Jutras v. Crocker

STATE OF MAINE DISTRICT COURT Lincoln, ss. Location: WISCASSET Docket No. WISDC-RE-2014-43

MICHAEL R. JUTRAS ) Plaintiff ) ) ORDER ON MOTION FOR v. ) SUMMARY JUDGMENT ) JACQUELINE CROCKER ) Defendant )

This matter is before the court on Plaintiffs Motion for Summary Judgment. Defendant has filed opposition to Plaintiffs motion. After reviewing the parties' Statements of Material Facts, the court concludes that there is a genuine issue of material fact regarding the amount due on the mortgage note. Entry of summary judgment is only appropriate when there is no genuine issue of material fact. See M. R. Civ. P. 56( c).

In order "[f]or a mortgagee to legally foreclose, all steps mandated by statute must be strictly performed." Camden National Bank v. Peterson, 2008 ME 85, 't[ 21, 948 A.2d 1251. Maine Rule of Civil Procedure 56(h)(4) requires each statement of material fact to be supported by specific record citation. The trial court must disregard any statement of material fact not supported by reference to record citation and is not permitted to search the record to find evidence in support

Page 1 of3 of a statement of fact unsupported by a record citation. M. R. Civ. P. 56(h)(4); HSBC Bank USA, N.A. v. Gabay, 2011 :ME 101, ~ 17,28 A.3d 1158; Deutsche Bank National Trust Co. v. Raggiani, 2009 :ME 120, ~~ 6-7, 985 A.2d 1; Peterson, 2008 :ME, ~ 26, 968 A.2d 1251.

A foreclosure plaintiff must prove "the amount due on the mortgage note, including any reasonable attorney fees and court costs" in order to be entitled to judgment in a foreclose action. Greenleaf, 2014 :ME 89, ~ 18, 96 A.3d 700; also 14 M.R.S. § 6322 ("the court shall determine ... the amount due thereon, including reasonable attorney's fees and court costs"); Higgins, 2009 :ME 136, ~ 11, 985 A.2d 508; Johnson v. McNeil, 2002 :ME 99, ~ 17, 800 A.2d 702. The amount due as of a certain date as stated in the statement of material facts must precisely match the evidence provided in support of this fact. Lubar v. Connelly, 2014 :ME 17, ~~ 39-40, 86 A.3d 642.

Affidavits offered as evidence in support of a motion for summary judgment must be on personal knowledge and "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." M. R. Civ. P. 56( e). When an affiant's statements are based upon her or his review of business records these records must be attached in order for that affidavit to provide adequate evidence in support of a motion for summary judgment. Cach LLC v. Kulkas, 2011 :ME 70, ~ 10, 21 A.3d 1015. To better

Page 2 of3 comply with the requirements ofM. R. Civ. P. 56(h), the records from which the affiants' knowledge is derived should be cited as well.

Paragraph fifteen ofPlaintiffs Supplemental Statement ofMaterial facts gives the amount due on the mortgage note and cites to paragraph sixteen of the Affidavit of Michael R. Jutras ("Jutras Affidavit") and Paragraphs three and four of the Supplemental Affidavit of Michael R. Jutras ("Supplemental Jutras Affidavit"). Paragraph sixteen of the Jutras Affidavit simply restates the figures provided in the supplemental statement of material facts and does not further reference any records from which these figure are derived. Paragraphs three and four of the Supplemental Jutras Affidavit provide clarification regarding the interest that has accrued but provide no information regarding how these figures were derived. Defendant's Opposing Statement of Material denies this paragraph of Plaintiffs Statement of Material Facts and this denial is adequately supported. Plaintiff does not begin paragraph fifteen of its Reply Statement ofMaterial Facts either "Admitted," "Denied," or "Qualified," as provided in Rule 56(h)(3).

The entry is: Plaintiffs Motion for Summary Judgment is hereby denied. The Clerk is directed to enter this Order on the civil docket by reference pursuant

to Rule 79(a) ofthe Maine Rules of Civil Procedur~e. . / / /..

Dated July 29, 201s _______!fua~ A. M H rton, Justice Superior Court

Page 3 of3

MICHAEL R JUTRAS - PLAINTIFF DISTRICT COURT PO BOX 375 WISCASSET STRATTON ME 04982 Docket No WISDC-RE-2014-00043 Attorney for: MICHAEL R JUTRAS DAVID J JONES - RETAINED 09/08/2014 JENSEN BAIRD GARDNER HENRY DOCKET RECORD 11 MAIN STREET SUITE 4 KENNEBUNK ME 04043

VS JACQUELINE CROCKER - DEFENDANT 50 DODGE ROAD DRESDEN ME 04342 Attorney for: JACQUELINE CROCKER ANDREW T DAWSON - RETAINED GOODSPEED & O'DONNELL 10 SUMMER ST PO BOX 738 AUGUSTA ME 04332-0738

Filing Document: COMPLAINT Minor Case Type: FORECLOSURE Filing Date: 09/08/2014

Docket Events: 09/08/2014 FILING DOCUMENT - COMPLAINT FILED ON 09/08/2014