Wells Fargo Bank N.A. v. Page

Thomas Warren

The plaintiff moves for summary judgment in an action for foreclosure brought pursuant to 14 M.R.S.A. § 6321, et seq. The defendant filed no response. Regardless of whether the defendant has filed an objection, this motion is subject to Rule 56(j), which imposes detailed requirements for granting summary judgment in foreclosure actions. M.R. Civ. P. 56(j). The court has an independent obligation to ensure compliance with this rule. M.R. Civ. P. 56(j) advisory committee's note to amend. The court must also determine if the mortgage holder has set forth in its statement of material facts the minimum facts necessary for summary judgment in a residential mortgage foreclosure. Chase Home Finance LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508, 510-11.

Having reviewed the file, the court concludes that the following requirements for a summary judgment of foreclosure have or have not been met:

+-----------------------------------------------------------------------------+ ¦ ¦Compliant ¦Non-compliant or unclear ¦ +--------------------------------------+-----------+--------------------------¦ ¦Service: Proof of service on all ¦ ¦ ¦ ¦defendants and parties in ¦X ¦[] ¦ ¦ ¦ ¦ ¦ ¦interest. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Jurisdiction: Case brought in the ¦ ¦ ¦ ¦court division where the ¦ ¦ ¦ ¦ ¦X ¦[] ¦ ¦property (or any part of it) is ¦ ¦ ¦ ¦located. See § 6321. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Mortgage: ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Proof of existence of the mortgage, ¦ ¦ ¦ ¦book and page ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦number, and adequate description of ¦ ¦ ¦ ¦property ¦X ¦[] ¦ ¦ ¦ ¦ ¦ ¦(including street address if any on ¦ ¦ ¦ ¦first page of ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦complaint). ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Properly presented proof of ownership ¦ ¦ ¦ ¦of the ¦ ¦ ¦ ¦ ¦[] ¦X ¦ ¦mortgage, including any assignments or¦ ¦ ¦ ¦endorsements. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Note: Properly presented proof of ¦ ¦ ¦ ¦ownership of the mortgage ¦ ¦ ¦ ¦ ¦[] ¦X ¦ ¦note, including all assignments and ¦ ¦ ¦ ¦endorsements. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Breach: A breach of condition in the¦X ¦[] ¦ ¦mortgage. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Amount Due: The amount due on the ¦ ¦ ¦ ¦mortgage note, ¦ ¦ ¦ ¦ ¦X ¦[] ¦ ¦including any reasonable attorney fees¦ ¦ ¦ ¦and court costs. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Priority: The order of priority and ¦ ¦ ¦ ¦amounts due to other ¦ ¦ ¦ ¦ ¦[] ¦X ¦ ¦parties in interest, including any ¦ ¦ ¦ ¦public utility easements. ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦Notice: Evidence that all steps ¦ ¦ ¦ ¦mandated by 14 M.R.S. § 6111 ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦to provide notice to mortgagor were ¦ ¦ ¦ ¦strictly performed ¦[] ¦X ¦ ¦ ¦ ¦ ¦ ¦(including that contents of the notice¦ ¦ ¦ ¦comply with ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦§ 6321-A). ¦ ¦ ¦ +--------------------------------------+-----------+--------------------------¦ ¦ ¦Compliant ¦Non-compliant or unclear ¦ +--------------------------------------+-----------+--------------------------¦ ¦M.R. Civ. P. 56: All facts relied ¦ ¦ ¦ ¦upon in support of summary judgment ¦[] ¦X ¦ ¦are properly set forth in Rule 56(h) ¦ ¦ ¦ +-----------------------------------------------------------------------------+ statements and properly supported in the record. +-----------------------------------------------------------------------+ ¦Mediation: If required by M.R. Civ. P. 93 (for cases filed after¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Dec. 31, 2009) or court order, proof mediation has been ¦X¦[]¦ ¦ ¦ ¦ ¦ ¦completed or validly waived (by action or by default). ¦ ¦ ¦ +------------------------------------------------------------------+-+--¦ ¦For cases filed after Dec. 31, 2009, in accordance with ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦M.R. Civ. P. 93(c)(4), proof that plaintiff served ¦ ¦ ¦ ¦ ¦X¦[]¦ ¦defendant(s) financial forms used to consider ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦alternatives to foreclosure at the time of the complaint. ¦ ¦ ¦ +------------------------------------------------------------------+-+--¦ ¦SCRA: If defendant has not appeared in the action, a ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦statement, with supporting affidavit, of whether the ¦ ¦ ¦ ¦ ¦X¦[]¦ ¦defendant is in military service as required by the ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Servicemember's Civil Relief Act, 50 U.S.C. app. § 521. ¦ ¦ ¦ +-----------------------------------------------------------------------+

The court denies Plaintiff's motion on the following grounds:

Plaintiff has not submitted proper proof of ownership of the note. The note was written in favor of Equity One. The note contains two endorsements: one from Equity One to Wells Fargo Bank, N.A., and one that appears to be an endorsement in blank from Wells Fargo Bank, N.A. While Pl.'s S.M.F. ¶ 4 states "Plaintiff is the current holder of the Note and is entitled to collect the debt[,]" However, Plaintiff's statement of material facts does not discuss the endorsements of the note. Chase Home Finance LLC v. Higgins requires that "all assignments and endorsements of the note and the mortgage" be included in the statement of material facts. 2009 ME 136, ¶ 11, 985 A.2d at 510-11.

Furthermore, Plaintiff's discussion of the assignment of the mortgage in the statement of material facts is inadequate. Plaintiff states "Plaintiff has been assigned the Mortgage." Pl.'s S.M.F. ¶ 5. Plaintiff then cites to the Affidavit of Lender and Exhibit C, which is the Assignment of the Mortgage. The Assignment of the Mortgage is from Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Equity One, Inc. The statement of material facts fails to mention that MERS assigned the mortgage. In fact, the statement of material facts never mentions MERS' involvement. Given the requirement that "all assignments and endorsements of the note and the mortgage" be included in the statement of material facts, Higgins, 2009 ME 136, ¶ 11, 985 A.2d at 510-11, this represents a bar to summary judgment.

Plaintiff also failed to provide evidence in the statement of material facts that it properly served the notice of default in accordance with 14 M.R.S. § 6111(3). That statute provides that the notice must be sent by certified mail, return receipt requested or by first class mail, postage prepaid. For purposes of establishing that such notice was "provided" as required by § 6111(3), evidence must be offered as to a signed receipt, evidence of the last delivery attempt, or a certificate of mailing.

Lastly, the statement of material facts does not clearly state "the order of priority and any amounts that may be due to other parties in interest." Chase Home Finance LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d at 510-11. The Pl.'s S.M.F. ¶ 19 only lists the plaintiff, and fails to discuss the defendant or the party-in-interest. While Jay Jones d/b/a Shed Solutions has not appeared in this action, the plaintiff needs to have a default entered before it can dispense with further consideration of a party in interest's priority.

Accordingly, the Court ORDERS that Plaintiff's summary judgment Motion is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Thomas Warren

Justice, Superior Court

01 0000009510 FOLSOM, CARRIE_

270 FARMINGTON AVENUE SUITE 151 FARMINGTON CT 06032_

F WELLS FARGO BANK NA PL RTND 03/30/2011

02 0000004220 SAKSEN, ALEXANDER WILSON_

PO BOX 18201 PORTLAND ME 04112-8201_

F WELLS FARGO BANK NA PL RTND 08/29/2011

03 0000004656 CROWE, ELIZABETH M_

270 FARMINGTON AVENUE SUITE 151 FARMINGTON CT 06032_

F WELLS FARGO BANK NA PL__RTND 08/29/2011