Nationstar Mortg. LLC v. Jones
| Decision Date | 21 January 2020 |
| Docket Number | SUPERIOR COURT Civil Action Docket No. RE-17-078 |
| Parties | NATIONSTAR MORTGAGE LLC, Plaintiff, v. PAMELA C. JONES, Defendant/Third-Party Plaintiff, v. SHAPIRO & MORLEY, LLC, Third-Party Defendant. |
| Court | Superior Court of Maine |
YORK, ss.
Nationstar Mortgage LLC ("Nationstar") filed this foreclosure action against Pamela Jones ("Jones") with respect to a residence located at 9 Brown Street in Kennebunk, Maine ("Premises"). With her answer, Jones filed a five-count counterclaim against Nationstar, seeking damages for wrongful use of civil proceedings (Count I); abuse of process (Count II); breach of contract (Count III); violations of the federal and Maine Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; 32 M.R.S. § 11001 et seq., (Count IV); and violation of the Maine Consumer Credit Code ("MCCC"), 9-A M.R.S. § 1-101 et seq. (Count V).
Nationstar has moved for summary judgment pursuant to M.R. Civ. P. 56 on its complaint for foreclosure as well as on each count of Jones's counterclaims. The motion is denied as to Nationstar's foreclosure claim. The motion is granted in part and denied in part with respect to the counterclaims.
On September 6, 2011, Jones entered into an agreement to purchase the Premises. (Plaintiff's Statement of Material Fact, hereinafter "PSMF," ¶ 1.)1 The Premises are considered a "three-family property"; Jones intended to live in one unit and rent the remaining two. (PSMF ¶¶ 6-7.) Prior to closing, Jones had an opportunity to engage a home inspection company to inspect the Premises and to negotiate a reduction in purchase price based on defects discovered. (PSMF ¶¶ 2-3, as qualified by Defendant's Opposing Statement of Material Facts, hereinafter "DOSMF," ¶ 3; Defendant's Statement of Additional Material Facts, hereinafter "DSAMF," ¶ 16.)
On October 7, 2011, Jones executed a document certifying that she had inspected and was willing to close on the Premises in its present condition and that she agreed to hold the mortgagee, United Wholesale Mortgage ("UWM"), harmless for any structural defects in the Premises. (PSMF ¶ 4.) On the same day, Jones executed a second document entitled "Important Notice to Homebuyers" acknowledging that the Premises "are not HUD/FHA approved and HUD/FHA does not warrant the condition or the value" thereof and further cautioning Jones to inspect the Premises carefully. (PSMF ¶ 5.)2
To finance the purchase, Jones obtained a loan from UWM in the amount of $275,730, memorialized in a promissory note. (PSMF ¶ 7.) To secure the amount due on the note, Jones executed a mortgage dated October 7, 2011 designating MortgageElectronic Registration Systems, Inc. ("MERS") as nominee for UWM, its successors, and assigns. (PSMF ¶ 10.) On October 11, 2011, the mortgage was recorded in the York County Registry of Deeds at Book 16179, Page 83. (PSMF ¶ 11.) UWM endorsed the note to Bank of America, N.A. ("BOA"), which further executed an endorsement in blank. (PSMF ¶ 9.)
BOA acted as loan servicer on the note from October 7, 2011 until June 5, 2013, (PSMF ¶ 15.) Nationstar has serviced the loan from June 5, 2013 forward. (PSMF ¶ 16.)
Jones claims that, at the time she purchased the Premises, there were serious structural, heating, plumbing, and other defects of which she was not aware and which rendered the Premises uninhabitable. (DSAMF ¶ 17.) Jones further claims that, in discussing her issues with an HUD counselor, the counselor advised Jones to stop making mortgage payments to the loan servicer, BOA, in order to have her issues addressed and resolved. (DSAMF ¶ 14.) Jones failed to make the monthly payment on the note due June 1, 2013 and has not made any monthly payments due thereafter. (PSMF ¶ 18.) Jones has not paid property taxes or insurance on the Premises since April of 2013. (PSMF ¶ 20.)
On July 26, 2013, Nationstar acquired possession of the note. (PSMF ¶ 19.)3 On August 1, 2013, MERS assigned its interest as UWM's nominee to Nationstar. (PSMF ¶ 12.)4
Jones claims she reported alleged fraud by the appraiser and mortgage broker—presumably, their failure to disclose the alleged defects in the Premises. (DSAMF ¶ 29.)Jones claims she "attempted to address and resolve the very serious problems and issues involving the physical condition of the Premises with Nationstar" but that she "did not receive any resistance or resolution of the issues." (DSAMF ¶ 56.)
Nationstar filed a complaint for foreclosure dated October 18, 2013. (DSAMF ¶ 50.) On December 22, 2013, Jones vacated the Premises. (PSMF ¶ 17.) In March 2014, Nationstar moved for summary judgment. The motion was denied on May 27, 2014. (See DSAMF ¶¶ 57, 59.) The parties stipulated to the voluntary dismissal of the foreclosure complaint pursuant to M.R. Civ. P. 41(a)(1)(ii) on December 5, 2014. (DSAMF ¶ 62.)
On April 22, 2016, UWM assigned to Nationstar its interest in the mortgage, which was recorded in the York County Registry of Deeds at Book 17234, Page 425, on May 16, 2016. (PSMF ¶ 13.) On October 19, 2016, Nationstar mailed a notice of default and right to cure, via first class mail, to Jones's last known address. (PSMF ¶ 23.)5
Nationstar commenced the present foreclosure action in January 2017. In response, Jones asserts that Nationstar failed to comply with various provisions of the HUD Handbook and various HUD regulations prior to commencing, and during the course of, the 2013 foreclosure action and the instant action. (See, e.g., DSAMF ¶¶ 30-31, 33-35, 39, 43, 45-46, 48, 52-54.)
As of February 28, 2019, Nationstar calculated the amounts due and owed to it under the terms of the note and mortgage, including costs and attorney fees, to be $381,065.13. (PSMF ¶ 25.) Jones disputes a number of the fees and charges that Nationstar seeks to recover in the current foreclosure action on various grounds,including lack of notice, insufficient detail, inconsistent evidence, and limitations imposed by HUD regulations. (DSAMF ¶¶ 32, 36-38, 40-48.)
Summary judgment will be granted when a review of the parties' statements of material facts and the record evidence to which they refer, considered in the light most favorable to the non-moving party, establishes that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Estate of Kay v. Estate of Wiggins, 2016 ME 108, ¶ 9, 143 A.3d 1290. A material fact is one that can affect the outcome of the case. Lewis v. Concord General Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732. A genuine issue of material fact exists when the fact finder must choose between competing versions of the truth. Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821, The court reviews the evidence in the light most favorable to the non-moving party. Estate of Kay, 2016 ME 108, ¶ 9, 143 A.3d 1290.
When a plaintiff moves for summary judgment with respect to a claim in the complaint, the plaintiff has the burden to demonstrate that each element of its claim is established without dispute as to material fact based on the summary judgment record. Chase Home Finance LLC v. Higgins, 2009 ME 136, ¶¶ 11-12, 985 A.2d 508; North Star Capital Acquisition, LLC v. Victor, 2009 ME 129, ¶ 98, 984 A.2d 1278. Judgment as a matter of law is not warranted if "any reasonable view of the evidence could sustain a verdict for the opposing party pursuant to the substantive law that is an essential element of the claim." Merriam v. Wanger, 2000 ME 159, ¶ 7, 757 A.2d 778.
If a properly supported motion is filed, then the burden shifts to the non-moving party to demonstrate that a factual dispute exists sufficient to establish a prima facie case for each element of the claim or defense in order to avoid summary judgment. Watt v. Unifirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897. The evidence proffered by the non-moving party is assessed for sufficiency—not persuasiveness—such that a court can make a factual determination without speculating. Estate of Smith v. Cumberland County, 2013 ME 13, ¶ 19, 60 A.3d 759.
To be entitled to summary judgment on a foreclosure claim, a mortgagee must establish that there are no disputed material facts for each of eight elements prescribed in Chase Home Fin. LLC v. Higgins6 and that each element is "supported by evidence of a quality that could be admissible at trial." 2009 ME 136, ¶ 11, 985 A.2d 508 (citations omitted).
Here, two elements are disputed. Jones contends that the affidavit of Nationstar's corporate representative, Fay Janati, does not lay the requisite foundation for the admission of certain business records under M.R. Evid. 803(6). Her challenge is aimedat the sufficiency of the evidence adduced to establish (1) the "evidence of properly served notice of default and mortgagor's right to cure in compliance with statutory requirements" and (2) "the amount due on the mortgage note, including any reasonable attorney fees and court costs."
Exhibit E to the Janati Affidavit is a copy of the notice of default/right to cure sent to Brown, and includes a post office Certificate of Mailing dated October 19, 2016. "A post office department certificate of mailing to the mortgagor or cosigner is conclusive proof of receipt on the 3rd calendar day after mailing." 14 M.R.S. § 6111(3)(B). Nationstar has satisfied this element.
Part of Exhibit F to the Janati Affidavit summarizes the transaction history with respect to the note from January 1, 2011 to June 4, 2013, the time during which BOA serviced the loan. The summary of the amounts due on the note in Paragraph 14 of the Janati affidavit is based on her review of "the Business Records."
Janati is an employee of Nationstar, not BOA. "When a business integrates and relies upon the records of another business in that business's day-to-day...
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