Bank of America, N.A. v. Scott A. Greenleaf
96 A.3d 700
Me.2014Background
- In 2006 Scott (and Kristina) Greenleaf executed a $385,000 promissory note to Residential Mortgage Services, Inc. (RMS) and a mortgage naming RMS as lender and MERS as RMS’s nominee.
- BAC Home Loans Servicing, LP (Countrywide successor) initiated foreclosure; Bank of America (the Bank) was later substituted as plaintiff after a merger with BAC.
- The District Court denied the Bank’s untimely summary-judgment motion, sanctioned the Bank’s attorney for Rule 56 filing defects, and later tried the case to the court on admitted exhibits and testimony from the Bank’s litigation liaison.
- At trial the Bank offered the original note (endorsed in blank), the mortgage, a MERS assignment to BAC, and a merger certification; the Bank’s payment-printout (Account Information Statement) was admitted through the liaison.
- The District Court entered a foreclosure judgment for the Bank; Greenleaf appealed, challenging standing, sufficiency of proof for foreclosure elements (including amount due and notice), and evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose (ownership of note and mortgage) | Bank: possession of original note endorsed in blank makes it a holder entitled to enforce the note; assignments/merger show chain to mortgagee | Greenleaf: Bank lacks ownership of the mortgage because MERS was only nominee with limited recording rights and could not convey full mortgage ownership | Court: Bank is holder of the note but failed to prove ownership of the mortgage; MERS only had nominee/recording rights, so assignments from MERS/BAC did not transfer mortgage ownership — Bank lacked standing; judgment vacated |
| Sufficiency of proof of amount due (business records) | Bank: Account printout (Ex. 6) authenticated and admissible as regular business record through litigation liaison Pollock | Greenleaf: Pollock lacked the requisite firsthand custody/recordkeeping foundation; printout thus inadmissible and amount not proven | Court: Pollock did not establish custodian/qualified-witness foundation or the records’ creation/accuracy; admitting Ex. 6 was error — amount due not proven |
| Compliance with notice-of-default statute (14 M.R.S. § 6111) | Bank: notice itemized past due amounts and directed mortgagor to servicer for up-to-date payoff | Greenleaf: Direction to contact servicer defeats required itemization of all charges needed to cure within the cure period | Court: Notice failed § 6111’s requirement because the cure-period amount must be fixed in the notice; directing mortgagor to obtain a final payoff from the servicer did not comply — independent ground to vacate |
| Sanctions for Rule 56 violations | Bank: amount/chosen sanction improper | Greenleaf: sanction appropriate and should possibly be larger; sought fees/costs | Court: District Court’s sanction against attorney for Rule 56 violations was affirmed as within discretion |
Key Cases Cited
- Mortg. Elec. Registration Sys., Inc. v. Saunders, 2 A.3d 289 (Me. 2010) (MERS as nominee holding only right to record, not the mortgagee for foreclosure under Maine law)
- Chase Home Finance LLC v. Higgins, 985 A.2d 508 (Me. 2009) (enumerating eight strict elements of proof required for a foreclosure judgment)
- Bank of Am., N.A. v. Cloutier, 61 A.3d 1242 (Me. 2013) (standing requires enforceable interest in both note and mortgage)
- Deutsche Bank Nat’l Trust Co. v. Wilk, 76 A.3d 363 (Me. 2013) (possession of note can make holder entitled to enforce note, but lack of mortgage ownership defeats foreclosure)
- Wells Fargo Bank, N.A. v. Burek, 81 A.3d 330 (Me. 2013) (distinguishing cases where separate assignment from lender conveyed enforcement rights to MERS)
- Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir. 2013) (federal appellate discussion of MERS assignments in a different jurisdiction and context)