Opinion
Civil Action RE-10-106
02-04-2013
BAYVIEW LOAN SERVICING, LLC, Plaintiff. v. JAMES P. AUSTIN Defendants,
JUDGMENT OF FORECLOSURE AND SALE ORDER
I. Background
On or about December 15, 2005, Defendant, James P. Austin, executed a promissory note in the principal amount of $1.1 million, along with a mortgage on his property at 37 Pepperell Road, Kittery, Maine with Middlebury Equity Partners, LLC (MEP). The note and mortgage are dated November 17, 2005. A notary acknowledged the signing of the mortgage on December 9, 2005. Although Defendant originally believed that the loan was also secured to two additional parcels purchased in his wife's name at the same time, the language attached to the mortgage describing the property secured the loan to only the 37 Pepperell Road property.
On November 28, 2005, prior to the closing, MEP assigned the mortgage to Plaintiff. Plaintiff recorded the assignment of the mortgage on March 20, 2006, after the mortgage had been executed and recorded. MEP endorsed the Note in blanks thereby making it payable to the holder, dated November 17, 2005, the same date as listed on the executed version of the note.
Defendant's loan went into default in July 2008, due to late payments in violation of the terms of the mortgage agreement. Defendant contacted Plaintiff and requested a loan modification. In the Loan Adjustment Agreement, signed and executed by Defendant on October 29, 2008, Defendant agreed that he had "no defenses claims or offsets" with respect to the amount due on the loan.
Defendant's loan again went into default in May 2010. Plaintiff mailed Defendant two notifications of default including a list of HUD counselors. Plaintiff alleges Defendant owed Plaintiff $1, 335, 481.31 as of November 7, 2012, plus attorney fees and costs. Plaintiff brought this action on September 7, 2010 seeking a judgment of foreclosure and sale.
II. Discussion In order to succeed in a mortgage foreclosure action, the plaintiff must be able to show, at least,
• "the existence of the mortgage, including the book and page number of the mortgage, and an adequate description of the mortgaged premises, including the street address, if any,
• properly present proof of ownership of the mortgage note and the mortgage, including all assignments and endorsements of the note and the mortgage,
• a breach of condition in the mortgage note, including any reasonable attorney fees and court costs
• the order of priority and any amounts that may be due to other parties in interest, including any public utility easements,
• evidence of properly served notice of default and mortgagor's right to cure in compliance with statutory requirements,
• after January 1, 2010, proof of completed mediation (or waiver or default of mediation), when required, pursuant to the statewide foreclosure mediation program rules, and
• if the homeowner has not appeared in the proceeding, a statement, with a supporting affidavit, of whether or not the defendant is in military service in accordance with the Servicemembers Civil Relief Act."Chase Home Finance LLC v Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508, (citations omitted). A party seeking to foreclose must strictly comply with all statutory steps. Camden Nat'l Bank v. Peterson, 2008 ME 85, ¶ 21, 948 A.2d 1251. Plaintiff has shown that a mortgage exists, that it is the owner of both the note and the mortgage, that there was a breach of condition of the mortgage, that notice was served, and that neither mediation nor the Servicemembers Civil Relief Act apply to Defendant. Therefore, Plaintiffs Motion for Judgment will be granted.
The mortgage and the note in question exist and are not disputed by Defendant. Furthermore, Defendant does not dispute executing the Loan Adjustment Agreement on October 29, 2008, which reasserted the loan amount and his obligation to make monthly loan payments.
Defendant has defaulted on the terms of the mortgage agreement and subsequent Loan Adjustment Agreement. Defendant does not dispute that he failed to make the loan payments, which led to a default in June 2008, and again in May 2010.
The property is not Defendant's primary residence, therefore Defendant is not entitled to mediation on the matter. 14 M.R.S. §6321-A (2012). Nonetheless, Defendant did not attend the scheduled informational session regarding mediation.
Plaintiff is not currently a member of the military, therefore not entitled to relief under the Servicemembers Civil Relief Act.
Plaintiff has shown evidence of ownership of the mortgage and note. See 14 M.R.S. § 6321(2012). Plaintiff presented evidence that the note was properly endorsed in blank and that Plaintiff is the current holder of the note. Plaintiff has offered the mortgage and an assignment recorded on March 20, 2006 as evidence of ownership of the mortgage. Plaintiff has complied with the statutory requirements.
The Court concludes that the entire loan amount was agreed upon at the closing on or about December 15, 2005. "Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer." Restat 2d of Contracts, § 50. At the closing, Defendant signed the closing documents agreeing to the terms of the Mortgage and securing the 37 Pepperell Road property with the Note, in the form offered by MEP. The Court interprets the signed agreements as they are written.
Even if the Court were to find that the note did not properly report the loan amount, the Defendant signed the Loan Adjustment Agreement in 2008, reasserting the amount owed and waiving any previously arising defenses to the amount due. Defendant's argument that he was induced to execute the mortgage and note in 2005 under the pretense that the amount due would change, was waived at the time of the execution of the Loan Adjustment Agreement. Finally, the fact that the description of the property attached to the Mortgage secured only one of the parcels owned by Defendant and his wife does not affect Plaintiffs ability to enforce the Mortgage agreement with respect to the encumbered parcel.
III. Conclusion
The Court finds that there has been a breach of conditions in Bayview Loan Servicing, LLC (hereinafter "BLS")'s Mortgage, that there is due BLS on its Note and Mortgage the principal amount of $964, 660.60, interest thereon to November 2, 2012 in the amount of $166, 792.00 with additional interest accruing on said principal balance at the note rate of 6.25%, default interest in the amount of $179, 622.88 accruing on said principal balance at the note rate of 7.00%, late charges in the amount of $1, 201.38, escrow advances of $20, 710.70, corporate advances of $2, 482.25, attorneys' fees and costs for services provided by Bendett & McHugh, P.C. in the amount of $3, 053.25 (as indicated in the Affidavit of Elizabeth M. Crowe, dated November 6, 2012), plus any additional fees and costs incurred for trial and post-judgment proceedings, through and including the sale of the property.
The order of priority of the liens is:
a. First, to BLS on its Mortgage, dated November 17, 2005 and recorded in the York County Registry of Deeds in Book 14708, Page 387, in the principal amount of $964, 660.60, interest thereon to November 2, 2012 in the amount of $166, 792.00, and interest continuing to accrue at the note rate of 6.25%, default interest thereon to November 2, 2012 in the amount of $179, 622.88 and default interest continuing to accrue at the note rate of 7.00% together with additional interest and costs as set forth above.
b. Second, should any surplus funds remain, said surplus shall be directed to Defendant, James P. Austin.
Pursuant to 14 M.R.S.A. §§ 1602-B and 1602-C the prejudgment and post judgment interest rate is the note rate of 6.25% plus the default rate of 7.00%.
WHEREFORE, it is hereby expressly directed that an entry of Judgment of Foreclosure and Sale be made in favor of BLS on its Complaint for Foreclosure by Civil Action, and, therefore, it is hereby ordered and decreed that if the Defendant, his heirs and assigns, do not pay to BLS, its successors and assigns, the amount of the total claim due together with accrued interest and other charges as set forth above within ninety (90) days of the date hereof, then BLS, its successors and assigns, shall be entitled to exclusive possession of the real estate, and BLS may sell Defendant's real estate and disburse the proceeds of the sale, after deducting the expenses thereof, first to BLS on its Mortgage as more fully set forth in (a.) above; second, should any surplus funds remain, to Defendant James P. Austin, as more fully set forth in (b.) above.
Defendant and all other occupants are Ordered to vacate the real estate upon expiration of the statutory ninety (90) day redemption period if Defendant has not by that date redeemed the real estate in accordance with statutory procedure. A Writ of Possession shall be issued to BLS against Defendant and all other occupants for possession of said real estate if it is not redeemed as aforesaid.
A Writ of Execution shall be issued by this Court for any deficiency following the foreclosure sale.
Pursuant to 14 M.R.S.A. § 2401(3), the Court finds that all parties have received all required notice of the proceedings and that all notice has been given in accordance with the applicable provisions of the Maine Rules of Civil Procedure and if the notice was served or given pursuant to an order of a court, including service by publication, that the notice was served or given pursuant to the order.
The names and addresses of all parties to this action and their counsel are as follows:
Bayview Loan Servicing, LLC c/o Julia G. Pitney, Esq. Drummond & Drummond, LLP One Monument Way Portland, Maine 04101
James P. Austin 37 Pepperrell Road Kittery Point, Maine Counsel: S. James Levis, Jr., Esq.
The real estate, which is the subject of this foreclosure action, is situated 37 Pepperrell Road, Kittery Point, Maine (being more particularly described in Exhibit A attached hereto).
BLS is Ordered, after the expiration of the appeal period, to record an attested copy of this Judgment of Foreclosure and Sale and Order in the York County Registry of Deeds and shall pay for the associated recording fees.
The Clerk is specifically directed pursuant to M.R. Civ. P. 79(a) to enter this Judgment on the civil docket by a notation incorporating it by reference.