MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 2 ME 57 Docket: Was

- 22

- 75 Argued : October	6,	2022 Decided: November	17,	2022 Panel: STANFILL ,	C.J.,	and MEAD, JABAR , HORTON , CONNORS ,	and	LAWRENCE , JJ.
FRANCIS	JANUSZ	et	al.

v. ERIC	BACON 1

STANFILL , C. J. [¶1]		Eric	Bacon	appeals	from	a	judgment	of	foreclosure	and	order	of	sale entered	 by	 the	 District	 Court	 (Calais, Budd,	 J. )	 in	 favor	 of	 Francis	 and Maryann Janusz	on	the	Januszes’	complaint	for	residential	foreclosure.		Bacon argues	the	court	erred	in	grant ing	summary	judgment	to	the	Januszes	because (1)	they	failed	to	establish	each statutory	requirement for summary	judgment of foreclosure as	outlined	in M.R.	Civ.	P.	56(j) ,	and	(2)	he was	not	served	with the	 Januszes’	 motion	 for	 summary	 judgment	 and	 therefo re could not file	 a

1 T he	 Januszes	 filed	 an	 amended	 complaint	 purporting	 to	 add	 Maine	 Revenue	 Service s as	 a defendant	in	this	case. Maine	Rev en ue	Services	accepted	service	of	the	summons	and	complaint.		T h e Januszes filed	 the	amended	 complaint after	Bacon	 had	 filed	 his	answer	 to	 the	 original	 complaint, however, and they failed	to seek	leave	of	court	or	Bacon’s written	consent to	amend	the	complaint , as	required	by M.R.	Civ.	P.	15(a).		Thus,	Maine	Revenue	Service s ha s	not been	joined	as a	party	to	this action.		If	the	Januszes want to	add	Maine	Revenue	Service s as	a	party,	they shou ld	take appropriate action	on	remand.2 response	 to	it

. We	 agree	 that	 there	is	 a	genuine	issue	 of	material	 fact as	 to whether	 the	 Januszes proved one	of	 the statutory	 requirements	 of	summary judgment	 of	 foreclosure,	 namely, that foreclosure	mediation was	 completed. Accordingly,	we vacate the	summary	judgment.
I. BACKGROUND [¶ 2 ]		The	Januszes	own	a	promissory	note	and	mortgage	on	Bacon’s	real property	 in	 Cra wford.	 	 In	 October 2019	 the	 Januszes	 sent	 Bacon	 a	 notice	 of default	and	right	to	cure	regarding	his	default	on	the	note.		Two	months	later, the	Januszes	served	Bacon	with	a	summons	and	complaint , which they filed in the	District	Court	in	Calais on	 January 3,	2020.		Representing	himself,	Bacon filed	a	timely	answer	and	request	for	mediation.		The	case	was	then	transferred
from	 Calais	 to	 Ellsworth for	 the	 parties	 to	 participate	 in the	 Foreclosure Division	Program	(FDP). [¶ 3 ]	 	 The	 parties’	 first	 and	 only	 FDP mediation	 was	 held	 on	 March	 6, 2020.	 	 The	 mediator’s	 report state d	 that	 the	 parties	 agreed	 to	 continue mediation	and	work	 together	 “to	 obtain	 [an]	inspection	and	appraisal	 of	 the property	 in	 hope	 of	 resolving	 the	 issues.” It	 further stated	 that	 the	 parti es would participate	in a	second	mediation	on	April	10,	2020.		However, the	report continued,	if	 the	 Januszes’	attorney	notified	 the	court	 that	an	inspection	and3 appraisal	had	not	been	completed	by	that	date,	mediation	would	be	cancelled, and	the	report of March	6,	2020 , would	become	final. [¶ 4 ]	 	On	March	6,	2020,	 the	court	issued the scheduling	notice	 for	 the April	2020	mediation .		A	week later,	we	issued	an e mergency o rder postponing indefinitely most	in

- person	events	in	Maine	 courts	 because	 of	 the	 COVI D

- 19 pandemic. See Emergency	Order	and	Notice	from	the	Maine	Supreme	Judicial
Court Courthouse	Safety	and	Coronavirus (COVID

- 19) at	1

- 2 (Mar.	13,	2020). In	 accordance	 with	 that	 emergency	 order,	 the	 court	 continued	 the	 second mediation	to	an	undetermined	date	after	May	1,	2020.		The continuation notice to	 the	 parties	 instructed:	 “If	 your	 case	 has	 been	 scheduled	 for	 a	 hearing	 or
conference ,	do	not	come	to	the	court	or	call	the	court.

. . .	You	will	be	notified	by mail	as	soon	as	your	case	can	be	re

- scheduled.” [¶ 5 ]		The	case	was	transferred	back	to	Calais.		Thereafter,	mediation	was not	rescheduled	for	some	time,	presumably	due	to	the COVID

- 19	pandemic	and scheduling	priorities.		Ultimately,	on	September 23,	2021,	the	case	was	again
transferred	 to	 Ellsworth	 for	 a	 second	 FDP	 mediation.	 	 No	 mediation	 was scheduled,	and	without	explanation	in	the	record,	the	case	was	transferred	back
to	Ca lais	on	November	16,	2021.4 [¶ 6 ]		On	November	22,	2021,	 the	 Januszes	 filed	a	motion	 for	summary judgment	 with	 supporting	 affidavits.	 	 The	 parties	 agree	 that	 Bacon was	 not served	with the	motion,	and	 therefore he did	 not	 file	a	 response.	 	The	 court granted the	Januszes’	motion	and entered a	judgment	of	foreclosure and	order
of	sale

. 2 Bacon	timely	appealed. 14	M.R.S.	§ 1901	(2022);	M.R.	App.	P.	2B(c)(1 ).
II. DISCUSSION [¶ 7 ]		Bacon	first	challenges	the	court ’ s	entry	of	summary	judgment	on	the ground	tha t	the	Januszes	did	not	establish	each	of	the statutory	requirements
necessary to	obtain summary	judgment in	a foreclosure action as	outlined	in
M.R. Civ.	P.	56(j).		We	review	the	evidence	in	the	summary	judgment	record	in the	light	most	favorable	to	Bacon to	determine,	de	novo,	whether	there	is	any genuine	 dispute	 of	 material	 fact	 and	 whether	 the	 Januszes	 are	 entitled	 to	 a judgment	as	a	matter	of	law. See M.R.	Civ.	P.	56(c); HSBC	Bank	USA,	N.A.	v.	Gabay ,

2 The	foreclosure	judgment	in	this	case	directed	the	clerk	“to	enter	this	Order	as	a	final	judgment pursuant	 to [M.R.	 Civ.	 P.	 54(b)(1)] ”	 but	 did	 not	 say	 that	 the	 order	 was	 made	 upon	 an	 express determination	that	ther e was no	just	reason	for	delay,	which	is	a	determination	required	to	convert what	would	otherwise	be	an	interlocutory	partial	judgment	into	an	appealable	final	judgment. A s	we have	previously	determined, however, a	foreclosure	judgment	is	a	final	judgment

. See Camden	Nat’l Bank v.	 Peterson ,	 2008	 ME	 85,	 ¶	 14,	 948	 A.2d	 1251	 (concluding that a	 summary	 judgment	 of foreclosure	is	a	final	judgment	absent	any	remaining	claims	or	a	trial	court	finding	that	attorney	fees must	be	fixed	before	appeal). Therefore,	although	the	language	in	this	judgment	would	be	ineffective to	provide	finality,	it	was	surplusage	because	the	foreclosure	judgment	was	a	final	judgment.5 2011	ME	101,	¶	8,	28	A.3d	1158; Beneficial	Me.	Inc. v.	Carter ,	2011	ME	77,	¶	6, 25	A.3d	96. [¶ 8 ]		“We	have	repeatedly	noted	the	importance	of	applying	the	summary judgment	rules	strictly	in	the	context	of	mortgage	foreclosures.” Gabay ,	2011 ME	 101,	 ¶	 9,	 28	 A.3d	 1158. Where,	 as	 here,	 the	 nonmoving	 party	 does	 not submit	an	opposing	statement	of	mate rial	facts,	the	moving	party’s	statement
of	material	facts	is	deemed	admitted if,	and	only	if,	the	moving	party’s	statement is	properly	supported	by	record	references. See Ocean	Cmtys.	Fed.	Credit	Union v.	Roberge ,	2016	ME	118,	¶ 12,	144	A.3d	1178 ; M.R.	C iv.	P.	56(h)(4)

. The	moving party	has	the	burden	to	properly	put	the	“material	facts	before	the	court,	or	the motion	[can not] be	granted,	regardless	of	the	adequacy,	or	inadequacy,	of	the nonmoving	party ’ s	response.” Cach,	LLC	v.	Kulas ,	2011	ME	70,	¶	9, 21	A.3d	1015 (quotation	marks	omitted). [¶ 9 ]	 	 To	 obtain	 a	 summary	judgment	 of	 foreclosure,	 the	moving	 party must	 show	 that	all	 steps	mandated	 by	 statute	 have	 been	 strictly	 performed

. Camden	Nat’l	Bank v.	Peterson ,	2008	ME	85,	¶	21,	948	A.2d	1251; see M.R .	Civ. P.	 56(j). If	 the	 moving	 party	 fails	 to establish	 compliance	 with	 each requirement ,	summary	judgment	is	precluded. See Peterson ,	2008	ME	85, ¶	21 , 948	A.2d	1251

. When	a	case	is	in	the	FDP,	one	statutory	requirement	that	must6 be	 established	 by	 the	 movant	 is	 completion	 of	 mediation. See
14 M.R.S. § 6321

- A(9),	(13)	(2022). [¶1 0 ] When	 requested,	 mediation through	 the	 FDP is	 required in mortgage	foreclosure	actions “on	owner

- occupied	residential	property	with	no more	 than	 4	 units	 that	 is	 the	 primary	 residence	 of	 the	 owner

- occupant.”
Id. § 6321

- A(3),	 (6) .	 	 Moreover,	 f or	 foreclosure	 complaints	 “scheduled	 for mediation	in	accordance	with	[section	6321

- A],	a	final	judgm ent	may	not	issue until	 a	 mediator’s	 report	 has	 been	 completed	 pursuant	 to	 subsection	 13.”
Id. § 6321

- A(9). 3 The	statutory	requirements	for	the	FDP ,	including	mediation, are	implemented	through	M.R.	Civ.	P.	93.		The	court	may	not	enter	a	summary judgment	or	a	default	judgment	of	foreclosure in	a	case	that	is	in	the	FDP absent
a	 determination	 that mediation	 has	 been	 completed .	 	 M.R. Civ. P.	 55( b )( 3 ) , 56(j). 4

3 Among	other	requirements,	the	mediator’s	report	must	“include	a	statement	of	all	agreeme nts reached	at	mediation,	with	sufficient	specificity	to	put	all	parties	on	notice	of	their	obligations	under agreements	reached	at	mediation,	including	but	not	limited	 to	a	description	of	all	documents	 that must	 be	 completed	and	 provided	 pursuant	 to	 the	a greements	 reached	at	mediation	and	 the	 time frame	 during	which	 all	 actions	 are	 required	 to	 be	 taken	 by	 the	 parties.”	 	 14	M.R.S.	 §	 6321

- A(13) (2022).

4 M.R.	Civ.	P.	56(j)	provides: No	summary	judgment	shall	be	entered	in	a	foreclosure	action	filed	pursuant to Title 14,	Chapter 713	of	the	Maine	Revised	Statutes	except	after	review	by	the	court and	 determination	 that	 (i)	 the	 service	 and	 notice	 requirements	 of	 14	 M.R.S. § 6111 and	 these	rules	have	been	strictly	performed;	 (ii)	 the	plaintiff	has	properly certif ied	 proof	 of	 ownership	 of	 the	 mortgage	 note	 and	 produced	 evidence	 of	 the mortgage	note,	the	mortgage,	and	all	assignments	and	endorsements	of	the	mortgage7 [¶1 1 ] Here, the	 case	 entered	 the	 FDP , and	 mediation	 was	 held	 upon Bacon’s	request. Bacon	contends	that	the	Januszes	did	not	prove	that	mediation was	 completed,	 as	 required	 by	 statute. The	 Januszes’	 statement	 of	material facts	provides	that	the	parties	“have	engaged in	court

- sponsored	mediation	as part	of	this	foreclosure	case, but	have	failed	to	achieve	a	resolution	of	the	case.” In	support,	they	cite	only	to	Francis	Janusz’s	affidavit,	which	states	the	same. This	statement	does	not	prove	that	mediation	was completed but simply	that the	parties “engaged	in”	mediation	and	f aile d	to	achieve	a	resolution. [¶1 2 ] And,	indeed,	the	court r ecord	makes	clear that mediation	was not completed. Although	 the	 trial	 court	 “ is	 neither	 required	 nor	 permitted	 to independently	 search	 a	 record	 to	 find	 support	 for	 facts	 offered	 by	 a	 party,”
Gab ay ,	2011	ME	101 , ¶ 8 ,	28	A.3d	1158	 (quotation	marks	omitted) ,	 the	 trial

court has an	independent	obligation	to	ensure	compliance	with	the rules	for	a summary	judgment	of	foreclosure, see M.R.	Civ.	P.	56(j) A dvisory N ote

– August
2009 .	 	 Rule	 56(j)	 s pecifically	 require s that	 the	 court “ determin [e] ”	 that

note	and	 the	mortgage;	and	(iii)	mediation,	when	required,	has	been	completed	or has	been	waived	or	t he	defendant, after	proper	service	and	notice, has	failed	to	appear or	 respond	 and	 has	 been	 defaulted	 or	 is	 subject	 to	 default.	 	 In	 actions	 in	 which mediation	is	mandatory,	has	not	been	waived,	and	the	defendant	has	appeared,	the defendant’s	 opposition	pur suant	 to	Rule	56(c)	 to	a	motion	 for	 summary	judgment shall	not	be	due	any	sooner	than	ten	(10)	days	following	the	filing	of	the	mediator’s report.8 mediation	 has	 been	 completed	 or	 waived.	 	 M.R.	 Civ.	 P.	 56(j). Although the mediator’s	report	was	not	included	in	the	summary	judgment	record,	a	review of	the	report	and	docket	record	makes	clear	that	m ediation	was	not	completed. The	mediator’s	report	states: A	 second	 mediation	 shall	 be	 scheduled	 for	 April	 10,	 2020	 in Ellsworth.		If	[plaintiffs’	attorney]	notifies	court	that	inspection	and appraisal	have	not	been	completed	by	that	date,	this	shall	becom e a	 final	report,	(the	second	mediation	shall	be	cancelled)	and	case shall	return	to	docket. The	report	would have become	final only if	the	Januszes’	attorney had notified
the	 court	 that the inspection	and	appraisal	were	 not	 completed	 by	April	 10,
2020. No	 such	 notification	 appears	 in	 the	 court	 record	 and,	 indeed,	 the Januszes’	 attorney	 conceded	 at	 oral	 argument	 that	 he	 did	 not	 make	 such	 a notification.	 	 The	 second	 mediation	 had	 been	 continued	 by	 the	 court,	 not cancelled.		Thus,	it	is	apparent	 from	 the	co urt	record	 that	mediation	had	not been	completed,	and	the	entry	of	summary	judgment	was	error. [¶1 3 ]	 	 Bacon	 also	 argues	 that	 vacatur	is	 required	 because	 he was	 not served	with the	motion	for	summary	judgment. 5 Because	the	Januszes	failed	to

5 Counsel	for	the	Januszes	notified	the	District	Court	that	the	motion	had	not	been	sent	to	Bacon because	he did	not	have	a	current	mailing	address.		In	fact, a	staff	member	for	t he	same	attorney	had previously	notified	the	court	of	Bacon’s	new	address,	the	same	address	to	which	the	court	sent , and at	which	Bacon	received , a	copy	of	the	foreclosure	judgment.9 establish	tha t	they	were	entitled	to	a	summary	judgment	of	foreclosure	and	we accordingly	vacate	the	judgment,	we	need	not	address	the	consequence	of	the
lack	of	notice	of	the	motion. The	entry	is: Judgment	vacated.		Remanded	for	further proceedings	consistent	with	this	opinion.

Jonathan	E.	Selkowitz,	Esq. (orally) ,	Pine	Tree	Legal	Assistance,	Inc.,	Portland, for	appellant	Eric	Bacon William	N.	Palmer,	Esq. (orally) ,	Gray	&	Palmer,	Bangor,	for	appellees	Fran cis and	Maryann	Janusz

Calais	District	Court	docket	number	RE

- 2020

- 01 F OR C LERK R EFERENCE O NLY