REAL ESTATE Foreclosure
Posted by BS - 15/05/12 at 03:05 pmFederal National Mortgage Association v. Bradbury, 2011 ME 120, 32 A.3d 1014, Gorman, J.
In a 5-1 decision, the Law Court affirmed the imposition of sanctions of attorney fees and costs against a mortgage servicer that submitted an affidavit that was made in bad faith in support of a foreclosure summary judgment. The affiant admitted that he did not review whether the documents said to be attached were actually attached, that he did not even read the affidavits he signed, but only the computations of the amounts owed, and that he did not execute the affidavits before a notary. While the District Court found that his affidavit was submitted in bad faith under M.R.Civ.P. 56(h) and awarded the mortgagor her attorneys fees and costs, it declined to hold a hearing on whether the mortgage servicer should be found in contempt.
The Law Court found that these decisions were within the discretion of the trial court and pointed out that other courts in the United States had made a contempt finding under similar circumstances. The Law Court found that the servicer’s submission of the affidavit was a reprehensible practice which displayed “a serious and alarming lack of respect for the nation’s judiciaries.”
Justice Levy dissented and would have held that, given the extreme circumstances of the case and the “severe” dishonesty associated with the preparation and notarization of the affidavit, the trial court should have, at the very least, held a hearing on contempt.