did not cure within the time stated.
Later in 2010, Plaintiff Deutsche Bank commenced a foreclosure action against
the Defendants, seeking the entire balance alleged to be due on the note. See Deutsche
Bank Trust Co. Americas v. Kendall, Me. Super. Ct., Cum. Cty., Docket No. CUMSC-
RE-10-465. That case was voluntarily dismissed without prejudice. There were two
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STATE OF MAINE SUPERIOR COURT
Cumberland, ss.
DEUTSCHE BANK TRUST COMPANY AMERICAS
Plaintiff
V. Civil Action Docket No. CUMSC-RE-17-303
JOHN KENDALL et al.
Defendants
AMENDED ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 1
Defendants in this residential foreclosure action, John Kendall and S. Sherman
B. Kendall, have filed a Motion for Summary Judgment on statute of limitations
grounds. Plaintiff Deutsche Bank Trust Co. Americas has filed an Opposition and
Defendants have filed a Reply.
The court elects to decide the Motion without oral argument. See M.R. Civ. P.
7(b )(7).
Undisputed Background Facts
On December 29, 2006, the Defendants executed a Fixed/ Adjustable rate Note
for $850,000 in favor of Homecomings Financial, LLC, and a mortgage securing the
note upon property at 28 Hammond Road, Falmouth, Maine. In May 2009, the
1 This Order amends the October 1, 2019 Order to correct a reference to the Law Court's Pushard decision. See M.R. Civ. P. 60(a).
Office ATTORNEYS: 1 Andrew Schaefer, Esq. (for plaintiff) Peter Clifford, Esq. (for defendants) Defendants executed an Adjustable Rate Modification Agreement, modifying their
loan obligation.
In 2009, Defendants were notified that Homecomings Financial had transferred
its right to collect payments on the note, as modified, to GMAC Mortgage.
In February 2010, GMAC Mortgage sent Defendants a Notice of Default
pursuant to 14 M.R.S. § 6111, advising them of their right to cure and indicating that
the loan would be accelerated if they did not cure within the time stated.
Later in 2010, Plaintiff Deutsche Bank commenced a foreclosure action against
the Defendants, seeking the entire balance alleged to be due on the note. See Deutsche
Bank Trust Co. Americas v. Kendal~ Me. Super. Ct., Cum. Cty., Docket No. CUMSC-
RE-10-465. That case was voluntarily dismissed without prejudice. There were two
more notices of default sent to the Defendants in 2012 and 2013 and another
foreclosure action commenced, which was also voluntarily dismissed without
prejudice. See Deutsche Bank Trust Co. Americas v. Kendal~ Me. Super. Ct., Cum. Cty.,
Docket No. CUMSC-RE-13-235.
There are additional facts but the court does not deem them material to the
decision.
Analysis
For purposes of this Motion, the Defendants do not challenge Plaintiffs
standing, nor do they contend that the two prior foreclosures should be given
preclusive effect in this case. (Neither of those matters is conceded; it is only that
2 neither is put into issue by Defendants' Motion). There do not appear to be any
disputed material facts.
The sole issue 1s whether this third foreclosure action by Plaintiff against
Defendants is barred by the statute of limitations. Under M.R. Civ. P. 56, the
Defendants' Motion requires them to show that they are entitled to judgment as a
matter oflaw on that issue.
Although Defendants argue that the general six-year statute of limitations
applies, see 14 M.R.S. § 752, the statute of limitations applicable to residential
foreclosure actions is 20 years from the expiration of the time for full performance of
the conditions of the mortgage. See 14 M.R.S. § 6104 2 ; see also Johnson v. McNeil, 2002
ME 99, ~~12-14, 800 A.2d 702. In Johnson, the Law Court made it clear that the
expiration of the statute oflimitations for an action on the note does not preclude an
action to foreclose the mortgage. 2002 ME 99, ~ 13, 800 A.2d 702. Defendants
contend that the statute oflimitations on the note has expired but that issue need not
be decided here because it does not bear on Plaintiffs right to pursue foreclosure of
the mortgage.
2 Section 6104 is an unusual statute oflimitations in that it does not set a definite limit in years for commencement of a residential foreclosure action. Rather, once twenty years have passed from the maturity date of the debt obligation, the mortgagor may commence what could be deemed a declaratory judgment action in Superior Court for the mortgage to be declared no longer valid. Id. Once the Superior Court has rendered judgment in that action, "[t]hereafter no action shall be brought by any person to enforce a title under said mortgage." Id. If the mortgagor does not initiate any such action, there would appear to be no limit on when the foreclosure action could be commenced.
3 Defendants contend that the Law Court's recent decision in Pushard v. Bank ef
America, 2017 ME 230, 175 A.3d 103, changes the analysis and entitles them to
summary judgment. In Pushard, the Law Court decided that that a judgment in favor
of the debtors in a prior foreclosure action barred relitigation of the debtors' liability
on the note and mortage, because the bank had accelerated payment on the note before
the prior foreclosure, thereby converting a periodic payment obligation into a "unitary
obligation" that had been adjudicated on its merits in the prior judgment. 2017 ME
230, ~35, 175 A.3d 103.
The Law Court's Pushard decision had nothing to do with statute oflimitations
issues, but it could mean that the first acceleration of the debt in 2010 created a
"unitary obligation" at that point, which in turn could indicate that the subsequent
notices of default and subsequent accelerations were surplus or null. That question
need not be decided here.
Because it is clear that the six-year statute oflimitations does not apply and no
deadline for commencement of this action has expired, IT IS ORDERED:
Defendants' Motion for Summary Judgment is hereby denied.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated October 4, 2019
A. M. Horton, Justice
4 STATE OF MAINE SUPERIOR COURT
DEUTSCHE BANK TRUST CO. AMERICAS as Trustee
V. Civil Action Docket No. CUMSC-RE-17-SOS
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants in this residential foreclosure action, John Kendall and S. Sherman
B. Kendall, have filed a Motion for Summary Judgment on statute of limitations
grounds. Plaintiff Deutsche Bank Trust Co. Americas has filed an Opposition and
The court elects to decide the Motion without oral argument. See M.R. Civ. P.
On December 29, 2006, the Defendants executed a Fixed/ Adjustable rate Note
for $850,000 in favor of Homecomings Financial, LLC, and a mortgage securing the
note upon property at 28 Hammond Road, Falmouth, Maine. In May 2009, the
Defendants executed an Adjustable Rate Modification Agreement, modifying their
1 In 2009, Defendants were notified that Homecomings Financial had transferred
its right to collect payments on the note, as modified, to GMAC Mortgage.
In February 2010, GMAC Mortgage sent Defendants a Notice of Default
pursuant to 14 M.R.S. § 6111, advising them of their right to cure and indicating that
the loan would be accelerated if they did not cure within the time stated.
Later in 2010, Plaintiff Deutsche Bank commenced a foreclosure action against
the Defendants, seeking the entire balance alleged to be due on the note. See Deutsche
Bank Trust Co. Americas v. Kendall, Me. Super. Ct., Cum. Cty., Docket No. CUMSC-
RE-10-465. That case was voluntarily dismissed without prejudice. There were two
more notices of default sent to the Defendants in 2012 and 2013 and another
foreclosure action commenced, which was also voluntarily dismissed without
prejudice. See Deutsche Bank Trust Co. Americas v. Kendal~ Me. Super. Ct., Cum. Cty.,
There are additional facts but the court does not deem them material to the
Anarysis
For purposes of this Motion, the Defendants do not challenge Plaintiffs
standing, nor do they contend that the two prior foreclosures should be given
preclusive effect in this case. (Neither of those matters is conceded; it is only that
neither is put into issue by Defendants' Motion). There do not appear to be any
2 The sole issue 1s whether this third foreclosure action by Plaintiff against
Defendants is barred by the statute of limitations. Under M.R. Civ. P. 56, the
Defendants' Motion requires them to show that they are entitled to judgment as a
Although Defendants argue that the general six-year statute of limitations
applies, see 14 M.R.S. § 752, the statute of limitations applicable to residential
foreclosure actions is 20 years from the expiration of the time for full performance of
the conditions of the mortgage. See 14 M.R.S. § 6104 1; see also Johnson v. McNeil, 2002
ME 99, ~~12-14, 800 A.2d 702. In Johnson, the Law Court made it clear that the
expiration of the statute oflimitations for an action on the note does not preclude an
action to foreclose the mortgage. 2002 ME 99, ~ 13, 800 A.2d 702. Defendants
contend that the statute oflimitations on the note has expired but that issue need not
be decided here because it does not bear on Plaintiffs right to pursue foreclosure of
Defendants contend that the Law Court's recent decision in Pushard v. Bank ef
America, 2017 ME 230, 175 A.3d 103, changes the analysis and entitles them to
summary judgment. In Pushard, the Law Court held that the acceleration of a
1 Section 6104 is an unusual statute oflimitations in that it does not set a definite limit in years for commencement of a residential foreclosure action. Rather, once twenty years have passed from the maturity date of the debt obligation, the mortgagor may commence what could be deemed a declaratory judgment action in Superior Court for the mortgage to be declared no longer valid. Id. Once the Superior Court has rendered judgment in that action, "[t]hereafter no action shall be brought by any person to enforce a title under said mortgage." Id. If the mortgagor does not initiate any such action, there would appear to be no limit on when the foreclosure action could be commenced.
3 promissory note converts the periodic payment obligation into a "unitary debt
obligation," and decided that the dismissal of a prior foreclosure action in which
judgment was rendered for the debtor defendant was an adjudication on the merits,
rendering the note and mortgage unenforceable. 2017 ME 230, ~35, 175 A.sci 103.
The Law Court's Pushard decision had nothing to do with statute oflimitations
issues. The effect of Pushard might be that the GMAC Mortgage notice of default in
2010 had the effect of converting the note's periodic payment obligation into a "unitary
debt obligation," meaning that the subsequent notices were surplusage, but that
question need not be decided here, because no statute oflimitation bars this action and
the effect of the two prior voluntary dismissals is not at issue in the Defendants'
Motion.
Because it is clear that the six-year statute of limitations does not apply, and
based on 14 M.R.S. § 6104 and the Law Court's application of that statute in Johnson
v. McNeil, 2002 ME 99, ~~12-14, soo A.2d 702, IT IS ORDERED:
Defendants' Motion for Summary Judgment is hereby denied.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Dated October 1, 2019