MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2016 ME 132 Docket: Cum

- 15

- 559 Argued : May	3,	2016 Decided: August	16,	2016 Panel: ALEXANDER , MEAD, GORMAN, JABAR , HJELM, and HUMPHREY, JJ.

ESTATE	OF	BARBARA M. FROST
JABAR ,	J. [¶1] Nancy	Gamash	appeals	 from	a	summary	judgment	entered	in	 the Cumberland	 County	 Probate	 Court	 ( Mazziotti,	J. )	 in	 a	 matter	 derivative	 to	 a will	 contest	 that	 she	initiated	 regarding	 the	 estate	 of	 Barbara	M.	 Frost. She contends	 that	 the	 cour t	 erred	 in	 concluding	 that	 Bank of	 America,	 N.A. , (BANA) holds	 a	 valid	 note	 and	 mortgage	 encumbering	 property	 of	 Frost’s

esta te,	 and	 that	 the	 advances	 on	 BANA’s	 mortgage	 are	 valid	 obligations of Frost’s	 estate

. In	 the	 absence	 of	 a	 genuine	 dispute	 of	 material	 fact	 on	 the issue,	we	affirm	the	judgment	entered	in	BANA’s	favor	as	to	the	validity	of	the note	and	mortgage.		Wit h	resp ect	to	the	validity	of	certain mortgage	advances, however,	we	 vacate	 the	judgment	ent ered	in	 favor	 of	BANA and	 remand	 for the	entry	of	a	summary	judgment	in	favor	of	Gamash.2 I. FACTUAL BACKGROUND [¶2 ] “Viewing	 the	 record	 in	 the	 light	 most	 favorable	 to	 t he

non - prevailing	part[y],	 the	summary	judgment	record	contains	 the	 following facts,	which	are	undisputed	unless	otherwise	noted.” Remmes	v.	Mark	Travel Corp. ,	2015	ME	63,	¶	3,	116	A.3d	466	(citation	omitted). [¶3 ]	 	 Frost,	 who	 was	 born	 in	 1933,	 executed a	 will	 in	 March	 2000, naming	her	half

- sister, Gamash, as her	sole	beneficiary. Frost’s	friend, Thomas Blair , began	managing	 ten ants,	 repairs,	and	 renovations	at Frost’s multi

- unit property and	residence in	Old	Orchard	Beach	(the	property) at	some	point	in the	 early	 2000s .	 	 On	 September	 9,	 2005,	 Frost	 executed	 a	 durable	 financial power	of	a ttorney	(the	POA) appointing	Blair as her agent

. [¶4 ]	 	 In	 February	 2007,	 Blair	 contacted	 an	 assisted	 living	 facility	 and paid	a	deposit	to	reserve	the next	available	apartment	for	Frost.		Frost	moved

to the	assisted	living	 facility in	August	 2007

. On	September	 10,	 2007,	 Frost executed	a nother will,	eliminating	Gamash	as	legatee	and	naming	Blair as her primary	beneficiary. Frost	was	admitted	to	the	hosp ital	for spinal surgery	on September	 19,	 2007 , and discharged to	 a	 rehabilitation	 center on September 27,	where	she	remained	until	October	10

.3 [¶5 ] In	September	2007 , Bl air	contacted	Countrywide	Bank and applied for a	 reverse	 mortgage	 on the	 property ,	 u sing	 the	 POA	 to sign	 or	 initial numerous	 documents, including a “ Certificate	 of	 Home	 Equity	 Conversion Mortgage	 Counseling ” and a disclosure explaining	 that	 the	 loan	 could	 be accelerated	 if	 the	 property	 ceased	 to	 be	 the	 borrower’s primary	 residence. Blair a lso completed a	 residenti al	 reverse	mortgage	 application in	 which	 he represented	that	he	was	Frost’s	son	and	that	the	borrower,	Frost,	intended	to occupy	 the	 property	 as	 her	 primary	 residence. Frost	 later	 signed	 the application	 that	 Blair	 had	 compl eted,	 personally	 acknowledging	 that	 “the property	will	be	occupied	as	certified	herein.” [¶6 ]		In	October	2007, Countrywide	issued	a	letter	to	Frost	stating	that it	 had	 approved her	 application	 for	 a	 reverse	 mortgage	 subject	 to	 the satisfaction	 of	 several preconditions,	 including completion	 of	 another counseling	certific ate	without	 the	POA	information and review	and	approval of	 the	 POA	 by	 the	 closing	 agent	 if	 the	 borrower	 planned	 to	 use	 the	 POA	 at closing. Frost	 then	 executed	 a “ Certificate	 of	 Home	 Equity Conversion Mortgage	 Counseling , ” and Countrywide’s closing	 agent,	 Absolute	 Title, reviewed	 and	 approved	 the	 POA	 for	 use at	 closing

. In	 November	 2007 , Countrywide	issued	closing	instructions to	Absolute	Title , directing Absolute4 Title	 to	 postpone	 the	 closing	 if	 it	 “has	 knowledge	 or	 a	 belief	 that	 Borrower owns	and	occupies	another	residence	not	subject	to	this	transaction	and	does not	intend	to	occupy	the	Property.”		Absolute	Title	thereafter	faxed	a	message to	Countrywide,	stating that	“[Frost]	is	currently	in	Rehab.		Not	certain	if	will be	able	to	make	closing.		Son

– Tom	Blair	is	contact.	.	.	. Attached	are	copies	of
Tom [’] s	POA.” [¶7 ]		On	November	7,	2007, a	loan	closing	agent	met	with	Frost	at	her assisted	 living	 facility,	 and Frost signed	 and	 initialed	 each	 page	 of a promissory	note	and	a	deed	of	trust	in	connection	with	a Countrywide	reverse mortgage	 loan	 in	 the	 original	 principal	 amount	 of	 $950,000

. The	 note provided,	 inter	 alia, that “[a]ll	 outstanding	 principal,	 accrued	 i nterest,	 and other	charges”	would	be	immediately	due	and	payable if	the	property	ceased to	be	 the	b orrower’s	principal	residence. During	 the	closing,	Frost	signed	or initialed numerous	 other	 documents,	 including a nother residential	 reverse mortgage	applic ation ,	wherein	 she	affirmed	 that	 she	intended	 to	 occupy	 the property	 as	 her	 primary	 residence ; and a	 reverse	mortgage	loan	 agreement with an attached	 payment plan	and	a	 schedule	 of	 closing	 costs .	 	 The	 closing agent	 completed	 a	 mailing	 affidavit,	 directing that	 future	 correspondence from	Absolute	Title	would	go	to	Blair’s	home address

.5 [¶8 ] On	 the	 closing	 date, $40,000	 was	 advanced	 on	 the	 loan,	 and $128,634	 w as paid	 to	 Saco	 &	 Biddeford	 Savings	 to	 extinguish	 a	 preexisting mortgage	on	 the	property. Between March 2008	and	December	2012,	Frost, or	Blair	as	POA	for	Frost,	submitted	credit	request	forms	to	the	initial	lender, Countrywide,	and	later	to	Countrywide’s	successor,	BANA,	drawing	more	than $250,000	on	the	mortgage. Of	that	amount,	$208,000	was	advanc ed	through Blair’s use	of	the	POA. [¶9 ]	 	 When	 Frost	 died	 in	 December	 2012,	 she	 owned	 the	 property encumbered	by	BANA’s mortgage. 1
II.		PROCEDURAL	HISTORY [¶1 0 ]		After	Frost’s	death,	Gamash initiated	a	will	contest,	asserting	that Frost’s	2007	will	was	a	product	of	Blair’s	undue	influence.		In	conjunction	with that	contest , Gamash	petitioned for	a	declaratory	judgment	that the	note	and mortgage	held	by	BANA	were	invalid	because	 they	were	“cr eated	 through”	a POA	that	lacked	the statutory notices	required	by	18

- A	M.R.S. A. §	5

- 508	( 1998 &	Supp.	2004 ) , 2 and	because	the	lender	and	its	agents “ were	aware	that	it	was

1 After	Frost’s	death,	BANA	assigned	the	mortgage	to	Reverse Mortgage	Solutions,	Inc

. (RMSI). In	May 2013,	RMSI	assigned	the	mortgage	back	to	BANA.

2 Although	 Gamash’s	 petition referred to 18

- A	 M.R.S. A	 §	 5

- 508	 (1998	 &	 Supp.	 2005 ),	 the amendments	to	the	statute enacted in	2005 did	not	take	effect	until	September	17,	2005, eight days after	Frost	executed	the	POA	on	September	9,	2005. See P.L.	2005,	ch.	1 84,	§	1	(effective Sept.	17, 2005);	P.L.	2005,	ch. 284,	§	2	(effective	Sept.	17,	2005).		In this	opinion, we	refer	to	the	statute	that6 Mr.	 Blair	 who	 wanted	 the	 reverse	 mortgage.”	 	 Gamash	 also	 requested	 a declaration	 th at the	 mortgage	 advances	 were	 invalid	 because	 they	 were “secured	through	the	use	of”	that	same defective POA. BANA	filed	an	answer, asserted defenses,	and filed	a	counterclaim requesting	a	declaratory	judgment either that	the	mortgage	and	note	were	valid or	that	BANA was	entitled	to	an equitable	lien	on	the	property in	the	amount	of	the	mortgage	that	was used	to pay	off	the	preexisting	mortgage. [¶1 1 ]	 	 Gamash	 moved	 for a summary	 judgment,	 a sking	 the	 court	 to declare	 that defects	 in	 the	 POA	 rendered the note,	 the	 mortgage,	 and	 the mortgage	advances secured	through	the	POA invalid , and	that BANA	was	not entitled	 to	an	equitable	lien	 on	 the	 property.	 	BANA	 filed	a	 cross

- motion	 for summary	 judgment,	 requestin g	 the	 same	 declaratory	 relief	 that it	 had requested	in	its	counterclaim and	arguing ,	inter	alia, that	(1)	even	if	the	POA was	invalid,	the	mortgage was valid	because	(a)	Blair	had	apparent	au thority to	 act	 as	 Frost’s	 agent and	 (b)	 Frost	 ratified	 Blair’s	 actions	 in the	 loan application	proc ess , and	(2)	there	was	no	dispute	of	fact	concerning	fraud	that would	 invalidate	 the	 mortgage

. Gamash opposed BANA’s	 cross

- motion,

was	in	effect	on	September	9,	2005

— i.e.,	18

- A	M.R.S. A. §	5

- 508	( 1998	&	Supp.	2004 ).		We	also	note that 18

- A M.R.S. §§	 5

- 5 01	 to	 5

- 510 have since	 been repealed , and the notice	 requirements for power s of	 attorney have	 been reena cted	 in	 amended	 form	 at 18

- A	 M.R.S.	 §	 5

- 905	 (2015 )

. See P.L. 2009,	ch.	29 2	§§	1

- 2	(effective July	1,	2010 ).7 arguing that	the	mortgage was invalid	because	BANA,	through	its	predecessor Countrywide	and	 Countrywide’s	agent , Absolute	 Ti tle,	 had “perpetuated	and ratified ” Blair’s fraud in	 the	 mortgage	 documents	 by	 proceeding	 with	 the transaction	when	“it	knew	or	should	have	known” that	Frost	did	not	intend	to occupy	the	property	as	her	primary	residence. [¶1 2 ]	 	On	August	 19,	 2015,	 the	 c ourt	entered	a	 summary	judgment	in favor	 of	BANA,	concluding	 that ,	although	 the	POA	was	invalid	 because	it	did not	 include	 certain	 mandatory	 notices, the	 note	 and	 mortgage	 were	 valid obligations	 of	 Frost’s	 estate	 because	 Frost	 had	 personally	 executed	 the	l oan closing	 documents	 and	 thereby	 ratified	 Blair’s	 use	 of	 the	invalid	 POA	in	 the loan	application	process.		Gamash thereafter filed	a	“motion	for	clarification,” inquiring	whether	the summary	judgment	foreclosed a	trial on (1) her	claims that the	 note	 and mortgage	 were	 vitiated	 by	 fraud ,	 and	 that	 the	 mortgage advances	 procured	 by	 Blair’s	 use	 of	 the	 invalid	 POA	 were	 invalid,	 or (2) BANA’s	claim	that	it	was	entitled	to	an	equitable	lien. [¶1 3 ]		On	October	23,	2015,	the	court	entered	an	order ,	pursuant	to	M. R. Prob.	P.	 59	and	M.R.	Civ.	P.	 59(e), issuing	 further	conclusions	and	 otherwise denying	 Gamash’s	 motion

. The	 court concluded	 that	 Gamash	 had	 failed	 to generate	a	factual	dispute	as	to	fraud	in	the	formation	of	the	mortgage. With8 respect	to	the	validity of	the	mortgage	advances,	the	court	stated,	“Where	the loan	 and	mortgage	itself	was	 valid,	 and	 any	 advances	were	made	 to	 and	 for the	benefit	of	the	mortgagor,	it	only	makes	sense	that	[BANA]	has	the	right	to recoup	those	payments	.	.	.	. There	are	no issues	of	fact	to	be	tried	regarding the	 advances.” The	 court	 did	 not	 reach	 the	 issue	 of	 whether	 BANA	 was entitled	to	an	equitable	lien	on	the	property	because	it	concluded	that	BANA had	adequate	remedies	at	law	pursuant	to	its	valid	mortgage. [¶1 4 ]		Ga mash	appealed. See 18

- A	M.R.S.	§	1

- 308	(2015)

. III.		DISCUSSIO N [¶1 5 ]	 	 We	 review a	 ruling	 on	 cross

- motions	 for	 summary	 judgment de novo ,	 considering	 the properly	 presented evidence	 and	 any	 reasonable inferences	 that	 may	 be	 drawn	 therefrom	 in	 the	 light	 mos t	 favorable	 to	 the nonprevailing	party,	in	order	to	determine	whether	the re is	a	genuine	issue	of material	 fact and	whether	any	party	is	entitled	 to a judgment	as	a	matter	 of law

. See Budge	 v.	 Town	 of	 Millinocket , 2012	 ME	 122,	 ¶	 12,	 55	 A.3d	 484;
F.R. Carr oll,	 Inc.	 v.	 TD	 Bank,	N.A. ,	 2010	ME	 115,	 ¶	 8,	 8	 A.3d	 646. “When	 the material	 facts	 are	 not	 in	 dispute,	 we	 review	 de	 novo	 the	 trial	 court’s interpretation	 and	 application	 of	 the	 relevant	 statutes	 and	 legal	 concepts.”
Remmes ,	2015	ME	63,	¶	19,	116	A.3d	466

. “Summary	judgment	is	appropriate9 when	 review	 of	 the	 parties’	 statements	 of	 material	 fact	 and	 the	 record evidence	to	which	the	statements	refer,	considered	in	the	l ight	most	favorable to	 the	 nonprevailing party,	 demonstrates	 that	 there	 is	 no	 genuine	 issu e	 of material	f act	that	is	in	dispute	and	the	prevailing party	is	entitled	to	judgment as	a	matter	of	law.” Id. ¶	18. [¶1 6 ] Gamash argues that	the	court	erred	by	concluding	that	(1)	Frost effectively	 ratified	 Blair’s	 use	 of	 the	 POA	 in	 the	 loan	 application	 process; (2) there	 was	 no	 dispute	 of	 fact	 as	 to	 whether	 the	 note	 and	 mortgage	 were vitiated	 by	 fraud; and (3)	 there	 was	 no	 dispute	 of	 fac t	 that	 the	 mortgage advances	were	made	for	Frost’s	benefit.		We	consider	these	issues	in	turn.
A

. Whether Frost Ratified	Blair’s	Use	of	the	POA	in	the	Application	Process [¶1 7 ] When Frost	 exe cuted	 the	 POA	 in	 September	 2005,	 Title
18

- A M.R.S. A.	 §	 5

- 508(d) mandated	 the	inclusion	 of	 certain	 statutory	 notices in	 any	 durable	 financial	 POA

. 3 There	 is	 no	 dispute	 that	 the	 POA	 of

3 At that	time, 18

- A	M.R.S. A. §	5

- 508(d) provided as	follows: (d) A	durable	financial	power	of	attorney	must contain	the	following	language: “Notice	 to	 the	 Principal:	 As	 the	 “Principal,”	 you	 are	 using	 this	 Durable	 Power	 of Attorney	to	grant	power	to	another	person	(called	the	“Agent”	or	“Attorney

- in

- fact ” ) to	 make	 decis ions	 about	 your	 money,	 property or	 both	 and	 to	 use	 your	 money, property	or	both	on	your	behalf.		If	this	written	Durable	Power	of	Attorney	does	not limit	the	powers	that	you	give	your	Agent,	your	Agent	will	have	broad	and	sweeping p owers	to	sell	or	otherwise dispose	of	your	property	and spend	your	money	without advance	 notice	 to	 you	 or	 approval	 by	 you.	 	 Under	 this	 document,	 your	 Agent	 will continue	 to	 have	 these	 powers	 after	 you	 become	incapacitated , and	 you	may	 also1 0 September 2005	 did	 not	 contain	 the	 notices	 required	 by	 section	 5

- 508(d). The	 Probate	 Court	 concluded	 that	 the omission	 of	 the	 statutor y	 notices rendered	the	POA	invalid .		Because	BANA	did	not	file	a	cross

- appeal	from	that conclusion,	we	do	not	consider	BANA’s	unpreserved	contention	that	the	POA was	excepted	from	the	statutory	notice	requirements. See	MaineToday	Media,
Inc.	 v.	State ,	 201 3	ME	 100,	 ¶	 28 n.17,	 82	A.3d	 104	 (declining	 to	 consider	an argument	when	its	proponent	failed	to	preserve	it	by	filing	an	appeal).

choose	 to	 author ize	 your	 Agent	 to	 use	 these	 powers	 before	 you	 become incapacitated.		The	powers	that	you	give	your	Agent	are	explained	more	fully	in	the Maine	 Revised	 States,	 Title	 18

- A,	 sections	 5

- 501	 to	 5

- 508 and	 in	 Maine	 case	 law. You	have	the	right	to	revoke	or	take back	this	Durable	Power	of	Attorney	at	any	time as	long	as	you	are	of	sound	mind.		If	there	is	anything	about	this	Durable	Power	of Attorney	that	you	do	not	understand,	you	should	ask a	lawyer	to	explain	it	to	you. Notice	to	the	Agent:	As	the	“Agent”	or	“A ttorney
- in

- fact,”	you	are	given	power	under this	 Durable	 Power	 of	 Attorney	 to	 make	 decisions	 about	 the	 money,	 property	 or both	belonging	to	the	Principal	and	to	spend	the	Principal’s	money,	property	or	both on	 that	 person’s	 behalf	 in	 accordance	 with	 the	 te rms	 of	 this	 Durable	 Power	 of Attorney.		This	Du rable	Power	of	Attorney	is valid only if	 the	Principal	is	of	sound mind	 when	 the	 Principal	 signs	 it.	 	 As	 the	 agent,	 you	 are	 under	 a	 duty	 (called	 a “fiduciary	 duty”)	 to	 observe	 the	 standards	 observed	 by	 a	 prude nt	 person	 dealing with	the	property	of	another.		The	duty	is	explained	more	fully	in	the	Maine	Revised Statutes, Title	18

- A,	sections	5

- 501	to	5

- 508	and Title	18

- B,	sections	802	to	807	and chapter	9	and	in	Maine	case	law.		As	the	Agent,	you	are	not	entitle d	to	use	the	money or	 property for	 your	 own	 benefit	 or	 to	make	gifts	 to	 yourself	 or	 others	 unless	 the Durable	 Power	 of	 Attorney	 specifically	 gives	 you	 the	 authority	 to	 do	 so.	 	 As	 the Agent,	 your	 authority	 under	 this	 Durable	 Power	 of	 Attorney	 will	 end	 when the Principal	 dies	 and	 you	 will	 not	 have	 the	 authority	 to	 administer	 the	 estate	 unless you	are	authorized	to	do	so	in	accordance	with	the	Probate	Code.		If	you	violate	your fiduciary	duty	under	this	Durable	Power	of	Attorney,	you	may	be	liable	for	damages and	may	be	subject	to	criminal	prosecution.		If	there	is	anything	about	this	Durable Power	of	Attorney	or	your	duties	under	it	 that	you	do	not	understand,	you	should ask	 a	 lawyer	 to	 explain	 it	 to	 you. ” This	 language	 does	 not	 confer	 powers	 not otherwise co ntained	in	the	durable	financial	power	of	attorney.11 [¶1 8 ] We	 do,	 however,	 consider	 Gamash’s	 argument	 that	 the	 court erred when	 it	 concluded that	 the	 note	 and	 mortgage	 are	 valid, notwithstanding	Blair’s	use	of	the	invalid	POA	in	the	loan	application	process, because	Frost	effectively	ratified	Blair’s	actions	when	she	signed	the	operative loan	documents. Our	review	is	informed	by	the	following principle s of agency. [¶1 9 ] Although	the	action	of	a	purported	agent	is	of	no	legal	effect	if	the action	exceeds	the	authority	granted	by	the	principal, see Casco	N.	Bank ,	N.A. v. Edwards ,	640	A.2d	213,	215	(Me.	1994),	a	principal	may	ratify	the	action and thereby	 give	 legal	 effect	 to	 a	 transaction	 otherwise	 inoperative	 as	 to	 the principal, see QAD	Investors,	Inc.	v.	Kelly ,	2001	ME	116,	¶	21,	776	A.2d	1244,	by manifesting an	 intention to	 be	 a	 party	 to	 the	 transaction, Wilkins	 v.	 Waldo Lumber	 Co. ,	 130	Me .	 5,	 12,	 153	 A.	 191	 (1931). In	 order	 to	 ratify	 an	 agent’s conduct,	a	principal	must	have	knowledge	of	all	material	facts. QAD	Investors,
Inc. ,	 2001 ME	 116,	 ¶	 21,	 776	 A.2d	 1244. “The	 intention	 to	 ratify	 may	 be manifested	 by	 express	 words	 or	 by	 conduct. ” Wilkins ,	 130	 Me.	 at	 12 (quotation	marks	omitted). A	principal may	ratify the	unauthorized	action	of a	purported	agent through	conduct by a ccepting	the	benefits	of	the	action. Id. [¶20 ]		Here,	it	is	undisputed	that	Blair	used	the	invalid	POA	to	execute	a number	 of	 documents	in	 the	loan	 application	 process.	 	 It	is	 also	 undisputed12 that	Frost	signed	multiple	documents	in	the	loan	application	process , as	well as	 the	promissory	note,	 the	dee d	 of	 trust,	and	many	 other	documents	in	 the course	of	closing	the	loan. 4 At	oral	argument,	Gamash	asserted

— for	the	first time	 in	 this	 proceeding

— that	 Frost	 was	 incompetent	 at	 the	 time	 of	 closing. This	 contention was	 not	 preceded	 by	 similar	 allegations	 in Gamash’s complaint,	 summary	 judgment	 pleadings,	 or	 appellate	 brief,	 and	 it	 is	 not supported	 by	 any	 evidence	 in	 the	 summary	 judgment	 record. Because Gamash	failed	to alert	the	trial	court	and	the	opposing	party	that she	intended to	litigate	 the	issue	 of	 c ompetence,	we	will	 not	 consider	 the	issue	 now. See Foster	v.	Oral	Surgery	Assocs.,	P.A. ,	2008	ME	21,	¶ 22,	940	A.2d	1102

. [¶ 2 1]	 	 Based	 upon	 the	 undisputed	 facts	 contained	 in	 this	 summary judgment	 record,	 we	 conclude	 that Frost	 demonstrated	 a	 knowledge	 of the material	 facts	and	indicated	her	consent	 to	be	bound by	 the	mortgage when she	signed	the	operative	mortgage	documents

. Among	those	documents	was a	 reverse	mortgage	loan	agreement	and	an	attached	 payment	 plan,	 showing that	 the	 reverse	 mortgage	 would	 be used	 to	 extinguish	 the	 preexisting

4 Although	Gamash	asserts	that	Blair	induced	Frost	to	sign	the	operative	mortgage	documents , and	 BANA	 asserts	 that	 Frost	 signed	 the	 application	 of	 her	 own	 free	 will,	 we	 conclude	 that	 the summary	judgment record	 does	 not	 properly	 present	 a	 factual	 dispute	 on	 this	issue	 because	 the conflicting	assertions	are	not	positively	set	forth,	but	instead	appear	as	new	facts	in	statements	that qualify	or	object	to	affirmative	statements	of	fact. See	Doyle	v.	Dep’t o f	Human	Servs. ,	2003	ME	61, ¶ 11,	824	A.2d	48	(“A	court	need	not	consider	additional	 facts	when ,	as	here, they	are	improperly commingled	in	.	.	.	[responsive]	paragraphs	.	.	.	.”).13 mortgage	 of	 $128,634,	 and	 that	 $40,000	 would initially	 be advanced. The summary	judgment	record	establishes,	without	any	dispute,	 that	 the	reverse mortgage	inured	 to	 Frost’s	 benefit,	 at	least	 to	 the	 extent	 that it	was	 u sed	 to extinguish	 the	 pre existing mortgage. We	 therefore	 affirm	 the	 trial	 court’s conclusion	that the	mortgage and	note	are valid	because Frost ratified Blair’s use	of	the	invalid POA in	the	loan	application	process

. 5
B

. Whether	the	Note	and	Mortgage Were	Vitiated	by	Fraud [¶22 ]	 	 We	 next address Gamash’s	 argument that	 the	 court	 erred in conclud ing	 that	 the	 summary	 judgment record establishes,	 without any material dispute	of	fact,	that	the	mortgage and	note	were not	vitiated	by	fraud. Gamash specifica lly contends that	 the	summary	judgment	record	establishes that	 the	 mortgage and	 note	 are invalid	 because BANA,	 through	 its

5 Because	Gamash	has	not	provided	any	legal	basis	 for	 voiding	 or	avoidin g	 the	mortgage	as	a remedy	 for	defects	in	the	mortgage	application	process,	we	decline	to	consider	her	argument	that the	mortgage	application	documents that	Blair	executed	pursuant	to	the	invalid	POA were	“integral aspects	of”	and	“regulatory	predicates	to”	a	valid	mortgage,	rendering	it legally impossible	for	Frost to	ratify	the	mortgage	by	signing	the	operative	documents. We also reject	Gamash’s	argument	that a	principal	cannot ever ratify	actions undertaken under	authority	granted	by a	POA	when	the	POA lacks required statutory	notices

. In	support	of	th is	contention ,	Gamash cites Lubin	v.	Klein ,	193	A.2d 46	(Md. 1963)	and Citizens	Bank	of	N.	Ky.,	Inc.	v.	PBNK,	Inc. , No.	2004

- CA

- 001351

- MR,	2006	Ky. App. LEXIS	 826	 (Ky.	 Ct.	 App.	 Feb.	 17,	 2006),	 which	 concern the val idity	 of	 a	 mortgage	 signed	 by	 a purported agent who	lacked	actual	authority .		Th ese cases	are	inapposite	to	the	issue	here,	which concerns	the	validity	of	a	m ortgage	signed	by	the	principal. In	light	 of	 our	conclusion	 that	Frost	 ratified	Blair’s	actions	in	 the	loan	application	process and thereby validated	 the	note	and	mortgage ,	we	need	not address BANA’ s	argument	 that	Blair	acted with	 app arent	 authority	 in	 the	 application	 process .	 	 It	 is	 a lso	 unnecessary	 to consider	 whether BANA	is	entitled	to	an	equitable	lien.14 predecessor,	 Countrywide,	 and	 Countrywide’s	 agent,	 Absolute	 Title,	 ratified Blair’s	misrepresentations	in	the	mortgage	documents	by	p roceeding	with	the transaction	 when	 “it	 knew	 or	 should	 have	 known”	 of	 those misrepresentations. In	 the	 alternative, Gamash	 argues that	 the	 summary judgment record	reflects	a	dispute	of	material	fact as	to	whether	the	mortgage and	note	were vitiated	by	fra ud .		BANA contends that	we	should	not	reach	the merits	of	this	issue	because	Gamash	lacks	standing	to	assert	a	fraud	claim. [¶23 ]		We	assume,	without	deciding,	that	Gamash	has	standing	to	assert a	 fraud	claim as	part	of her	challenge	 to	 the	validity	of	Frost’s	2007	will

. As the	 party that	 moved	 fo r	 summary	 judgment	 on	 the	 issue	 of	 fraud ,	 BANA bears	 the	 burden	 of	 demonstrating	 that Gamash’s summary	 judgment materials	 do not	 establish	 a	 prima	 facie	 case	 for	 each	 element	 o f	 fraud.
See Budge ,	 2012	 ME	 122,	 ¶ 12,	 55	 A.3d	 484. In	 reviewing	 the	 summary judgment	 entered	 on	 the	 issue	 of	 fraud,	 we	 therefore	 consider	 whether	 the evidence	 demonstrates specific facts	 that	 support	 Gamash’s	 claim	 that Countrywide	 or	 Absolute	 Title mis represented	 a	 material	 fact ,	 with knowledge	of	its	falsity or	in	reckless	disregard	of	its	truth	or	falsity ,	and that
Frost reasonably	relied	on	the	misrepresentation	to	her	detriment. See	Barnes15 v.	 Zappia , 658	 A.2d	 1086, 1089 (Me.	 1995) (setting	 forth	 th e	 elements	 of fraud)

. [¶24 ]	 	 Even	 when	 viewed	 in	 the	 light	 most	 favorable	 to	 Gamash,	 the summary	 judgment	 record	 does	 not	 establish a	 prima	 facie	 case that	 the lender	or	its	agent	engaged	in fraud with	respect	to	the	mortgage.		Instead,	the record	 demonst rates	 that (1) during	 the	 application	 process, Blair misrepresented	 that	 he	 was	 Frost’s	 son	 and	 that	 Frost intended	 to reside primarily at	 the	 property ;	 and	 (2) at	 closing,	 Frost	 signed	 a	 document affirming	that she	intended	to	occupy	the	property	as	her principal	residence. To	the	extent	that	these	statements	were	misrepresentations, their	effect	was to	 increase	 the	 likelihood	 that Countrywide	 would	 issue	 the	 mortgage	 to
Frost. To the	 extent	 that	 there was	 any	 fraud,	 the	 facts	 in	 the	 summary judgment	 r ecord indicate that	 the fraud was perpetuated	 by	Blair	 and	 Frost against	 the	lender. Because Gamash has	provided	no	basis	 for	imputing any false statements to	the	lender, the	statements provide	no	basis	for	Gamash,	as Frost’s	heir,	to	set	the mortgage asi de. For	this	reason ,	the	trial	court	did	not err	by	granting	summary	judgment	in	favor	of	BANA	on	Gamash’s fraud	claim.16 C

. Whether Frost	Ratified	the	Mortgage	Advances [¶25 ]		Finally,	we	consider whether the	 trial	court	erred	by ruling that the	 mortgage	 advances	 are	 valid ( notwithstanding	 Blair’s	 use	 of	 the	 invalid POA	to	procure some	of them) because it	is	undisputed	that	Frost	retained	the benefit	of	the	advances. As	the	party	who	moved	for a summary	judgment	on this issue,	Gamash	bo re	the	burden	of	establishing	each	element	of	her	claim of	 invalidity	 by	 properly	 placing	 the	 facts	 material	 to	 that	 claim	 before	 the

court. See	N. Star	Capital	Acquisition,	LLC	v.	Victor ,	2009	ME	129,	¶	8,	984	A.2d
1278. [¶26 ] In	her	statement	of	mater ial	facts,	Gamash	asserts,	with	reference to	 proper	 supporting	 evidence, that Blair	 used	 the	 invalid	 POA	 to	 secure advances	 on	 the	 mortgage	 totaling	 $208,000

. 6 Because	 BANA	 does	 not controvert	 this properly	 supported fact,	 it	 is	 deemed	 admitted. See M.R.
Civ. P. 56(h)(4). Moreover ,	because the	POA	did	not give Blair	the	authority	to act	on	Frost’s	behalf , th e	mortgage	advances of	$208,000 secured pursuant	to the	 POA were	 not	 binding	 on Frost when	 they	 were	 made

. See Perkins	 v.

6 As	already	noted, these	funds	were	advanced	after	the	mortgage	instrument	was	executed	and proceeds	of	$128,634	were	applied from	that	loan to	extinguish	Frost’s	preexisting mortgage	on	the property.17 Philbrick ,	443	A.2d	73,	74	(Me.	1982)	(concluding	that	an	attorney	who	settled a	client’s	claim	without	authority did	not	bind	the	client	to	the	settlement). [¶27 ]		However ,	as	with	 the	 validity	of	 the	mortgage	instrument	itself, the	validity	of	the	mortgage	advanc es	could	be	established	through proof	that
Frost subsequently ratified	the	advances. As the	party	relying	on	ratification to	establish	the validity	of	the unauthorized advances, BANA bore the	burden of demonstrating that ratification	 occurred. See	 Hyams v.	 Old	 Dominion	 Co. , 113	 Me.	 294,	 300,	 93	 A.	 747	 (1915). In Gamash’s	 additional	 statement of material	facts ,	she asserted that	Blair	was	the	primary	beneficiary	of	the	funds advanced	on	the	mortgage. BANA did not file	any	response	to this	statement,

or	 o therwise properly assert	 that	 it	 was	 Frost,	 rather	 than	 Blair,	 who benefited	from	the	mortgage	advances	secured	through	the	POA

. [¶28 ]		At	oral	argument,	BANA	averred	 that	it	had	contested	Gamash’s assertion	 that	Blair	benefited	 from	 the	mortgage	advance s	by	referring	in	its statement	of	material	 facts	 to	 the	affidavit	of	Blair.		Although	Blair’s	affidavit states	 that	 Frost	 benefited	 from	 the	 mortgage	 advances,	 this	 statement	 was not	 properly	 before	 the	 court because	 it	 is	 not	 found	 anywhere	 in	 BANA’s

sta tements	 of	 material	 facts. See	 Cach,	 LLC	 v.	 Kulas ,	 2011	 ME	 70,	 ¶	 10	 n.3,
21 A.3d	 1015	 (“[A]	 court	 should	 consider only the	 portions	 of	 the record18 referred	to	in	the	Rule 56(h)	statements	and	is	neither required	nor	permitted to	independently	search	a	record	to	find	support	for	facts	offered	by	a	party.” (quotation	 marks	 omitted)); Chase	 Home	 Fin.	 LLC	 v.	 Higgins ,	 2009	 ME	 136, ¶ 12	n.4,	985	A.2d	508	(“Facts	not	set	forth	in	the	statement	of	material	facts are	.	.	.	not	in	the	s ummary	judgment	record.”); see	also	HSBC	Bank	USA,	N.A.	v. Gabay ,	2011	ME	101,	¶	17,	28	A.3d	1158	(explaining	that	the	rigors	of	Rule	56 must	be	enforced	on	appeal). [¶ 29 ] In	sum,	the	invalid	POA was u sed to	obtain $208,000	in mortgage advances	 that di d	 not	 bind Frost.	 	 Unlike	 the	 mortgage	 instrument	 itself, which	 was	 signed	 by	 Frost	 and	 inured	 to	 her	 benefit	 to	 the	 extent	 that	 it extinguished	a	preexisting	mortgage	on	 the	property,	 there	is	no	evidence	in the	 summary	 judgment	 record that	 the	 $208,000	 i n	 mortgage	 advances secured	 through	 the	 invalid	 POA were	 ratified	 by	 Frost’s	 words	 or	 conduct

. Because Gamash	established	 that	BANA	advanced	$208,000	on	 the	mortgage pursuant	to	an	invalid	POA,	and BANA	failed	to	carry	its	burden	of presenting evidence th at	 Frost	 r atified	 the advances	 obtained	 pursuant	 to	 the invalid POA,	 the	 court	 erred	 in	 concluding	 that	 the	 mortgage	 advances secured through	 the	 POA	 were	 valid .	 	 Summary	 judgment on	 this	 issue	 should have been	entered	in	favor	of	Gamash.19 The	entry	is:
Sum mary	judgment	in	BANA’s	favor	affirmed	as to the	 validity	 of	 the	 note	 and	 mortgage

. Summary	judgment	in	BANA’s	 favor	vacated	as to	 the	 validity	 of	 the $208,000	 in	 mortgage advances	 secured	 through	 the invalid POA

. Remanded for the	entry	of	a	summary	judg ment in	 Gamash’s favor that	 the mortgage	 advances secured	 through	 the	 invalid	 POA are	 not binding	on	Frost’s	estate

.

On	the	briefs: John	F.	Lambert,	Jr.,	Esq.,	and	Abigail	C.	Varga,	Esq.,	Lambert Coffin,	Portland,	for	appellant	Nancy	Gamash Bradley	M.	Lown,	Esq.,	Coughlin,	Rainboth,	Mur phy	&	Lown, P.A.,	 Portsmouth,	 New	 Hampshire ,	 for	 appellee	 Bank	 of America,	N.A.
At	oral	argument: Abigail	C.	Varga,	Esq.,	for	appellant	Nancy	Gamash Bradley	M.	Lown,	Esq.,	for	appellee	Bank	of	America,	N.A.

Cumberl and	County	Probate	Court	docket	number	2013

- 451 F OR C LERK R EFERENCE O NLY