86 A.3d 642
Me.2014Background
- Frederick Connelly (retired, on fixed income) signed loan documents at a March 31, 2008 closing in Massachusetts; he claims he did so under misrepresentations and without receiving disclosure or rescission notices.
- The loan was for $600,000; note named Connelly and Charles as obligors; mortgages secured the loan by (1) Belmont Property (titled in Susan) and (2) Connelly’s Maine residence (Wells Property).
- Connelly alleges he never applied for the loan, never received proceeds, and that his son Charles and daughter-in-law Susan orchestrated transfers and the loan without his informed consent.
- Lubar, trustee of The Clover Trust, is the original lender and holder of the note; he moved for summary judgment in a foreclosure action after the Belmont Property was sold and a deficiency was claimed.
- The Superior Court granted summary judgment for Lubar and entered foreclosure and an order of sale; Connelly appealed, asserting genuine issues of material fact on statutory consumer-credit defenses, equitable defenses, and on damages and evidentiary sufficiency.
- The Maine Supreme Judicial Court vacated the summary judgment and remanded, concluding the record contained multiple genuine disputes of material fact and deficiencies in the lender’s summary-judgment showing.
Issues
| Issue | Lubar (Plaintiff) Argument | Connelly (Defendant) Argument | Held |
|---|---|---|---|
| Whether lender met minimum summary-judgment evidentiary showing for foreclosure (order of priority; amounts due; admissible proof) | Lubar asserted he produced required facts and affidavits showing holder status and amounts due | Connelly argued Lubar’s statements lack admissible foundation, contain inconsistencies, and fail to show order of priority and correct amounts | Vacated: lender failed to include minimally required, properly supported facts; genuine disputes remain |
| Trust’s status as a “creditor” under Maine Consumer Credit Code (9-A M.R.S. § 1-301(17)) | Lubar maintained Trust was not a creditor subject to Code provisions | Connelly argued facts show Trust originated mortgage(s) (through brokers or directly) and may meet statutory definitions of creditor | Vacated: genuine issue of material fact exists whether Trust is a “creditor,” precluding summary judgment |
| Admissibility/trustworthiness of Lubar’s affidavits and other evidence | Lubar relied on his affidavit and documentary exhibits as sufficient | Connelly challenged affidavits as hearsay, contrary to record, lacking personal knowledge, and therefore not trial-admissible | Vacated: court found affidavits contained substantial defects and contradictions raising factual disputes |
| Connelly’s affirmative defenses (consumer-credit, rescission, fraud, undue influence, right to choose title attorney) — need for discovery | Lubar argued defenses insufficient to avoid judgment | Connelly argued defenses supported by facts (no application, misleading representations, lack of disclosures, induced signing) and needed discovery | Vacated and remanded for further proceedings and discovery to resolve defenses and fraud/undue-influence allegations |
Key Cases Cited
- Trott v. H.D. Goodall Hosp., 66 A.3d 7 (Me. 2013) (summary-judgment record viewed in favor of nonmovant)
- HSBC Bank USA, N.A. v. Gabay, 28 A.3d 1158 (Me. 2011) (summary judgment rules applied strictly in residential foreclosure)
- Lougee Conservancy v. CitiMortgage, Inc., 48 A.3d 774 (Me. 2012) (conflicting plausible inferences defeat summary judgment)
- Deutsche Bank Nat’l Trust Co. v. Raggiani, 985 A.2d 1 (Me. 2009) (summary judgment vacatur where genuine issues remain)
- Wells Fargo Bank, N.A. v. deBree, 38 A.3d 1257 (Me. 2012) (plaintiff must include minimally required facts in statement of material facts in foreclosure)
- Chase Home Fin. LLC v. Higgins, 985 A.2d 508 (Me. 2009) (statement of material facts controls the summary-judgment record)
- HSBC Mortg. Servs., Inc. v. Murphy, 19 A.3d 815 (Me. 2011) (defects in affidavits affect trustworthiness in summary-judgment context)
- Scott v. Harris, 550 U.S. 372 (2007) (trial court may reject a party’s version of facts when utterly discredited by the record)
- Beneficial Me., Inc. v. Carter, 25 A.3d 96 (Me. 2011) (court must be able to discern from record that evidence could be admissible at trial)