Heidi Pushard v. Bank of America N.A.
175 A.3d 103
| Me. | 2017Background
- In 2006 the Pushards executed a $145,000 note secured by a mortgage; MERS was named nominee for Countrywide; assignments followed to Countrywide and then Bank of America (the Bank).
- The Bank sued to foreclose in 2011, seeking acceleration (the entire balance) and attached the note and mortgage containing optional acceleration provisions.
- After trial the foreclosure court entered judgment for the Pushards in 2014, finding the Bank failed to prove several elements including that its notice of default complied with 14 M.R.S. § 6111; neither party appealed that judgment.
- In 2015 the Pushards sued the Bank seeking declaratory and injunctive relief, slander of title, and damages under 33 M.R.S. § 551 because the Bank had not recorded a mortgage release.
- The trial court granted the Bank summary judgment on all claims; the Pushards appealed.
- The Maine Supreme Judicial Court affirmed summary judgment for the Bank on the § 551 and slander claims but vacated the judgment on declaratory relief, holding the foreclosure judgment precluded further enforcement of the note/mortgage and remanding for entry of declaratory judgment for the Pushards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability | Pushards: Their suit over the lingering mortgage is a present, concrete controversy ripe for relief. | Bank: No justiciable controversy about res judicata effects until Bank files a second foreclosure. | Court: Justiciable—the undischarged mortgage is a present encumbrance and the Pushards seek relief based on existing facts. |
| 33 M.R.S. § 551 (failure to record release) | Pushards: Foreclosure judgment in their favor means they fully performed; Bank must record release and pay damages. | Bank: Judgment did not imply full performance; §551 requires actual full performance (payments). | Court: Affirmed for Bank—Pushards had not paid installments since 2008, so §551 relief not warranted. |
| Slander of title | Pushards: Undischarged mortgage is a false, slanderous publication harming title. | Bank: No evidence of malice or reckless disregard required for slander finding. | Court: Affirmed for Bank—no record evidence of malice/reckless disregard; claim fails. |
| Declaratory/injunctive relief; res judicata effect of foreclosure judgment | Pushards: Foreclosure suit sought entire debt (accelerated) so the adverse judgment precludes Bank from later enforcing note/mortgage; mortgage is unenforceable and must be discharged. | Bank: Because foreclosure loss rested partly on defective §6111 notice, it did not effectively accelerate debt; res judicata should not bar later enforcement. | Court: Vacated denial of declaratory relief and remanded to enter judgment for Pushards—filing the foreclosure seeking the full balance exercised acceleration; under Johnson and related precedents the Bank is precluded from enforcing the debt or mortgage. |
Key Cases Cited
- Homeward Residential, Inc. v. Gregor, 122 A.3d 947 (Me. 2015) (justiciability requires a present, concrete controversy)
- Madore v. Me. Land Use Regulation Comm’n, 715 A.2d 157 (Me. 1998) (rights must be declared on existing facts for justiciability)
- Bank of Am., N.A. v. Greenleaf, 96 A.3d 700 (Me. 2014) (strict statutory compliance required in foreclosure actions)
- Johnson v. Samson Construction Corp., 704 A.2d 866 (Me. 1997) (filing foreclosure seeking accelerated debt merges installments into unitary obligation and bars later suit)
- Chee, Me. Sav. Bank v. Chee, 576 A.2d 1358 (Me. 1990) (mortgagee’s election to accelerate is a unilateral choice; complaint alleging acceleration suffices as notice)
- Deschaine, Fed. Nat’l Mortg. Ass’n v. Deschaine, 170 A.3d 230 (Me. 2017) (filing foreclosure seeking whole debt constitutes exercise of acceleration right)
- Beegan v. Schmidt, 451 A.2d 642 (Me. 1982) (overview of res judicata principles)