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STATE OF MAINE YORK, ss. ) BAC HOME LOANS SERVICING, L.P. F/KJAI COUNTRYWIDE HOME ) LOANS SERVICING, L.P., ) ) Plaintiff, ) )
v. )

SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-09-}38 uorJ --y0P- r7A/

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ORDER

SHANNON R. BAKER, Defendant.

) ) ) ) )

I.

Background Defendant/Counterclaim-Plaintiff ("Counterclaim-Plaintiff') currently faces

foreclosure proceedings brought by Plaintiff/Counterclaim-Defendant ("CounterclaimDefendant"). Counterclaim-Plaintiff executed a mortgage loan and note in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Fieldstone Mortgage Company, on December 29, 2005. (Clark Aff. At Ex. B). After CounterclaimPlaintiffs first mortgage payment, Fieldstone Mortgage Company transferred the servicing of the mortgage loan to Countrywide Loan Servicing. (Higgins Decl. at Ex. 6.) Countrywide sent Counterclaim-Plaintiff a Notice of Assignment, Sale, or Transfer of Servicing Rights on February 1, 2006 informing Counterclaim-Plaintiffthat transfer was effective as of March 1, 2006. Id. Counterclaim-Plaintiff made his first payment to Countrywide on February 17, 2006 and continued to make mortgage payments to Countrywide until January 2, 2009. (Higgins Decl. at Ex. 7). Counterclaim-Plaintiff defaulted on the mortgage loan in February 2009. On February 9, 2009 Counterclaim-

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Plaintiffs counsel, Mark Kearns, sent Countrywide a cease and desist letter. On March 2, 2009, Countrywide responded to Mark Kearns with a letter saying that Countrywide could not comply because Counterclaim-Plaintiff had not authorized third-party communication regarding his account. Countrywide was acquired by BAC Home Loans Servicing, L.P. and thereafter transferred the loan to Bank of America, N.A. BAC Home Loans Servicing, L.P. filed a Complaint for Foreclosure on September 29, 2009. Counterclaim-Plaintiff has brought counterclaims of Violation of the Maine Consumer Credit Code, Violation of the Maine Fair Debt Collection Practices Act and Violation of the Fair Debt Collection Practices Act. Counterclaim-Defendant now moves the Court for Summary Judgment on those counterclaims. II. Standard When a defendant or counterclaim defendant moves for Summary Judgment, "the plaintiff [or counterclaim plaintiff] must establish a prima facie case for each element of [the] cause of action that is properly challenged in the defendant's motion." Flaherty v. Muther, 2011 ME 32,
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171 A.3d 640, 652-653. The burden then shifts to the

defendant to show that there is no genuine issue of material fact. Summary Judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter oflaw. Beal v. Allstate Ins. Co., 989 A. 2d 733, 738 (Me. 2010); Dyer v. Department of Transportation, 951 A.2d 821, 825 (Me. 2008). When reviewing a Motion for Summary Judgment, the Court reviews the parties' statements of material facts and the cited record evidence in the light most favorable to the non-moving party.

Id

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A genuine issue of material fact exists where the fact finder must make a determination between differing versions of the truth. Reliance National Indemnity v. Knowles Industrial Services Corp., 2005 .ME 29, Me. Found. V. Fleet Bank ofMe., 2003 .ME 20,
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868 A.2d 220, 224, citing Univ. of 817 A.2d 871, 877. Furthermore, "a

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fact is material if it could potentially affect the outcome of the case." I d.
ill.

Discussion

Counterclaim-Plaintiff brought counterclaims of Violation of the Maine Consumer Credit Code, Violation of the Maine Fair Debt Collection Practices Act and Violation of the Fair Debt Collection Practices Act. Maine Consumer Credit Code In Counterclaim-Plaintiffs initial counterclaim complaint, Counterclaim-Plaintiff pleads that Counterclaim-Defendant did not comply with the 9-A M.R.S

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Maine Law