Opinion
2:22-cv-00007-LEW
11-21-2022
The Bank of New York Mellon as Trustee for CWABS, Inc. Asset-Backed Certificates, Series 2005-11 Plaintiff v. Michael T. Kelley and Diane E. Kelley Defendants Ford Motor Credit Company LLC Internal Revenue Service Parties-In-Interest
PLAINTIFF The Bank of New York Mellon as Trustee for CWABS, Inc. Asset-Backed, Reneau J. Longoria, Esq. Doonan, Graves & Longoria, LLC DEFENDANTS Michael T. Kelley Diane E. Kelley, Pro Se PARTIES-IN-INTEREST Ford Motor Credit Company, LLC Pro Se, Internal Revenue Service c/o U.S. Attorney General, John G. Osborn, Esq. U.S. Attorney General
PLAINTIFF The Bank of New York Mellon as Trustee for CWABS, Inc. Asset-Backed, Reneau J. Longoria, Esq. Doonan, Graves & Longoria, LLC
DEFENDANTS Michael T. Kelley Diane E. Kelley, Pro Se
PARTIES-IN-INTEREST Ford Motor Credit Company, LLC Pro Se, Internal Revenue Service c/o U.S. Attorney General, John G. Osborn, Esq. U.S. Attorney General
JUDGMENT OF FORECLOSURE AND SALE (380 WOTTONS MILL ROAD, WARREN, ME; BOOK: 3462, PAGE 168)
LANCE E. WALKER UNITED STATES DISTRICT JUDGE
This matter came before the Court for a testimonial hearing on Plaintiff's Motion for Default Judgment on November 1, 2022. Plaintiff, The Bank of New York Mellon as Trustee for CWABS, Inc. Asset-Backed Certificates, Series 2005-11, was present and represented by Reneau J. Longoria, Esq.; Defendant, Michael T. Kelley appeared by telephone; Defendant, Diane E. Kelley did not appear; Party-In-Interest, Ford Motor Credit Company LLC did not appear; Party-In-Interest, Internal Revenue Service appeared through counsel, John G. Osborn, Esq.
All persons interested having been duly notified in accordance with the law, and after hearing and with the consent of Defendant, Michael T. Kelley, the Plaintiff's Motion for Default Judgment is GRANTED.
JUDGMENT on Count I - Foreclosure is hereby ENTERED as follows:
1. If the Defendants or their heirs or assigns pay The Bank of New York Mellon as Trustee for CWABS, Inc. Asset-Backed Certificates, Series 2005-11 (“BNYM”) the amount adjudged due and owing ($319,883.26) within 90 days of the date of the Judgment, as that time period is calculated in accordance with 14 M.R.S. § 6322, BNYM shall forthwith discharge the Mortgage and file a dismissal of this action on the ECF Docket. The following is a breakdown of the amount due and owing:
| Description | Amount |
| Principal Balance | $273,350.30 |
| Interest | $26,594.95 |
| Escrow Advance | $13,672.47 |
| Total Advances | $6,108.26 |
| Late Charges | $111.87 |
| Interest on Advances | $45.41 |
| Grand Total | $319,883.26 |
2. If the Defendants or their heirs or assigns do not pay BNYM the amount adjudged due and owing ($319,883.26) within 90 days of the judgment, as that time period is calculated in accordance with 14 M.R.S. § 6322, their remaining rights to possession of the Warren Property shall terminate, and BNYM shall conduct a public sale of the Warren Property in accordance with 14 M.R.S. § 6323, disbursing the proceeds first to itself in the amount of $319,883.26 after deducting the expenses of the sale, with any surplus to be disbursed pursuant to Paragraph 5 of this Judgment, and in accordance with 14 M.R.S. § 6324. BNYM may not seek a deficiency judgment against the Defendants pursuant to the Plaintiff's waiver of deficiency at trial.
3. In the event that the Defendant, and anyone occupying the premises, do not vacate the property upon termination of his/her right to possession, BNYM may reopen this matter to seek a Writ of Assistance and/or Writ of Possession to be served by the U.S. Marshals Service pursuant to Federal Rule of Civil Procedure 4.1(a) consistent with this Judgment.
4. Pursuant to 14 M.R.S. § 2401(3)(F), the Clerk, if requested, shall sign a certification after the appeal period has expired, certifying that the applicable period has expired without action or that the final judgment has been entered following appeal.
5 The amount due and owing is $319,883.26.
6 The priority of interests is as follows:
• The Bank of New York Mellon as Trustee for CWABS, Inc. Asset-Backed Certificates, Series 2005-11 has first priority, in the amount of $319,883.26, pursuant to the subject Note and Mortgage.
• Internal Revenue Service has the second priority behind the Plaintiff pursuant to a Writ of Tax Lien dated October 26, 2010, in the amount of $4,145.38, and recorded in the Knox County Registry of Deeds in Book 4305, Page 85.
• Ford Motor Credit Company LLC has the third priority behind the Plaintiff pursuant to a Writ of Execution dated October 14, 2010, in the
amount of $8,091.05, and recorded in the Knox County Registry of Deeds in Book 4333, Page 31.
• Michael T. Kelley and Diane E. Kelley have the fourth priority behind the Plaintiff.
9. The prejudgment interest rate is 3.50000%, see 14 M.R.S. § 1602-B, and the post-judgment interest rate is .15%, see 28 U.S.C. § 1961.
10 The following information is included in this Judgment pursuant to 14 M.R.S. § 2401(3):
a) The docket number of this case is No. 2:22-cv-00007-LEW.
b) All parties to these proceedings received notice of the proceedings in
accordance with the applicable provisions of the Federal Rules of Civil Procedure.
c) A description of the real estate involved, 380 Wottons Mill Road, Warren, ME 04864, is set forth in Exhibit A to the Judgment herein.
d) The street address of the real estate involved is 380 Wottons Mill Road, Warren, ME 04864. The Mortgage was executed by the Defendants, Diane E. Kelley and Michael T. Kelley on July 15, 2005. The book and page number of the Mortgage in the Knox County Registry of Deeds is Book 3462, Page 168.
e) This judgment shall not create any personal liability on the part of the Defendants but shall act solely as an in rem judgment against the property, 380 Wottons Mill Road, Warren, ME 04864.
SO ORDERED.
EXHIBIT A
(05-03100B KELLEY)
Certain lots or parcels of land, together with any buildings thereon, situated on Wotton Mill Road, in Warren, Knox County, Maine, being more particularly described as follows:
PARCEL ONE: Beginning on the northwest side of the Wotton Mill Road, so-called, at ¶ 5/8 inch iron pin, said 5/8 inch iron pin marking the southeast comer of land now or formerly of Frank T. Hill and Brenda L. Hill (see deed recorded in the Knox County Registry of Deeds in Book 446, Page 393); thence North 59° 50' East along the northwesterly side of the Wotton Mill Road, a distance of one hundred ninety-nine and eight tenths (199.8) feet to a 5/8 inch iron pin in the westerly line of land now or formerly of Kenneth A. Stetson; thence North 59° 30' West along said land formerly of said Kenneth A. Stetson, a distance of two hundred thirty-six and nine tenths (236.9) feet to a 5/8 inch iron pin for a corner at still other land of said Kenneth A. Stetson; thence South 60° West along said other land formerly of said Kenneth A. Stetson, a distance of one hundred ninety-nine and seven tenths (199.7) feet to a 5/8 inch iron pin set in stone wall at land of said Frank T. Hill and Brenda L. Hill; thence following the erratic course of the said stone wall in part and in part by a wire fence to a 5/8 iron pin in the northwesterly line of the Wotton Mill Road and the point of beginning; the last named course having a straight line distance from iron pin to iron pin of two hundred thirty-seven and four tenths (237.4) feet and a bearing of South 59° 25' East.
PARCEL TWO: Beginning at ¶ 5/8 inch iron pin set in a stone wall at the line of land now or formerly of Frank T. Hill and Brenda L. Hill and at the northwesterly comer of land now or formerly of Michael A. Parent and Doreen Parent; thence northwesterly along the erratic course of a stone wall and easterly line of the said Frank T. Hill et als, a distance of four hundred (400) feet, more or less, to an iron pin set in line of land now or formerly of Hart, so-called; thence North 73° 10' East along said Hart land so-called, in accordance with a survey by Lawrence Morton of Kenneth A. Stetson land as reflected on a plan dated June 1975, a distance of two hundred (200) feet, more or less, to an iron pin at a corner of land now or formerly of Patrick H. Parent and Leslie A. Parent; thence southeasterly and contiguous to a line of land now or formerly of said Patrick H. Parent, et als a distance of four hundred (400) feet, more or less, to a 5/8 inch iron pin set at the northeasterly corner of land conveyed by Kenneth Stetson to Michael A. Parent, et als by deed recorded November 22, 1983 in Book 935, Page 147, of the Knox County Registry of Deeds; thence South 60° West along other land of the said Michael and Doreen Parent as above referred to, a distance of one hundred ninety-nine and seven tenths (199.7) feet to said 5/8 inch iron pin in said stone wall and the point of beginning.
Being the same premises as described in the deed from Michael A. Parent and Doreen A. Parent to Diane E. Kelley and Michael T. Kelley, dated May 3, 1999 and recorded in Book 2354 Page 262, Knox County Registry of Deeds.