TD Bank v. Sawyer

• Court: Superior Court of Maine
• Decided: October 4, 2013
• Docket: CUMre-12-260
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-12-~2_0 /. ~;V{ ---CU!)/F~~ ;LJ, :::_oJ3 TD BANK, N.A., I I I i

Plaintiff ORDER ON PLAINTIFF'S v. MOTION FOR SUMMARY JUDGMENT MICHAEL W. SAWYER and HEATHER L KIRK,

Defendants T .ii :o:;; ? ..!_~--

TD BANK, N.A.,

Party-In-Interest

The plaintiff seeks a summary judgment on its complaint for foreclosure. For the

following reasons, the motion is denied.

The plaintiff has failed to establish the amount due on the mortgage note. See

Chase Horne Fin. LLC v. Higgins, 2009 ME 136, 'I[ 11, 985 A.2d 508. The plaintiff relies

on a "Payoff Quote" to establish the amount due. (Ross. Aff. Ex. E). This document

appears to have been created in anticipation of litigation. No explanation or other

business records were provided. See M.R. Evid. 803(6); M.R. Civ. P. 56(e); HSBC

Mortgage Servs., Inc. v. Murphy, 2011 ME 59, 'I[ 17, 19 A.3d 815.

The plaintiff has failed to provide "evidence of properly served notice of default

and mortgagor's right to cure in compliance with statutory requirements .... " Chase

Horne Fin. LLC v. Higgins, 2009 ME 136, 'I[ 11, 985 A.2d 508; see 14 M.R.S. § 6111(3). The

Law Court has held that an assertion that a notice was sent by certificate of mailing is

not conclusive "without a copy of the certificate itself." Camden Nat. Bank v. Peterson,

2008 ME 85, 'I[ 25, 948 A.2d 1251. The plaintiff has provided a copy of the certificate of mailing for the notice to each defendant, but the dates on the Postal Service's stamps are

illegible. (Ray Aff. Ex. B; Ross A££. Ex. D.)

The plaintiff is listed as the plaintiff and the party-in-interest in this case. 1

Attorney Ray is not qualified to testify about the order of priority. (Pl.'s S.M.F. fJ[ 20;

Ray Aff. fJ[fJ[ 2, 16.) Although the statement of material facts also cites the affidavit of

Mr. Ross on the issue of the order of priority, Mr. Ross does not discuss this issue. (Pl.'s

S.M.F. 'IT 20; Ross A££.)

Defendant Heather L. Kirk is represented by counsel. Defendant Michael W.

Sawyer has not appeared. Although the plaintiff states that the parties attended

mediation, the mediation reports show that only defendant Kirk attended. (Pl.'s S.M.F.

'IT 16; Mediation Reports filed 12/11/12 and 3/22/13.) The plaintiff has provided no

affidavit regarding military service. See 50 U.S.C. Appx. § 521.

The entry is

The Plaintiff's Motion for Summary Judgment is DENIED.

Dated: J/J "3- . j~ --~~~~----------- N~-*------~~ Justice, Superior Court

1 The same address is provided for both in the proposed judgment. TD BANK NA VS MICHAEL W SAWYER ET AL UTN:AOCSsr -2012-0071763 CASE #:PORSC-RE-2012-00260

01 0000003886 RAY JULIANNE ONE CANAL PLAZA SUITE 900 PO BOX 426 PORTLAND ME 04112-0426 F TD BANK NA PL RTND 07/08/2013

02 0000009871 LOGAN SCOTT J 75 PEARL STREET SUITE 212 PORTLAND ME 04101 F HEATHER L KIRK DEF RTND 01/17/2013

03 0000010012 WILLIAMSt STEPHANIE ONE CANAL PLAZA SUITE 900 PO BOX 426 PORTLAND ME 04112-0426 F TD BANK NA PL RTND 07/26/2012