Wilmington Sav. Fund Soc'y, FSB v. Needham
Wilmington Sav. Fund Soc'y, FSB v. Needham
Opinion of the Court
*1279[¶1] Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, not individually but as Trustee for Hilldale Trust, appeals from a judgment in favor of Matthew J. Needham
I. CASE HISTORY
[¶2] The following facts are undisputed. In August 2005, Needham signed a promissory note in favor of EquiFirst Corporation that was secured by a mortgage on his real property situated in Auburn. Needham defaulted on that loan in August 2014 when he stopped making the required payments. In September 2016, loan servicer BSI Financial Services sent Needham a notice of the right to cure on behalf of Ventures Trust
[¶3] In December 2017, Ventures Trust filed a motion seeking to substitute Wilmington Savings Fund, FSB, as plaintiff because it had transferred the mortgage and note by assignment to Wilmington, as trustee for Hilldale Trust, in October 2017. The motion was granted in January 2018.
[¶4] A short bench trial was held in April 2018, after which Needham stipulated that Wilmington's complaint and filings were proper, its various exhibits were admissible, and he had in fact defaulted under the terms of the note and mortgage. The parties agreed that the only issue to be decided by the court was whether 14 M.R.S. § 6111(1) requires a mortgagee itself-and not its loan servicer acting as its agent-to send the notice of the right to cure. Resolution of that question would be dispositive of the case. In lieu of presenting their arguments at trial, the parties agreed to submit written arguments.
[¶5] The court entered judgment for Needham on July 10, 2018. In its judgment, the court explained:
The clearest guidance available to this [c]ourt in deciding this issue is the oft-repeated mandate that a plaintiff seeking a judgment of foreclosure must *1280strictly comply with statutory requirements. See , e.g. , [Bank of Am., N.A. v. ] Greenleaf ,2014 ME 89 , ¶ 18,96 A.3d 700 ; [Chase Home Fin. LLC v. ] Higgins ,2009 ME 136 , ¶ 11,985 A.2d 508 ; Camden Nat'l Bank v. Peterson ,2008 ME 85 , ¶ 21,948 A.2d 1251 . Section 6111 plainly requires notice to be "given by the mortgagee." 14 M.R.S.A. § 6111(1). The term "mortgage servicer" appears elsewhere in section 6111, e.g. ,id. § 6111(1-A)(D), (E), indicating the Legislature recognizes that a servicer is a distinct entity from a mortgagee. The Legislature has not designated loan servicers as entities that can send notice to mortgagors in satisfaction of section 6111.
Absent any indication from the Law Court or the Legislature that an exception may be made when a loan servicer sends notice on behalf of a mortgagee, this [c]ourt finds, under a strict interpretation of the statute, that notice must be sent by the mortgagee. In this case, because notice was not sent by the mortgagee, but rather by the loan servicer, the notice was insufficient to satisfy the requirements of section 6111. Thus, Plaintiff has not satisfied its burden to provide evidence of each of the elements of proof necessary to support a judgment for foreclosure. Judgment will be entered for Defendants.
[¶6] Wilmington timely appealed. M.R. App. P. 2B(c)(1).
II. LEGAL ANALYSIS
[¶7] Wilmington argues that the court's judgment ignores the common law principles of agency, as well as the plain language and legislative purpose of section 6111.
A. Agency in Common Law
[¶8] "Agency is the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his [or her] behalf and subject to his [or her] control, and consent by the other so to act." Libby v. Concord Gen. Mut. Ins. Co. ,
[¶9] With that background, this appeal presents three questions: (1) whether the loan servicer, BSI, was acting as an agent of the mortgagee at the time it sent the notice of the right to cure to Needham; (2) whether the mortgage contract requires personal performance by the mortgagee when sending such a notice; and (3) whether section 6111 abrogates the common law so that, regardless of the existence of an agency relationship, the mortgagee itself must send the notice.
[¶10] The answer to the first question is implicit in the narrow scope of the issue presented to the trial court by agreement of the parties. The parties asked the court to determine whether a loan servicer may give a notice of the right to cure on behalf *1281of a mortgagee pursuant to section 6111(1), but-as the parties confirmed at oral argument-did not dispute that BSI was a loan servicer acting on behalf of the mortgagee in this case. Therefore, by definition, BSI was acting as the mortgagee's agent. Thus, the dispositive issues presented here are entirely questions of law. We address the other two questions in turn.
B. Agency and the Mortgage Contract
[¶11] The court made the following supported findings regarding the mortgage contract:
While not dispositive here, the mortgage contract in this case similarly requires notice of default and right to cure to be sent by the "Lender." The mortgage's definition of "Lender" includes "any Person who takes ownership of the Note and this Security Instrument." "Loan Servicer" is separately defined as "[t]he entity that collects ... Periodic Payments due under the Note and this Security Instrument and also performs other mortgage loan servicing obligations under the Note, this Security Agreement and Applicable Law." Clearly, the mortgage contemplates that the Lender and the Loan Servicer are not the same entity.
(alterations in original) (citations omitted).
[¶12] When "the language of a contract is unambiguous, we review that contract de novo as a question of law." Williams v. Williams ,
[¶13] Looking to the terms of the mortgage contract, Needham does not suggest any difference in legal effect when an otherwise valid notice is sent by a lender's agent and not the lender itself. We therefore conclude that the mortgage contract does not prohibit the mortgagee from delegating to its agent loan servicer the mortgagee's duty to send the notice of the right to cure.
C. Agency and Section 6111
[¶14] Title 14 M.R.S. § 6111(1) prohibits enforcement of a residential mortgage until thirty-five days after written notice of the right to cure "is given by the mortgagee to the mortgagor." The court determined that because other subsections of the statute, see
[¶15] "We interpret the meaning of a statute de novo by analyzing its plain language ...." Bank of Am., N.A. v. Cloutier ,
[¶16] When analyzing the interplay between section 6111(1) and the common law of agency we look to "the well-established rule of statutory construction that the common law is not to be changed by doubtful implication [or] be overturned except by clear and unambiguous language, and that a statute in derogation of it will not effect a change thereof beyond that *1282clearly indicated either by express terms or by necessary implication." Batchelder v. Realty Res. Hosp., LLC ,
[¶17] Although section 6111 distinguishes between mortgagees, mortgage servicers, and agents of mortgagees in its various subsections, there is no clear statement or necessary implication that the Legislature intended to abrogate the long-established principles of agency by simply stating that notice "is given by the mortgagee." Accord U.S. Bank Trust, N.A. v. Jones ,
[¶18] This interpretation is consistent with the purpose of the statute, which is to prevent the unnecessary loss of a mortgagor's home, and does not alter our mandate that lenders must strictly comply with its requirements. Bank of Am., N.A. v. Greenleaf ,
D. Conclusion
[¶19] Because neither the mortgage contract nor section 6111(1) prohibited the mortgagee from delegating to an agent loan servicer its duty to give a notice of the right to cure to Needham, we vacate the court's decision and remand the matter for entry of judgment for Wilmington.
The entry is:
Judgment vacated. Remanded for further proceedings consistent with this opinion.
In addition to Needham, Nicole L. Leighton is a named defendant in this matter. She has not participated in this appeal. For the sake of clarity, Needham will be referred to individually throughout this opinion.
The complete designation of Ventures Trust is "Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee."
Reference
- Full Case Name
- WILMINGTON SAVINGS FUND SOCIETY, FSB v. Matthew J. NEEDHAM
- Cited By
- 4 cases
- Status
- Published