STATE OF MAINE SUPERIOR COURT CIVIL ACTION CUMBERLAND, SS. DOCKET NO: CV-05-232
BRENDA FARXIS KEMSTON,
Plaintiff * R ~ \\I~ ED EORDER l JP MORGAN CHASE BANK, * * Defendant *
This case comes before the Court on Defendant JP Morgan Chase Bank's
Motion for Summary Judgment.
UNDISPUTED FACTS
On or about klarch 22,2001, Plaintiff Brenda Farris Keniston (Plaintiff)
was divorced from Dana A. Keniston. Pursuant to the divorce decree, a parcel of
real property located at 152 Bragdon Road in Freeport was set-aside to Plaintiff
as her sole and exclusive property.' The divorce decree further ordered that each
party assume, pay, and hold harmless the other from all credit card and other
debt standing in the name of each party. On or about April 4,2002, Providian
National Bank recovered a judgment against Dana Keniston for approximately
$24,100,00 from the use of a credit card. Shortly thereafter, Providian recorded a
writ of execution in the Cumberland County Registry of Deeds against Dana
Keniston that operates as a lien upon 152 Bragdon Road property. Plaintiff did
1 152 Bragdon Road was jointly owned by Brenda and Dana Keniston during their marriage. not receive notice of the ~ ' r iof t execution. Plaintiff recorded the divorce abstract
on March 5,2004.' JP Morgan Chase Bank (Defendant) is the successor-in-
interest to Providian.
Plaintiff instituted h s Declaratory Judgment action seelung to establish
that Defendant has no right to claim a lien against property solely owned by
Plaintiff based GF,a debt =wed by Dana K e r i s t ~ n .The ~ sole issiie is whe'uELer
Plaintiff's failure to record the divorce abstract before Providian recorded its writ
of execution establishes that Defendant's rights to 152 Bragdon Road are superior
to those of Plaintiff.
DISCUSSION
In moving for summary judgment, Defendant argues that by recording
the writ of execution prior to the recording of the divorce abstract, Defendant is
entitled to priority pursuant to Maine's recordng statute. 33 M.R.S.A. 201. In
respmss, P!aintiff argues that the writ of execut;on is void because Defendant
failed to notify Plaintiff of the writ of execution pursuant to 14 M.R.S.A. § 4651-
A(5). In the alternative, Plaintiff argues that equitable considerations warrant an
outcome in her favor. The Court reviews a motion for summary judgment in the
light most favorable to the non-moving party to decide whether the parties'
statements of material fact and the referenced record evidence indicate any
genuine issue of material fact. Bayviezu Bank, N.A. v. The Highland Gold Mortgagees
Realty Trust, 2002 ME 178, 9 9, 814 A.2d 449,451. Plaintiff admits that there are
n o genuine issues of material fact.
2 Plaintiff became aware of the lien when she tried unsuccessfully to refinance the properv. 3 Dana Keniston received a discharge in bankruptcy o n August 9, 2004. Recording an interest in property is paramount to protecting it from other
interested persons. According to Maine's recording statute, the first person to
properlv record a conveyance in Maine takes priority over all other unrecorded
conveyances. 33 J41.R.S.A. 5 201.4 Recording a writ of execution in the registry of
deeds for the county in w h c h the property is located constitutes perfection of the
attzchrnefit. 14 M.R.S.A. 4154. The serL;rityiintsrest remains peTf2cted u d e s s
the judgment debtor is not notified before the twentieth day of the recording of
the lien. 14 M.R.S.A.5 4651-A(5). Furthermore, according to the divorce laws,
the disposition of property upon a divorce is effective against a person when the
divorce decree or abstract is filed in the registry of deeds for the county where
the real estate is situated. 19-A M.R.S.A. 5 953(7) (Supp. 2004).
Here, although Plaintiff argues that she was not notified of the recording
of the writ of execution, she is not the judgment debtor. The law requires only
that the judgment debtor be notified of the recording of the writ of execution.
The issue then becomes whether Defendant has a priority interest in 152 Bragdon
Road bv nature of recording the writ of execution before Plaintiff recorded the
divorce abstract.
Recording statutes aim to protect "persons who have any interest in
examining the record title to property to w h c h they might thereafter become
owner, either in whole or in part, absolutely or otherwise." Banton v. Shorey, 77
"NO conveyance of a n estate in fee simple, fee tail or for life, or lease for more than 2 years or for a n indefinite term is effectual against any person except the grantor, his heirs and devisees, a n d persons having actual notice thereof unless the deed or lease is acknowledged and recorded i n the registry of deeds . . . Conveyances of the right, title or interest of the grantor, if duly recorded, shall be effectual against prior unrecorded conveyances, as if they purported to convey a n actual title. All recorded deeds, leases or other written instruments regarding real estate take precedence over unrecorded attachments a n d seizures." 33 M.R.S.A. 5 201 (1999). Me. 45 (1988). These statutes protect said persons by providing actual notice of
changes in title. B a y v i m Bank, N.A., 2002 ME 178, ¶ 14, 814 A.2d at 453.
Similarly, after a divorce court divides property between the divorcing parties,
the divorce laws require the recording of divorce decrees or abstracts to provide
notice of changes in ownership of property. Until those decrees or abstracts are
recorded, c ~ e d i t ~ rszch s , as Defendant, are -ii& p i t ox riotice of ckcii-igein
ownershp. Defendant's argument would be greatly weakened if Providian had
actual notice of the divorce and the property disposition prior to recording the
writ.j However, Providan was not aware of the divorce. When Providian filed
the writ of execution, it did so in the county where Dana A. Keniston was a
record joint owner of 152 Bragdon Road.
Notwithstanding Plaintiff's failure to record the divorce abstract, Plaintiff
is aslung the Court to permit her to present facts supporting her request for
zcpitable relief from the writ of e~ecution.The crux of Plaintiff's argument is that
despite her failure to record her ownershp interest in the property, a lien on her
property arising from her ex-husband's debt is improper, unjust, and inequitable
when a divorce decree establishes her sole right to the property.
Although Plaintiff is aslung h s Court for lenience in light of h s
unfortunate situation, the events that have taken place could have been avoided
had Plaintiff simply recorded her divorce decree in 2001. Unfortunately for
Plaintiff, there is an adequate remedy at law. Providian recorded first and
therefore has a priority interest in 152 Bragdon Road.
5 G a p e r v.Kittery W a t e r District, 385 A.2d 206, 207-08 (Me. 1978) ("When the facts known to the purchaser cast doubt upon the very existence of the seller's title, l ~ is e bound to inquire of him whether he has any real title or not."). The entry is as follows:
Defendant JP hlorgan Chase Bank's Motion for Summary Judgment is GRANTED.
DATE: 2- l d 86 COURTS ~dCounty 'x 2 8 7 041 12-0287
KENNETH ALTSHULER ESQ 257 DEERING AVENUE PORTLAND ME 0 4 1 0 3
COURTS ~dCounty )x 2 8 7 e 041 12-0287
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CIVIL ACTION CUMBERLAND, SS. DOCKET NO: CV-05-232
BRENDA FARXIS KEMSTON,
Plaintiff * R ~ \\I~ ED EORDER l JP MORGAN CHASE BANK, * * Defendant *
This case comes before the Court on Defendant JP Morgan Chase Bank's
Motion for Summary Judgment.
UNDISPUTED FACTS
On or about klarch 22,2001, Plaintiff Brenda Farris Keniston (Plaintiff)
was divorced from Dana A. Keniston. Pursuant to the divorce decree, a parcel of
real property located at 152 Bragdon Road in Freeport was set-aside to Plaintiff
as her sole and exclusive property.' The divorce decree further ordered that each
party assume, pay, and hold harmless the other from all credit card and other
debt standing in the name of each party. On or about April 4,2002, Providian
National Bank recovered a judgment against Dana Keniston for approximately
$24,100,00 from the use of a credit card. Shortly thereafter, Providian recorded a
writ of execution in the Cumberland County Registry of Deeds against Dana
Keniston that operates as a lien upon 152 Bragdon Road property. Plaintiff did
1 152 Bragdon Road was jointly owned by Brenda and Dana Keniston during their marriage. not receive notice of the ~ ' r iof t execution. Plaintiff recorded the divorce abstract
on March 5,2004.' JP Morgan Chase Bank (Defendant) is the successor-in-
interest to Providian.
Plaintiff instituted h s Declaratory Judgment action seelung to establish
that Defendant has no right to claim a lien against property solely owned by
Plaintiff based GF,a debt =wed by Dana K e r i s t ~ n .The ~ sole issiie is whe'uELer
Plaintiff's failure to record the divorce abstract before Providian recorded its writ
of execution establishes that Defendant's rights to 152 Bragdon Road are superior
to those of Plaintiff.
DISCUSSION
In moving for summary judgment, Defendant argues that by recording
the writ of execution prior to the recording of the divorce abstract, Defendant is
entitled to priority pursuant to Maine's recordng statute. 33 M.R.S.A. 201. In
respmss, P!aintiff argues that the writ of execut;on is void because Defendant
failed to notify Plaintiff of the writ of execution pursuant to 14 M.R.S.A. § 4651-
A(5). In the alternative, Plaintiff argues that equitable considerations warrant an
outcome in her favor. The Court reviews a motion for summary judgment in the
light most favorable to the non-moving party to decide whether the parties'
statements of material fact and the referenced record evidence indicate any
genuine issue of material fact. Bayviezu Bank, N.A. v. The Highland Gold Mortgagees
Realty Trust, 2002 ME 178, 9 9, 814 A.2d 449,451. Plaintiff admits that there are
n o genuine issues of material fact.
2 Plaintiff became aware of the lien when she tried unsuccessfully to refinance the properv. 3 Dana Keniston received a discharge in bankruptcy o n August 9, 2004. Recording an interest in property is paramount to protecting it from other
interested persons. According to Maine's recording statute, the first person to
properlv record a conveyance in Maine takes priority over all other unrecorded
conveyances. 33 J41.R.S.A. 5 201.4 Recording a writ of execution in the registry of
deeds for the county in w h c h the property is located constitutes perfection of the
attzchrnefit. 14 M.R.S.A. 4154. The serL;rityiintsrest remains peTf2cted u d e s s
the judgment debtor is not notified before the twentieth day of the recording of
the lien. 14 M.R.S.A.5 4651-A(5). Furthermore, according to the divorce laws,
the disposition of property upon a divorce is effective against a person when the
divorce decree or abstract is filed in the registry of deeds for the county where
the real estate is situated. 19-A M.R.S.A. 5 953(7) (Supp. 2004).
Here, although Plaintiff argues that she was not notified of the recording
of the writ of execution, she is not the judgment debtor. The law requires only
that the judgment debtor be notified of the recording of the writ of execution.
The issue then becomes whether Defendant has a priority interest in 152 Bragdon
Road bv nature of recording the writ of execution before Plaintiff recorded the
divorce abstract.
Recording statutes aim to protect "persons who have any interest in
examining the record title to property to w h c h they might thereafter become
owner, either in whole or in part, absolutely or otherwise." Banton v. Shorey, 77
"NO conveyance of a n estate in fee simple, fee tail or for life, or lease for more than 2 years or for a n indefinite term is effectual against any person except the grantor, his heirs and devisees, a n d persons having actual notice thereof unless the deed or lease is acknowledged and recorded i n the registry of deeds . . . Conveyances of the right, title or interest of the grantor, if duly recorded, shall be effectual against prior unrecorded conveyances, as if they purported to convey a n actual title. All recorded deeds, leases or other written instruments regarding real estate take precedence over unrecorded attachments a n d seizures." 33 M.R.S.A. 5 201 (1999). Me. 45 (1988). These statutes protect said persons by providing actual notice of
changes in title. B a y v i m Bank, N.A., 2002 ME 178, ¶ 14, 814 A.2d at 453.
Similarly, after a divorce court divides property between the divorcing parties,
the divorce laws require the recording of divorce decrees or abstracts to provide
notice of changes in ownership of property. Until those decrees or abstracts are
recorded, c ~ e d i t ~ rszch s , as Defendant, are -ii& p i t ox riotice of ckcii-igein
ownershp. Defendant's argument would be greatly weakened if Providian had
actual notice of the divorce and the property disposition prior to recording the
writ.j However, Providan was not aware of the divorce. When Providian filed
the writ of execution, it did so in the county where Dana A. Keniston was a
record joint owner of 152 Bragdon Road.
Notwithstanding Plaintiff's failure to record the divorce abstract, Plaintiff
is aslung the Court to permit her to present facts supporting her request for
zcpitable relief from the writ of e~ecution.The crux of Plaintiff's argument is that
despite her failure to record her ownershp interest in the property, a lien on her
property arising from her ex-husband's debt is improper, unjust, and inequitable
when a divorce decree establishes her sole right to the property.
Although Plaintiff is aslung h s Court for lenience in light of h s
unfortunate situation, the events that have taken place could have been avoided
had Plaintiff simply recorded her divorce decree in 2001. Unfortunately for
Plaintiff, there is an adequate remedy at law. Providian recorded first and
therefore has a priority interest in 152 Bragdon Road.
5 G a p e r v.Kittery W a t e r District, 385 A.2d 206, 207-08 (Me. 1978) ("When the facts known to the purchaser cast doubt upon the very existence of the seller's title, l ~ is e bound to inquire of him whether he has any real title or not."). The entry is as follows:
Defendant JP hlorgan Chase Bank's Motion for Summary Judgment is GRANTED.
DATE: 2- l d 86 COURTS ~dCounty 'x 2 8 7 041 12-0287
KENNETH ALTSHULER ESQ 257 DEERING AVENUE PORTLAND ME 0 4 1 0 3
COURTS ~dCounty )x 2 8 7 e 041 12-0287
MICHAEL MCCORMACK ESQ PO BOX 1318 CONCORD NH 03301 tiI.?i f;:\RlilS KEYIS SON,
AMENDED ORDER *
and
B-L-[SF, I.1-C,
Jueigmcnt and 191dln'tiff i3rtlnela Farris ktmstim's klirhi-rntor 1Iotic~nfr1r Stln~rn;lr)*
O n or abtsrtt Slc3rch 22, 20.03, P l a ~ ~ ~ Wrencia tlif Farns Kt;ni.;tr)n (I'lnintibil
\\-as divorccti from T>,~II,I A. Keni\tctr~. Prrr5~1nnt k t ) the ciirrorct. decree, a parcel of
redl prtfperts ii>cat~'cd at 152 Bragc:i~>~i i Freepcjrt i\-;ib; R ~ > d cill set-aside to PIalnti tt
yrtrp~rtir.' 1 IIL. as Kcr sr.tle , ~ n dexclt~sEt.t~ t.h,l.t:clach divt3rcc decree turther t~rclere.~!
part>-~ l s ~ e l r ~pa!, thil c~tlwrt r ~ ~allmcredit z,tsc%,111ci c~tjter t ' , and I~oldI~,trn~fi~ss
debt stiincli~igln th~skiit!f>ct$ C~ICII pLirtx-.(.%I or akwut XpriI 3, 3002,f'nwidian S n ti,>n,~lBrink rcccwcrcd L ~ g L >I >tanc~ 11ieig1nc~ll t t ~Lxpp~(r~: ~ ~ l ~k :~ ~ l i s t titlt m;ltcl y
d ~ '_;!?or~I:- 524, I tit ,,OO t r t m thr.3 uit: ctt a ~ r ~citr~i l c ~ !I?ral\fldictn rc..c(,rdt%c% t ! ~ ~ ' rtax .I
L P ~Dttudi Ligain.t DA:?~I :n tht>C-::rr~k-esl,~::ii ('(lunk,' Rt>gi.~tr>* ttetitof t.xc>i.~,itit)a.i
t h t ~ty~er,tti_~i Kc~ilstc~n ' 3 % '1 I I C ' ~tlpt>rl 1;2 Hritgdtjn Iio;ttl prt3pt.t-tv. l3lC>~n tiit dlci
not rcceivc ncltrcc of the ~ v r i ~t 3 C f ~ C C U ~ II O ' 1 6I%>i.~ ~ t lrt~cortl~ci ft tht
on Ilklrih 5. 20(14.' I f3 hforgan C'hd.;~ B;tnk (I?cicnd;n~:ti$5 tfw sercct'.\o:-ln-
Ii~&ere+t I7rira.;c!:~n, l i ; JI' krne i - t!ac ~ l ; ~ ; i i < * ~ - . t ~ ; * - i ~ ; - ~ t\l ~ : "hft)rg,ilg ~\t Chaw
fjt~rik..
ti ~n.;trtut t d this 1)e~clardf~x-i IJIL~inti s ~ wt.L~ngto c.;tlthl14a f u ~ i g n ~tenc.ttc3n
that I>tlfe.x~ciafrtha.; r1(7 right to ctairn la I l c v ag,?lnht prrrpc1rt\-.;\vnt.ldb\.
PIair2 hit based on ~iclcbt (jtved by IIa~tdlic~~i%t\x-t.* I h ~ %ole l i s i : ~is~\\.ht:tI~t~
131,-iantiif'\tAlure t o r ~ c ~ ~tfi~l r tdlvoric l dbitrdci h i \ ! c ~ rProt ~ icllan rcbcc~rc!t.tl it\ t
of eiecut-i~)n th,~tUetcnciL~nt'5r:;;iat. ti, 1-52 Hrttgcltm Kcmi ~2t-c. %upt.!~-ii~r t~~tn!lllsIick%
tcr thocc ot i"c11ntllf.
In I X L I \ - ~ X T ~tclr >LIII'LITI~IT\' judgixit~r~t, argue$ that l-r~~ I >tkfcn~l~~nt rc~iord~r;~
the ek~ritc l t execx~t~tln prior to the rcc.t>rcflr~g ctt the tfi:+t)r~.e;\hstr;tct, L>ciertcl,lnt is
enti t l t d t ~ pnon l th- j?lrrwannt LC) fi,llnxr>'s rcpcctrcl~ngit'ltu tc. 33 >l.R.S..l. 5 2t)I. 1x1
rt:s~~~~csc", t of cutliution i%void L.ecauic Ilt:tt*n~Zmt F>f,linijffargue3 tla,a t k k x k tvr~
railccl to ncrtitt- I'It3ini~ftirf tht. liTntof ckcizrtic~tapurqeadnt to 14 >I.R.S.,I\. 5 4051-
- 5 . In the. tlI'rcrnat.rvtl, 1'Ic-i~nlitt casguc.. t!?,nt cxqti1table c o ~ ~ s i d c r ~ ~ harrant o n s an
t~tift.o~ 111~hcr I-clx+rt.rt-s61 ~nrlbotiit>rsurlanl,mry iuclgmt*rit111 the e t;lax)r.. I'hc C"(~e~rt Iitacorcf~n:; a:? I ntivrust11.; i t l~td r t m otf3c.r- t k ? ~ r ~ t t 'ng iq ~l.~r~~r.sitxrnB j~~a*rtis
thc lii.11. 14 lI.IC.S.:-\. -b752-:4(SB. lwrthiarmttsc~,,ticr>rJingtcl the d~vorccbid'avs, K C C I P ~ LY~~ ~~ II t~l:, I~ ~L Ic i i : ~ ~ p ~ t ~ t e"c~tS \ C T ~ L t%.ho f ~ j Y I ~ havt' ~ 1 1 1i rltcrc-t ~ 111
txx.xmin~ngt h t ~rcc\~rcltit]<% t vii*kall;.h&I-IPY ti) p r c ) p ~ ~to rnigl~td~c.r~etttt>t- bi$cornri
uiLZncr,eitf~eri n \L iiidtio~.i n pwt, ai?+c~itltitlvor crthcr..t\ts~." I h i i ! f t ) t l ;'. G l l i ~ > ~ 77 ~t/,
h 4 8 . Chttw 5tatttte.; pre'tect scllid pc:--.clr:c:by 1-m ~1i11:ig J C ~ L I ~ Icot: (-t' tat'
111 titlt'. ; k ,~*\ i A,, l & ~ ; ~
S~n:rI,lit-Ii-,after ,I c11t~)rce c t ) ~ ~c3rI\t ~ d c ps r ~ p t ~brctt ~cc.n i i h c a d i ' i ' i t r z ~ ~p~~gr t i t \ \ ,
th1.3 tit vt lrcal I,I.~v\ rt>ijuircbthe rt-*corcIirtgoi d~a.~rrcc cic.ircc\ (tr ah%tr,tit-.:\\ pri).r.zt!e*
in k ) ~ \net->hipc3t proper:!*. Ls7til t!xokcl c1t~irtxe.ha)Y L ~ b % 7 t '?re notirtt ctt uIi'~ngc.~ rL~~t\
recatrdcci, cred I tors, w c h ~ t \Dct~.rreiant,arc nc7t put (311 1 1 ~ ) hoi tk ~the chllngc in
(n\-nc.ski~~p. Ift*fcndc~n ~ t l ~ i t 17rt9vrcii,nn h,.rcf t'.t argirrncnt it.c~ufciL7t. g r t ~ ~tlvcslxhti~i~c4
p r j t ~ rtkl r~c-orJlrigt11~ cf~y~)\itit)n iaitu,ll ~zt>tic'rt ~tii ~ ctitvc)rccl 2nd tff~c*pr+t?pt~rti,
B+,'zI!' C fcr?t*r,l\*er, r'rt lv:d~nr~ !\"aL a 4 the cIl7,,r\~ce.\I-!:tjr! I'rt)~bdi,li: f~ lcd ,1t%-~:rc
thC ~ \ ' rr ~tk tcutjiu t i ~ ~ int , 10 i n thcx ~ r t i i ~ l ti\ \ kitire D,zJ~'I .a. Kt\17r\tim I:-,IS ,1 rtliord pxnt c>.t'i'nerot 1-52H r , ~ g d ~Iit*,\ei. m
trig 1'lalnt.i #'* ttfiB L I ~ C 'to rtlcor~itkw divt)rc~'a.?b'.tr'~ct,f'ldln tl t t S c ~ t - r vtl~st'tnd r
is a>k.ing tht*f-otart ti>permit h t to~ yrescnt fact%.;uppr)rtlng 11cr rclquc.st ir>r
~ t the !\.rit cst twcuhcr~a.'I'hc) c.ruk ctF I'lailatitt's :.rgrtn~t>nt1, that equrtLll,lIer t ~ l i irom
~ tf ~ i l u r uh i rc~cori4her ijti.ncr
zlr~r;ir?gfrtj117 her c.w-hu~hCirld'~ yrc tp~v-th~ dcbt i%i lnprnpc~r,unl~z\t,a i d ~ n c r l rt,sbIP i~
\vhtn ,I ci i~ L ) T C ~ >cL*ci-eec.st;lbl i.;tir5 I1c.r st-~it.rrght to the priryibrty.
r;laL;rrt- %:hrft, i S i e J1'1.:71, 7 t, >;; \ I d 2a1.1, 2r'T-cla f\1~1. 1..3;,1) j \ \ f - . t ~ n alw t'lith 1\:iuit :t ~ ~ ~~ ri t - ~ ;i;?tBl'r to tlw f x : r c l ~ , i;r?t bt at-ttj L tk:.+ c\i\itt't?~t* 1 h t 9 wllt.r'a !~Blc,hr $ 5 i9i)ti;lai ti? i l ' r q t ~ i : i~j r ham \\ iic~thi>:Ilc* 1?;3\ ,]I:; red; t: tic c)r r l ~ "~ t F COURTS and County 30x 287 ne 041 12-0287
KENNETH ALTSHULER ESQ 257 DEERING AVENUE PORTLAND ME 04103
IF COURTS and County Box 287 ine 041 12-0287
MICHAEL MCCORMACK ESQ -- PO BOX 1318 CONCORD NH 03301