86 A.3d 1167
Me.2014Background
- Residential mortgage foreclosure by Bangor Savings Bank against Richard in Lewiston District Court; Bank moved for summary judgment; Richard appealed challenging service, discovery, cure-notice, and amount due; court found issues with amount due and preservation; remanded for further proceedings on sums due; defense argued discovery and service defects; court vacated judgment and remanded.
- Bank's statement of facts failed to establish the amount due on the note consistently across documents; amount due remains an unresolved material fact.
- Richard failed to timely file a properly supported opposing statement of facts, so many arguments were unpreserved for review; court noted no prejudice from service of documents on Richard rather than counsel.
- Discovery deficiency arguments were not resolved because deference to Rule 56(f) not invoked; remand was warranted to address sums due.
- Judgment vacated and remanded to determine the correct amount due on the note and to permit complete consideration of the unresolved factual issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amount due on the note not properly supported | Bank contends amount due supported by documents | Richard argues the amount due is not properly supported | Unresolved fact; remand for proper showing |
| Preservation of Richard's other contentions | Bank asserts arguments preserved on appeal | Richard's contentions unpreserved | Unpreserved; not reviewed on appeal |
| Prejudice from service on Richard rather than counsel | Bank argues no prejudice from service | Richard argues prejudice | No prejudice shown; arguments not dispositive |
| Discovery and Rule 56(f) deferral | Bank argues discovery adequately supported rquirements | Richard argues incomplete discovery | Not decided; remand on sums due for resolution |
Key Cases Cited
- HSBC Bank USA, N.A. v. Gabay, 2011 ME 101 (Me. 2011) (minimum facts required in a mortgagee's statement of material facts in foreclosure)
- Foster v. Oral Surgery Assocs., P.A., 2008 ME 21 (Me. 2008) (issues raised for first time on appeal not properly preserved)