MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2016 ME	149

Docket: And-15-379

Submitted

		On	Briefs: May	26,	2016

Decided: October	11,	2016

Panel: ALEXANDER, GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

U.S.	BANK	TRUST,	N.A., AS	TRUSTEE	FOR	LSF8	MASTER	PARTICIPATION	

TRUST

v.

BEVIN	L.	(HOOPER)	MACKENZIE

HJELM,	J.

[¶1]	 	 In this	 foreclosure	 action	 brought	 by	 U.S.	 Bank	 Trust,	 N.A.,	 as	

Trustee	 for	 LSF8	 Master	 Participation	 Trust	 (the	 Bank),	 Bevin	 L.	 (Hooper)	

Mackenzie—the	 mortgagor—moved	 for	 summary	 judgment	 on	 the	 ground	

that,	inter	alia,	the	requisite	notices	of	default	and	right	to	cure	were	deficient.		

Although	 the	 District	 Court	 (Lewiston,	 Dow,	 J.)	 agreed	 with	 Mackenzie’s	

contention,	 it	 entered	 an	 order	 dismissing	 the	 complaint	 without	 prejudice,	

expressly	reserving	to	the	Bank	the	right	to	commence	a	new	action	if	it	were

to	 issue	 a	 statutorily	 compliant	 notice	 of	 default	 and	 right	 to	 cure.	 	On	 this	

appeal	by	Mackenzie,	she	argues	 that	she	is	entitled	 to	a	summary	judgment	

rather	 than	 merely	 a	 dismissal	 of	 the	 matter	 without	 prejudice	 because	 the	

defective	notices	of	right to	cure	constitute	a	substantive	defect	in	the	Bank’s	
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cause	of	action.1		In	the	absence	of	a	cross-appeal	by	the	Bank,	we	affirm	the	

dismissal	of	the	complaint	but	remand	with	instructions	for	the	court	to	revise	

its	order	so	that it	is	with	prejudice	but does	not	establish	the	parties’	rights	in	

any	future	litigation.	

I.		BACKGROUND

[¶2]	 	 In	 its	 complaint,	 the	 Bank	 alleges	 the	 following	 facts,	 which	 we	

recite	 to	provide	some	context	 for	our	discussion	of	 the	procedural	issues	in	

this	case.		

[¶3]	 In 2001,	Mackenzie	and	Jim	B.	Hooper	acquired	two	parcels	of	real	

property	 located	 in	 Leeds.	 	 In	 September	 2004,	 Hooper	 executed	 a	 loan	

repayment	 and	 security	 agreement	 with	 Beneficial	 Maine,	 Inc.	 	 To	 secure	

Beneficial’s	 right	 to	 receive	 payments	 under	 the	 loan	 agreement,	 Mackenzie	

and	Hooper	executed	a	mortgage	deed	in	favor	of	Beneficial.

[¶4] Having	 received	 no	 payments	 since	 2011	 toward	 the	 loan	

obligation,	 in	 December	 2013 Beneficial	 sent	 separate	 but	 substantively	

identical	 notices	 of	 default	 and	 right to	 cure	 to	 Hooper	 and	 Mackenzie.		

 1	 	 Although	 Mackenzie’s	 appeal	 is	 from	 a	 judgment	 in	 her	 favor,	 she	 has	 standing	 to	 appeal	

because	 “sufficient	adverse	 collateral	 consequences	 could	arise	 from	 the	 portion	 of	 the	judgment	

that	[s]he	challenges.”		U.S.	Bank,	N.A.	v.	Tannenbaum,	2015	ME	141,	¶	3	n.2,	126	A.3d	734.
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See 14 M.R.S.	§	6111	(2014).2		After	sending	the	notices,	Beneficial	still	did	not	

receive	any	payments,	and	in	March	2014,	it	 filed	a	complaint	in	 the	District	

Court	 against	 Mackenzie	 and	 Hooper,	 alleging	 a	 default	 for	 failure	 to	 make	

payments	required	under	the	loan	agreement and	seeking	to	foreclose	on	the	

mortgaged	 properties.	 	 See 14	 M.R.S.	 §§ 6321-6326	 (2015).	 	 Beneficial	

attached	copies	of	the	notices	of	right	to	cure	as	exhibits	to	the	complaint.

[¶5]	 While	 the	 action	 was	 pending,	 Beneficial	 assigned	 the	 loan	

agreement	 and	 mortgage	 to	 the	 Bank,	 and	 the	 court	 (Schneider,	 J.)	 granted	

Beneficial’s	 motion	 to	 substitute the	 Bank	 as	 the	 plaintiff.	 	 Following	 two	

unsuccessful	 mediation	 sessions,	 Mackenzie	 filed	 a	 motion	 for	 summary	

judgment	supported	by	a	statement	of	material	 facts.		See	M.R.	Civ.	P.	56.		 In	

her	motion,	Mackenzie	argued,	among	other	things,	that	the	notices	of	right	to	

cure	 were	 deficient	 because	 they	 did	 not	 satisfy	 the	 requirements	 of

section 6111(1-A).3		The	Bank	opposed the	motion	and	argued	in	part	that	the	

motion	 for	 summary	 judgment	 should	 be	 denied	 because	 Mackenzie’s	

statement	of	material	facts	failed	to	establish	that	her	factual	assertions	would	

be	admissible	in	evidence	and	therefore	did	not	comply	with	the	requirements	

 2 Title	 14	 section	 6111	 has	 since	 been	 amended.	 	 See	 P.L.	 2015,	 ch.	 36, §§	 1,	 2	 (effective	

Oct. 15, 2015)	(codified	at	14	M.R.S.	§	6111	(2015)).		References	in	this	opinion	to	section	6111	are	

to	the	version	in	effect	at	the	time	the	notices	of	right	to	cure	were	sent.

3	 	 The	 parties	 do	 not	 dispute	 that	 section	 6111,	 which	 establishes	 the	 requirements	 and	

procedure	for	notices	of	right	to	cure	affecting	residential	mortgages,	applies	in	this	case.
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of	 M.R.	 Civ. P. 56(e).	 	 The	 Bank	 also	 argued	 that	 the	 notices	 of	 right	 to	 cure	

were	 sufficient.	 	 In	 her	 reply,	 Mackenzie	 filed	 an	 amended	 statement	 of	

material	facts	in	an	apparent	attempt	to	rectify	the	formal	deficiencies	in	her	

original	statement.

[¶6] After	 holding	 a	 hearing	 on	 the	 motion,	 in	 July	 2015	 the	 court

(Dow, J.)	issued	an	 order	 concluding	 that	 “the	 notice	 of	 right	 to	 cure	 did	 not	

comply	with	statutory	requirements.”		On	 that	basis,	 the	court	dismissed	 the	

complaint	 without	 prejudice “so	 that	 [the Bank]	 may	 send	 notice	 in	

compliance	 [with]	14	M.R.S.	§	6111	at	least	 thirty[-]five days	before	 filing	its	

complaint	for	foreclosure.”4		Mackenzie’s	appeal	followed.

II.		DISCUSSION

[¶7] Mackenzie	 contends	 that	 the	 court	 erred	 by	 dismissing	 the	

complaint	without	prejudice	rather	 than	issuing	a	summary	judgment	in	her	

favor	because	 the	court’s	conclusion	 that	 the	notices	of	 right	 to	cure	did	not	

comply	with	statutory	requirements	constitutes	an	adjudication	of	the	Bank’s	

claim	on	the merits.		

 4		Hooper	did	not	join	in	Mackenzie’s	motion,	perhaps	because,	as	 the	record	suggests,	Hooper	

no	 longer	 is	 an	 owner	 of	 the	 mortgaged	 properties.	 	 At	 the	 motion	 hearing,	 however,	 the	 Bank	

acknowledged	that	if	the	court	ruled	in	favor	of	Mackenzie,	the	judgment	would	also	run	in	favor	of	

Hooper.		The	court’s	order	of	dismissal	disposed	of	all	claims	asserted	in	 the	complaint,	including	

the	claim	against	Hooper,	and	it	therefore	operates	as	a	final	judgment.		See	M.R.	Civ.	P.	54.
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[¶8]	 	 The	 Bank	 argues	 that	 the	 court	 erred	 by	 granting	 any relief	 to	

Mackenzie,	 including	 a	 dismissal	 of	 the	 complaint,	 because Mackenzie’s	

summary	judgment	 submissions	 did	 not	 satisfy	 the	evidentiary	 standards	 of	

Rule	56(e)	and	because, in	any	event, the	notices	of	default	and	right	to	cure	

satisfied	the	requirements	of	section	6111.		The	Bank,	however,	did	not	file	a	

cross-appeal.		 “A	cross-appeal	is	essential	if	a	party	other	 than	 the	appellant	

wishes	 to	raise	an	issue	and	modify	a	judgment	in	a	manner	 that	is	different	

from	 the	 change	 in	 the	 judgment	 sought	 by	 the	 appellant.”	 	 Alexander,	

Maine Appellate	Practice §	2.7(a)	at	39 (4th	ed.	2013);	see	also	Costa	v.	Vogel,	

2001	 ME	 131,	 ¶	 1	 n.1,	 777	 A.2d	 827.	 	 Because	 the	 Bank failed to	 file	 a	

cross-appeal,	 it	 has	 forfeited	 any	 opportunity	 to	 argue	 on	 appeal	 that	 the	

court’s	 order	 should	 be	 vacated	 and	 the	 case	 remanded	 for	 trial.	 The	 only	

remaining	 question	 therefore	 is	 whether, when	 the	 court	 dismissed	 the	

complaint,	 it	 committed	 error	 by	 stating	 that	 the	 dismissal	 was	 without	

prejudice	 and	 explicitly	 providing	 that	 the	 Bank	 could	 send	 a	 new	 notice	 of	

default	and	right	to	cure	and	then	file	a	new	complaint	for	foreclosure.

[¶9]	 Although	 Mackenzie	 framed	 her	 motion	 as	 one	 for	 summary	

judgment,	one	of	the	bases	 for	her	motion—and	the	basis	that	ultimately	the	

court	 invoked	 to	 grant	 the	 motion—was	 the sufficiency	 of	 the notices	 of	
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default	 and	 right	 to	 cure sent	 to	 Hooper	 and	 her.	 	 The	 original	 plaintiff,	

Beneficial, had	attached	the	notices to	its	complaint and	incorporated	them	by	

reference,	 and	 so	 the	 notices	 are	 part	 of	 the	 complaint.	 	 See	 Andrews	 v.	

Sheepscot	 Island	 Co.,	 2016	 ME	 68,	 ¶¶	 2,	 8,	 138 A.3d	 1197.	 	 Accordingly,

Mackenzie’s	 motion	 did	 not	 go	 beyond	 the	 complaint	 and	 the	 incorporated

notices,	 and	 in	 effect	 the	 parties	 and	 the	 court	 itself	 treated	 Mackenzie’s	

motion	 as	 a	motion	 to	 dismiss	 pursuant	 to	M.R.	 Civ. P. 12(b)(6),	 which	 tests	

the	legal	sufficiency	of	a	complaint	to	state	a	claim	for	relief.	 Richards	v.	Soucy,	

610	A.2d	268,	270	(Me.	1992).		Although	the	Bank	argues	here,	as	it	did	below,	

that	Mackenzie	did	not	create	a	proper	summary	judgment	record,	 the	Bank	

cannot	be	heard	to	complain	that	the	court	erred	in	considering the	notices	of	

default	and	right	to	cure	that	were attached	to	its	complaint by	Beneficial,	the	

entity	that	assigned	the	underlying	rights	to	the	Bank.

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[¶10]		Because	the	Bank	did	not	file	a	cross-appeal,	we	are	not	called on

to	address	 the	merits	of	 the	court’s	determination	 that	 the	notices	of	default	

and	 right	 to	 cure	 failed	 to	 satisfy	 the	 requirements	 of	 section	 6111.	 	Rather,	

 5 Pursuant	to	M.R.	Civ. P.	12(b),	the	court	may	treat	a	Rule	12(b)(6)	motion	to	dismiss	for	failure	

to	 state	 a	 claim	 as	 a	 motion	 for	 summary	 judgment	 when	 the	 motion	 is	 dependent	 on	 material	

extrinsic	to	the	complaint.		If	it	does	so,	the	court	must allow	the	parties	an	opportunity	to	engage	in	

the	summary	judgment	motion	process	created	in	Rule	56.		Here,	because	 the	parties’	arguments	

were	based	on	the	complaint	and	the	attached	notices, the	parties	and	the	court	did	the	opposite—

they	 treated	 Mackenzie’s	 Rule	 56	 motion	 as	 if	 it	 were	 a	 Rule	 12(b)(6)	 motion.	 	 In	 the	 unique	

circumstances	of	this	case,	we assume	that	this	process	is	permissible,	and	we need	not	and	do	not	

address	whether	the	Rules	actually	allow	this analytical transformation.
7

because	Mackenzie	argues	that	the	disposition	of	her	motion	should	be	on	the	

merits,	we	consider only the	effect	of	the	dismissal.

[¶11]	 When in	a	foreclosure	action	a	court	determines	that a notice	of	

default	and	right	to	cure sent	to	the	mortgagor	is	defective,	that	determination	

reaches	 the	merits	of	 the	claim	 for	 foreclosure.		See	Wells	Fargo	Bank,	N.A.	v.	

Girouard,	 2015	 ME	 116,	 ¶	 9,	 123	 A.3d	 216;	see	 also Tannenbaum,	 2015	 ME	

141,	 ¶	 5,	 126	 A.3d	 734.	 	 In	 Girouard,	 that	 disposition	 was	 in	 the	 form	 of	 a	

summary	judgment.		2015	ME 116,	¶¶	7,	9,	123	A.3d	216.		Here,	 the	court’s	

order	 was	 based	 on	 a	 Rule	 12(b)(6)	 analysis.	 	 A	 dismissal	 pursuant	 to Rule	

12(b)(6)	 nonetheless	 is	 an	 adjudication	 on	 the	 merits,	 and	 it	 “is	 with	

prejudice.”		Potter,	Prescott,	Jamieson	&	Nelson,	P.A.	v. Campbell,	1998	ME	70,	

¶ 9,	 708	 A.2d	 283.	 	 The	 court	 therefore	 erred	 by	 dismissing	 the	 complaint	

without	prejudice	rather	than	with	prejudice.6		See	id.		

 6 In	Wells	Fargo	Bank,	N.A.	v.	Girouard,	we	held	that	when	a	notice	of	right	to	cure	is	defective,	

the	mortgagor	is	entitled	to	a	judgment	on	the	merits.		2015	ME	116,	¶	11,	123	A.3d	216.		The	trial	

court	 in	 Girouard,	 acting	 on	 the	 mortgagor’s	 motion	 for	 summary	 judgment,	 issued	 an	 order	

dismissing	the	complaint	without	prejudice.		Id. ¶	3.		We	vacated	the	order	and	remanded	for	entry	

of	a	summary	judgment	in	favor	of	the	mortgagor.		Id.	¶	11.		Here,	we	amend	the	judgment	so	that	

the	dismissal	of	the	complaint	is	with	prejudice and	therefore	clearly	stands	as	an	adjudication	on	

the	merits,	see	Potter,	Prescott,	Jamieson	&	Nelson,	P.A.	v. Campbell,	1998	ME	70,	¶	9,	708	A.2d	283—

just	as	a	summary	judgment	would.		Although	we	stated	in	Girouard that	when	the	notice	of	right	to	

cure	is	defective,	a	trial	court	errs	by	“characteriz[ing]	the	disposition	of	the	claim	as	a	dismissal,”	

2015	ME	116,	¶	11,	123	A.3d	216,	we	clarify	by	noting	that	a	dismissal	pursuant	to	Rule 12(b)(6)	is

proper	if it	is	apparent	that	the	dismissal is with	prejudice.

Furthermore,	 the	 situation presented here,	 where	 the	 defendant	 seeks	 an	 adjudication on	 the	

merits,	 is distinct	 from an	 instance where	 a	 plaintiff	 seeks	 to	 dismiss	 its own	 claim	 under	 M.R.	
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[¶12]	 	As	 we	 also	 stated	 in	 Girouard,	 however,	 a	 court	 should	 refrain	

from	 addressing	 the	 effect	 that	 an	 adjudication	 on	 the	 merits	 will	 have	 on	

some	future	action:

Consideration	of	this	issue	is	necessarily	speculative	.	.	.	because,	if	

the	issue	arises	at	all,	it	will	be	generated	by	events	that	have	not	

yet	happened	and	at	present	are	entirely	hypothetical.		Therefore,	

we	 do	 not	 address this	 issue,	 leaving	 it	 to	 another	 day	 if	 it	

becomes	an	actual	controversy.

See	2015	ME	116,	¶	10,	123	A.3d	216;	see	also Tannenbaum,	2015	ME	141,	¶	6	

n.3,	126	A.3d	734	(“[T]he	contours	of	any	potential	future [foreclosure] action	

are	 unknowable,	 and	 a	 determination	 as	 to	 whether	 res judicata	 would	 bar

that	 action	 would	 not	 resolve	 a	 concrete,	 certain,	 and	 immediate	 legal	

problem.”	 (quotation	 marks	 omitted)).	 	 Here,	 the	 court	 explained	 that	 it	

dismissed	 the	 complaint	 without	 prejudice	 “so	 that	 [the	 Bank]	 may	 send	

notice	in	compliance	[with]	14	M.R.S.	§ 6111	at	least	thirty[-]five	days	before	

filing	its	complaint	for	foreclosure.”		To	the	extent	that	this	comment	is	seen	as	

a	 determination	 of	 the	 parties’	 rights	 in	 connection	 with	 some	 future	 legal	

proceeding,	the	comment	is	premature.7		Rather,	any	proper	consideration	of	

 Civ. P. 41(a)(2)	due	to	lack	of	standing.		See U.S.	Bank	N.A.	v.	Curit,	2016	ME	17,	¶¶	9-10,	131	A.3d	

903.	 	 In	 that	 instance,	 the	 dismissal	 is without prejudice because	 the	 court	 has	 not	 reached	 the	

merits.		See id. ¶	10.	

7 If,	on	the	other	hand,	such	a comment	is	treated	merely	as	a	neutral	statement	of	the	actions

the	 Bank	 might	 take	 in	 the	 future,	 without	 reaching	 the	 question	 of	 whether	 those	 actions	 are	

legally	proper,	then	the	comment	is	not	an	advisory	opinion.	 Because	the	court’s	comment can	be	
9

the	 parties’	 rights—including	 the	 right	 of	 the	 Bank	 to	 commence	 a	 new	

foreclosure	 action—must	 be	 deferred	 to	 “another	 day.” Id.; see also Clark	 v.	

Hancock	Cty.	Comm’rs,	2014	ME	33,	¶	12,	87	A.3d	712	(stating	that when	there	

is	 no	 pending	 action, a	 court’s adjudication	 of	 the	 issues	 that	 might	 be	

presented	there	“would	result	in	an	improper	advisory	opinion.”).		That	future	

occasion—if	there	is	one—is	when	it	will	be	proper	for	the	court	to	adjudicate	

any	 claims	 that	 the parties	 assert,	 based	 on	 an	 actual	 pending	 controversy,	

and	not	on	speculative	and	hypothetical facts.

[¶13]	 	We	 therefore	 affirm	 the	 dismissal	 of	 the	 complaint	 but	 remand	

with	instructions	to	correct	the	order	so	that	it	provides	 for	a	dismissal	with	

prejudice	and	leaves	for	any	future	proceeding	a	determination	of	what	effect,	

if	any,	the	dismissal	with	prejudice in	this	action will	have	on	that	proceeding.8

The	entry	is:

 read	in	 the	broader	 terms	we	have	described	in	 the	 text,	however,	we remand	 the	matter	 for	 the	

trial	court	to	revise	the	terms	of	its	order.

8 In	her	brief,	Mackenzie	asks	us	to	remand	the	case	with	instructions	that	the	trial	court	direct	

the	 Bank	 to	 discharge	 the	mortgage.	 	Mackenzie	 did	 not	 request	 this	 relief	in	 the	trial	 court	 and	

therefore	has	not	preserved	this	claim	 for	appeal.		See	Warren	Constr.	Group,	LLC	v.	Reis,	2016	ME	

11,	¶¶	9-10,	130 A.3d 969.		
10

Order	 of	 dismissal	 affirmed.	 	 Remanded	 for	

correction	 of	 the	 order	 as	 set	 forth	 in	 this	

opinion.

On	the	briefs:

L.	 Clinton	 Boothby,	 Esq.,	 Boothby	 Perry,	 LLC,	 Turner,	 for	

appellant	Bevin	L.	(Hooper)	Mackenzie

Leonard	 F.	 Morley,	 Jr.,	 Esq.,	 William	 B.	 Jordon,	 Esq.,	 and	

Corey	 S.	 Hadley,	 Esq.,	 Shapiro	 &	 Morley,	 LLC,	 South	

Portland,	 for	 appellee U.S.	 Bank	 Trust,	 N.A.,	 as	 Trustee	 for	

LSF8	Master	Participation	Trust

Lewiston	District	Court	docket	number	RE-2014-76

FOR	CLERK	REFERENCE	ONLY