HSBC Bank USA, N.A. v. Gabay
2011 ME 101
| Me. | 2011Background
- Gabay resides in Florida and owns property in Naples, Maine at 19 Common Way Road.
- Gabay executed a $750,000 promissory note to Fremont Investment and Loan and a mortgage to MERS on Sept. 23, 2005.
- Gabay defaulted on Sept. 1, 2008 and received a default/accelerate notice on Oct. 17, 2008.
- HSBC purportedly became holder of the mortgage by assignment from MERS on Dec. 22, 2008 and claimed to hold the note as well.
- HSBC filed a foreclosure complaint on Jan. 6, 2009; a summary judgment motion was granted Aug. 25, 2010 over Gabay’s objections.
- The Maine Supreme Judicial Court vacated the judgment and remanded for lack of proper factual support in the record and for procedural compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership and endorsement of the note | Gabay argues HSBC failed to prove ownership and endorsements. | HSBC contends it has ownership via assignment and endorsements. | Genuine issues of material fact exist; judgment vacated and remanded. |
| Order of priority among creditors | HSBC did not present the priority among interests. | Association and others hold liens; priority not properly addressed. | Genuine issues of material fact exist; remand to determine priority. |
| Identification of the premises to be foreclosed | Record descriptions are incomplete or lacking street address specificity. | Mortgage documents describe the premises adequately. | HSBC's facts lack a proper address link; remand for proper description. |
| Costs and amount due under the note | HSBC claims all costs but does not itemize or cite specific amounts. | Costs are governed by the mortgage and statute; must be itemized. | Costs not properly stated; remand for specification. |
Key Cases Cited
- HSBC Mortg. Servs., Inc. v. Murphy, 19 A.3d 815 (Me. 2011) (foreclosure summary judgment standards and material facts requirements)
- JPMorgan Chase Bank v. Harp, 10 A.3d 718 (Me. 2011) (de novo review of summary judgment in foreclosure)
- Chase Home Fin. LLC v. Higgins, 985 A.2d 508 (Me. 2009) (strict compliance with Rule 56(j) in mortgage foreclosures)