An Act Regarding Maine's Power of Sale Foreclosure Law
Maine Legislature, Session 127, LD 0276
Committee: Judiciary
Sponsors: FREDETTE
Amends: 14 MRSA §6203-A, 14 MRSA §6203-B, 14 MRSA §6203-D, 14 MRSA §6203-E, 14 MRSA §6203-G, 32 MRSA §286, 33 MRSA §501-A

Legislative Document 
No. 276 
H.P. 194 
House of Representatives, February 5, 2015 
An Act Regarding Maine's Power of Sale Foreclosure Law 
Reference to the Committee on Judiciary suggested and ordered printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative FREDETTE of Newport. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  14 MRSA §6203-A, as repealed and replaced by PL 2009, c. 476, Pt. B, §3 
and affected by §9, is amended to read: 
§6203-A.  Power of sale; procedure; notice; form 
1.  Power of sale.  Any holder of a mortgage on real estate that is granted by a 
corporation, partnership, including a limited partnership or a limited liability partnership, 
limited liability company or trustee of a trust and that contains a power of sale, as 
described in Title 33, section 501-A, or a person authorized by the power of sale, or an 
attorney duly authorized by a writing under seal, or a person acting in the name of the 
holder of such mortgage or any such authorized person, may, upon breach of condition 
and without action, do all the acts authorized or required by the power; except that a sale 
under the power is not effectual to foreclose a mortgage unless, previous to the sale, 
notice has been published once in each of 3 successive weeks, the first publication to be 
not less than 21 days before the day of the sale in a newspaper of general circulation in 
the town where the land lies and which notice must prominently state the street address of 
the real estate encumbered by the mortgage deed, if any, and the book and page number 
of the mortgage, if any comply with the requirements of subsection 3.  This provision is 
implied in every power of sale mortgage in which it is not expressly set forth.  For 
mortgage deeds executed on or after October 1, 1993, the power of sale may be used only 
if the mortgage deed states that it is given primarily for a business, commercial or 
agricultural purpose.  A copy of the notice must, at least 21 days before the date of the 
sale under the power in the mortgage, be recorded in each registry of deeds in which the 
mortgage deed is or by law ought to be recorded and must be served on the mortgagor or 
its representative in interest, or may be sent by registered mail addressed to the mortgagor 
or the mortgagor's representative at the mortgagor's last known address, or to the person 
and to the address as may be agreed upon in the mortgage, at least 21 days before the date 
of the sale under the power in the mortgage.  Any power of sale incorporated into a 
mortgage is not affected by the subsequent transfer of the mortgaged premises from the 
corporation, partnership, including a limited partnership or a limited liability partnership, 
limited liability company or trustee of the trust to any other type of organization or to an 
individual or individuals.  The power of sale may not be used to foreclose a mortgage 
deed granted by a trustee of a trust if at the time the mortgage deed is given the real estate 
is used exclusively for residential purposes, the real estate has 4 or fewer residential units 
and one of the units is the principal residence of the owner of at least 1/2 of the beneficial 
interest in the trust.  If the mortgage deed contains a statement that at the time the 
mortgage deed is given the real estate encumbered by the mortgage deed is not used 
exclusively for residential purposes, that the real estate has more than 4 residential units 
or that none of the residential units is the principal residence of the owner of at least 1/2 
of the beneficial interest in the trust, the statement conclusively establishes these facts and 
the mortgage deed may be foreclosed by the power of sale.  The method of foreclosure of 
real estate mortgages provided by this section is specifically subject to the order of 
priorities rights of junior mortgagees set out in section 6205. 
1-A.  Notice to mortgagor and parties in interest; definition.  At least 21 days 
before the date of the sale under the power in a mortgage, a copy of the foreclosure notice 
must be served on the mortgagor or its representative in interest, or may be sent by 
registered or certified mail addressed to the mortgagor or the mortgagor's representative 
at the mortgagor's last known address, or to the person and to the address as may be 
agreed upon in the mortgage or to the address as may be provided in writing by the 
mortgagor to the mortgagee.  In addition, a copy of the foreclosure notice must be sent by 
first-class mail, postmarked at least 21 days prior to the public sale, to all other parties in 
interest, except for parties in interest having a superior priority to the foreclosing 
mortgagee, at the address, if any, listed in the instrument evidencing the interest, and, if 
none is listed, to the registered agent for the party in interest, or to any other address that 
may be readily available to the mortgagee.  For the purposes of this section, "parties in 
interest" means those parties having a claim to the real estate whose claim is recorded in 
the registry of deeds as of the time of recording the notice of foreclosure.  Failure to 
notify any party in interest, other than the mortgagor, does not invalidate the foreclosure 
as to other parties in interest who were given notice. 
2.  Notice to tenants; effect on title.  In addition to the notices provided pursuant to 
subsection 1 1-A, the mortgagee shall provide a copy of the foreclosure notice to a 
residential tenant if the mortgagee knows or should know by exercise of due diligence 
that the property is occupied as a rental unit.  Upon request from a mortgagee, the 
mortgagor or its representative in interest shall provide the name, address and other 
contact information for any residential tenant.  Notice to a residential tenant may be 
served on the residential tenant by sheriff or, may be sent by first class mail and 
registered mail at the residential tenant's last known address or may be posted 
conspicuously at each entrance to the mortgaged premises.  A residential tenant may not 
be evicted unless a mortgagee institutes an action for forcible entry and detainer pursuant 
to section 6001 at least 21 days after a mortgagee has served the notice required by this 
subsection.  This subsection may not be construed to prohibit an action for forcible entry 
and detainer in accordance with section 6001 for a reason that is not related to a 
foreclosure sale.  The failure to provide the notice required by this subsection does not 
affect the validity of the foreclosure sale. 
2-A.  Recording foreclosure notice.  At least 21 days before the date of a sale under 
the power in a mortgage, a copy of the foreclosure notice must be recorded in each 
registry of deeds in which the mortgage deed is or by law ought to be recorded in order to 
provide constructive notice. 
3.  Form of foreclosure notice.  A foreclosure notice must identify the mortgagee, 
the mortgagor, the terms of the public sale, the location, date and time of the public sale, 
the street address, if any, of the real estate encumbered by the mortgage, a description of 
the real estate encumbered by the mortgage, which may be incorporated by reference to 
the book and page number of an instrument of record containing an adequate legal 
description of the real estate, and the book and page number, if any, of the mortgage.  The 
following form of foreclosure notice may be used and may be altered as circumstances 
require; but nothing herein may be construed to prevent the use of other forms. 
FORM 
Mortgagee's sale of real estate 
By virtue of and in execution of the Power of Sale contained in a certain Mortgage 
Deed given by ................. (Mortgagor) to .................. (Mortgagee) dated ........................ 
and recorded in the ....................... County Registry of Deeds, Book .........., Page ........., of 
which Mortgage the undersigned is the present holder, .................... (if by assignment, or 
in any fiduciary capacity give reference) ...................................................................., for 
breach of the conditions of said Mortgage and for the purpose of foreclosing the same 
there will be sold at Public Sale at ........... o'clock, ...... M. on the ........ day of  ........ 
20....., at ......... (Location of Public Sale), all and singular the premises described in said 
Mortgages, ...................., (in case of partial releases state exceptions). 
To wit: "(Description exactly as in of the real estate encumbered by the Mortgage, 
including all which may be incorporated by reference to title, restrictions, encumbrances, 
etc., as made in the Mortgage the book and page number of an instrument of record 
containing an adequate legal description of the real estate)". 
Street Address:  (Street address, if any, of the real estate encumbered by the 
Mortgage). 
Terms of Sale: (State here the amount, if any, to be paid in cash by the purchaser at 
the time and place of the sale, and the time or times for payment of the balance or the 
whole as the case may be and any other terms or conditions relating to the sale). 
Other terms to be announced at the sale. 
Signed:  .......................................................... 
(Present holder of Mortgage)       
................................................ 20............... 
4.  Notice of sale.  A foreclosure notice of sale in subsection 3, published in 
accordance with this chapter or in accordance with the power in the mortgage together 
with such other or further notice, if any, as is required by the mortgage, along with notice 
to the mortgagor and parties in interest whose interest appears of record at the time that 
the foreclosure notice is recorded in the appropriate registry of deeds, is sufficient notice 
of the sale, and the premises are considered to have been sold, and the free and clear of 
the interest of the mortgagor and of all other parties in interest who have been given 
notice in compliance with subsection 1-A, except for parties in interest having a superior 
priority to the foreclosing mortgagee.  The deed thereunder must convey the premises 
subject to and with the benefit of all restrictions, easements, improvements, outstanding 
tax titles, municipal or other public taxes, assessments, liens or claims in the nature of 
liens and existing encumbrances of record created prior to the mortgage, whether or not 
reference to such restrictions, easements, improvements, liens or encumbrances is made 
in the deed; but no purchaser at the sale is bound to complete the purchase if there are 
encumbrances, other than those named in the mortgage and included in the notice of the 
sale, that are not stated at the sale and included in the seller's contract with the purchase 
or foreclosure notice.  Any other party in interest having a claim to the real estate whose 
claim is not recorded in the registry of deeds as of the time of recording the foreclosure 
notice need not be given notice, and any such party has no claim against the real estate 
after completion of the public sale, in accordance with Title 33, section 501-A.  The 
interests of parties in interest having a superior priority are not affected by the 
foreclosure. 
5.  Public sale.  At the completion of a public sale pursuant to this section, the 
foreclosing mortgagee shall execute a purchase and sale agreement with the highest 
bidder.  The purchase and sale agreement may be assigned by the purchaser.  If the 
highest bidder fails to perform on the agreement, the foreclosing mortgagee may execute 
a purchase and sale agreement with the next highest bidder.  If the foreclosing mortgagee 
is the highest bidder or becomes the highest bidder by failure of a bidder to perform a 
purchase and sale agreement, a purchase and sale agreement need not be executed.  A 
mortgagee may bid and may purchase any real estate sold at such sale, as long as the 
mortgagee is the highest bidder.  If the real estate is sold for an amount in excess of the 
outstanding balance of the mortgage together with all interest and costs, said excess must 
be used to satisfy any other encumbrances on said property the claims of parties in 
interest whose interests were extinguished by the foreclosure in the order of priority that 
existed prior to the foreclosure and, after all said encumbrances of those parties in interest 
are satisfied together with all interest and costs, any excess then remaining must be paid 
to the mortgagor.  If the mortgagor or any person holding an encumbrance such party in 
interest cannot be found after a diligent search, the money must be paid into the Superior 
Court in the county where the land lies for the benefit of the mortgagor or the holder of 
any such encumbrance. 
6.  Continuation of sale.  A public sale pursuant to this section may be adjourned, 
for any time not exceeding 30 days and from time to time until a sale is made, by 
announcement to those present at each adjournment. 
Sec. 2.  14 MRSA §6203-B, as amended by PL 2009, c. 476, Pt. B, §4 and affected 
by §9, is further amended to read: 
§6203-B.  Copy of notice; affidavit; recording; evidence 
The person selling mortgagee or its agent shall, within 30 days after the sale date of 
the delivery of the deed to the purchaser or the purchaser's agent, cause a copy of the 
notice as published and the person's an affidavit, fully and particularly stating the person's 
mortgagee's acts, or the acts of the person's principal or ward mortgagee's agent, along 
with a copy of the foreclosure notice as published, to be recorded in the registry of deeds 
for the county where the land lies.  The affidavit must identify the mortgagee and 
mortgagor and include the street address, if any, of the real estate encumbered by the 
mortgage; a description of the real estate encumbered by the mortgage, which may be 
incorporated by reference to the book and page number of an instrument of record 
containing an adequate legal description of the real estate; the book and page number, if 
any, of the mortgage; the dates of publication and the name of the publishing entity of the 
public notice required by section 6203-A, subsection 1; the recipients and mailing or 
service dates of notices provided pursuant to section 6203-A, subsections 1 and 1-A and 
section 6203-E; the final purchaser under the agreement described in section 6203-A, 
subsection 5; and the date of delivery of the deed to the purchaser or the purchaser's 
agent.  If the affidavit shows that the requirements of the power of sale and section 
6203-A, subsection 1 have in all respects been complied with, the affidavit or a certified 
copy of the record thereof must be admitted as evidence that the power of sale was duly 
executed.  In case of an error or omission in the affidavit recorded as aforesaid, the 
Superior Court, on petition and after such notice as it may order may, if it determines 
proper, authorize the recording of an affidavit amending, correcting or in substitution for 
an affidavit so recorded, and the affidavit so authorized to be recorded or a certified copy 
of the record thereof must have mortgagee or its agent shall record an amended affidavit 
correcting the error or omission and the amended affidavit so recorded has the same 
effect and must be admitted in evidence, as if it had been recorded within said 30 days, 
but such subsequent affidavit does not prejudicially affect any title or interest in land that 
may have arisen or have been created between the recording of the original and of the 
subsequent affidavit. 
Sec. 3.  14 MRSA §6203-D, as enacted by PL 1967, c. 424, §2, is amended to 
read: 
§6203-D.  Limitation of actions 
Actions on mortgage notes, whether witnessed or not, or on other obligations to pay a 
debt secured by a mortgage of real estate, to recover judgments for deficiencies after 
foreclosure by sale under a power contained in the mortgage, and actions on such notes or 
other obligations which that are subject to a prior mortgage, to recover the amount due 
thereon after the foreclosure sale of such prior mortgage under the power contained 
therein, shall must, except as otherwise provided, be commenced within 2 years after the 
date of the foreclosure sale delivery of the deed to the purchaser or the purchaser's agent 
or, if the principal of the note or other obligation does not become payable until after the 
foreclosure sale date of delivery of the deed to the purchaser or the purchaser's agent, then 
within 2 years after the time when the cause of action for the principal accrues. 
Sec. 4.  14 MRSA §6203-E, as amended by PL 1987, c. 736, §17, is further 
amended to read: 
§6203-E.  Liability for deficiency on sale; necessity of notice; form; affidavit 
No action for a deficiency shall may be brought by the holder of the mortgage note or 
other obligation secured by mortgage of real estate after foreclosure by exercise of the 
power of sale, unless a notice in writing of the mortgagee's intention to foreclose the 
mortgage shall have has been served on the mortgagor or its representative in interest or 
the same has been sent by registered or certified mail with return receipt requested at its 
last address then known to the mortgagee, to such address as may be agreed upon in said 
the mortgage, together with a naming of liability for the deficiency, in substantially the 
form below, at least 21 days before the date of the sale under the power in the mortgage, 
and an affidavit has been signed and sworn to, within 30 days after the foreclosure sale 
date of delivery of the deed to the purchaser or purchaser's agent, of the mailing of such 
the notice.  A notice mailed as aforesaid shall be is a sufficient notice, and such an 
affidavit made within the time specified shall be is prima facie evidence in such action of 
the mailing of such notice. 
The following form of notice and affidavit may be used and may be altered as 
circumstances require; but nothing herein shall may be construed to prevent the use of 
other forms: 
FORM 
Notice of Intention to Foreclose and of Liability for Deficiency After Foreclosure of 
Mortgage  
To: A. B. of .............................. Street, Town of ........................ County of 
............................. and State of  ............................... 
You are hereby notified in accordance with the statute, of my intention, on  
......................... (date of sale), to foreclose by sale under the Power of Sale for breach of 
condition, the Mortgage held by me on property located on  ....................... Street, Town 
of ........................., County of  ....................... and State of  ............... dated  
......................... and recorded in the ..................... County Registry of Deeds, Book 
............................., Page .................., to secure a note (or other obligation) signed by you, 
for the whole, or any part, of which you may be liable to me and in case of a deficiency in 
the proceeds of the Foreclosure Sale to hold you liable for the whole or any part thereof 
still remaining unpaid. 
 Very truly yours,                              
............................................................................. 
 (Name of holder of said Mortgage)        
Affidavit  
I hereby certify on oath that on the ...................... day of .......................... 19 
20...................., I mailed by registered or certified mail with return receipt requested, the 
notice a copy of which is hereinabove set forth, direct to such person or persons at the 
address therein named which that was the last address of such person known to me at the 
time of mailing or to such person or persons at the address therein named which that was 
the person and the address agreed upon in said Mortgage.  
 Subscribed and sworn to before me this  ...................... day of .......................... 19 
20.................. . 
........................................................................... 
Notary Public                 
In the event that the mortgagee is the purchaser at the public sale, any deficiency is 
limited to the difference between the fair market value of the premises at the time of the 
sale, as established by an independent appraisal, and the sum due the mortgagee with 
interest plus the expenses incurred in making the sale. 
Sec. 5.  14 MRSA §6203-G is enacted to read: 
§6203-G.  Assignment of mortgage 
The assignment of a mortgage by a foreclosing mortgagee at any time during the 
foreclosure process does not affect the validity of the foreclosure.  Upon the recording of 
the assignment of mortgage in the registry of deeds where the land lies, the assignee of 
the mortgage may complete the foreclosure. 
Sec. 6.  32 MRSA §286, sub-§5, as enacted by PL 1999, c. 146, §5, is amended to 
read: 
5.  Mortgage foreclosure sales.  This chapter does not apply to any individual 
conducting a mortgage foreclosure sale pursuant to a court order. 
Sec. 7.  33 MRSA §501-A, as amended by PL 1995, c. 106, §2, is further amended 
to read: 
§501-A.  "Power of sale" 
The following "power" is known as "The Statutory Power of Sale" and may be 
included in any mortgage or incorporated by reference in any mortgage granted by a 
corporation, partnership, including a limited partnership or a limited liability partnership, 
limited liability company or trustee of a trust and, if included in the mortgage, the 
mortgage may be foreclosed pursuant to Title 14, section 6203-A.  The power of sale may 
not be used to foreclose a mortgage deed granted by a trustee of a trust if at the time the 
mortgage deed is given the real estate is used exclusively for residential purposes, the real 
estate has 4 or fewer residential units and one of the units is the principal residence of the 
owner of at least 1/2 of the beneficial interest in the trust.  If the mortgage deed contains a 
statement that at the time the mortgage deed is given the real estate encumbered by the 
mortgage deed is not used exclusively for residential purposes, that the real estate has 
more than 4 residential units or that none of the residential units is the principal residence 
of the owner of at least 1/2 of the beneficial interest in the trust, the statement 
conclusively establishes these facts and the mortgage deed may be foreclosed by the 
power of sale. 
POWER 
But upon Upon any default in the performance or the observance of the foregoing or 
other condition, the mortgagee or his the mortgagee's executors, administrators, 
successors or assigns, his or their the agent or attorney of the mortgagee or the 
mortgagee's executors, administrators, successors or assigns, may sell the mortgaged 
premises or such portion thereof as may remain subject to the mortgage in case of any 
partial release thereof, either as a whole or in parcels, together with all improvements that 
may be thereon, by a public sale on or near the premises in the county where the real 
estate then subject to the mortgage is situated, or, if more than one parcel is then subject 
thereto, then on or near in the county where one of said parcels is situated, or at such 
place as may be designated for the purpose in the mortgage, first complying with the 
terms of the mortgage and the statutes relating to the foreclosure of mortgage by the 
exercise of a power of sale, and he or they the mortgagee or the mortgagee's executors, 
administrators, successors or assigns or the agent or attorney of the mortgagee or the 
mortgagee's executors, administrators, successors or assigns may convey the same by 
proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and 
such sale shall forever bar bars the mortgagor and all persons claiming under it from all 
right and interest in the mortgaged premises, whether at law or in equity. 
SUMMARY 
This bill makes several changes to the power of sale mortgage foreclosure law in 
order to clarify certain provisions, improve notice to interested parties and ensure the 
marketability of titles.  The bill makes the following changes to the power of sale 
mortgage foreclosure law. 
1.  It clarifies that the statutory power of sale applies to a mortgage granted by a 
limited liability partnership. 
2.  It provides cross-references between the power of sale laws in the Maine Revised 
Statutes, Title 14 and those in Title 33. 
3.  It requires that written notice of sale be sent to all parties in interest, not just the 
mortgagor. 
4.  It provides that a written foreclosure notice may be given to the mortgagor at an 
address provided in writing by the mortgagor to the mortgagee. 
5.  It defines "parties in interest." 
6.  It clarifies that written foreclosure notices may be delivered to the mortgagor by 
certified mail in addition to registered mail. 
7.  It provides that a copy of a notice of foreclosure may be provided to a residential 
tenant by posting the notice conspicuously at each entrance to the mortgaged premises. 
8.  It clarifies the information that must be included in a foreclosure notice of sale. 
9.  It provides that property may be sold free and clear of the interests of the 
mortgagor and other junior parties in interest who have been sent a foreclosure notice of 
sale, but specifies that parties in interest having a superior priority are not affected by the 
foreclosure. 
10.  It requires a foreclosing mortgagee to execute a purchase and sale agreement 
with the highest bidder at a public sale and provides that, if the highest bidder fails to 
perform on the agreement, the foreclosing mortgagee may execute an agreement with the 
next highest bidder. 
11.  It provides that a foreclosure sale may be adjourned for up to 30 days and from 
time to time until a sale is made. 
12.  It clarifies the information relating to a foreclosure that must be included in the 
recorded foreclosure affidavit. 
13.  It provides that a foreclosure affidavit must be recorded within 30 days after the 
date of delivery of the deed to the purchaser at the foreclosure sale rather than 30 days 
after the date of the sale. 
14.  It requires a mortgagee to correct an error in a recorded foreclosure affidavit.  
Current law provides for such an error to be corrected by the Superior Court.  The bill 
retains the provision of current law that provides that the amended affidavit does not 
prejudicially affect any title or interest in land that may have arisen or have been created 
between the recording of the original and the amended affidavits. 
15.  It provides that, if a mortgagee is the purchaser at a public sale, any deficiency is 
limited to the difference between the fair market value of the premises at the time of the 
sale, as established by an independent appraisal, and the sum due the mortgagee with 
interest plus the expenses incurred in making the sale. 
16.  It provides that the assignment of a mortgage during the foreclosure process does 
not affect the validity of the foreclosure and, upon the recording of the assignment of 
mortgage, the assignee of the mortgage may complete the foreclosure. 
17.  It exempts individuals conducting mortgage foreclosure sales from auctioneer 
licensing requirements of Title 32.  Current law exempts only individuals conducting 
foreclosure sales pursuant to a court order. 
18.  It provides that a public foreclosure sale must be held in the county where the 
real estate is situated rather than on or near the premises.