MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 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	BACON1

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	granting	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	 therefore could not	 file	 a	

1	 	 The	 Januszes	 filed	 an	 amended	 complaint	 purporting	 to	 add	 Maine	 Revenue	 Services as	 a	

defendant	in	this	case.		Maine	Revenue	Services	accepted	service	of	the	summons	and	complaint.		The	

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	Services has	not	been	joined	as	a	party	to	this	

action.		If	the	Januszes	want to	add	Maine	Revenue	Services as	a	party,	they	should	take appropriate	

action	on	remand.	
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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	 Crawford.	 	 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	 stated	 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	 parties	

would	participate	in a	second	mediation	on	April	10,	2020.		However,	the	report

continued,	if	 the	 Januszes’	attorney	notified	 the	court	 that	an	inspection	and	
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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	emergency	order	postponing	

indefinitely most	in-person	events	in	Maine	 courts	 because	 of	 the	 COVID-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	Calais	on	November	16,	2021.		
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[¶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	that	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	there	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.		As	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.
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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	material	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.	Civ.	P.	56(h)(4).		The	moving	

party	has	the	burden	to	properly	put	the	“material	facts	before	the	court,	or	the	

motion	[cannot] 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	must	
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be	 established	 by	 the	 movant	 is	 completion	 of	 mediation.	 	 See	

14 M.R.S. § 6321-A(9),	(13)	(2022).		

[¶10]	 	 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,	 for	 foreclosure	 complaints	 “scheduled	 for	

mediation	in	accordance	with	[section	6321-A],	a	final	judgment	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	agreements	

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	agreements	 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	

certified	 proof	 of	 ownership	 of	 the	 mortgage	 note	 and	 produced	 evidence	 of	 the	

mortgage	note,	the	mortgage,	and	all	assignments	and	endorsements	of	the	mortgage	
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[¶11]	 	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	failed	to	achieve	a	resolution.		

[¶12]	 And,	indeed,	the	court	record	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,”	

Gabay,	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)	Advisory	Note – August	

2009.	 	 Rule	 56(j)	 specifically	 requires that	 the	 court	 “determin[e]”	 that

note	and	 the	mortgage;	and	(iii)	mediation,	when	required,	has	been	completed	or	

has	been	waived	or	the	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	pursuant	 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.
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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	mediation	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	become	

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	court	record	 that	mediation	had	not	

been	completed,	and	the	entry	of	summary	judgment	was	error.

[¶13]	 	 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	the	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.		
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establish	that	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	Francis	

and	Maryann	Janusz

Calais	District	Court	docket	number	RE-2020-01

FOR	CLERK	REFERENCE	ONLY