STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, SS. CIVIL ACTION O & ~~NO. AUBSC-RE-15-017 RECE.1\/ E . MECHANICS SAVINGS BANK, ) JUN \ ~ ?.G\o ) oGGIN Plaintiff, )p..NOROSC couR1 1.upE.R\OR v. r ORDER ON PLAINTIFF'S MOTION ) FOR SUMMARY JUDGMENT RICHARD H. BELLISLE, ) ) Defendant. )
Presently before the court is Plaintiff Mechanics Savings Bank's Motion for
Summary Judgment in this foreclosure action brought pursuant to 14 M.R.S. §§ 6321
6325. Defendant Richard H. Bellisle has appeared in this action, but did not file an
opposition to Plaintiff's motion.
After independent review, Plaintiff's Motion for Summary Judgment is denied
and judgment is entered for the Defendant.
I. BACKGROUND On or about March 7, 2007, Defendant executed and delivered to Plaintiff a
promissory note with an original principle amount of $41,000.00. (Pl. Supp. S.M.F. cir 1.)
The promissory note was secured by a mortgage on property located at 554 White Oak
Hill, Poland, Androscoggin County, Maine. (Id. cir 2.) Plaintiff asserts that Defendant
has defaulted on his obligations under the note and the mortgage by failing to make
monthly payments when due since June 1, 2014. (Id. circir 7-8.)
Plaintiff mailed Defendant a notice of default and right to cure on September 8,
2014 (the "Notice of Default"). (Id. cir 9.) Plaintiff filed a complaint for foreclosure on
February 12, 2015. (Compl. 1.) Foreclosure mediation pursuant to Maine Rule of Civil
Procedure 93 was held on April 23, 2015. (Med. Report 1.) Further mediation was
terminated by order of the court on June 17, 2015. (6/17 /15 Order 1.) On August 5,
Page 1 of 9 2015, Plaintiff requested that the court stay this foreclosure pursuant to 14 M.R.S. §
6321. (Motion to Stay 1.) The court granted Plaintiff's motion to stay on August 10,
2015. (8/ 10 / 15 Order 1.) The stay was lifted on January 8, 2016. (1 / 8/ 16 Order 1.)
Plaintiff filed this motion for summary judgment on January 21, 2016. (Pl. Mot. Summ.
J. 1.) Defendant did not respond to Plaintiff's motion.
II. STANDARD OF REVIEW
In residential mortgage foreclosure actions, the court strictly applies the rules
regarding summary judgment. HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59,
A.3d 815. When a party moves for summary judgment in a residential mortgage
foreclosure action, Maine Rule of Civil Procedure 56(j) requires the court to
independently determine whether the mortgage holder has properly set forth in its
statement of material facts all of the elements necessary for a foreclosure judgment.
M.R. Civ. P. 56(j); Chase Home Fin. LLC v. Higgins, 2009 ME 136,
statement of material fact must be "supported by evidence of a quality that could be
admissible at trial." HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, Cf[ 10, 28 A.3d 1158;
M.R. Civ. P. 56(h)(4). The court must not consider a statement of material fact
unsupported by citation to record evidence nor is the court allowed to search the record
to find evidence in support of such unsupported statements. M.R. Civ. P. 56(h)(4);
Gabay, 2011 ME 101,
Rule 56 also requires that "[s]worn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto or served therewith." M.R.
Civ. P. 56(e). When an affiant's statements are based upon his or her review of business
records, these records must be attached and must be referenced in order for the
affidavit to provide adequate evidence in support of a motion for summary judgment.
Cach, LLC v. Kulas, 2011 ME 70, Cf[ 10, 21 A.3d 1015; M.R. Civ. P. 56(h)(4). In order for
Page 2 of 9 such business records to be deemed "of a quality admissible at trial," a qualified
witness must attest, with regard to each record, that:
(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein; (2) the record was kept in the course of a regularly conducted business; (3) it was the regular practice of the business to make records of the type involved; and (4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.
Bank of Am., N.A. v. Greenleaf, 2014 ME 89, 'lI 25, 96 A.3d 700; M.R. Evid. 803(6).
In order to obtain summary judgment in a residential mortgage foreclosure
action, the mortgage holder "must comply strictly with all steps required by statute,"
and the mortgage holder's statement of material facts must contain facts proving eight
essential elements, including:
the existence of the mortgage, including the book and page number of the
mortgage,
• evidence of a properly served notice of default and right to cure m
compliance with 14 M.R.S. § 6111;
• the amount due on the mortgage note, including any reasonable attorney
fees and court costs; and
Greenleaf 2014 ME 89,
If the court determines on a motion for summary judgment that a foreclosure
plaintiff would be unable to prove a necessary element of its substantive claim, then the
court must enter judgment for the defendant. Wells Fargo Bank, N.A. v. Girouard, 2015
ME 116, 'lI 9, 123 A.3d 216. The court may order summary judgment against the moving
party without the need for a cross-motion by the non-moving party when the facts are
Page 3 of 9 thoroughly explored and no genuine issue found. M.R. Civ. P. 56(c); 3 Harvey, Maine
Civil Practice§ 56.10 at 251 (3d ed. 2012).
III. ANALYSIS
A. Notice of Default
Plaintiff's Notice of Default did not strictly comply with 14 M.R.S § 6111. Under
14 M.R.S. § 6111, a mortgagee may not accelerate or enforce a mortgage on a
mortgagor's primary residence until at least 35 days after giving written notice of the
mortgagor's right to cure the default. 14 M.R.S. § 6111(1). If the mortgagor tenders
payment of the amounts necessary to cure the default within the 35 days, the mortgage
is restored as though the default had not occurred. Id. Section 6111 mandates that the
notice of default include, among other requirements: "An itemization of all past due
amounts causing the loan to be in default and the total amount due to cure the default;"
and "An itemization of any other charges that must be paid in order to the default[.]"
Id.§ 6111(1-A)(B-C).
The Law Court has explained: "Section 6111 affords a mortgagor a period of time
within which [the mortgagor] has a right to cure any default on the mortgage before the
mortgagee may accelerate maturity of the unpaid balance of the obligation or otherwise enforce
the mortgage because of a default." Greenleaf, 2014 ME 89, <[ 30, 96 A.3d 700 (emphasis
supplied) (internal quotation marks and citation omitted). "[S]ection 6111 effectively
freezes such additions to the payoff amount during the cure period. Because the
amount due as stated in the notice of default is the precise amount that the mortgagor has
thirty-five days to pay in order to cure the default, the amount due is not ... open to any
further accrual during that period." Id. 9I 31 (emphasis supplied).
First, the Notice of Default is defective because it appears to require Defendant to
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STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, SS. CIVIL ACTION O & ~~NO. AUBSC-RE-15-017 RECE.1\/ E . MECHANICS SAVINGS BANK, ) JUN \ ~ ?.G\o ) oGGIN Plaintiff, )p..NOROSC couR1 1.upE.R\OR v. r ORDER ON PLAINTIFF'S MOTION ) FOR SUMMARY JUDGMENT RICHARD H. BELLISLE, ) ) Defendant. )
Presently before the court is Plaintiff Mechanics Savings Bank's Motion for
Summary Judgment in this foreclosure action brought pursuant to 14 M.R.S. §§ 6321
6325. Defendant Richard H. Bellisle has appeared in this action, but did not file an
opposition to Plaintiff's motion.
After independent review, Plaintiff's Motion for Summary Judgment is denied
and judgment is entered for the Defendant.
I. BACKGROUND On or about March 7, 2007, Defendant executed and delivered to Plaintiff a
promissory note with an original principle amount of $41,000.00. (Pl. Supp. S.M.F. cir 1.)
The promissory note was secured by a mortgage on property located at 554 White Oak
Hill, Poland, Androscoggin County, Maine. (Id. cir 2.) Plaintiff asserts that Defendant
has defaulted on his obligations under the note and the mortgage by failing to make
monthly payments when due since June 1, 2014. (Id. circir 7-8.)
Plaintiff mailed Defendant a notice of default and right to cure on September 8,
2014 (the "Notice of Default"). (Id. cir 9.) Plaintiff filed a complaint for foreclosure on
February 12, 2015. (Compl. 1.) Foreclosure mediation pursuant to Maine Rule of Civil
Procedure 93 was held on April 23, 2015. (Med. Report 1.) Further mediation was
terminated by order of the court on June 17, 2015. (6/17 /15 Order 1.) On August 5,
Page 1 of 9 2015, Plaintiff requested that the court stay this foreclosure pursuant to 14 M.R.S. §
6321. (Motion to Stay 1.) The court granted Plaintiff's motion to stay on August 10,
2015. (8/ 10 / 15 Order 1.) The stay was lifted on January 8, 2016. (1 / 8/ 16 Order 1.)
Plaintiff filed this motion for summary judgment on January 21, 2016. (Pl. Mot. Summ.
J. 1.) Defendant did not respond to Plaintiff's motion.
II. STANDARD OF REVIEW
In residential mortgage foreclosure actions, the court strictly applies the rules
regarding summary judgment. HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59,
A.3d 815. When a party moves for summary judgment in a residential mortgage
foreclosure action, Maine Rule of Civil Procedure 56(j) requires the court to
independently determine whether the mortgage holder has properly set forth in its
statement of material facts all of the elements necessary for a foreclosure judgment.
M.R. Civ. P. 56(j); Chase Home Fin. LLC v. Higgins, 2009 ME 136,
statement of material fact must be "supported by evidence of a quality that could be
admissible at trial." HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, Cf[ 10, 28 A.3d 1158;
M.R. Civ. P. 56(h)(4). The court must not consider a statement of material fact
unsupported by citation to record evidence nor is the court allowed to search the record
to find evidence in support of such unsupported statements. M.R. Civ. P. 56(h)(4);
Gabay, 2011 ME 101,
Rule 56 also requires that "[s]worn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto or served therewith." M.R.
Civ. P. 56(e). When an affiant's statements are based upon his or her review of business
records, these records must be attached and must be referenced in order for the
affidavit to provide adequate evidence in support of a motion for summary judgment.
Cach, LLC v. Kulas, 2011 ME 70, Cf[ 10, 21 A.3d 1015; M.R. Civ. P. 56(h)(4). In order for
Page 2 of 9 such business records to be deemed "of a quality admissible at trial," a qualified
witness must attest, with regard to each record, that:
(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein; (2) the record was kept in the course of a regularly conducted business; (3) it was the regular practice of the business to make records of the type involved; and (4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.
Bank of Am., N.A. v. Greenleaf, 2014 ME 89, 'lI 25, 96 A.3d 700; M.R. Evid. 803(6).
In order to obtain summary judgment in a residential mortgage foreclosure
action, the mortgage holder "must comply strictly with all steps required by statute,"
and the mortgage holder's statement of material facts must contain facts proving eight
essential elements, including:
the existence of the mortgage, including the book and page number of the
mortgage,
• evidence of a properly served notice of default and right to cure m
compliance with 14 M.R.S. § 6111;
• the amount due on the mortgage note, including any reasonable attorney
fees and court costs; and
Greenleaf 2014 ME 89,
If the court determines on a motion for summary judgment that a foreclosure
plaintiff would be unable to prove a necessary element of its substantive claim, then the
court must enter judgment for the defendant. Wells Fargo Bank, N.A. v. Girouard, 2015
ME 116, 'lI 9, 123 A.3d 216. The court may order summary judgment against the moving
party without the need for a cross-motion by the non-moving party when the facts are
Page 3 of 9 thoroughly explored and no genuine issue found. M.R. Civ. P. 56(c); 3 Harvey, Maine
Civil Practice§ 56.10 at 251 (3d ed. 2012).
III. ANALYSIS
A. Notice of Default
Plaintiff's Notice of Default did not strictly comply with 14 M.R.S § 6111. Under
14 M.R.S. § 6111, a mortgagee may not accelerate or enforce a mortgage on a
mortgagor's primary residence until at least 35 days after giving written notice of the
mortgagor's right to cure the default. 14 M.R.S. § 6111(1). If the mortgagor tenders
payment of the amounts necessary to cure the default within the 35 days, the mortgage
is restored as though the default had not occurred. Id. Section 6111 mandates that the
notice of default include, among other requirements: "An itemization of all past due
amounts causing the loan to be in default and the total amount due to cure the default;"
and "An itemization of any other charges that must be paid in order to the default[.]"
Id.§ 6111(1-A)(B-C).
The Law Court has explained: "Section 6111 affords a mortgagor a period of time
within which [the mortgagor] has a right to cure any default on the mortgage before the
mortgagee may accelerate maturity of the unpaid balance of the obligation or otherwise enforce
the mortgage because of a default." Greenleaf, 2014 ME 89, <[ 30, 96 A.3d 700 (emphasis
supplied) (internal quotation marks and citation omitted). "[S]ection 6111 effectively
freezes such additions to the payoff amount during the cure period. Because the
amount due as stated in the notice of default is the precise amount that the mortgagor has
thirty-five days to pay in order to cure the default, the amount due is not ... open to any
further accrual during that period." Id. 9I 31 (emphasis supplied).
First, the Notice of Default is defective because it appears to require Defendant to
pay other amounts in addition to the amount necessary to cure the default. Plaintiff's
Page 4 of 9 Notice of Default initially states that the "AMOUNT NOW DUE" on the mortgage is
$4,457.05. (Therrien AH. Ex. C.) The Notice of Default further states:
You have the right to cure such defaults by (a) full payment of all amounts that are due without acceleration, ... In order to avoid the consequences described here-in-below, you must tender to the Mechanics Savings Bank the AMOUNT NOW DUE not later than thirty five (35) days after the receipt of this notice.
(Id.) This language sufficiently complies with 14 M .R.S. § 6111 and Greenleaf
However, it is the Notice of Default's subsequent language that fails to strictly
comply with§ 6111 and Greenleaf The next paragraph of the Notice of Default states:
You have the right to reinstate your loan after acceleration until a judgment is entered if you meet the following conditions: (1) You pay to Lender the full amount that then would be due under this Security Instrument and the ote as if immediate payment in full had never been required;
(3) You pay all of Lender's reasonable expenses in enforcing this Security Instrument including, for example, reasonable attorneys' fees, property inspection and valuation fees, and other fees incuxred for the purpose of protecting Lender's interest in the property and rights under this Security Instrument; ...
(Id.) The Notice of Default further states, emphasized with italics:
Complete satisfaction of the terms set forth in the preceding paragraph is required to avoid acceleration and foreclosure.
(Id.) (emphasis original).
As discussed above, §6111 effectively freezes the pay-off amount that a
mortgagor must pay in order to avoid acceleration of the mortgage and foreclosure.
Greenleaf, 2014 ME 89, 'IT
satisfaction of the terms set forth in the preceding paragraph is required to avoid acceleration"
suggests that Defendant must do more than simply pay the amount now due in order to
avoid acceleration. (Therrien Aff. Ex. C) (italics original, bold supplied). The italicized
statement suggests that the Defendant must also pay "the full amount that then would
Page 5 of 9 be due under this Security Instrument and the Note" and "all of Lender's reasonable
expenses in enforcing this Security Instrument" in order to cure the default and avoid
acceleration. (Id.) Thus, the Notice of Default appears to require Defendant to pay
other amounts in addition to the "AMOUNT NOW DUE" in order to cure the default
and avoid acceleration. Therefore, in light of the Law Court's directive that foreclosure
plaintiffs must strictly comply with all statutory requirements, the Notice of Default
does not state the "precise amount" that Defendant must pay in order cure the default
and avoid acceleration of the mortgage. 1
Second, the Notice of Default does not properly itemize the other charges that
must be paid in order to cure the default. As previously discussed,§ 6111 requires that
the notice of default contain an "itemization of any other charges that must be paid in
order to cure the default[.]" 14 M.R.S. § 6111(1-A)(C).
The Default Notice stated that the "AMOUNT NOW DUE" on the mortgage was
$4,457.05. (Therrien Aff. Ex. C.) According to a footnote in the Notice, the basis for
calculating the "AMOUNT NOW DUE" was_shown in a separate attachment. (Id.) The
attached document contained an itemized list of all past due monthly mortgage
payments from June 1, 2014, through September 4, 2014. (Id.) The attached document
also listed late charges of $381.77, postage expenses of $2.49, and a "Fee Balance" of
$2,540.29. (Id.)
1 The court recognizes that the likely intent of the subsequent paragraphs in Plaintiffs Notice was to inform Defendant that even after the cure period had expired, Defendant could have the loan reinstated as if acceleration had not occurred by paying "the full amount that then would be due under this Security Instrument and the Note" and "all of Lender's reasonable expenses in enforcing this Security Instrument" in addition to other requirements. However, the italicized sentence cited above does not state, Complete satisfaction of the terms set forth in the preceding paragraph is required to reinstate the mortgage as if acceleration had not occurred. It is the use of the phrase "to avoid acceleration" that suggests that the mortgagor must comply with the additional terms to prevent acceleration, i.e., during the 35-day cure period.
Page 6 of 9 Neither the Notice of Default nor the document attached thereto states what
charges or amounts are included in the $2,540.29 "Fee Balance" that Defendant must
pay in order to cure the default. It is unclear whether the "Fee Balance" represents a
single charge or multiple charges. It is unclear whether this "Fee Balance" includes
reasonable attorneys fees, property inspection fees, property valuation fees, or other
fees incurred by Plaintiff in protecting its security interest in the property.
Therefore, in light of the Law Court's directive that plaintiffs must strictly
comply with all statutory requirements, the court concludes that Plaintiff's Notice fails
to properly itemize the additional charges that must be paid in order to cure the default
in accordance with§ 6111.
Because compliance with 14 M.R.S. § 6111 is an essential element of foreclosure,
there is no genuine dispute that Plaintiff will be unable to prove its substantive claim at
trial. Therefore, the court must entered summary judgment for Defendant. See Girouard,
2015 ME 116,
B. Unsupported Statements of Fact
Furthermore, even if Plaintiff's Notice of Default was not defective, there are
other defects in Plaintiff's statement of material facts that would preclude summary
judgment for Plaintiff.
1. Book and Page Number of the Mortgage
Plaintiff's statement of material fact regarding the book and page number of the
mortgage is not properly supported. To obtain a judgment of foreclosure, Plaintiff's
statement of material facts must contain evidence of the existence of the mortgage,
including the book and page number of the mortgage. Greenleaf, 2014 ME 89,
A.3d 700 (citation omitted). According to Plaintiff's statement of material fact, the
mortgage was recorded in the Androscoggin County Registry of Deeds in Book 7080,
Page 7 of 9 Page 330. (Pl. Supp. S.M.F. 'JI 3.) Plaintiff cites paragraph 9 of Therrien's affidavit in
support of this assertion. (Id.) Therrien's affidavit reiterates the same assertion but cites
no record evidence to support the assertion. (Therrien Aff. 'JI 9.) It is unlikely that
Therrien has personal knowledge of the book and page number of the mortgage
without referring to business records. As previously discussed, when an affiant' s
statements are based upon review of business records, those records must be referenced
in order to obtain summary judgment. Kulas, 2011 ME 70, 'JI 10, 21 A.3d 1015.
Therefore, because both Plaintiff's statement of material fact and Therrien's affidavit fail
to cite appropriate business records, Plaintiff's assertion regarding the book and page
number of the mortgage is not properly supported. See also Mech. Sav. Bank v. Vicario,
2014 Me. Super. LEXIS 215, at *4 (Nov. 10, 2014).
2. Reasonable Attorney Fees and Costs
Plaintiff's statement of material fact regarding the amount of attorney fees and
costs due to Plaintiff is not properly supported. In a mortgage foreclosure action, the
court must determine the amount due on the note, including reasonable attorney fees
and costs. 14 M.R.S. § 6322; Greenleaf, 2014 ME 89, 'JI 18, 96 A.3d 700 (emphasis
supplied). Without citation to an affidavit from counsel or a breakdown of the attorney
fees and costs, the court cannot determine whether the legal fees claimed in a plaintiff's
statement of material facts are reasonable. Bath Sav. Inst. v. Elichaa, 2014 Me. Super.
LEXIS 165, at *5 (Sept. 19, 2014).
In its statement of material facts, Plaintiff avers that the total amount due on the
mortgage as of January 13, 2016, was $46,415.32, including "legal fees and costs" of
$562.50 (PL Supp. S.M.F. 'JI 11.) Plaintiff cites Therrien's affidavit and Exhibit D
attached thereto as support for its assertions regarding the amount due. (Id.) Therrien's
Page 8 of 9 affidavit reiterates the same assertions. (Therrien Aff.
cites Exhibit D for evidentiary support regarding the amount due. (Id.) Exhibit D are
Plaintiff's loan payoff and account statements. (Id.
expense report containing itemized list of "legal" fees totaling $562.50. (Id. Ex. D.) The
expense report does not explain the purpose for which those "legal" fees were incurred.
(Id.) Plaintiff does not cite to the affidavit of its counsel or the invoices attached thereto
as evidence of the fees and expenses incurred in this foreclosure action. (Pl. Supp.
S.M.F.
Because neither Therrien's affidavit nor Exhibit D provides an explanation or
context for how or why these "legal" fees were incurred, the court is unable to evaluate
the reasonableness of those fees. The court is also precluded from searching the record
for counsel's affidavit in order to determine whether the $562.50 in legal fees is
reasonable. M.R. Civ. P. 56(h)(4); Gabay, 2011 ME 101,
Plaintiff's statement of material fact regarding attorney fees and costs is not properly
supported.
IV. CONCLUSION
Based on the foregoing, Plaintiff's Motion for Summary Judgment is denied.
Summary Judgment is granted for Defendant.
The Clerk is directed to incorporate this Order into the docket by reference
pursuant to Maine Rule Civil Procedure 79(a).
Date: June 15, 2016
Page 9 of 9