Wells Fargo Bank, NA v. deBREE
2012 ME 34
| Me. | 2012Background
- Bank Wells Fargo filed foreclosure suit Jan 19, 2010 against the deBrees and others in Windham;
- Complaint alleged default on mortgage note owned by Bank, sought possession, claimed $129,174.12 due;
- Bank alleged Wells Fargo Bank, NA was successor by merger to Wells Fargo Home Mortgage, Inc.;
- DeBrees denied default and contested successor-by-merger allegation;
- Bank moved for summary judgment; affidavit claimed note payable to Residential Mortgage Services, Inc. and that Bank was current holder via assignment dated May 19, 2003, with a 2003 assignment showing transfer to Wells Fargo Home Mortgage, Inc.;
- Kennerty’s affidavit did not address the distinction between Wells Fargo Home Mortgage, Inc. and Wells Fargo Bank, NA, and no other evidence of ownership was provided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proof of ownership of note and mortgage. | Bank is owner via merger and assignment. | Record shows assignment to Wells Fargo Home Mortgage, Inc., not Bank; ownership not proven. | Summary judgment vacated; ownership not sufficiently proven. |
| Judicial notice as alternative to ownership proof. | Bank seeks judicial notice of merger to establish ownership. | No proper motion or foundation for judicial notice. | Judicial notice not properly invoked; record nonetheless fails to prove ownership; judgment vacated. |
Key Cases Cited
- Chase Home Fin. LLC v. Higgins, 2009 ME 136 (Me. 2009) (summary judgment/ownership proof in foreclosure)
- HSBC Bank USA, N.A. v. Gabay, 2011 ME 101 (Me. 2011) (plaintiff must prove ownership of note and mortgage)
- Deutsche Bank Nat'l Trust Co. v. Raggiani, 2009 ME 120 (Me. 2009) (ownership/endorsement requirements for foreclosure)
- Raggiani, 2009 ME 120, 985 A.2d 1 (Me. 2009) (see Deutsche Bank Nat'l Trust Co. v. Raggiani)
- Gabay, 2011 ME 101, 28 A.3d 1158 (Me. 2011) (emphasizes independent burden to prove ownership on summary judgment)