Pushard v. Bank of Am., N.A.

Citation175 A.3d 103
Decision Date12 December 2017
Docket NumberDocket: BCD–16–247
Parties Heidi M. PUSHARD et al. v. BANK OF AMERICA, N.A.
CourtSupreme Judicial Court of Maine (US)

Joshua Klein–Golden, Esq. (orally), Clifford & Golden, PA, Lisbon Falls, for appellants Heidi M. Pushard and Jeffrey A. Pushard

John J. Aromando, Esq., and Catherine R. Connors, Esq., Pierce Atwood LLP, Portland, and Elizabeth P. Papez, Esq. (orally), Winston & Strawn LLP, Washington, D.C., for appellee Bank of America, N.A.



[¶ 1] Heidi M. Pushard and Jeffrey A. Pushard appeal from summary judgments entered in the Business and Consumer Docket (Horton, J. ) in favor of Bank of America, N.A. (the Bank), on the Pushards' claims against the Bank for declaratory and injunctive relief, slander of title, and damages pursuant to 33 M.R.S. § 551 (2016). We do not disturb the judgments on the Pushards' claims for slander of title, damages pursuant to section 551, and injunctive relief. We vacate the judgment on the Pushards' claim for declaratory relief and remand the case for entry of summary judgment in the Pushards' favor on that claim.


[¶ 2] In October 2011, the Bank initiated a foreclosure action against the Pushards in the Superior Court (Androscoggin County, MG Kennedy, J. ). In its amended complaint, filed in May 2013, the Bank made the following allegations:

• In December 2006, the Pushards executed a promissory note in favor of Countrywide Home Loans, Inc., (Countrywide) in the amount of $145,000.
• As security for the note, the Pushards executed a mortgage on their property in Wales in favor of Mortgage Electronic Registration Systems, Inc. (MERS), "as nominee for" Countrywide.
• The Pushards failed to make the monthly mortgage payment due on April 1, 2008, and have failed to make all subsequent monthly mortgage payments.
• In 2008, MERS assigned the mortgage to Countrywide. In 2011, Countrywide assigned the mortgage to the Bank.
• The Bank became the holder of the promissory note.
• In May 2011, the Bank sent the Pushards notice of their default and of their right to cure the default "in conformity with Maine law." The Pushards received the notice in June 2011.
• The amount due "[a]s of September 6, 2011," was $191,717.91, including the "principal balance" of $142,882.25, an "escrow balance," interest, fees, and late charges.

[¶ 3] The Bank sought judicial foreclosure of the Pushards' mortgage.1 Among other documents attached to its complaint, the Bank included copies of the note and the mortgage. Included in the note was a provision stating:

If [the Pushards are] in default, the Note Holder may send [them] a written notice telling [them] that if [they] do not pay the overdue amount by a certain date, the Note Holder may require [them] to pay immediately the full amount of Principal which has not been paid and all the interest that [they] owe on that amount.

The mortgage contained a provision stating that the lender

may require that [the Pushards] pay immediately the entire amount then remaining unpaid under the Note and under this Security Instrument ... if all of the following conditions are met:
(a) [The Pushards] fail to keep any promise or agreement made in this Security Instrument, including the promises to pay when due the Sums Secured;
(b) Lender sends to [the Pushards] ... a notice that [meets various requirements]; ... and
(c) [The Pushards] do not correct the default stated in the notice from Lender by the date stated in that notice.

[¶ 4] After a trial on the Bank's foreclosure complaint, the court entered a judgment in the Pushards' favor in October 2014. The court determined that the Bank had failed to meet its burden to prove three of the eight elements of a foreclosure action: (1) a breach of a condition of the mortgage; (2) the amount due; and (3) that the notice of default that it sent to the Pushards complied with statutory requirements.2 See Bank of Am., N.A. v. Greenleaf , 2014 ME 89, ¶ 18, 96 A.3d 700 ("A plaintiff seeking a foreclosure judgment must comply strictly with all steps required by statute.") (quotation marks omitted). Neither the Bank nor the Pushards appealed from the judgment.

[¶ 5] Five months later, in March 2015, the Pushards initiated the action giving rise to this appeal.3 In an amended complaint, based on the judgment in their favor in the Bank's foreclosure action and the Bank's failure to subsequently discharge the mortgage, the Pushards averred that they owe nothing on the note and sought a declaration that they are entitled to (1) a discharge of the mortgage and (2) an order enjoining the Bank from enforcing the note and mortgage and compelling the Bank to record a release of the mortgage. They also asserted a claim for slander of title, alleging that the Bank's failure to discharge the mortgage prevents them from transferring clean title to the property or using it as collateral, and a claim for damages pursuant to 33 M.R.S. § 551.4 The Bank counterclaimed for breach of contract, unjust enrichment, and a declaratory judgment.

[¶ 6] The Pushards moved for summary judgment on all of their claims. See M.R. Civ. P. 56(a). In their statement of material facts, see M.R. Civ. P. 56(h)(2), they described, with reference to supporting evidence, the procedural history and outcome of the Bank's foreclosure action. Specifically, the Pushards asserted that (1) the Bank had "sought the entire amount due on the note and foreclosure of the mortgage"; (2) the court had entered a judgment in the Pushards' favor; and (3) the Bank had not thereafter discharged the mortgage.

[¶ 7] In its opposition to the Pushards' motion, the Bank effectively admitted all of the Pushards' stated facts.5 The Bank submitted an opposing statement of material facts in which it asserted, with references to supporting evidence, that the Pushards had not made mortgage, tax, or insurance payments on the property since 2008. The Bank also filed its own motion for summary judgment on the Pushards' claims.6

[¶ 8] The Pushards filed an opposing statement of material facts in response to the Bank's motion for summary judgment. They did not properly controvert the Bank's statements that they had not made mortgage, tax, or insurance payments since 2008. See M.R. Civ. P. 56(h)(2), (4) ; Halliday v. Henry , 2015 ME 61, ¶ 7, 116 A.3d 1270.

[¶ 9] After a hearing, by order dated March 15, 2016, the court concluded that the Bank was entitled to a judgment as a matter of law on each of the Pushards' claims. See M.R. Civ. P. 56(c). The court therefore denied the Pushards' motion for summary judgment and granted the Bank's motion for summary judgment. After the Bank's counterclaims were dismissed without prejudice by consent of the parties, the Pushards filed this timely appeal from the judgment in the Bank's favor. 14 M.R.S. § 1851 (2016) ; M.R. App. P. 2(b)(3) (Tower 2016).7

A. Justiciability

[¶ 10] As a preliminary matter, the Bank argues that the Pushards' claims are nonjusticiable because resolution of those claims involves examining the res judicata effect of the judgment in the foreclosure action and no subsequent foreclosure action has been filed.

[¶ 11] "Courts can only decide cases before them that involve justiciable controversies." Homeward Residential, Inc. v. Gregor , 2015 ME 108, ¶ 16, 122 A.3d 947 (quotation marks omitted). "Justiciability requires a real and substantial controversy, admitting of specific relief through a judgment of conclusive character." Id. (quotation marks omitted). "A justiciable controversy involves a claim of present and fixed rights based upon an existing state of facts. Accordingly, rights must be declared upon the existing state of facts and not upon a state of facts that may or may not arise in the future." Madore v. Me. Land Use Regulation Comm'n , 1998 ME 178, ¶ 7, 715 A.2d 157 (quotation marks omitted).

[¶ 12] The Bank relies on our decisions in recent cases in which the parties disputed whether a judgment in the mortgagor's favor would bar a future foreclosure action based on principles of res judicata, but in each case we concluded that that issue did not present a justiciable controversy because no second action had yet been filed. See U.S. Bank, N.A. v. Tannenbaum , 2015 ME 141, ¶ 6 n.3, 126 A.3d 734 ; Wells Fargo Bank, N.A. v. Girouard , 2015 ME 116, ¶ 10, 123 A.3d 216.8 Our holdings in those cases do not determine the result here because this case comes to us in a different posture. Although, as in Girouard and Tannenbaum , the Bank has not filed a second foreclosure action, there does exist a second action—the Pushards' action against the Bank—that presents a live controversy. As the trial court recognized, the Pushards' claims are "not contingent upon the occurrence of any future event," and "even if the Bank were content to do nothing to enforce the loan, the mortgage remains on record in the registry of deeds as a present encumbrance on the Pushards' property." The Pushards have claimed that they are entitled to relief based on "the existing state of facts." Madore , 1998 ME 178, ¶ 7, 715 A.2d 157 (quotation marks omitted). We therefore conclude that the Pushards' claims present a justiciable controversy and turn to the merits of their appeal. See Mass. Delivery Ass'n v. Coakley , 769 F.3d 11, 16 (1st Cir. 2014) ; Annable v. Bd. of Envtl. Prot. , 507 A.2d 592, 595 (Me. 1986) ; Me. Sugar Indus. v. Me. Indus. Bldg. Auth. , 264 A.2d 1, 4–5 (Me. 1970).

B. Summary Judgments

[¶ 13] "We review a [trial court's] ruling on cross-motions for summary judgment de novo, considering the properly presented evidence and any reasonable inferences that may be drawn therefrom in the light most favorable to the nonprevailing party, in order to determine whether there is a genuine issue of material fact and whether any party is entitled to a judgment as a matter of law." Estate of Frost , 2016 ME 132, ¶ 15, 146 A.3d 118 ; see M.R. Civ. P. 56(c). "...

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