Opinion
DISTRICT COURT PORTLAND CIVIL ACTION DOCKET NO. RE-13-362
04-25-2014
ONEWEST BANK, FSB PLAINTIFF v. KATHERINE M. MARSHALL, PERSONAL REPRESENTATIVE OF THE ESTATE OF BEVERLY J. MARSHALL, A/K/A BEVERLY P. MARSHALL DEFENDANT AND SECRETARY OF HOUSING AND URBAN DEVELOPMENT PARTIES IN INTEREST
By: Jennifer E. Thomas, Esq. By: Thomas E. Delahanty II, Esq. United States Attorney By: Leonard F, Morley, Jr., Esq. #3856 William B. Jordan, Esq. #461 Elizabeth P. Hunt, Esq. #3162 Attorneys lor Plain tiff By: Jermifer E. Thomas, Esq. By: Thomas E. Delahanty II, Esq. By: Leonard F. Morley. Jr., Esq. #3856 William B. Jordan. Esq. #461 Elizabeth P. Hunt. Esq. #3162 Attorneys for Plaintiff
STATE OF MAINE
CUMBERLAND, ss.
CONSENTED JUDGMENT OF FORECLOSURE AND SALE WITH WAIVER OF REDEMPTION TITLE TO REAL ESTATE IS INVOLVED 35 Westminster Avenue, Portland, Maine 04103
Cumberland County Registry of Deeds Book 24063, Page 116
With the consent of the parties, the Court finds as follows:
1. There has been a breach of the conditions of the Home Equity Conversion Mortgage given by Beverly J, Marshall, aka Beverly P. Marshall to Financial Freedom Senior Funding Corporation, a Subsidiary of IndyMac Bank, FSB, dated June 5, 2006 and recorded in the Cumberland County Registry of Deeds in Book 24063, Page 116 (the "Mortgage"), as a result of a default on the Home Equity Conversion Promissory Note secured thereby. The Mortgage was assigned to Mortgage Electronic Registration Systems, Inc., A Delaware Corporation, its successors and assigns, as nominee for Financial Freedom Acquisition LLC, evidenced by assignment recorded October 2, 2009 in Book 27298. Page 245. The Mortgage was further assigned to OneWest Bank, FSB, evidenced by assignment recorded September 25, 2013 in Book 31046, Page 42. The subject property is located at 35 Westminster Avenue, Portland, Maine 04103 and is more particularly described in the legal description attached hereto as Exhibit A (the "Premises").
2. In accordance with the terms of the Note and Mortgage, all sums advanced pursuant to the Note and Mortgage were due and payable in full upon the death of the mortgagor.
3. There has been a default on the obligations under the Note and a breach of the conditions of the Mortgage by acts and omissions, including, but not limited to, failing to pay sums when due under the Note.
4. As of March 31, 2104, the following amounts are owed to the Plaintiff under the terms of the Note and Mortgage:
| Principal Balance | $180,770.84 |
| Accrued Interest | $27,086.68 |
| Initial MIP | $5,120,50 |
| Monthly MIP | $5,714,10 |
| Monthly Servicing Fees | $3,290.00 |
| Attorney's Fees and Costs | $2,582.40 |
| Total | $224,564.52 |
Additional pre-judgment interest and post-judgment interest will accrue at a rate of 1,610% per annum in accordance with the Note and 14 M.R.S. § 1602-B. Plaintiff has foregone any right to any higher rate that may be allowable under 14 M.R.S. § 1602-C. Additional attorney's fees, real estate taxes, costs and amounts advanced to protect the security of Plaintiff's mortgage may continue to accrue through the date of redemption or sale and the completion of these proceedings.
5. The Defendant has waived the 90-day period of redemption pursuant to 14 M.R.S. §6322,
6. The order of priority of any party appearing in this action is as follows:
First Priority: The Mortgage held by One West Bank, FSB recorded in the Cumberland County Registry of Deeds in Book 24063, Page 116. The amount due the Plaintiff is as set forth above.
Second Priority: Secretary of Housing and Urban Development, by virtue of a mortgage recorded June 14, 2006 in Book 24063, Page 125. As of December 12, 2013, the amount owed to Parry-in-Interest Secretary of Housing and Urban Development is $0.00.
Third Priority: Katherine M. Marshall, Personal Representative of the Estate of Beverly J. Marshall, a/k/a Beverly P. Marshall.
7. There are no public utility easements affected by this action.
8. The names and addresses [if known] of all parties to this action and their counsel of record are identified as follows:
a. OneWest Bank, FSB
888 East Walnut Street
Pasadena, CA 91101
Counsel: Leonard F. Morley,. Jr., Esq. #3856
William B. Jordan, Esq. #461
Elizabeth P. Hunt, Esq. #3162
Shapiro & Morley, LLC
707 Sable Oaks Dr., Suite 250
South Portland, Maine 04106
(207) 775-6223
b. Katherine M. Marshall, Personal Representative of the Estate of Beverly J. Marshall, a/k/a Beverly P. Marshall
PO Box 934
Gray, ME 04039
Counsel: Jennifer Thomas, Esq.
Beagle, Sleeves Ridge, LLC
P.O. Box 1815
Standish, ME 04084
c. Secretary of Housing and Urban Development
attn: Laurie Janson
100 Middle St., East Tower, 6th Floor
Portland, ME 04101
Counsel: Thomas E. Delahanty II, Esq.
100 Middle Street
6th Floor, East lower
Portland, ME 04101
9. The docket number for this action is RE-13-362.
10. All parties have received notice of these proceedings in accordance with the applicable provisions of the Maine Rules of Civil Procedure and any order of this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that:
a. Judgment of Foreclosure and Sale is hereby entered in favor of OneWest Bank, FSB. OneWest Bank, FSB, its successors and assigns, shall sell the Premises pursuant to 14 M.R.S. § 6321 et seq., and shall disburse the proceeds of the sale, after deducting the expenses thereof, in the folio wing order:
First, to OneWest Bank, FSB, its successors and assigns, as set forth above;
Second, to Secretary of Housing and Urban Development, its successors and assigns, as set forth above;
Third, the surplus proceeds, if any, to Katherine M. Marshall, Personal Representative of the Estate of Beverly J. Marshall, a/k/a Beverly P. Marshall in accordance with 14 M.R.S. § 6324.
b. All remaining rights of the Defendant to possession shall terminate upon entry hereof. Defendant is ordered to vacate the real estate and a Writ of Possession shall issue to the Plaintiff for possession of the real property upon application for the same
c. The Court specifically finds that there is no just reason for delay of the entry of final judgment for the relief requested in Plaintiff's complaint, and the Clerk is directed to enter this Order as a final judgment pursuant to Rule 54.
d. If an appeal is not filed and the Clerk has so certified, OneWest Bank, FSB shall be responsible for recording an attested copy of this judgment in the Cumberland County Registry of Deeds and paying the recording fee.
e. Pursuant to Rule 79(a) this Order may he incorporated by reference on the Civil Docket. Dated: Entered On: Seen and Agreed: /s/_________
Judge, District Court
Katherine M. Marshall, Personal
Representative of the Estate of Beverly J.
Marshall, a/k/a Beverly P. Marshall
/s/_________
By: Jennifer E. Thomas, Esq.
/s/_________
Date
Secretary of Housing and Urban Developments /s/_________
By: Thomas E. Delahanty II, Esq.
United States Attorney
02-25-2014
Date
OneWest Bank, FSB /s/_________
By: Leonard F, Morley, Jr., Esq. #3856
William B. Jordan, Esq. #461
Elizabeth P. Hunt, Esq. #3162
Attorneys lor Plain tiff /s/_________
Date
This document may be executed with counterpart original signature pages which together may constitute a complete written agreement.
e. Pursuant to Rule 79(a) this Order may be incorpprated by reference on the Civil Docket. Dated: April 24 2014 Entered On: April 25, 2014 Seen and Agreed: /s/_________
Judge District Court
Katherine M. Marshall, Personal
Representative of the Estate of Beverly J.
Marshall, a/k/a Beverly P. Marshall
/s/_________
By: Jermifer E. Thomas, Esq.
March 5, 2014
Date
Secretary of Housing arid Urban Development /s/_________
By: Thomas E. Delahanty II, Esq.
/s/_________
Date
OneWest Bank, FSB /s/_________
By: Leonard F. Morley. Jr., Esq. #3856
William B. Jordan. Esq. #461
Elizabeth P. Hunt. Esq. #3162
Attorneys for Plaintiff 3/11/14
Date
This document may be executed with counterpart original signature pages which together may constitute a complete written agreement.
Exhibit A
(35 Westminster Avenue, Portland, Cumberland County, Maine)
A certain lot of parcel of land with the buildings thereon situated in said Portland, Being Lot #9 on Plan of Edgeworth Park made by J A Jones, Civil Engineer, dated May 1908, recorded in Cumberland County Registry of Deeds, Plan Book 11; Page 11, to which reference may be had for more particular description of said premises.
CERTIFICATION OF CLERK PURSUANT TO 14 M.R.S. S 2401(3)(F)
Pursuant to 14 M.R.S. § 2401(3)(F), it is hereby certified that no notice of appeal of the Judgment of Foreclosure and Sale in this matter was filed with the Clerk of Court in this action within the appeal period following entry of judgment or that the final judgment has been entered after remand following an appeal. Dated:
/s/_________
Clerk of Court