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	 court	 erred	 in	 concluding	 that	 Bank of	 America,	 N.A.,

(BANA)	 holds	 a	 valid	 note	 and	 mortgage	 encumbering	 property	 of	 Frost’s	

estate,	 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.		With	respect	to	the	validity	of	certain mortgage	advances,	

however,	we	 vacate	 the	judgment	entered	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	 the	

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	 tenants,	 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	attorney	(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	another will,	eliminating	Gamash	as	legatee	and	naming	Blair	as	her	

primary	beneficiary.		Frost	was	admitted	to	the	hospital	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,	Blair	contacted	Countrywide	Bank	and	applied	

for	 a	 reverse	 mortgage	 on	 the	 property,	 using	 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	 also completed	 a	 residential	 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	 completed,	 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	certificate	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 Absolute	
4

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	 interest,	 and	

other	charges”	would	be	immediately	due	and	payable	if	the	property	ceased	

to	be	 the	borrower’s	principal	residence.	 During	 the	closing,	Frost	signed	or	

initialed numerous	 other	 documents,	 including another residential	 reverse	

mortgage	application,	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	 was 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	advanced	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

[¶10]		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	“created	 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.	184,	§	1	(effective	Sept.	17,	

2005);	P.L.	2005,	ch. 284,	§	2	(effective	Sept.	17,	2005).		In	this	opinion, we	refer	to	the	statute	that	
6

Mr.	 Blair	 who	 wanted	 the	 reverse	 mortgage.”	 	 Gamash	 also	 requested	 a	

declaration	 that	 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.

[¶11]	 	 Gamash	 moved	 for	 a	 summary	 judgment,	 asking	 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,	 requesting	 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	authority	

to	 act	 as	 Frost’s	 agent and	 (b)	 Frost	 ratified	 Blair’s	 actions	 in	 the	 loan	

application	process, 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.	 §§	 5-501	 to	 5-510 have since	 been repealed, and	 the notice	 requirements	 for	

powers of	 attorney	 have	 been reenacted	 in	 amended	 form	 at 18-A	 M.R.S.	 §	 5-905	 (2015).	 	 See	

P.L. 2009,	ch.	292	§§	1-2	(effective	July	1,	2010).
7

arguing	that	the	mortgage	was invalid	because	BANA,	through	its	predecessor	

Countrywide	and	 Countrywide’s	agent, Absolute	 Title,	 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.		

[¶12]	 	On	August	 19,	 2015,	 the	 court	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	loan	

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.		

[¶13]		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.		With	
8

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.		

[¶14]		Gamash	appealed.		See 18-A	M.R.S.	§	1-308	(2015).

III.		DISCUSSION

[¶15]	 	 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	 most	 favorable	 to	 the	

nonprevailing	party,	in	order	to	determine	whether	there 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. Carroll,	 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	appropriate	
9

when	 review	 of	 the	 parties’	 statements	 of	 material	 fact	 and	 the	 record	

evidence	to	which	the	statements	refer,	considered	in	the	light	most	favorable	

to	 the	 nonprevailing party,	 demonstrates	 that	 there	 is	 no	 genuine	 issue	 of	

material	fact	that	is	in	dispute	and	the	prevailing party	is	entitled	to	judgment	

as	a	matter	of	law.”		Id. ¶	18.		

[¶16]	 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	 fact	 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

[¶17]	 When Frost	 executed	 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	 decisions	 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	

powers	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	 also	
10

September 2005	 did	 not	 contain	 the	 notices	 required	 by	 section	 5-508(d).		

The	 Probate	 Court	 concluded	 that	 the	 omission	 of	 the	 statutory	 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,	 2013	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	 authorize	 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	“Attorney-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	 terms	 of	 this	 Durable	 Power	 of	

Attorney.		This	Durable	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	 prudent	 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	entitled	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	contained	in	the	durable	financial	power	of	attorney.
11

[¶18]	 	 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 principles of	agency.

[¶19]		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	accepting	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	 undisputed	
12

that	Frost	signed	multiple	documents	in	the	loan	application	process, as	well	

as	 the	promissory	note,	 the	deed	 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	 competence,	we	will	 not	 consider	 the	issue	 now.	 	 See	

Foster	v.	Oral	Surgery	Assocs.,	P.A.,	2008	ME	21,	¶ 22,	940	A.2d	1102.

[¶21]	 	 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 of	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	 used	 to	

extinguish	 the	 preexisting	 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

concluding	 that	 the	 summary	 judgment record establishes,	 without	 any	

material	dispute	of	fact,	that	the	mortgage	and	note	were	not	vitiated	by	fraud.

Gamash	specifically	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	avoiding	 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	this	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	 validity	 of	 a	 mortgage	 signed	 by	 a	

purported	agent who	lacked	actual	authority.		These cases	are	inapposite	to	the	issue	here,	which	

concerns	the	validity	of	a	mortgage	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	 apparent	 authority	 in	 the	 application	 process.	 	 It	 is	 also	 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	proceeding	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	fraud.		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	 for	 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	 of	 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 misrepresented	 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	Barnes
15

v.	 Zappia, 658	 A.2d	 1086, 1089 (Me.	 1995) (setting	 forth	 the	 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	 demonstrates	 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	 record	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 aside.		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	bore	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	material	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,	the	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	advances	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	 otherwise	 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	advances	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	

statements	 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 record	
18

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	summary	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 used to	obtain	$208,000	in	mortgage	

advances	 that	 did	 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	 in	 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 that	 Frost	 ratified	 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:

Summary	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	judgment	

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,	Murphy	&	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.

Cumberland	County	Probate	Court	docket	number	2013-451

FOR	CLERK	REFERENCE	ONLY