Camden Nat. Bank v. Peterson
| Citation | 2008 ME 85,948 A.2d 1251 |
| Decision Date | 20 May 2008 |
| Docket Number | Docket: Lin-07-516. |
| Parties | CAMDEN NATIONAL BANK v. William M. PETERSON. |
| Court | Supreme Judicial Court of Maine (US) |
George T. Dilworth, Esq., M. Katherine Lynch, Esq., McCloskey, Mina & Cunniff, LLC, Portland, ME, for William M. Peterson.
Michael S. Haenn, Esq., Bangor, ME, for Camden National Bank.
Panel: SAUFLEY, C.J., and CLIFFORD, LEVY, SILVER, MEAD, and GORMAN, JJ.
[¶ 1] William M. Peterson appeals from a summary judgment entered in the District Court (Wiscasset, Tucker, J.) in the foreclosure proceeding brought against him by Union Trust Company, the predecessor in interest to Camden National Bank. Peterson argues that (1) because the court (Mullen, J.) erred in granting the bank's motion to enlarge time to respond to Peterson's cross-motion for summary judgment, the bank's late filed opposition to summary judgment should have been disregarded, and (2) the court (Tucker, J.) erred in determining that there was no genuine issue of material fact regarding the adequacy of the bank's notice of default and the right to cure. See 14 M.R.S. § 6111 (2007). The bank contends that the appeal is interlocutory because the court has not yet determined the amount of attorney fees. We conclude that the appeal is from a final judgment and that the court did not abuse its discretion in granting the enlargement of time. However, there exists a genuine issue of disputed material fact as to the adequacy of the notice provided to Peterson. We therefore vacate the entry of summary judgment and remand the matter to the District Court.
[¶ 2] In October 2006, the bank filed a complaint for foreclosure against William M. Peterson alleging that he had defaulted in payment on his mortgage note secured by property on Jones Point Road in South Bristol. Acting without counsel, Peterson filed an answer to the complaint. The bank then filed a motion for summary judgment accompanied by a statement of material facts and the affidavit of the bank's chief credit administrator. The statement of material facts did not include any assertions regarding the bank's provision of written notice of default and the right to cure as required by law. See 14 M.R.S. § 6111.
[¶ 3] Peterson retained counsel and moved for leave to file an amended answer to add affirmative defenses, including affirmative defenses alleging the bank's failure to provide proper notice of default and the right to cure. The court (Mullen, J.) granted the unopposed motion.
[¶ 4] Peterson filed his opposition to the bank's motion for summary judgment, an opposing statement of material facts, a cross-motion for summary judgment, and a single document to serve as a statement of additional facts in opposition to the bank's motion for summary judgment and a statement of material facts in support of Peterson's cross-motion for summary judgment. In the statement of additional facts, Peterson asserted that he had not received any notice of default or the opportunity to cure any alleged default. In support, he referred to and attached his own affidavit averring the following:
17. Aside from bank statements, the Complaint was the first and only communication that I have received from [the bank] since August 2006.
18. At no point between August 2006 and mid-November 2006, did [the bank] notify me to state that it believed I was in default.
19. At no time did [the bank] offer me an opportunity to cure any alleged default.
[¶ 5] Twenty-eight days after Peterson filed his cross-motion for summary judgment, the bank moved to enlarge time to respond to Peterson's motion. It did so without stating any particular grounds. Peterson opposed the motion to enlarge, arguing that the motion to enlarge was untimely and that the bank had not shown excusable neglect, citing M.R. Civ. P. 6(b). The court granted the motion to enlarge without making any comment on the record.
[¶ 6] The bank's objection to Peterson's cross-motion for summary judgment contained a memorandum in opposition and an opposing statement of material facts. In its opposing statement, the bank denied Peterson's assertions that he had not received notice. In support, it cited the following subparagraph of the affidavit of its collections officer:
(e) On September 1, 2006 the letter attached hereto as Exhibit B was mailed to Mr. Peterson by certificate of mailing. Mr. Peterson did not cure the payment default described in the letter. Additionally, the letter was not returned to the Bank by the United States Postal Service.
Although the certificate of mailing was mentioned in the affidavit, neither the original nor a copy of that certificate accompanied the affidavit or statement of facts.
[¶ 7] Months later, after further discovery, and separate from the summary judgment process, the bank filed transcripts of three depositions with the court. One transcript was from the bank's collections officer. Attached as an exhibit to this transcript was a copy of a United States Postal Service form maintained by the collections officer and stamped by the Postal Service in Ellsworth on September 1, 2006, stating that a letter was mailed to Peterson on that date. The other deposition transcripts were those of Peterson and the bank's chief credit administrator.
[¶ 8] Both parties then filed supplemental memoranda regarding the pending motions for summary judgment.1 Although the bank's memorandum referred to Peterson's deposition transcript, only Peterson filed an amended statement of material facts that addressed facts that came to light through depositions. In his amended statement of material facts, he emphasized that the bank had failed to refer to or attach a certificate of mailing in connection with its opposing statement of material facts or its supplemental memorandum. He also stated that the collections officer was unfamiliar with the process for obtaining a certificate of mailing and that the bank does not obtain individual receipts when sending notices. In support, Peterson referred to the deposition of the collections officer himself, who stated that he did not obtain individual receipts when sending out notices of default and the right to cure and who stated, when asked if he was familiar with the process for obtaining a certificate of mailing: "I use the logbook."
[¶ 9] The court (Tucker, J.) granted the bank's motion for summary judgment. It concluded that the mortgage contract's provisions complied with 14 M.R.S. § 6111, that the bank had provided notice, and that Peterson failed to assert any conduct that would demonstrate that he had cured the default within thirty days.
[¶ 10] In ruling on the motion for summary judgment, the court relied on items that were not cited in the bank's or Peterson's statements of material facts. Specifically, the court relied on uncited portions of the depositions of the bank's chief credit administrator and collections officer as well as the logbook exhibit attached to the collections officer's deposition. The court concluded that the logbook entry was "sufficient to meet the certificate of mailing terms" identified in 14 M.R.S. § 6111(3)(B).
[¶ 11] Peterson timely appealed from this judgment. The bank moved to dismiss Peterson's appeal as interlocutory, and we ordered that the issues raised by the motion would be considered in conjunction with the merits of the appeal. Camden National Bank was then substituted as the plaintiff as Union Trust Company's successor in interest.
[¶ 12] We first address the bank's contention that this appeal should be dismissed as interlocutory because the court has not yet calculated attorney fees pursuant to 14 M.R.S. § 6322 (2007).
[¶ 13] "Only final judgments are subject to appellate review." Griswold v. Town of Denmark, 2007 ME 93, ¶ 16, 927 A.2d 410, 416. Rule 54(b) of the Maine Rules of Civil Procedure provides, however, that attorney fees may be determined after the final disposition of a case on appeal unless the trial or motion court finds that the claim for attorney fees is "integral to the relief sought":
(2) In an action in which there is a claim for attorney fees, a judgment entered on all other claims shall be final as to those claims unless the court expressly finds that the claim for attorney fees is integral to the relief sought. If the court so finds, any order or other form of decision, however designated, shall not terminate the action as to any claim and is subject to revision at any time before the entry of a final judgment adjudicating all claims including that for attorney fees.
(3) When final judgment has been entered on all claims except a claim for attorney fees, an application for the award of attorney fees shall be filed within 60 days after entry of judgment if no appeal has been filed. If an appeal has been filed, the application may be filed and acted upon in the trial court at any time after entry of the judgment appealed from and in any case shall be filed not later than 30 days after final disposition of the action. An application for attorney fees shall ordinarily be acted upon by the justice or judge who rendered the judgment on the merits.
(Emphasis added.)
[¶ 14] Here, the court did not expressly find that an award of attorney fees was "integral to the relief sought," as required by M.R. Civ. P. 54(b)(2). Further, although the foreclosure statute requires the court to determine the amount of attorney fees, the statute does not anticipate that the judgment of foreclosure will remain interlocutory for purposes of appeal until the resolution of attorney fees. 14 M.R.S. § 6322. Absent any finding on the part of the motion court that the award of attorney fees in this case was integral to the relief sought, and absent any statutory requirement that attorney fees be fixed before appeal, we conclude that the judgment of foreclosure was a final judgment for purposes of appeal and...
To continue reading
Request your trial
-
Mortgage Elec. Registration Sys. Inc. v. Saunders, Docket No. Cum-09-640.
...created by the parties' submissions. Deutsche Bank Nat'l Trust Co. v. Raggiani, 2009 ME 120, ¶ 7, 985 A.2d 1, 3; see also Camden Nat'l Bank v. Peterson, 2008 ME 85, ¶ 21, 948 A.2d 1251, 1257 (stating that a mortgagee seeking foreclosure must strictly comply with all the steps required by th......
-
Bank of Am., N.A. v. Greenleaf
...plaintiffs must strictly comply with all statutory foreclosure requirements, Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508; Camden Nat'l Bank v. Peterson, 2008 ME 85, ¶ 21, 948 A.2d 1251, and in light of the purposes served by section 6111, we agree with Greenleaf that the notice of default he r......
-
James v. Gmac Mortgage Llc
...of the Maine cases cited by James in support of his argument that the terms of the mortgage must be strictly performed, Camden Nat'l Bank v. Peterson, 2008 ME 85, ¶¶ 20–21, 948 A.2d 1251, 1257, and KeyBank Nat'l Ass'n v. Sargent, 2000 ME 153, ¶¶ 34–37, 758 A.2d 528, 537, deal, like the lowe......
-
Levis v. Konitzky
...In Camden National Bank v. Peterson, the trial court granted a late-filed motion to enlarge time to oppose a motion for summary judgment. 2008 ME 85, ¶¶ 15, 17, 948 A.2d 1251. The moving party gave no reason for its delay, the court did not make findings regarding excusable neglect, and the......