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    Cit Group/Consumer Fin. v. Bernier, CUMcv-08-040 (Cumberland Super. CT., 2008)

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    Chris Buck
    This order denies CIT Group's motion for summary judgment in a foreclosure case against Joseph and Ivy Bernier. The order notes that CIT failed to provide documentary evidence that it owned the loan when originally filing for summary judgment. CIT has since filed an assignment of the mortgage, but the court will not consider evidence submitted outside the summary judgment process. As there remain factual issues such as who owns the loan, summary judgment is not appropriate and is therefore denied.

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    Cit Group/Consumer Fin. v. Bernier, CUMcv-08-040 (Cumberland Super. CT., 2008)

    Uploaded by

    Chris Buck
    28 views5 pages
    This order denies CIT Group's motion for summary judgment in a foreclosure case against Joseph and Ivy Bernier. The order notes that CIT failed to provide documentary evidence that it owned the loan when originally filing for summary judgment. CIT has since filed an assignment of the mortgage, but the court will not consider evidence submitted outside the summary judgment process. As there remain factual issues such as who owns the loan, summary judgment is not appropriate and is therefore denied.

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    Cit Group/Consumer Fin. v. Bernier, CUMcv-08-040 (Cumberland Super. Ct., 2008)

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    This order denies CIT Group's motion for summary judgment in a foreclosure case against Joseph and Ivy Bernier. The order notes that CIT failed to provide documentary evidence that it owned the loan when originally filing for summary judgment. CIT has since filed an assignment of the mortgage, but the court will not consider evidence submitted outside the summary judgment process. As there remain factual issues such as who owns the loan, summary judgment is not appropriate and is therefore denied.

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    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    28 views5 pages

    Cit Group/Consumer Fin. v. Bernier, CUMcv-08-040 (Cumberland Super. CT., 2008)

    Uploaded by

    Chris Buck
    This order denies CIT Group's motion for summary judgment in a foreclosure case against Joseph and Ivy Bernier. The order notes that CIT failed to provide documentary evidence that it owned the loan when originally filing for summary judgment. CIT has since filed an assignment of the mortgage, but the court will not consider evidence submitted outside the summary judgment process. As there remain factual issues such as who owns the loan, summary judgment is not appropriate and is therefore denied.

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    of 5

    STATE OF MAINE .

    " SUPERIOR COURT


    CUMBERLAND, ss. ... t:'.i i. ;!\ . S. CIVIL ACTION
    _~~ f~~ f'~ '~) '~.j r f.IC,: i~ DOCKET NO: CV-08-040

    CIT GROUP / CONSUMER FINANCEJL :~ g


    /~ II: 0 b' /j . i

    Plaintiff,
    ORDER
    v.

    JOSEPH BERNIER,
    and
    IVY BERNIER,

    Defendants,

    AMANDA BERNIER,

    Party-In-Interest.

    Before this Court is Plaintiff CIT Group / Consumer Finance's (CIT)

    Motion for Summary Judgment pursuant to M.R. Civ. P. 56.

    BACKGROUND
    CIT has brought an action in foreclosure against Defendants Joseph and

    Ivy Bernier (Berniers) pursuant to 14 M.R.S.A. §§ 6321-6325 for the Berniers'

    alleged default on an adjustable rate note executed and delivered to "MRS

    Mortgage Electronic Registration Systems, Inc. (MRS) on or about May 31, 2007

    in the amount of $223,600.00 (Note). The Note was secured by a mortgage deed

    to Defendant's residential property located at 83 Verrill Road, Pownal, Maine

    (Property), Amanda Bernier is a Party-in-Interest by virtue of a quit claim deed

    dated May 31, 2007.

    CIT claims that as of August 1,2007 the Berniers are in default of the Note.

    CIT further claims that notice to cure was sent by certified mail, return receipt

    requested on January 16, 2008 and that the Berniers have failed to cure the

    default.

    The Berniers have responded to this action by way of a letter dated March

    5, 2008 (which was sent again to the Court on April 7, 2008) requesting an

    extension of time in which to "rectify this situation." There has been no other

    response from the Berniers to this action.

    DISCUSSION

    Summary judgment is proper where there exist no genuine issues of

    material fact such that the moving party is entitled to judgment as a matter of

    law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, <jI4, 770

    A.2d 653, 655. A material fact is a fact that has "the potential to affect the

    outcome of the suit." Burdzel v. Sobus, 2000 ME 84, <jI6, 750 A.2d 573, 575. "Facts

    contained in a supporting or opposing statement of material facts, if supported

    by record citations as required by this rule, are deemed admitted unless properly

    controverted." M.R. Civ. P. 56(h)(4).

    In support of a motion for summary judgment, the moving party must

    include a statement of material facts, and each such fact must contain a reference

    to the record supporting that fact. M.R. Civ. P. 56(h)(1); see also Levine, 2001 ME

    77, <jI6, 770 A.2d at 656. The parties may file affidavits in support of or in

    opposition to a summary judgment motion, but pursuant to Rule 56(e), an

    affidavit must "set forth such facts as would be admissible in evidence." M.R.

    Civ. P. 56(e). "Sworn to or certified copies" of any documents referred to in an

    affidavit must be included with it. [d.

    This case was originally scheduled for hearing in May 2008. At that time

    the Berniers had failed to properly oppose CIT's motion for summary judgment.

    Their sole response was two letters requesting more time to facilitate a short sale

    with CIT to avoid foreclosure. However, at the time of filing summary

    judgment, CIT had failed to provide any documentary evidence that it was the

    owner of the loan. Indeed, CIT conceded at that time that there was not yet a

    recorded assignment of the Note. l

    Since that time CIT has filed an assignment of the mortgage and requested

    that it be attached to the complaint as Exhibit D. The Court is neither required

    nor permitted to consider this at summary judgment? See Camden National Bank

    v. Peterson, 2008 ME 85, <JI 26, 948 A.2d 1251. Accordingly, summary judgment is

    denied.

    lOA party who moves for summary judgment must properly put the motion and, most
    importantly, the material facts before the court, or the motion will not be granted, regardless of
    the adequacy, or inadequacy, of the nonmoving party's response." Levine v. R.B.K. Caly Corp.,
    2001 Me. 77, <[4, 750 A.2d 653, 655.

    2The Law Court has required that we not consider evidence not properly put forth in
    the summary judgment record:

    Because the court, in ruling on the motions for summary judgment in this
    foreclosure proceeding, was neither required nor permitted to search
    outside the facts properly referenced in the statements of material facts,
    the later filed deposition testimony and attached exhibit should have
    been disregarded, and the court erred in relying on documents submitted
    outside the Rules 56 process.

    Id. (citing Levine v. R.B.K. Caly Corp., 2001 ME 77, err 9, 770 A.2d 653, 656).

    3
    Therefore, the entry is:

    Defendant's Motion for Summary Judgment is DENIED.

    The clerk shall incorporate this Order into the docket by reference

    pursuant to M.R. Civ. P. 79(a).

    Dated at Portland, Maine this 2Ifw day of A~:X:-~.L..J

    :: COURTS
    nd County
    ox 287
    le 04112-0287

    JAMES AUDIFFRED ESQ


    PO BOX 1005
    SACO HE 04072

    :: COURTS
    nd County
    ox 287
    le 04112-0287

    JOSEPH AND IVY BERNIER


    71 CURTIS ROAD
    FREEPORT ME 04032

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