MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2014 ME 20 Docket: And

- 13

- 334 Submitted

On Briefs : January 28, 2014 Decided: February 1 1 , 2014
Panel: ALEXANDER , LEVY, SILVER , GORMAN, and JABAR, JJ.

BANGOR SAVINGS BANK

v.
ROBIN N. RICHARD

PER CURIAM [¶1] Robin N. Richard appeals from a judgment entered by the District Court (Lewiston, Lawrence, J. ) granting Bangor Savings Bank ’s motion for summary judgment on its foreclosure complaint. Richard contends that the court erred in granting the Bank’s motion for summary judgment because (1) the Bank improperly served its motion for summary judgment directly upon Richard and not her attorney, (2) discove ry in the case was not complete , (3) serv ice of the notice of Richard’s right to cure pursuant to 14 M.R.S. § 6111 (2013) was flawed, and (4) there remain s a genuine issue of material fact as to the amount owed under the
mortgage. [¶2 ] In the context of a residential mortgage foreclosure, “cert ain minimum
facts must be included i n a mortgage holder’s statement of material fact s on2 summary judgment.” HSBC Bank USA, N.A. v. Gabay , 2011 ME 101, ¶ 10,
28 A.3d 1158 . The se minimum facts include the amount due on the mortgage

note. Id

. T he Bank’s s tatement of material fact s indicates that the amount due on
the note is $389,302. 08. The affidavit cited to support this fact states that the
amount due on the note is $384,644.05 , exclusive of legal fees

. The loan payoff

statement cited in the affidavit in support of the amount owed states that the
balance due is $384,660.05 , exclusive of legal fees. Applying the rul es of

summa ry judgment strictly as we must in a residential foreclosure, id. ¶ 9 , t he Bank
did not set forth a properly suppo rted statement of fact regarding the amount due
on the note , and it remains an unresolved issue of material fact. [¶3 ] We do not address Richard’s remaining contentions because they are unpreserved due to R ichard’s failure to timely file a properly supp orted opposing

statement of material fact s
. See Foster v. Oral Surgery Assocs., P.A. , 2008 ME 21, ¶ 22, 940 A.2d 1102 ( “ An issue raised for the first time on appeal is not properly preserved for appellate review. ” )

. Furthermore, assuming , arguendo , that Richard’s counsel had appeared generally and that the Bank had been properly notified of that appearance, Richard demonstrates no prejudice from service of the summary judgment documents on her rather than on her retained counsel and no prejudice fro m the differing addresses, all directe d to her property, tha t were
referenced in the notice pursuant to 14 M.R.S. § 6111. In addition, Richard did not3
avail he rself of the existing procedure for deferring consideration of summary judgment when discovery i s allegedly incomplete, see M.R. Civ. P. 56(f). We
need not address her other argument s that summary judgment was improper , as they do not impact the merits of the Bank’s claim other than the issue of the sums
due , which must be addressed on remand

. The entry is: Judgment vacated and remanded to the District Court.

On the briefs: Brian D. Condon, Esq., Law Office of Brian D. Condon, Winthrop, for appellant Robin N. Richard
John R. Canders , Esq., and Ryan P. Dumais, Esq., Eaton Peabody, P.A., Bangor, for appellee Bangor Savings Bank

Lewiston District Court docket number RE

- 2012

- 114 F OR CLERK REFERENCE ONLY