MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 230 Docket: BCD

- 16

- 247 Argued: February	7,	2017 Decided: December	12,	2017
Panel: ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY, JJ.

HEIDI	M.	PUSHARD	et	al.

v. BANK	OF	AMERICA,	N.A

.

HUMPHREY ,	J. [¶1] Heidi	 M.	 Pushard	 and Jeffrey	 A.	 Pushard	 appeal	 from	 summary judgment s entered	in	the Business	and	Consumer	Docket	( Horton,	J. ) in favor of	Bank	of	America,	N.A. (the	Bank) , on the	Pushards’ claim s against	the	Bank for	declaratory	and	injunctive	relief, slander	of	title,	and damages	pursuant	to 33	M.R.S.	 §	 551	 (2016)

. W e do	 not	 disturb the	judgment s on	 the	 Pushar ds’ claims	 for	 slander	 of	 title, damages	 pursuant	 to	 section	 551 ,	 and	 injunctive relief

. W e vacate	 the	judgment on the	Pushards’ claim	 for	declaratory relief and	remand the	case	for	entry	of	summary	judgment	in	the	Pushards’	favor on that	claim

.2 I.		BACKG ROUND [¶2 ]		In October	2011 ,	the	Bank	initiated	a	foreclosure	action	against	the Pushards in	the	Superior	Court	(Androscoggin	County , MG	Kennedy,	J. ). In	its amended	 complaint, filed	 in	 May	 2013, the	 Bank made the	 following allegations:

• In	December	2006,	the	Pushards	executed	a	promissory	note	in	favor	of Countrywide	 Home	 Loans,	 Inc., (Countrywide) in	 the	 amount	 of $145,000.

• As	 security	 for	 the	 note,	 the	 Pushards	 executed	 a	 mortgage	 on	 their property	in	Wales	in	favor	of Mortgage	Electro nic	Registration	Systems, Inc. (MERS) , “as	nominee	for”	Countrywide.

• The	 Pushards	 failed	 to	 make the	 monthly	 mortgage	 payment due on April	1, 2008 , and	have	failed	to	make	all	subsequent	monthly	mortgage payments

.

• In	 2008,	 MERS	 assigned	 the	 mortgage	 to	 Countrywide. In	 2011, Countrywide	assigned	the	mortgage	to	the	Bank.

• The	Bank	became	the holder of	the	promissory	note.

• In May 2011,	 t he	Bank	sent the	Pushards notice of	 the ir default	and	of their	 right	 to	 cure	 the	 default “ in	 conformity	 with	 Maine	 law.” The Pushards	received	the	notice	in June	2011.

• The	 amount	 due “[a]s	 of	 September	 6,	 2011,”	 was $191,717.91, including	 the	 “principal	 balance”	 of	 $142,882.25, an	 “escrow	 balance,” interest,	fees,	and	late	charges.3 [¶3 ] The	Bank	sought	judicial	 foreclosure	 of	 the	Pushards’	mortgage. 1 Among	other	documents	attached	to	its	complaint,	the	Bank	include d copies of the note	and	the mortgage

. Included	in	the	note was	a	provision	stating : If	[the	Pushards	are]	in	default,	the	Note	Holder	may	send	[ them ] a written	 notice	 telling	 [them]	 that	 if	 [they]	 do	 not	 pay	 the overdue	 amount	 by	 a	 certain	 date,	 the	Note	Holder	may	 require [them]	to	pay	immediately	the	full	amoun t	of	Principal which	has not	been	paid	and	all	the	interest	that	[they]	owe	on	that	amount. The mortgage	contained a	provision	stating	that	the	lender may	 require	 that	 [the	 Pushards]	 pay immediately	 the	 entire amount then remaining	 unpaid	 under	 the	 Note and	 under	 this Security	Instrument	.	.	.	if	all	of	the	following	conditions	are	met: (a) [T he	 Pushards]	 fail	 to	 keep	 any	 promise or	 agreement made	in	this	Security	Instrument,	including	the promises	to pay	when	due	the	Sums	Secured; (b)	Lender	sends	to [the	Pushards] .	.	.	a	notice	that	[meets various	requirements];	.	.	.	and (c) [T he	 Pushards]	 do	 not	 correct	 the	 default	 stated	in	 the notice	from	Lender	by	the	date	stated	in	that	notice. [¶4 ]		After	a	trial on	the	Bank’s	foreclosure	complaint ,	the	cou rt entered

a judgment	in	the	Pushards’	favor in	October	2014

. The	court determin ed that

1 With	 regard	 to	 the	Bank’s	 standing,	 the	court	concluded	 that	Countrywide’s	 (and,	 therefore, the	 Bank’s)	 ownership	 interest	 in	 the	 mortgage	 was	 not	 compromised	 by	 the	 assignment	 from MERS	 to	 Countrywide. The	 court	 determined	 that	 that	 assignment	 was	 superfluous	 because “Countrywide	 was	 the	 lender	 named	 on	 the	 note[]	 and	 in	 the	 mortgage”	 and	 “was	 thereby	 the mortgagee	from	the	outset.” It	therefore	distinguished	the	case	from Bank of	Am. ,	N.A.	v.	Greenleaf , 2014	ME	89, ¶ ¶	13

- 16 ,	96	A.3d	700 ,	which	we	decided	after	the	trial	but	before	the	court	issued	the judgment.4 the	Bank had	failed	to	meet	its	burden to	prove three	of	the	eight	elements	of a	 foreclosure	 action: (1) a	 breach	 of	 a	 condition	 of	 the	 mortgage ; (2) the amount	 due; and (3) that the notice	 of	 default that	 it	 sent	 to	 the	 Pushards complied	 with	 statutory	 requirements

. 2 See Bank	 of	 Am.,	 N.A.	 v.	 Greenleaf , 2014	ME	 89,	 ¶	 18,	 96	A.3d	 700 (“A	 plaintiff	 seeking	 a	 foreclosure	judgment must	 comply	 strictly	 with	 all	 steps required	 by	 statute.”) (quotation	 marks omitted)

. Neither the Bank nor	the Pushards appealed	from	the	judgment. [¶5 ] Five	months	later,	in	March	2015,	t he	Pushards	initiated	the	action giving	rise	to	this	appeal. 3 In	an	amended	complaint , b ased	on	the	judgment in	 their	 favor in the	 Bank’s	 foreclosure action and	 the	 Bank’s	 failure	 to subsequently	 discharge the mortgage ,	 t he	 Pushards averred	 that	 they	 owe nothing	 on	 the	 note	 and sought	 a declaration that they	 are	 entitled	 to (1) a discharge	of the	mortgage and (2) an order	enjoining	the	Bank	from	enforcing the	 note	 and	 mortgage	 and	 compelling	 the	 Bank	 to	 record	 a	 release	 of	 the mortgage. They	 also	 asserted a	 claim	 for	 slander	 of	 title,	 alleging	 that	 the Bank’s	 failure	 to	 discharge	 the	 mortgage prevents	 them	 from	 transferring clean	 title	 to	 the	 property or	 using	it	 as	 collateral , and a	 claim	 for damages

2 The	Bank’s	notice	of	default	was	defective	because	it	did	not	meet	the	requirements	found	in 14	M.R.S.	§	6111 (2011 )

.

3 The	Pushards	 fil ed	 their	initial	complaint	in	 the	Superior	Court	(Androscoggin	County). The case	was	transferred	to	the	Business	and	Consumer	Docket	in	May	2015.5 pursuant to 33	M.R.S.	§	551

. 4 T he	Bank counterclaimed for	breach	of	contract, unjust	enrichment,	and a	declaratory	judgment

. [¶6 ] The	Push ards	moved	for	summary	judgment on	all of	their claims.
See M.R.	 Civ.	 P.	 56(a). In	 their statement	 of	 material	 facts, see M.R.	 Civ.	 P. 56(h)(2),	 they	 described,	 with	 reference	 to	 supporting	 evidence,	 the procedural	history	and	outcome	of	the	Bank’s	forec losure	action. Specifically, the	Pushards	asserted	that	(1)	the	Bank	had “sought the	entire	amount	due	on the	 note	 and	 foreclosure	 of	 the	 mortgage”;	 (2)	 the	 court	 had	 entered	 a judgment	 in the	 Pushards’ favor;	 and	 (3)	 the	 Bank	 had	 not	 thereafter discharge d	the	mortgage. [¶7 ] In	 its	 opposition	 to the	 Pushards’	 motion ,	 the	 Bank effectively admitted	all	of	 the	Pushards’ stated facts. 5 The	Bank	submitted	an	opposing statement	of	material	facts	in	which	it	asserted,	with	reference s to	supporting evidence,	 that	 the	 Pushards	 had	 not	 made	 mortgage ,	 tax,	 or	 insurance

4 Title	 33	 M.R.S.	 §	 551 requires	 a	 mortgagee	 to	 record	 a valid	 and	 complete release	 of	 the mortgage	“[w]it hin	60	days	after	full	performance	of	the	conditions	of	the	mortgage,”	and	provides that	 a	 mortgagee	 that	 violates	 this	 release	 provision	 is	 “liable	 to	 an	 aggrieved	 party	 for damages

. . . .”

5 Although	 the	 Bank	 denied	 that	 it	 had	 “sought	 the	 entire	 amount	 due ” on	 the	 n ote in	 the foreclosure	action,	because	it	did	not	provide	a	citation	to	the	record	in	support	of	this	denial,	the fact	is	deemed	admitted. See M.R.	Civ.	P.	56(h)(2),	(4); Hallid ay	v.	Henry ,	2015	ME	61,	¶	7,	116 A.3d 1270

.6 payments	on	the	property	since	2008. The	Bank	also filed its own	motion	for summary	judgment on	the	Pushards’	claims. 6 [¶8 ]	 	 The	 Pushards	 filed	 an	 opposing	 statement	 of	 m aterial	 facts	 in response	to	the	Bank’s	motion	for	summary	judgment. They	did	not	properly controvert	 the	 Bank’s	 statements	 that	 they	 had	 not	 made	 mortgage,	 tax,	 or insurance	 payments	 since	 2008. See M.R.	 Civ.	 P.	 56(h)(2),	 (4); Halliday	 v. Henry ,	2015	ME 61,	¶	7,	116	A.3d	1270

. [¶9 ] After	 a	 hearing,	 by	 order	 dated	 March	 15,	 2016,	 the	 court concluded	that	the	Bank	was	entitled	to	a	judgment	as	a	matter	of	law	on each of	the	Pushards’	claims. See M.R.	Civ.	P.	56(c)

. The	court	therefore	denied	the Pushar ds’	motion	 for	 summary	judgment	and	granted	 the	Bank’s	motion	 for summary	judgment. After	 the	Bank’s	counterclaims	were	dismissed without prejudice by	consent	of	the	parties ,	t he	Pushards filed	this timely	appeal	from the	 judgment	 in	 the	 Bank’s	 favor

. 14	 M.R.S.	 § 1851 (2016) ; M.R.	 App. P.
2 (b)(3) (Tower	2016)

. 7

6 The	 Bank	 captioned	 its	 motion	 as	 a	 “motion	 for	 judgment	 on	 the	 pleadings	 or,	 in	 the alternative,	 for	summary	judgment	on	plaintiffs’	complaint.”		We	treat	it	as	a	motion	 for	summary judgments	 on	 the	 Pushards ’	 claims. See M.R.	 Civ.	 P.	 12(c)	 (“If,	 on	 a	 motion	 for	 judgment	 on	 the pleadings,	matters	outside	the	pleadings	are	presented	to	and	not	excluded	by	the	court,	the	motion shall	be	treated	as	one	for	summary	judgment	and	disposed	of	a s	provided	in	[M.R.	Ci v.	P.]	56	.	.	.	. ”).

7 This	 appeal	 was	 commenced	 before	 September	 1,	 2017,	 and	 therefore	 the	 restyled	 Maine Rules	of	Appellate	Procedure	do	not	apply. See M.R.	App.	P.	1	(restyled	Rule).7 II.		DISCUSSION
A. Justiciability [¶1 0 ] As	 a	 preliminary	 matter,	 the	 Bank	 argues	 that	 the	 Pushards’ claims	 are nonjusticiable because	 resolution	 of	 those	 claims involves examining the	res	judicata	effect	of the	judgment in	the	foreclosure	action	and

no subsequent	foreclosure	action has	been	filed

. [¶1 1 ] “Courts	can	only	decide	cases	before	them	that	involve	justiciable controversies.” Homeward	 Residential,	 Inc.	 v.	 Gregor ,	 2015 ME	 108,	 ¶	 16,
122 A.3d	 947 (quotation	 marks	 omitted). “Justiciability	 requires	 a	 real	 and substantial	 controversy,	 admitting	 of	 specific	 relief	 through	 a	 judgment	 of conclusive	 character. ” Id. (quotation	 marks	 omitted). “A	 justiciable controversy	 involves	 a	 claim	 of	 present	 and	 fixed	 rights	 based	 upon	 an existing	state	of	facts.		Accordingly,	rights	must	be	declared	upon	the	existing state	 of	 facts	 and	 not	 upon	 a	 state	 of	 facts	 that	may	 or	may	 not	 arise	in	 the future.” M adore	 v.	 Me.	 Land	 Use	 Regulation	 Comm’n ,	 1998	 ME	 178,	 ¶	 7, 715 A.2d	157 (quotation	marks	omitted). [¶1 2 ] The	 Bank	 relies	 on our	 decisions	 in recent cases in	 which the parties	 disputed	 whether a judgment	 in	 the	 mortgagor’s	 favor	 would	 bar	 a future	 foreclosure action based	on	principles	of	res	judicata ,	but in	each	case8

we concluded	that	that	issue	did	not	present	a	justiciable	controversy	because no	second action	had yet been	filed

. See U.S. Bank,	N.A.	v.	Tannenbaum ,	2015 ME	 141,	 ¶ 6 n.3,	 126	 A.3d	 734 ; Wells	 Fargo	 Bank,	N.A.	 v.	 Girouard ,	 2015	ME 116,	¶	10,	123	A.3d	216

. 8 Our	holdings	in	 those	cases do	not	determine	 the result	here because	t his	case	comes	to	us	in	a	different	posture. Although,	as
in Girouard and Tannenbaum ,	 the	 Bank	 has	 not	 filed	 a	 second	 foreclosure action,	 there	 does	 exist	 a	 second	 action

— the	 Pushards’	 action	 against	 the Bank

— that	 presents a	 live	 controversy

. As the	 trial	 court	 recognized,	 the Pushards’	 claims	 are	 “ not	 contingent	 upon	 the occurrence	 of	 any	 future event,”	and “even	if	the	Bank	were	content	to	do	nothing	to	enforce	the	loan, the	 mortgage	 remains	 on	 record	 in	 the	 registry	 of	 deeds	 as	 a	 present encumbrance	 on	 the	 Pushards’	 property.” The	 Pushards	 have	 c laimed	 that they	are	entitled	to	relief	based	on	“the	existing	state	of	facts.” Madore ,	1998 ME	178,	¶	7, 715 A.2d	157	(quotation	marks	omitted). We	therefore	conclude that	 the	 Pushards’	 claims	 pr esent	 a	 justiciable	 controversy and turn	 to the merits	 of	 their	 appeal. See Mass.	 Delivery	 Ass’n	 v.	 Coakley ,	 769	 F.3d	 11,	 16

8 These	cases	are	distinguishable from	foreclosure	cases	in	which a	“court	dismisses	an	action	as a	sanction	for	a	plaintiff’s	misconduct”	and	must make	clear the	future	effect	of	the	order	dismissing the	case,	including	whether	the	judgment	bars	a	subsequent	action. See	Green Tree	Servicing,	LLC	v. Cope ,	2017	ME	68,	¶ 22 ,	158	A.3d	931

.9 (1st Cir.	 2014) ; Annable	 v.	 Bd.	 of	 Envtl.	 Prot. ,	 507	 A.2d	 592,	 595	 (Me.	 1986) ; Me.	Sugar	Indus.	v.	Me.	Indus .	Bldg.	Auth. ,	264	A.2d	1,	4

- 5	(Me.	1970)

. B. Summary	Judgment s [¶1 3 ] “ We	review a [ trial	court’s ] 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
gen uine	issue	of	material	fact	and	whether	any	party	is	entitled	to	a	judgment as	a	matter	of	law.” Estate	of	Frost ,	2016	ME	132,	¶ 15,	146	A.3d	118 ; see M.R. Civ.	 P.	 56(c).	 	 “Cross	motions	 for	 summary	 judgment	 neither	 alter	 the	 basic Rule	 56	 standard,	 nor	 w arrant	 the	 grant	 of	 summary	 judgment	 per	 se.” Remmes	 v.	 Mark	 Travel	 Corp. ,	 2015	 ME	 63,	 ¶	 19,	 116	 A.3d	 466 (quotation marks	 omitted). “When	 the	 material	 facts	 are	 not	 in	 dispute, we review de novo	the	trial	court’s	interpretation	and	application	of	the	re levant	statutes and	legal	concepts.” Id. [¶1 4 ]		The	Pushards	argue	 that	 the	court	erred	by	granting	 the	Bank’s motion	 for	 summary	 judgment	 and that they	 are	 entitled	 to	 judgment s as	 a matter	of	law	on	all	 four	of	their	claims	against	the	Bank. They	contend	that any	future	action	by	the	Bank	to	reco ver	on	the	note	and	the	mortgage	would10 be	 barred	 by	 principles	 of	 res	judicata,	 the	 note	and	mortgage	are	 therefore unenforceable , and	 as	 a	 result the	 mortgage must	 be	 discharged. We first address	 the ir section	 551	 and	 slander

- of

- title	 claims and	 conclude,	 without needing	to	address	the	res	judicata	effects	of	the	judgment	in	the	foreclosure action,	 that	 the	 court correctly enter ed summary	 judgments	 in	 the	 Bank’s favor	 on	 those	 claims.	 	 We	 then turn to the	 claims	 for	 declaratory	 and injunctive	relief.
1. Section	551 [¶1 5 ] Title	 33	M.R.S.	 §	 551 provides	 that	 a	mortgagee	is	 “liable	 to	 an aggrieved	party	for	damages”	if	the	mortgagee	fails	to record	a	release	of	the mortgage	 “[w]ithin	 60	 days	 after	 full performance	 of	 the	 conditions	 of	 the mortgage.” The	Pushards	argue	that	the	judgment	in	their	favor	on	the	Bank’s foreclosure	 action	 means	 that	 their	 “performance	 under	 the	 note	 and mortgage	 was effectively fully	 performed.” (Emphasis	 added

. ) We	 are not persuaded. [¶1 6 ] B ecause	 the	 Pushards	 did	 not	 properly	 controvert	 the	 Bank’s statement	that	they have	failed	to	make	monthly	mortgage	payments	since	the spring	of	2008,	that	fact	is	deemed	admitted. See M.R.	Civ.	P.	56(h)(2),	(4). I n order	 for	 the Pushards	 to	 be	 entitled	 to	 relief	 pursuant	 to	 section	 551,11 therefore, we	would	need	 to	hold	 that	 they	have	 “full [ y ] perform[ed]	 .	 .	 .	 the conditions	of	the	mortgage,”	33	M.R.S.	§	551,	even	though	they	have	not	made monthly	 payments	 as	 required	 by	 the	 mortg age.	 	 This	 would	 be	 an	 illogical result. See MaineToday	 Media,	 Inc.	 v.	 State ,	 2013	 ME	 100,	 ¶	 6,	 82	 A.3d	 104 (“[W]e	 interpret	 [statutory]	 provisions	 according	 to	 their	 unambiguous meaning	unless	the	result	is	illogical	or	absurd.” )	(quotation	marks	omitted ). The	 judgment	 in	 the	 Pushards’	 favor	 in	 the	 Bank’s	 foreclosure	 action established	 that	 the	 Bank	 was	 not	 entitled	 to	 a	 foreclosure	 judgment;	it	 did not	 establish	 that	 the	 Pushards	 had	 fully	 performed	 the	 conditions	 of	 the mortgage.	 	 The	 trial	 court	 did	 n ot	 err	 by	 granting	 the	 Bank’ s	 motion	 for summary	judgment	on	the	Pushards’	section	551	claim.
2. Slander	of	Title [¶1 7 ] The	Pushards’ argument regarding	their claim	for	slander	of title also	warrant s little	discussion. In	order	to succeed	on	that	claim , the	Pushards would	 need	 to prove that “(1)	 there	 was	 a	 publication	 of	 a	 slanderous statement	 disparaging [their] title;	 (2)	 the	 statement	 was	 false;	 (3)	 the statement	was	made	with	malice	or	made	with	reckless	disregard	of	its	falsity; and	 (4)	 the	 statement	 caused	 actual	 or	 special	 damages.” Harvey	 v.	 Furrow , 2014	ME	149,	¶	25,	107	A.3d	604 (quotation	marks	omitted ). The	Pushards12 argue	 that	 the	 “continued	 publication without	 a	 discharge ” of	 the	 mortgage

“ constitutes	a	 false	publication	of	a	slanderous	statement	disparaging	 [their] title.” Even	if	we	were	to	assume	that	the	undischarged	mortgage	constitutes a	 “slan derous	 statement”	 that	 was	 “false”	 and	 that	 “the	 statement	 caused actual	or	special	damages,”	there	is	nothing	in	the	summary	judgment	record that	could	induce	a	fact

- finder	to	determine	that	the	Bank	failed	to	discharge the	 mortgage	 with	 malice	 or	 a	 “reck less	 disregard”	 of	 the	 “falsity”	 of	 the encumbrance. Id. (quotation	marks	omitted); see Morgan	v.	Kooistra ,	2008	ME 26,	¶	34,	941 A.2d	447 ; Onat	v.	Penobscot	Bay	Med.	Ctr. ,	574	A.2d	872,	874

- 75 (Me. 1990) .	 	 We	 therefore	 do	 not	 disturb	 the	 court’s	 entry	 of	 a	 summary judgment	in	the	Bank’s	favor	on the	Pushards’	slander

- of

- title	claim.
3

. Declaratory	and	Injunctive	Relief [¶1 8 ]	 	 In	 order	 to	 resolve	 the	 question	 of	 whether either party	 is entitled	to a judg ment	on	the	Pushards’	claims	for	declaratory	and	injunctive relief,	we	must	examine the	effect	 of	 the	judgment	in the	 Pushards ’	 favor in the	 foreclosure	 action

. The	 Pushards	 argue	 that any	 further	 action	 by	 the Bank	to	recover	on	the	note	or	mortgage	woul d	be	barred	by principles of res judicata ,	that	the Bank	therefore has	no	enforceable	legal	interest	in	the note or	 the property	 designated	as	 collateral	according	 to	 the	mortgage,	and	 that13 the	Bank	therefore	must discharge	the	mortgage	to	remove	the unenforceable encumbrance	on	the	property

. [¶1 9 ] “The doctrine	of	res	judicata	.	.	.	is	a	court

- made	collection	of	rules designed	to	ensure	that	the	same	matter	will	not	be	litigated	more	than	once.” Beegan	v.	Schmidt , 451	A.2d	642,	643

- 44	(Me.	1982 )

. The	term	“r es	judicata ” encompasses	two different	legal	theories :	claim	preclusion ,	or	“bar”; and	issue preclusion , or	 “collateral	 estoppel.” Id. at	 644; see Wilmington	 Tr. Co.	 v. Sullivan

- Thorne ,	 2013	ME	 94,	 ¶	 7,	 81	 A.3d	 371

. Claim	 preclusion	 “prohibits relitigation	 of	 an	 entire	 ‘cause	 of	 action’	 between	 the	 same	 parties	 or	 their privies,	once	a valid fi nal	judgment	has	been	rendered	i n	an	earlier	s uit	on	the same	 cause	 of	 action ” ; and i ssue	 preclusion	 “prevents	 the	 reopening	 i n	 a second	 action	 of	 an	 issue	 of	 fact actually litigated and	 decided	 in	 an	 earlier

case . ” Beegan ,	451	A.2d	at	644 ; see Macomber	v.	MacQuinn

- Tweedie ,	2003	ME 121,	 ¶	 22,	 834	 A.2d	 131 ( “The	 collateral	 estoppel	 prong	 of	 res	 judicata	 is focused	on	 factual issues,	not	claims	.	.	.	.”). Because	the	Pushards ’	argument depends	 on the	 legal	 effect	 of	 the	 Bank’s unsuccessful	 foreclosure	 cause	 of action, as	opposed	to particular	factual	issues litigated	in	connection	with that claim, the	question	here	involves	cl aim	preclusion.14 [¶20 ] “ Claim	preclusion	bars	 the	relitigation	of	claims	if: (1)	 the	same parties	or	their	privies	are	involved	in	both	actions;	(2)	a	valid	final	judgment was	entered	in	the	prior	action;	and	(3)	the	matters	presented	for	decision	in the	 second	 action	 were,	 or	 might	 have	 been,	 litigated	 in	 the	 first	 action.” Sulli van - Thorne ,	2013	ME	94, ¶	7,	81	A.3d	371	(quotation	marks	omitted). At issue	 in	 this	 case	 is	 the	 third	 element

— whether,	 given	 the	 judgment	 in	 the foreclosure	 action,	 the	 Bank could	 bring	 an	 action	 on	 the	 note	 or	 mortgage other	 than	 one	 t hat	 would	 present matters	 that were,	 or	 mi ght	 have	 been, litigated	in	the foreclosure	action

. 9 See	i d. [¶ 2 1] To	 analyze	 this	 third	 element,	 we	 “examine	 whether	 the	 same cause	 of	 action	 was	 before	 the	 court	 in	 the	 prior	 case.” Id. ¶	 8	 (quotation marks	omitted). W e	define the parameters of	the	phrase	“cause	of	action” by applying	 a	 “transactional	 test,	 which	 examines	 the	 aggregate	 of	 connected operative	facts	that	can	be	handled	together	conveniently	for	purposes	of	trial to	determine	if	they	were	founded	upon	the same	transaction,	arose	out	of	the same	 nucleus	 of	 operative	 facts,	and	 sought	 redress	 for	essentially	 the	 same

9 The	 parties	 present	 no	 argument	 related	 to	 the	 first	 two	 elements	 of	 claim	 preclusion.	 	We conclude	 that those	elements are	met	here	because	 the	judgment	in	 the	Bank’s	 foreclosure	action was	a	final	judgment	on	the	merits	and	the	is sue	raised	by	the	Pushards’	claims	involves	the	same parties	as	the	foreclosure	action.1 5 basic	wrong.” Id. ¶	8	(alteration	omitted)	(citation	omitted)	(quotation	marks omitted). [¶22 ] As	we	discuss ed in Federal	National Mortgage	Ass’n	v.	Deschaine , 2017	ME	190,	¶¶	19

- 21,	170 A.3d 230 , w e previously addressed this	element of claim	 preclusion in	 the context	 of	 a	 mortgage foreclosure	 in Johnson	 v.
Samson	Constr uction Corp. ,	1997 ME	220,	704 A.2d	866

. In Johnson ,	 the	 trial

court concluded	 that the mortgagee’s	 second	 foreclosure	 action	 was precluded	by	the	dismissal,	with	prejudice,	of	an	earlier	foreclosure	action

. Id. ¶¶	3

- 8. In	the	earlier	foreclosure	action,	the	mortgagee,	Johnson,	had	claimed he	was	entitle d	 to	 the	entire	amount	of	 the	unpaid	principal	pursuant	 to	 the note’s	acceleration	clause

. Id. ¶¶ 3 ,	8

. We	affirmed	the	judgment, explaining that Johnson’ s	first	cause	of	action	.	.	.	demanded	payment	of	the	entire unpaid	 principal	 balance.	 	 This	 suit was	 an	 action	 for	 the accelerated	debt.		Once	 Johnson	triggered	the	acceleration	clause of	 the	note	and	 the	entire	debt	became	due,	 the	contract	became indivisible.	 	The	 obligations	 to	 pay	each	installment	merged	into one	 obligation	 to	 pay	 the	 entire	 balan ce	 on	 the	 note.

.	 .	 . [The judgment	 in	 the	 first	 action] bars	 the	 complaint	 in	 this	 action which	 alleges	 precisely	 what	 the	 complaint	 in	 the	 first	 action alleged:	 that	 Samson	 defaulted	 on	 the	 note	 and	 that	 Johnson	 is entitled	 to	 a	 judgment	 for	 the	 amount	 d ue	 under	 the	 note. Johnson	cannot	avoid	the	consequences	of	his	procedural	default in	 this	 second	 lawsuit	 by	 attempting	 to	 divide	 a	 contract	 which became	 indivisible	 when	 he	 accelerated	 the	 debt	 in	 the	 first lawsuit.16

Id. ¶	8	(footnote	omitted). 10 [¶23 ] Recognizing	the	ramifications of	our	holding	in Johnson , the	B ank argues	that our reasoning in	that	case does	not	apply here because it did not “effectively ” trigger	 the	 acceleration	 clause s	 of	 the	 note	 and	 mortgage in	 its foreclosure	 action	 against	 the	 Pushards

. The	 Bank	 relies principally on	 the language	of	14	M.R.S.	§	6111	and	th e	acceleration	clauses	at	issue. We are	not persuaded	by these argument s . [¶24 ] It	 is	 helpful	 to	 review	 the	 ways	 in	 which acceleratio n	 clause s operate before	 we turn	 to the	 Bank’s specific argument s . An	 acceleration clause is	a “ loan

- agreement	provision	 that	requires	 the	debtor	 to	pay	off	 the balance	 sooner	 than	 the	 due	 date	 if	 some	 specified	 event	 occurs,	 such	 as failure	to	pay	an installment	or	to	maintain	insurance.” 11 Acceleration	Clause , Black’s	Law	Dictionary (10th	ed. 20 14 ). “Automatic”	acceleration	clauses are self

- executing	 and render the	 entire indeb tedness	 due	 immediately upon

10 In	2008,	the	Supreme	Court	of	Ohio	held, similarly ,	that	res	judicata	barred	a	third	foreclosure action	 after	 the	 mortgagee	 voluntarily	 dismissed	 two	 prior	 actions ,	 concluding	 that after acceleration “each	missed	payment	under	the	promissory	note	and	mortgage	did	not	give	rise	to	a new	claim

. . . .” U.S.	Bank	Nat’l	Ass ’ n.	v.	Gullotta ,	899	N.E.2d	987,	990	(Ohio	2008)

.

11 “Acceleration”	means,	in	general	 terms, the “ act or	process of	quickening	 or	 shortening	 the duration	of	something,	such	as	payments	or	other	 functional	activities.” Acceleration ,	Black’s	Law Dictionary (10th	 ed. 20 14 ).	 	 More	 specifically, as	 applied in	 the	 context of	 a	 secured	 loan , acceleration	 m eans the	 “ advancing	 of	 a	 loan	 agreement’s	 maturity	 date	 so	 that	 payment	 of	 the entire	debt	is	due	immediately.” Id.17 some	 specified default ; by	 contrast, w here	 the	 acceleration	 clause	 is “optional,”	 the	 lender must	 affirmatively	 exercise	 its	 option	 to	 declare	 the entire	indebtedness	due. See Mullins	v.	IBCS	Mining,	Inc. , No.	10

- 93

- ART,	2011
U.S.	 Dist.	 LEXIS	 116083 ,	 at	 *6	 (E.D.	 Ky.	 Oct. 6,	 2011) (“The	 optional acceleration	 clause	 [ gave the	 lender]	 the	 right,	 but	 not	 the	 obligation,	 to accelerate	payments	on	the	Note.”); Snow	v.	Wells	Fargo	Bank,	N.A. ,	156	So.	3d 538,	541	(Fla.	Dist.	Ct.	App.	2015) ; Found.	Prop.	Inv s.,	LLC	v.	CTP,	LLC ,	186	P.3d
76 6,	 771

- 72	 (Kan.	 2008) ; Note, Acceleration	 Clauses	in	Notes	 and	Mortgages , 88	U.	Pa .	L.	Rev.	94 , 95

- 96 (19 39

- 40). [¶25 ] A n optional acceleration	 clause	 is therefore a	 bargained

- for

contract term	 that gives a	 lender,	 upon specified	 conditions	 such	 as	 the borrower’s uncured default, the	 right to demand immediate payment	 of any remaining debt under	the	note	and	mortgage ,	including installment	payments that	would	 not	 otherwise	 ha ve	 come	 due	 until	a	later	 date. An	acceleration clause	does	not,	on	its	own, entitle	the	lender	to	the	sums	to	which	it	claims	it has	a	legal	right.		Instead,	it	allows	the	lender	to elect	to hasten the	due	date	of sums	to	which	it is	otherwise	legally	entitled. [¶26 ]		 It	has	long	been	understood	th at	it	is	the	mortgagee’s	choice, or “election,” whether

— and	 when

— to	 exercise its	 right	 under an	 optional18 acceleration	 clause. See,	 e .g. , Me.	 Sav.	 Bank	 v.	 Chee ,	 576	 A.2d	 1358,	 1358 (Me. 1990) (referring	to	“ the	Bank’s	election	to	exercise the	acceleration	clause of	a	promissory	note secured	by	the	mortgage” )	(emphasis	added ); Mitchell	v. Fed.	Land	Bank ,	174	S.W.2d	671,	676	(Ark.	1943) (“The right	to	accelerate the indebtedness	is	exercised	by	the	unilateral	act	of	the	creditor

.	.	. .” )	(emphasis added ) ; Note, Acceleration	 Clauses	 in Notes	 and	 Mortgages at 95

- 9 8

. In Johnson , for	 example, we	 repeatedly	 referred	 to	 the	 fact	 that	 it	 was	 the mortgagee who	 had	 the	 power	 to	 accelerate	 the	 debt

— he “demanded payment	of	the	entire	unpaid	principal	balance,” he “ triggered	the	acceleration clause	 of	 the	 note	 and	 the	 entire	 debt	 became	 due,”	 and he therefore “accelerated	the	debt	in	the	first	lawsuit.” 1997	ME	220,	¶	8,	704 A.2d	866. [¶27 ] Bearing	these	principles	in	mind,	we	turn to the	Bank’s	argument that it could	 not	 have	 triggered	 the	 acceleration	 clauses	 of	 the	 note	 and mortgage	 in	 the	 foreclosure	 action	 in	 this	 case.	 	 Title	 14	 M.R.S.	 § 6111 provides	 that,	 with	 respect	 to	 residential	 mortgages,	 a	 mortgagee	 “may	 not accelerate	 maturity	 of	 the	 unpaid	 balance of	 the	 obligation	 or	 otherwise enforce	the	mortgage	because	of	a	default”	without	first	giving	the	mortgagor adequate	notice	of	the	default	as described in	the	statute.		The	Bank	relies	on this	 statutory	 language	 to	 contend	 that	 because,	 as	 the	 foreclosure court19 determined,	 it	 failed	 to	 give	 adequate	 notice	 of	 the	 default,	 it	 could	 not “effectively	accelerate”	 the	 debt	in	its	 foreclosure	action. 12 Although	 section
6111 contains the	 term	 “accelerate,” we	 conclude	 that the	 Legislature	 could not	 have	 intended for the	 statute to carry	 the	 meaning	 that	 the	 Bank propounds

. See Farris	v.	Libby ,	141	Me.	362,	365,	44	A.2d	216	(1945) (“[ W]e must	assume	that	the [L] egislature	did	not	intend	an absurd result

. . . .” ). [¶28 ]	 	 Compare,	 for	 example,	 the	 case	 at	 hand	 to a	 hypothetical	 case with	identical	 facts except	that the	mortgagee sent	to	the	mortgagor,	and	the mortgagor	 received, a notice	 of the default and	 right	 to	 cure that	 complied flawless ly with	 section	 6111.	 	After	 the	mortgagor	 failed	 to cure	 the	default, the	mortgagee	initiated	a	 foreclosure	action	in	which	it demanded, pursuant to	an	acceleration	clause, immediate	payment	of	the	entire	remaining	balance on	the	note. After	hearing	evidence,	t he	foreclosure	court concluded that	the mortg agee	 had	 not	 proved	 its	 claim	 and	 e ntered	 a	 judgment	 accordingly, because even	 though the mortgagee	 met	 its	 burden	 to	 prove	 that	 it	 had provided	adequate	notice	of	 the	default	pursuant	 to	section	6111, it	 failed	 to
prove the	 amount	 due,	 or that	 a breach	 of condition	 of	 the	 mortgage had

12 The	Bank	does	not	explain	what,	according	to	its	theory, would trigger	an	acceleration	clause.20 occurred, or	one	or	more	other	substantive	elements	of	proof in	a	foreclosure
action

. See,	e.g. , Greenleaf ,	2014	ME	89,	¶	18,	96	A.3d	700

. [¶29 ] Plainly,	 the	 mortgagee	 in	 our	 hypothetical	 case	 could	 raise	 no argument	 that section	 6111	 prevented	 it	 from	 “effectively”	 triggering	 the acceleration	 clause , because	 that	 argument	 is	 based	 entirely	 on its own noncompliance	 with	 the	 statute. According	 to	 the	 Bank’s	 logic ,	 the hypothetical mortgagee has triggered	the	acceleration	clause, placing in	issue all	 of	 the contractual	 installments as	 one	 indivisible	 debt	 obligation ,	 and	 a subsequent	action	 to	 recover on the	note	and	mortgage would	be precluded by	 the	 judgment	 in	 the	 mortgagor’s	 favor

. In	 other words, the	 Bank’s interpretation	 would	 mean	 that a mortgagee that loses	 on	 the	 merits	 i n	 its foreclosure	 action	 based

— even	 in	 part

— on an	 inadequate	 notice	 of	 default has not triggered	 the	 acceleration	 clause and a	 subsequent	 action	 is	 not precluded.	 	 But	 i f	 the same mortgagee had	 lost on	 the	 merits due only to a failure of	 proof on one	 or	 more other	 elements	 of its foreclo s ure	 action ,	 a subsequent	action	on	the	note	and	mortgage is precluded. [¶30 ]		This	would	be	an	absurd	result. We	cannot	hold	that	the reason for	a	mortgagee’s	loss	on	 the	merits	in	its	 foreclosure	action	is	dispositive	of whether	 the	judgment	precludes	a	subsequent	action	on	 the	same	debt. The21 Bank	has	provided	no	reason	why the	Legislature	would	have	created	such	a distinction.		We	the refore	interpret	section	6111	as	we	have	since	we	decided Chase	 Home	 Fin ancial LLC	 v.	 Higgins ,	 2009	 ME	 136,	 ¶	 11,	 985	 A.2d	 508 ,	 as setting	forth	a	required	element	of	proof	in	a	foreclosure	action by providing that	a	mortgagee must	give	notice	in	accordance	with	section	6111	in	order	to obtain a	foreclosure	judgment

. See,	e.g. , Girouard ,	2015	ME	116,	¶¶	7

- 8 & n.3,
123 A.3d	 216.	 	 We	 do	 not	 interpret section	 6111 as	 a prohibition	 on	 a mortgagee’ s	choice	to	exercise	an	acceleratio n	clause. [¶ 3 1]	 	 The language	 of	 the acceleration	 clauses	at	issue	 here	 do es not alter	 our	 conclusion.	 	 It	is	 true,	as	 the	Bank	 points	 out,	 that	 the acceleration provisions at	issue	here	are	optional, unlike	the automatic acceleration	clause
in Johnson

. The	 Bank	 does	 not	 explain	 why	 this	 distinction	 matters	 to	 the issue	 presented	 here,	 however,	 nor	 is any significance	 evident	 to	 us. An optional	acceleration	clause	that	has	been	exercised is no	different

— legally

— than	a	self

- executing	acceleration	clause. The	essential	inquiry,	in	examining whether	claim	preclusion	applies,	is	what	the	mortgagee	chose	to	litigate

— or could	have	litigated

— in	the	first	action. See Sullivan

- Thorne ,	2013	ME	94,	¶	7, 81	 A.3d	 371. That the	 acceleration	 provisions	 here	 are	 optional	 does	 not change	the	fact	that	the	Bank	could	have

— and	indeed	did

— exercise	its	option22 to	put	the	entire	remaining	balance	in	issue	in	its	fore closure	action,	instead	of simply demanding payment	of past	due	amou nts.		When	the	Bank	chose	to	do so,	 “the	 contract	 became	 in divisible”	 and “ [t]he	 obligations	 to	 pay	 each installment	merged	into	one	obligation	to	pay	the	entire	balance	on	the note. ” Johnson , 1997	ME	220, ¶ 8,	704 A.2d	866. 13 [¶32 ] As	we	recently explained in Deschaine ,	the “ filing	of	a	foreclosure complaint	constitutes	a	valid	exercise	of	a	mortgagee’s	acceleration	right	and is	 sufficient	 to	 provide	 notice	 to	 the	 mortgagor .” Deschaine ,	 2017	 ME	 190, ¶ 26 , 170 A.3d 230 (quotation	marks	omitted) ; see	also Sullivan

- Thorne ,	2013 ME	 94,	 ¶	 12	 n.4,	 81	 A.3d	 371; Chee ,	 576	 A.2d	 at	 1358	 (concluding	 that	 “the allegations	of	the	complaint	constituted	a	sufficient	pleading	that	acceleration [pursuant	 to	 an	 optional	 acceleration	 clause]	 had	 occurred”); Strong v. Stoneham	 Co

- op.	 Bank ,	 260	 N.E.2d	 646,	 649	 (Mass.	 1970) (“[T]he commencement	of	an	action	before	the	tender	of	the	amount	due	was	one	way in	 which	 [the]	 option	 [to	 declare	 the	 whole	 debt	 due]	 could	 be	 exercised.” ) (quotation	 marks	 omitted ); see	 also Nati onstar	 Mortg.,	 LLC	 v.	 Nelson ,	 No.
2:14

- cv - 00507

- JDL,	 2016	 U.S.	 Dist.	 LEXIS	 136660,	 at	 *12

- 18	 (D. Me. Oct.	 3,

13 We	also	do	not	see	the	relevance	of	th e note’s	provision,	highlighted	by	the	Bank, stating	that “[e]ven	if,	at	a	time	when [the	Pushards	are] in	default, the	Note	Holder does	not	require [them] to pay	immediately	in	full as	described above,	the	Note	Holder	will	still	have	the	right	to	do	so	if [they are] in	default	at	a	later	time.” (Emphasis	added

. ) This	anti

- waiver prov ision does	not	inform	the inquiry here	because	the	Bank did require payment	immediately	in	full in	the	foreclosure action

.23 2016) (addressing	 the	 issue	 presented	 here	 and	 concluding	 that	 the mortgagee	triggered	the	acceleration	clause	when	it	filed	its	foreclosure	claim seeking	 the	 entire	 remaining	 balance	 due	 on	 the	 note); C.T. Drechsler , Annotation, What	is	Essential	to	Exercise	of	Option	to	Accelerate	Maturity	of	Bill
or	Note ,	5	A.L.R.2d	968,	 § 5a	 (2017) (“The	institution	of	a	suit	 for	 the	whole debt	is,	of	course,	the most	solemn	form	in	which	the	holder	can	exercise	his option.”). As one court explained , t he	filing	of	suit	for	foreclosure	amounts	to	exercise	of	the	option of	 the	 mortgagee	 to	 declare	 the	 whole	 of	 the	 principal	 sum	 and interest	secured	by	the	mortgage due	and	payable. And	the	filing of	 suit	 to	 foreclose	 operates	 as	 notice	 to	 the	 mortgagor	 of	 the election	 to	 accelerate,	where	 the	 election	 to	 do	 so	is	 declared	in the	complaint

.	.	. or,	in	the	absence	of	such	declaration,	where	the complaint	 on	 its	 face shows	 that	 foreclosure	 for	 the	 entire mortgage	indebtedness	is	sought	therein. Campbell	v.	Werner ,	232	So.	2d	252 ,	254	n.1 (Fla.	Dist.	Ct.	App.	1970) (citations omitted)

. [¶33 ] In	 sum, notwithstanding that	 the foreclosure court	 determined that	 the	Bank	 failed	 to	prove	 that	its	notice	of	default	complied	with	section 6111, we conclude that the	Bank trigger ed the	acceleration	clauses	of	the	note and	 mortgage	 when	 it	 filed	 the	 foreclosure	 action	 demanding immediate payment	of	the	entire remaining debt

.24 [¶34 ] Because this	 case	 is	 not	 distinguishable	 from Johnson ,	 which settles	 the question of	 the	 res	 judicata	 consequence	 of the	 Bank’s failure	 to prove	 its foreclosure claim ,	 we	 must	 address	 the	 Bank’s	 argument	 that	 w e should	revisit	our	holding	in	that	case. [¶35 ] As	 we	 explain	in	more	 detail	in Deschaine ,	 2017	 ME	 190 , ¶ 33 , 170	A.3d	230 , and	 for	 the	reasons	expressed	in	 that	opinion, an	alteration	of the	approach	we	expressed	in Johnson is	 not	warranted becaus e we identify

no legal reason to	adopt	different	res	judicata	rules	for	foreclosure	cases	than those	that	appl y	in	ev ery	other	type	of	case. Pursuant	to Johnson , because	the Bank	failed	to	prove	its	claim	to	the	unitary	obligation	that	it	placed	in	issue	in the	foreclosure	action,	it no	longer has	any	enforceable	interest	in	the	note	or in	 the property	 set	 up	 as	 security	 for	 the	 note ,	 and	 the	 Pushards	 have	 no furt her	obligation to	make	payments	on	the	note

. 1997	ME	220,	¶	8,	704	A.2d 866; see Deschaine ,	 2017	ME	 190 , ¶	 35 , 170 A.3d	 230 (“[T]here	 could	 be	 no new	breaches	of	the	[mortgagor s’]	obligations	following	acceleration	because, once	 the	 contract	 became	 unified as	 a	 result	 of	 that	 acceleration,	 the [mortgagors]	 did	 not	 have	 any	 continuing	 responsibility	 to	 make	 monthly installment	payments. ”)

.25 [¶36 ] Because	 the	 Bank	 is	 precluded	 from	 seeking	 to	 recover	 on the note	or	enforce	the	mort gage ,	the Pushards	are	entitled,	as	a	matter	of	law,	to the	 declaratory	 relief	 they	 seek. We	 therefore	must	 vacate	 the	 judgment	in the	Bank’s	favor	on	the	Pushard s’	claim	for	declaratory	relief and	remand	the case	 to	 the	 trial	 court	 to enter	 a	 judgment	 declaring	 th at	 the note	 and mortgage	are	unenforceable and that the	Pushards hold	title	to	their	property free	and	clear	of	the	Bank’s	mortgage	encumbrance

. See	Deschaine ,	2017	ME 190,	 ¶ 37,	 170 A.3d 230

. 14 Further,	 because	 a declaratory	 judgment “ is	 a particularly	 efficacious	 method	 for	 quieting	 title	 to	 real	 property,” Welch	 v.
State ,	2004	ME	84,	¶	6	n.3,	853	A.2d	214 (quotation	marks	omitted) ,	that	can be	recorded	on	the	land	records, we	need	not	address the	Pushards’ claim	for injunctive	relief. The	entry	is: Judgment in	favor	of the Bank	on the Pushards’ claim	 for	 declaratory	 relief	 is vacated

. R emanded	 for entry	 of	 judgment	 in	 favor	 of Pushards	 consistent	 with	 this	 opinion. Judgment	a ffirmed	in	all	other	respects

.

14 Because	the	Bank’s	counterclaim	for	unjust	enrichment	was	dismissed	without	prejudice	and is	not	before	us,	we	do	not	address	any	issues	regarding	the	justiciability	or	merit	of	that	claim,	nor the	availability	of	any	process	pursuant	to	M.R. Civ.	P.	4A	or	4B

. See,	e.g. , Girouard , 2015	ME	116, ¶ 10,	123	A.3d	216

.26 Joshua	 Klein

- Golden,	 Esq. (orally),	 Clifford	 &	 Golden,	 PA,	 Lisbon	 F alls,	 for appellants	Heidi M. Pushard	and	Jeffrey A. Pushard John	 J.	 Aromando,	 Esq., and Catherine	 R.	 Connors,	 Esq.,	 Pierce	 Atwood	 LLP, Portland,	 and	 Elizabeth	 P.	 Papez,	 Esq.	 (orally) , Winston	 &	 Strawn	 LLP, Washington , D

. C

. ,	for	appellee	Bank	of	America,	N.A.

Business	and	Consumer	Docket	docket	number	CV

- 2015

- 28 F OR C LERK R EFERENCE O NLY