MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 42 Docket: And

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- 313 Argued : March	4,	2019 Decided: March	14,	2019 Panel: ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY , JJ.

WILMINGTON	SAVINGS	FUND	SOCIETY,	FSB

v. MATTHEW	J.	NEEDHAM	et	al.

PER	CURIAM [¶1] Wilmington	Savings	Fund	Society,	FSB , d / b / a Christiana	Trust,	not individually	but	as	Trustee	for	Hilldale	Trust, appeals	from a	judgment	in	favor of	Matthew	J.	Needham 1 entered	in	the	Superior	Court	(Androscoggin	County, MG	Kennedy,	J. )	after	a	bench	trial	on	Wilmington’s	foreclosure	complaint. For the	reasons	discussed	below,	we	vacate	the	judgment	and	remand the	matter for entry	of	judgment	for	Wilmington

. I.		CASE	HISTORY [¶ 2 ]	 	 The	 following	 facts	 are	 undisputed.	 	 In	 August	 2005,	 Needham signed	a	promissory	note	in	favor	of	EquiFirst	Corporation	that	was	secured	by

1 In	addition	to	Needham,	Nicole	L.	Leighton	is	a	named	defendant	in	this	matter.		She	has	not participated	 in	 this	 appeal.	 	 For	 the	 sake	 of	 clarity,	 Needham	 will	 be	 referred	 to	 individually throughout	this	opinion.2 a	mortgage	on his	real	property	situated	in	Auburn.		Needha m	defaulted	on	that loan	 in	 August	 2014	 when	 he	 stopped	 making	 the	 required	 payments.	 	 In September	2016,	loan	servicer	BSI	Financial	Services	sent	Needham	a	notice	of the	right	to	cure	on	behalf	of	Ventures	Trust 2

— the	then

- holder	of	the note and mortgage by	virtue	of	assignment

— as	required	by 14	M.R.S.	§	6111 (1) (2018)

. Ventures	Trust	thereafter	filed	a	foreclosure	complaint	in	January	2017. [¶ 3 ]	 	 In	 December	 2017,	 Ventures	 Trust	 filed	 a	 motion	 seeking	 to substitute	Wilmington	Savings	Fund,	FSB , as	plai ntiff	because	it	had	transferred the	 mortgage	 and	 note	 by	 assignment	 to	Wilmington,	 as	 trustee	 for	 Hilldale Trust,	in	October	2017.		The	mo tion	was	granted	in	January	2018

. [¶ 4 ]		A	short	bench	 trial	was	held	in	April	2018,	after	which	Needham stipulated that	 Wilmington’s	 complaint	 and	 filings	 were	 proper,	 its	 various exhibits	were	admissible,	and	he	had	in	 fact	defaulted	under	the	terms	of	the note	and	mortgage.		The	parties	agree d	that	the	only	issue	to	be	decided	by	the court	was	whether	14	M.R.S.	§	61 11 (1) requires	a	mortgagee itself

— and	not its loan	 servicer acting	 as	 its	 agent

— to	 send	 the	 notice	 of	 the	 right	 to	 cure

. R esolution	 of	 that	 question	 would	 be	 dispositive	 of	 the	 case.	 	 In	 lieu	 of

2 The	 complete	 designation	 of	 Ventures Trust	is	 “Ventures	 Trust	 2013

- I

- H

- R	 by	MCM	 Capital Partners,	LLC,	its	trustee.”3 presenting	 their	 arguments	 at	 trial,	 the	 parties	 agreed	 to	 s ubmit	 written arguments. [¶ 5 ] The	court	entered	judgment	for	Needham	on	July 10 ,	2018.		In	its judgment, the	court explained: The	clearest	guidance	available	to	this	[c]ourt	in	deciding	this issue	 is	 the	 oft

- repeated	 mandate	 that	 a	 plaintiff	 seeking	 a judgment	 of	 foreclosure	 must	 strictly	 comply	 with	 statutory requirements. See , e.g. ,	[ Bank	of	Am. ,	N.A. v. ] Greenleaf ,	2014	ME	89, ¶ 18,	96	A.3d	700;	[ Chase	Home	Fin

. LLC v. ] Higgins ,	2009 ME 136, ¶	11,	985	 A.2d	508; Camden	Nat’l	Bank	v.	Peterson ,	2008	ME 85, ¶ 21,	 948	 A.2d	 1251.	 	 Section	 6111	 plainly	 requires	 notice	 to	 be “given	 by	 the	 mortgagee.”	 	 14	 M.R.S.A. § 6111(1).	 	 The	 term “mortgage	 servicer”	 appears	 elsewhere	 in	 section	 6111, e.g. , id

. § 6111(1

- A)(D),	 (E),	 indicating	 the	 Legislature	 recognizes	 th at	 a servicer	is	a	distinct	entity	from	a	mortgagee.		The	Legislature	has not	 designated	 loan	 servicers	 as	 entities	 that	 can	 send	 notice	 to mortgagors	in	satisfaction	of	section	6111. Absent	any	indication	from	the	Law	Court	or	the	Legislature that	an	ex ception	may	be	made	when	a	loan	servicer	sends	notice on	 behalf	 of	 a	 mortgagee,	 this	 [c]ourt	 finds,	 under	 a	 strict interpretation	 of	 the	 statute,	 that	 notice	 must	 be	 sent	 by	 the mortgagee.	 	 In	 this	 case,	 because	 notice	 was	 not	 sent	 by	 the mortgagee,	 but	 ra ther	 by	 the	 loan	 servicer,	 the	 notice	 was insufficient	 to	 satisfy	 the	 requirements	 of	 section	 6111.	 	 Thus, Plaintiff	has	not	satisfied	its	burden	to provide	evidence	of	each	of the	 elements	 of	 proof	 necessary	 to support	 a	 judgment	 for foreclosure.		Judgmen t	will	be	entered	for	Defendants. [¶ 6 ] Wilmington	timely	appealed.		M.R.	App.	P.	2B(c)(1).4 II. LEGAL	ANALYSIS [¶ 7 ] Wilmington	argues	that	the	court’s	judgment	ignores the common law	principles	of	agency,	as	well	as	the	plain	language	and	legislative	purpose of	section	6111.
A. Agency	in	Common	Law [¶ 8 ] “Agency	 is	 the	 fiduciary	 relationship	 which	 results	 from	 the manifestation	of	consent	by	one	person	 to	another	that	th e	other	shall	act	on his [or	her] behalf	and	subject	to	his [or	her] control, and	consent	by	the	other

so	 to act.” Libby v.	Concord	Gen

. Mut.	 Ins.	 Co. ,	452	A.2d	979,	98 1 (Me.	1982)

. Generally,	“[a]	person	.	.	.	subject	to	a	duty [] to	perform	an	act	.	.	.	can	properly appoint	an	agent	to	perform	the	act	.	.	.	unless	public	policy	or	the	agreement with	another	requires	personal	performance.” R estatement (S econd ) of A gency § 17 ( Am .	L aw I nst

. 1958) ; see	also R estatement (T hird ) of A gency § 3.04	cmt. c ( A m .	L aw I nst

. 2006) (“A	person	may	delegate	performance	of	an	act	if	its	legal consequences	 for	 that	 person	 are	 the	 same	 whether	 the	 act	 is	 performed personally	or	by	another.”); Stenzel v.	Dell,	Inc .,	2005	ME	37,	¶	37,	870	A.2d	133 (quoting	 R estatement (S econd ) of C ontracts § 318(1)	 (A m .	 L aw I nst .	 1981)) (“An	 obligor	 can	 properly	 delegate	 the	 performance	 of	 his	 duty	 to	 another
unless the delegation	is	contrary	to	public	policy	or	the	terms	of	his	promise.”).5 [¶ 9 ]	 	 With	 that background,	 this	 appeal presents	 three	 questions: (1) whether	the	loan	servicer,	BSI,	was	acting	as	an	agent	of	the	mortgagee	at the	 time	it	 sent	 the	 notice	 of	 the	 right	 to	 cure	 to	Needham;	 (2)	whether	 the mortgage	 contract	 requires	 personal	 performance	 by the	 mortgagee	 when sending	such	a	notice;	and	(3)	whether	section	6111	abrogates	the	common	law so	 that,	 regardless	 of	 the	 existence	 of	 an	 agency	 relationship,	 the	mortgagee itself must	send	the	notice. [¶1 0 ] The	answer	to	the	first	question	is	implici t	in	the narrow scope of the	issue	presented	to	the	trial	court	by	agreement	of	the	parties .		The parties asked	the	court	to	determine whether a	loan	servicer	may	give a notice	of	the right	to	cure	on	behalf	of a mortgagee	pursuant	to	section	6111(1),	but

— as	the parties	 confirmed	 at	 oral	 argument

— did	 not	 dispute that	 BSI	 was	 a	 loan servicer	acting	on	behalf	of	the	mortgagee	in	this	case .		Therefore, by definition , BSI	was	acting	as	the	mortgagee’s	agent. Thus,	the	dispositive	issues	presented
here	are	enti rely	questions	of	law. We	address	the	other	two	questions	in	turn.
B. Agency	and	the	Mortgage	Contract [¶1 1 ]	 	 The	 court	made	 the	 following	 supported	 findings	 regarding	 the mortgage	contract: While	 not	 dispositive	 here,	 the	 mortgage	 contract	 in	 this	 case similarly	requires	notice	of	default	and	right	to	cure	to	be	sent	by6 the	“Lender.”		The	mortgage’s	definition	of	“Lender”	includes	“any Person	 who	 takes	 ownership	 of	 the	 Note	 and	 this	 Security Instrument.”		“Loan	Servicer”	is	separately	defined	as	“[t]he	entity that	 collects	 .	 .	 .	 Periodic	 Payments	 due	 under	 the	 Note	 and	 this Security	 Instrument	 and	 also	 performs	 other	 mortgage	 loan servicing	obligations	under	the	Note,	this	Security	Agreement	a nd Applicable	 Law.”	 	 Clearly,	 the	 mortgage	 contemplates	 that	 the Lender	and	the	Loan	Servicer	are	not	the	same	entity. (alterations	in	original)	(citations	omitted). [¶1 2 ] When	“the	language	of	a	contract	is	unambiguous,	we	review	that
contract	de	n ovo	as	a	question	of	law.” Williams	v.	Williams ,	2017	ME	94,	¶	9, 161	A.3d	710 .		While	the	court	wa s	correct	that	the	lender	and	the	loan	servicer

are defined	 as distinct	 entities	in	 the	mortgage	 contract, the	language	 of	 the mortgage	contract	does	 not	 re quire	personal	performance	by	 the	mortgagee
when giving notice,	and	it	is	not a contract ual	duty that	is	deemed	nondelegable by	public	policy. Cf. Pinkham	v.	Libbey ,	93 Me.	575,	577,	45	A.	823	(1900) (“[A] contract	 for	 personal	 services	 involving	 the	 exer cise	 of	 individual	 skill	 and judgment	.	.	.	can	be	performed	only	by	the	person	name d .”). [¶1 3 ] Looking	to	the	terms	of	the	mortgage	contract, Needham does	not suggest any	difference	in	legal	effect when	an	otherwise	valid	notice	is	sent	by a	 lender’s	 agent	 and	 not	 the	 lender	 itself. W e therefore conclude	 that	 the mortgage	contract	does	not	prohibit	the mortgagee from	delegatin g	to	its	agent loan	servicer	the	mortgagee’s duty	to	send	the notice	of	t he	right	to	cure.7 C. Agency	and	Section	6111 [¶1 4 ]		Title	14	M.R.S.	 §	6111(1) prohibits	enforcement	 of	a	 residential mortgage	until	thirty

- five	days	after written	notice	of	the	right	to	cure	“is	given by	the	mortgagee	to	the	mortgagor.” The	court	determi ned	that because	other subsections	 of	 the	 statute, see	 id .	 § 6111(1

- A)(D)

- (E),	 differentiate	 between mortgagees	 and	 loan	 servicers,	 the	 Legislature	 did	 not	 intend	 to	 designate servicers	as	entities	that	can	send	notice	to	mortgagors. [¶1 5 ] “We interpret	 the	meaning	of	a	statute	de	novo	by	analyzing	its plain	language

.	.	. .” Bank	of	Am. ,	N.A. v.	Cloutier ,	2013	ME	17,	¶	12,	61	A.3d 1242

. “A	 plain	 language	 interpretation	 should	 not	 be	 confused	 with	 a	 literal interpretation	.	.

. . Rather,	cour ts	are	guided	by	a	host	of	principles	intended	to assist	in	 determining	 the	 meaning	 and	intent	 of	 a	 provision	 even	within	 the confines	of	a	plain	language	analysis.” Dickau	v.	Vt. Mut.	Ins.	Co. ,	2014	ME	158, ¶	20,	107 A.3d	621

. [¶1 6 ] W hen	 analyzing	 the	interplay	 between	 section	 6111(1)	 and the
common	 law	 o f agency we	 look	 to “the	 well

- established	 rule	 of	 statutory construction	that	the	common	law	is	not	to	be	changed	by	doubtful	implication [or] be	 overturned	 except	 by	 clear	 and	 unambig uous	 language,	 and	 that	 a
statute	i n	derogation	of	it	will	not	effect	a	change	thereof	beyond	that	clearly8 indicated	either	by	express	terms	or	by	necessary	implication.” Batchelder	v. Realty	 Res.	 Hosp

. ,	 LLC ,	 2007	 ME	 17,	 ¶	 23,	 914	 A.2d	 1116 ; see	 also Maietta Constr., Inc.	 v.	 Wainwright ,	 2004	 ME	 53,	 ¶	 10,	 847	 A.2d	 1169 (“Generally, Legislatures	 are	 deemed	 to	 draft	 legislation	 against	 the	 backdrop	 of the common	law,	 and	 do	 not	 displace	it	without	 directly	 addressing	 the	issue.”). Also	informing	our	inte rpretation	of	section	6111(1)	is	the	directive	from	the
L egislature	 that,	 “unless	 such	 construction	 is	 inconsistent	 with	 the	 plain meaning	of	the	enactment	.	.	.	.	[w]hen	an	act	that	may	be	lawfully	done	by an agent	is	done	by one	authorized	to	do	it,	his principal	may	be	regarded	as	having
done	it.” 1 M.R.S.	§ 71 (1) (2018)

. [¶1 7 ] A lthough	 section	 6111	 distinguishes	 between	 mortgagees, mortgage	servicers,	and	agents	of	mortgagees	in	its	various	subsections,	there is	no	clear	statement	or	necessary	implication	that	the L egislature	intended	to abrogate	the	long

- established	principles	o f	agency	by	simply	stating	that	notice

“ is given	by	the	mortgagee.” Accord U.S.	Bank	Trust,	N.A.	v.	Jones ,	330	F.	Supp. 3d	 530,	 536	 (D.	 Me.	 2018) , appeal	 filed No.	 18

- 1719	 (1st Cir.	 Aug. 1, 2018) (“[S]uch	a	narrow	interpretation	[of	section	6111(1)]	igno res	well	established agency	principles	without	any	indication	that	the	Maine	Legislature	intended this	 result.”). Nor does the	 plain	 meaning	 of	 the	 statute suggest that the9 Legislature intended	to	depart	from	its general	rule	of	statutory	construction
tha t	a	principal	is	legally	regarded	as	having	done	an	act	that	was	done	on	its behalf	by	its	agent acting	within	the	scope	of	its authority. [¶1 8 ] This interpretation	is	consistent	with	the	purpose	of	the	statute, which	is	to	prevent	the	unnecessary	loss	of	a	mortgagor’s	home,	and	does	not alter	 our	 mandate	 that	 lenders	 must	 strictly	 comply	 with its requirements. Bank of Am.,	N.A.	v.	Greenleaf ,	2014	ME 89,	¶	31,	96	A.3d	700 ; Sinclair v. Sinclair , 654 A.2d	438,	440	(Me. 1995)

. Moreover, Needham	does	not

— and	seemingly

cannot

— suggest	 any	 legal	 or	 practical	 difference	 between	 an	 agent	 loan servicer	giving	the	notice	on	behalf	of	the	mortgagee	and	the	mortga gee	itself giving	the	notice. On	the	other	hand,	his	suggested	interpretation

— which	the trial	court	adopted

— is	so	narrow	that it	would	prohibit even an	attorney	from giving	a	notice	of	the	right	to	cure	on	be half	of	a mortgagee	client. We cannot say	that the	Legislature	intended	such	a	constricted	reading

. Accordingly,	we
conclude	that a	mortgagee	may	delegate	to	an	agent

— such	as	a	loan	servicer

— its	duty	to	provide	a	notice	of	the	right	to	cure	pursuant	to	section	6111(1).
D. Conclusion [¶1 9 ] Because	 neither	 the	 mortgage	 contract	 nor	 section	 6111(1) prohibited	the	mortgagee	from	delegating	to	an	agent	loan	servicer	its	duty	to10 give	a	notice	of	the	right	to	cure	to	Needham , we	vacate	the	court’s	decision	and remand	the	matter	for entry	of	judgme nt	for	Wilmington. The	entry	is: Judgment vacated

. Remanded	 for	 further proceedings	consistent	with	this	opinion.

Catherine	 R.	 Connors,	 Esq.,	 and	 John	 J.	 Aromando,	 Esq.,	 Pierce	 Atwood	 LLP, Portland,	and	Nicholas	A.	Danella, Esq. (orally), B radley	Arant	Boult	Cummings LLP,	 Birmingham,	 Alabama,	 for	 appellant	 Wilmington	 Savings	 Fund	 Society , FSB John	 D.	 Clifford , IV,	 Esq. (orally) ,	 Clifford	 &	 Golden,	 P.A.,	 Lisbon	 Falls,	 for appellee	Matthew	J.	Needham Ryan	 P.	 Dumais,	 Esq.,	 Eaton	 Peabody,	 Brunswick,	 f or	 amicus	 curiae	 Maine Bankers	Association Brett	R.	Leland,	Esq.,	and	 Jonathan	M.	Dunitz,	Esq.,	Verrill	Dana,	Portland,	 for amicus	curiae	Maine	Association	of	Mortgage	Professionals

Androscoggin	County	Superior	Court	docket	number	RE

- 2017

- 3 F OR C LERK R EFERENCE O NLY