MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	42

Docket: And-18-313

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.	Needham1 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.
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a	mortgage	on	his	real	property	situated	in	Auburn.		Needham	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	Trust2—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	plaintiff	because	it	had	transferred	

the	 mortgage	 and	 note	 by	 assignment	 to	Wilmington,	 as	 trustee	 for	 Hilldale	

Trust,	in	October	2017.		The	motion	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	agreed	that	the	only	issue	to	be	decided	by	the

court	was	whether	14	M.R.S.	§	6111(1) requires	a	mortgagee itself—and	not	its	

loan	 servicer acting	 as	 its	 agent—to	 send	 the	 notice	 of	 the	 right	 to	 cure.	

Resolution	 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.”		
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presenting	 their	 arguments	 at	 trial,	 the	 parties	 agreed	 to	 submit	 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	 that	 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	exception	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	 rather	 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.		Judgment	will	be	entered	for	Defendants.	

[¶6]		Wilmington	timely	appealed.		M.R.	App.	P.	2B(c)(1).			
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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	the	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,	981 (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.”		Restatement(Second)	of Agency

§ 17 (Am.	Law Inst. 1958);	see	also Restatement (Third)	of Agency § 3.04	cmt. c

(Am.	Law Inst. 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	 Restatement (Second)	of Contracts § 318(1)	 (Am.	 Law	Inst.	 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.”).	
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[¶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.	

[¶10]		The	answer	to	the	first	question	is	implicit	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	entirely	questions	of	law.		We	address	the	other	two	questions	in	turn.

B. Agency	and	the	Mortgage	Contract

[¶11]	 	 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	by	
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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	and	

Applicable	 Law.”	 	 Clearly,	 the	 mortgage	 contemplates	 that	 the	

Lender	and	the	Loan	Servicer	are	not	the	same	entity.

(alterations	in	original)	(citations	omitted).			

[¶12]	 When	“the	language	of	a	contract	is	unambiguous,	we	review	that	

contract	de	novo	as	a	question	of	law.”		Williams	v.	Williams,	2017	ME	94,	¶	9,	

161	A.3d	710.		While	the	court	was	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	 require	personal	performance	by	 the	mortgagee	

when	giving notice,	and	it	is	not a contractual	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	 exercise	 of	 individual	 skill	 and	

judgment	.	.	.	can	be	performed	only	by	the	person	named.”).		

[¶13]		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.	 	 We therefore conclude	 that	 the	

mortgage	contract	does	not	prohibit	the	mortgagee from	delegating	to	its	agent	

loan	servicer	the	mortgagee’s duty	to	send	the notice	of	the	right	to	cure.
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C. Agency	and	Section	6111

[¶14]		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	determined	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.			

[¶15]		“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,	courts	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.		

[¶16]	 	When	 analyzing	 the	interplay	 between	 section	 6111(1)	 and	the	

common	 law	 of 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	 unambiguous	 language,	 and	 that	 a	

statute	in	derogation	of	it	will	not	effect	a	change	thereof	beyond	that	clearly	
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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	interpretation	of	section	6111(1)	is	the	directive	from	the	

Legislature	 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).		

[¶17]	 	 Although	 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	Legislature	intended	to	

abrogate	the	long-established	principles	of	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)]	ignores	well	established	

agency	principles	without	any	indication	that	the	Maine	Legislature	intended	

this	 result.”).	 	 Nor	 does the	 plain	 meaning	 of	 the	 statute	 suggest	 that	 the	
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Legislature intended	to	depart	from	its general	rule	of	statutory	construction	

that	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.		

[¶18]		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	mortgagee	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	behalf	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

[¶19]	 	 Because	 neither	 the	 mortgage	 contract	 nor	 section	 6111(1)	

prohibited	the	mortgagee	from	delegating	to	an	agent	loan	servicer	its	duty	to	
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give	a	notice	of	the	right	to	cure	to	Needham,	we	vacate	the	court’s	decision	and	

remand	the	matter	for	entry	of	judgment	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),	Bradley	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,	 for	 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

FOR	CLERK	REFERENCE	ONLY