Deutsche Bank Nat'l Trust Co. v. Merrill

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION I ~ . .;;).l.(~ DOCKET NO: ((~:g 252 h

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DEUTSCHE BANK NATIONAL TRUST CO., AS TRUSTEE UNDER j THE POOLING AND SERVICING AGREEMENT RELATED TO IMPAC SECURED ASSETS CORP., MORTGAGE PASS-THROUGH CERTTFICATES SERIES 2003-3 ORDER Plaintiff,

v.

SALLY MERRILL,

Defendant

Deutsche Bank National Trust Company moves to substitute First Tracks Investments, LLC, for itself as plaintiff pursuant to Rule 25(c). First Tracks, as the alleged assignee of Deu tsche Ban k' s rights, moves for summary judgment i:lgi:linst defendant Sally Merrill in this foreclosure action. First Tracks' motion is denied due to numerous deficiencies in its Rule 56 statement of material facts. Additionally, First Tracks does not appear to be the real party in interest in this case.

BACKGROUND

Ms. Merrill owns property located in Cumberlilnd Cente~, Miline. On July 11,2006, she executed and delivered to American Residential Mortgage il promissory note in the originul principal ilmount of $548,000.00. The note was secured by a mortgage executed on the Silme date and delivered to Mortgage Electronic Registriltion Systems, Inc. (MERS) as nominee for American. On *2 FebruJry 18, 2010, MERS assigned the mortgage to Deutsche Bank National Trust Company, as trustee under the pooling and servicing agreement related to Impac Secured Assets Corporation, Mortgage Pass-Through Certificates, Series 2006-3. Deutsche Bank initiated this foreclosure action on May 28, 2010, in Superior Court. Ms. Merrill responded with a handwritten filing stating that she expected to settle the case within forty-five days. Mediation was scheduled to occur on September 24, 2010.

On August 5, 2010, Deutsche Bank purported to assign both the mortgage and the promissory note to First Tracks. Deutsche Bank filed a motion to substitute First Tracks for itself as plaintiff in this suit. Ms. Merrill filed a handwritten objection. First Tracks then filed its motion for summary judgment on September 20, 201 O. Mediation was attempted on September 24, 2010, but the parties were not able to reach an agreement.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see nlso Levil/e v. RB.K. Cnly Corp., 2001 ME 77, <[ 4,770 A.2d 653, 655. A motion for summary judgment must be supported by citations to record evidence of a quality that would be admissible at trial. [d. at (IT 6, 770 A.2d at 65() (citing M.R. Civ. P. 56(e)). Judgment may be rendered against the moving party if appropriate. M.R Ci v. P. 56(c).

Affidavits supporting a motion for summary judgment must be made on the affiant's "personal knowledge." M.R. Civ. P. 56(e). First Tracks rests its motion entirely on the affidavit of its own Vice President, Michael Cianchette, and he only claims to have "knowledge" of the matters about which he testifies. *3 This is not adequate under the rule, as made evident by Mr. Cianchette's reliance on the affidavi t of Deutsche Bank Vice President Steve Yamamoto. Mr. Y<1m<1moto claims to have Ms. Merrill's records available to him, but he does not claim to have actually read them or have any knowledge pertaining to Ms. Merrill's mortgage, note, or alleged breach. This is not an adequate evidentiary basis for First Tracks' motion for summary judgment.

First Tracks h<1s left the following necessary facts out of its statement of material f<1cts, due in part to [<1ck of'<1dmissible evidence and in part to sheer omission. It has not included the street address of the subject property, or indic<1ted whether there are any amounts owed to other parties-in-interest and their priority. Chase HOllie Fina/lce LLC v. HiggiJis, 2009 ME 136, 9I 11, 985 A.2d 508,510-11. It has not shown that Ms. Merrill breached her mortgage, or proven the amount due on the note. Td. It has not provided evidence of a properly served notice of def<1ult pursuant to 14 M.R.S. § 4111, or included proof of completed mediation. Td. Given that First Tracks interprets Ms. Merrill's handwritten responses <1S no response <1t all, it should have included <1 statement and affidavit clddressing whether or not Ms. Merrill is in military service in accordance with the Servicemembers Civil Relief Act. rd. Finally and most seriously, First Tracks has not shown that ei ther it or Deutsche B<1nk have <1ny interest in the promissory note <1nd mortg<1ge <1t the heC1ft of this action.

While First Tracks has included the assignment from Deutsche Bank to itself with Mr. Cianchette's affidavit, it has not placed the assignment from MERS to Deutsche Bank in the summary judgment record. l More importantly,

J A copy of this assignment is attZlched to the complaint, but the court may not independently search the record for evidence not cited in the moving party's

First Tracks only alleges that MERS assigned the mortgage to Deutsche Bank. No party has alleged that American ever assigned the promissory note. A mortgage interest is collateral to the debt obligation it secures, and generally an attempt to transfer the mortgage without the promissory note is ineffectual. Averill v. Cone, 129 Me. 9, 12, 149 A. 297, 299 (1930) (cited in Mortgage Electronic Registmtion Systems, fne. v. Saunders, 2010 ME 79, err 11 n.3, 2 A.3d 289, _); Wyman v. Porter, 108 Me. 110, 120, 79 A. 371, 375 (J 911); 4-37 Powell on Real Property § 37.27(2) (Michael Allan Wolf ed., 1997). While the mortgage will automatically follow an assignment of the note, an attempt to assign the mortgage without the note is a nullity. Averill, 129 Me. at 12,149 A. at 299. Even if two entities do succeed in separating the note and the mortgage, the possessor of the mortgage merely holds it in trust for the holder of the debt interest. Wyman, 108 Me. at 120, 79 A. at 375.

Furthermore, MERS was never a mortgagee in this case because it was never entitled to enforce the debt obligation held by American. Mortgage Electronic Registratioll SystelJ/s, Illc. v. Saunders, 2010 ME 79, err 11, 2 A.3d 289, _ . MERS's only rights were to possess and record the mortgage document. fd. ([([ 10-11, 2. A.3d at _ . If the assignment from MERS to Deutsche Bank had any effect, it was only to give Deutsche Bank the bare right to possess and record the mortgage document as American's nominee. To foreclose on a mortgage and enforce a promissory note, the foreclosing party must prove ownership of both and produce evidence of all assignments and endorsements relating to each. 14 M.R.S. § 6321. Deutsche Bank clearly never had the promissory note, and itis doubtful that it had even a nominal interest in the mortgage. It had no standing

statement of material facts. Mortgage Electronic Registratioll Systems, ll/c. V. Sallllders, 2010 ME 79, err 22,2 A.3d 289,_.

to initiate this foreclosure action, and could not give any greater interest to First Tracks. The en try is:

First Tracks' motion for summary judgment does not meet the evidentiary requirements of Rule 56 and does not show that First Tracks is enti tled to a foreclosure judgment. First Tracks' and Deutsch Bank's allegations do show, and the entire record supports, that neither First Tracks nor Deutsch Bank are proper parties to this litigation. Deutsch Bank and First Tracks have until

Pc! C OA \, erl, tvpto show that this action is being prosecuted in the name of the real party in interest pursuant to Rule 17. Failure

dismissal.

CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

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CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

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