Wilmington Sav. Fund Soc'y, FSB v. Needham

204 A.3d 1277
CourtSupreme Judicial Court of Maine
DecidedMarch 14, 2019
DocketDocket: And-18-313
StatusPublished
Cited by4 cases

This text of 204 A.3d 1277 (Wilmington Sav. Fund Soc'y, FSB v. Needham) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilmington Sav. Fund Soc'y, FSB v. Needham, 204 A.3d 1277 (Me. 2019).

Opinion

PER CURIAM

*1279[¶1] Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, not individually but as Trustee for Hilldale Trust, appeals from a judgment in favor of Matthew J. Needham1 entered in the Superior Court (Androscoggin County, MG Kennedy, J. ) after a bench trial on Wilmington's foreclosure complaint. For the reasons discussed below, we vacate the judgment and remand the matter for entry of judgment for Wilmington.

I. CASE HISTORY

[¶2] The following facts are undisputed. In August 2005, Needham signed a promissory note in favor of EquiFirst Corporation that was secured by a mortgage on his real property situated in Auburn. Needham defaulted on that loan in August 2014 when he stopped making the required payments. In September 2016, loan servicer BSI Financial Services sent Needham a notice of the right to cure on behalf of Ventures Trust2 -the then-holder of the note and mortgage by virtue of assignment-as required by 14 M.R.S. § 6111(1) (2018). Ventures Trust thereafter filed a foreclosure complaint in January 2017.

[¶3] In December 2017, Ventures Trust filed a motion seeking to substitute Wilmington Savings Fund, FSB, as plaintiff because it had transferred the mortgage and note by assignment to Wilmington, as trustee for Hilldale Trust, in October 2017. The motion was granted in January 2018.

[¶4] A short bench trial was held in April 2018, after which Needham stipulated that Wilmington's complaint and filings were proper, its various exhibits were admissible, and he had in fact defaulted under the terms of the note and mortgage. The parties agreed that the only issue to be decided by the court was whether 14 M.R.S. § 6111(1) requires a mortgagee itself-and not its loan servicer acting as its agent-to send the notice of the right to cure. Resolution of that question would be dispositive of the case. In lieu of presenting their arguments at trial, the parties agreed to submit written arguments.

[¶5] The court entered judgment for Needham on July 10, 2018. In its judgment, the court explained:

The clearest guidance available to this [c]ourt in deciding this issue is the oft-repeated mandate that a plaintiff seeking a judgment of foreclosure must *1280strictly comply with statutory requirements. See , e.g. , [Bank of Am., N.A. v. ] Greenleaf , 2014 ME 89, ¶ 18, 96 A.3d 700 ; [Chase Home Fin. LLC v. ] Higgins , 2009 ME 136, ¶ 11, 985 A.2d 508 ; Camden Nat'l Bank v. Peterson , 2008 ME 85, ¶ 21, 948 A.2d 1251. Section 6111 plainly requires notice to be "given by the mortgagee." 14 M.R.S.A. § 6111(1). The term "mortgage servicer" appears elsewhere in section 6111, e.g. , id. § 6111(1-A)(D), (E), indicating the Legislature recognizes that a servicer is a distinct entity from a mortgagee. The Legislature has not designated loan servicers as entities that can send notice to mortgagors in satisfaction of section 6111.
Absent any indication from the Law Court or the Legislature that an exception may be made when a loan servicer sends notice on behalf of a mortgagee, this [c]ourt finds, under a strict interpretation of the statute, that notice must be sent by the mortgagee. In this case, because notice was not sent by the mortgagee, but rather by the loan servicer, the notice was insufficient to satisfy the requirements of section 6111. Thus, Plaintiff has not satisfied its burden to provide evidence of each of the elements of proof necessary to support a judgment for foreclosure. Judgment will be entered for Defendants.

[¶6] Wilmington timely appealed. M.R. App. P. 2B(c)(1).

II. LEGAL ANALYSIS

[¶7] Wilmington argues that the court's judgment ignores the common law principles of agency, as well as the plain language and legislative purpose of section 6111.

A. Agency in Common Law

[¶8] "Agency is the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his [or her] behalf and subject to his [or her] control, and consent by the other so to act." Libby v. Concord Gen. Mut. Ins. Co. , 452 A.2d 979, 981 (Me. 1982). Generally, "[a] person ... subject to a duty[ ] to perform an act ... can properly appoint an agent to perform the act ... unless public policy or the agreement with another requires personal performance." Restatement (Second) of Agency § 17 (Am. Law Inst. 1958) ; see also Restatement (Third) of Agency § 3.04 cmt. c (Am. Law Inst. 2006) ("A person may delegate performance of an act if its legal consequences for that person are the same whether the act is performed personally or by another."); Stenzel v. Dell, Inc. , 2005 ME 37, ¶ 37, 870 A.2d 133 (quoting Restatement (Second) of Contracts § 318(1) (Am. Law Inst. 1981) ) ("An obligor can properly delegate the performance of his duty to another unless the delegation is contrary to public policy or the terms of his promise.").

[¶9] With that background, this appeal presents three questions: (1) whether the loan servicer, BSI, was acting as an agent of the mortgagee at the time it sent the notice of the right to cure to Needham; (2) whether the mortgage contract requires personal performance by the mortgagee when sending such a notice; and (3) whether section 6111 abrogates the common law so that, regardless of the existence of an agency relationship, the mortgagee itself must send the notice.

[¶10] The answer to the first question is implicit in the narrow scope of the issue presented to the trial court by agreement of the parties. The parties asked the court to determine whether a loan servicer may give a notice of the right to cure on behalf *1281of a mortgagee pursuant to section 6111(1), but-as the parties confirmed at oral argument-did not dispute that BSI was a loan servicer acting on behalf of the mortgagee in this case. Therefore, by definition, BSI was acting as the mortgagee's agent. Thus, the dispositive issues presented here are entirely questions of law.

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204 A.3d 1277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilmington-sav-fund-socy-fsb-v-needham-me-2019.