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STATE OF MAINE CUMBERLAND, ss.
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DEUTSCHE BANK NATIONAL TRUST CO., as Trustee, Plaintiff, v. RICHARD MARCOTTE, et al., Defendants. Before the court in this mortgage foreclosure action is plaintiff's motion for summary judgment. ORDER
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FEB 06 20Ut

Summary Judgment Standard Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements.
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Johnson v. McNeil, 2002 ME 99, lJI 8, 800 A.2d 702, 704.

The facts must be

considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 lJI 8, 694 A.2d 924, 926.

Discussion In this case the court finds disputed issues of fact, including the following, which preclude summary judgment: 1. For the proposition that proper notice of the Marcottes' defendant was given, Deutsche Bank cites to paragraph 9 of the Hescott affidavit. Deutsche Bank SMF
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Since the notices in question were allegedly sent by attorney Doonan,

however, Hescott would not have had the requisite personal knowledge, nor would she approximately be able to rely on the Bank's business records. 2. Attorney Doonan eventually submitted an affidavit - after the Marcottes had filed their opposition papers - but Doomer's affidavit did not state that it was on personal knowledge, and in any event summary judgment cannot be based on evidence submitted for the first time in reply papers. 1 3. The notices sent were addressed to 69 Elderberry Drive instead of 89 Elderberry Drive. This appears to have been corrected on the envelopes in handwriting but it is not clear whether this was done before the envelopes were mailed or whether the change was made by the postal service in attempting to deliver the envelopes, or whether the change was made after the unclaimed envelopes were returned. 4. Under 14 M.R.S.

Download CUMre-07-50.pdf

Maine Law