The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILMINGTON TRUST, )
NATIONAL ASSOCIATION NOT )
IN ITS INDIVIDUAL CAPACITY, )
BUT SOLELY AS TRUSTEE FOR )
MFRA TRUST 2015-1, )
)
Plaintiff, )
)
v. ) 2:21-cv-00278-SDN
)
HENRY W. HOWE IV and )
MELANIE B. HOWE, )
)
Defendants, )
)
ASSET ACCEPTANCE, LLC, and )
CREDIT ACCEPTANCE )
CORPORATION, )
)
Parties-in-Interest. )
)
)
MELANIE B. HOWE, )
)
Counter-Plaintiff, )
)
v. )
)
WILMINGTON TRUST, )
NATIONAL ASSOCIATION NOT )
IN ITS INDIVIDUAL CAPACITY, )
BUT SOLELY AS TRUSTEE FOR )
MFRA TRUST 2015-1 and )
FAY SERVICING, LLC, )
)
Counter-Defendants. )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court conducted a bench trial on December 16 and 17, 2025. This matter stems
from a 2007 mortgage loan that has been in default since 2014. After hearing testimony
and reviewing the exhibits, briefs, and post-trial submissions, the Court makes the
following findings of fact and conclusions of law. See Fed. R. Civ. P. 52(a).
PROCEDURAL BACKGROUND1
On September 30, 2021, Wilmington Trust National Association Not in Its
Individual Capacity but Solely as Trustee for MFRA Trust 2015-1 (“MFRA”) filed a
complaint (“Note Action”) against the Defendants Melanie B. Howe and Henry W. Howe
IV for: Breach of Note (Count I); Breach of Contract, Money Had and Received (Count
II); Quantum Meruit (Count III); and Unjust Enrichment (Count IV). See Note Action
Compl. (ECF No. 1). While Mr. Howe defaulted in the Note Action (ECF Nos. 18 & 19),
Ms. Howe filed an answer, asserted affirmative defenses, and brought several
counterclaims against MFRA and Fay Servicing, LLC (“Fay”). See Note Action Answer
(ECF No. 8). Ms. Howe alleged both MFRA and Fay violated the Fair Debt Collection
Practices Act (“FDCPA”) and Fay violated Maine’s “mortgage servicer duty of good faith”
statute. Id. at 25–29. On September 5, 2023, Ms. Howe moved for partial summary
judgment. Mot. for Partial Summ. J. (ECF No. 64). On December 18, 2024, the Court
granted the motion as to Ms. Howe’s FDCPA counterclaim against Fay. Summ. J. Order
(ECF No. 88). MFRA filed a separate foreclosure action (“Foreclosure Action”) against
the Howes on October 21, 2024. See Foreclosure Action Compl. (Docket No. 2:24-cv-
00354-NT, ECF No. 1).2 In June 2025, Ms. Howe filed a consent motion to consolidate
1 Given the five years of litigation and over 150 docket entries in this case, the Court limits this Order’s
procedural background to that which is relevant to final disposition.
2 Unless otherwise noted, as is done here, all ECF references within this Order reflect filings at docket
number 2:21-cv-00278-SDN.
the Note and Foreclosure Actions (ECF No. 96), which the Court granted in July 2025.
(ECF No. 102).
FINDINGS OF FACT
I. The Parties and the Property
1. The mortgage loan concerns the property located at 334 Deerwander Road,
Hollis Center, Maine 04042 (the “Property”). Trial Ex. 3, Mortg.
2. Plaintiff/counter-defendant MFRA is a National Association organized
under United States law with its principal place of business in Wilmington, Delaware.
Note Action Compl. ¶ 4.
3. Counter-defendant Fay operates as a loan servicing organization. Bench
Trial Tr. 1 at 21:8–13 (ECF No. 149).
4. Defendant/counter-plaintiff Melanie B. Howe resides in Maine. Bench Trial
Tr. 2 at 279 (ECF No. 150).
5. Defendant Henry W. Howe IV resides in Maine. Note Action Compl. at 2.
On February 3, 2022, Mr. Howe conveyed his interest in the Property to Ms. Howe by
quitclaim assignment. Trial Ex. 25, Howe Quitclaim Assignment. Following the transfer,
MFRA withdrew its foreclosure claim against him. Mot. to Dismiss Def. Henry W. Howe
IV (Docket No. 2:24-cv-00354-NT, ECF No. 13); Order Granting Mot. to Dismiss Def.
Henry W. Howe IV (Docket No. 2:24-cv-00354-NT, ECF No. 16). However, Mr. Howe
remained a party to the Note Action, and the Court entered a default against him on
January 27, 2022. Order Granting Entry of Default (ECF No. 22).
6. The Foreclosure Action named two parties-in-interest, Asset Acceptance,
LLC (“Asset Acceptance”) and Credit Acceptance Corporation (“Credit Acceptance”).
Foreclosure Action Compl. at 3. Asset Acceptance is a Delaware limited liability company
whose sole member is Encore Capital Group, Inc., based in San Diego, California. Id.
Credit Acceptance is a Michigan corporation with a principal place of business in
Southfield, Michigan. Neither party has appeared in this action. Id.
II. 2007 Loan Origination to 2014 Default
7. On April 20, 2007, the Howes borrowed $208,000 from Challenge
Financial Investors, Corp. (“Challenge”) to purchase the Property (the “Loan”). Trial Ex.
2, Note. A promissory note (the “Note”) evidences the loan. Id. Challenge endorsed the
Note to CitiMortgage, Inc. (“CitiMortgage”), which subsequently endorsed it in blank. Id.
To secure the Note, the Howes executed a mortgage on the Property (the “Mortgage”),
which was recorded in the York County Registry of Deeds in Book 15139, Page 540. Mortg.
The Mortgage named Mortgage Electronic Registration Systems, Inc. (“MERS”) as the
nominee for Challenge. Id.
8. On June 28, 2007, Challenge sold the Loan to the Federal National
Mortgage Association (“FNMA”). Trial Ex. 17, Decl. of Fannie Mae.
9. Prior to 2009, the Howes fell behind on their monthly mortgage payments.
Bench Trial Tr. 1 at 37:14–16.
10. In 2010, Ms. Howe began experiencing medical issues that eventually led to
her receiving Social Security disability benefits. Trial Ex. 32, Howe Deposition at 23:11–
18.
11. On July 20, 2010, the Howes executed a loan modification agreement with
CitiMortgage and MERS (“2010 Loan Modification”). Trial Ex. 4, 2010 Loan
Modification Agreement. This agreement capitalized their arrears and established a step-
rate interest schedule starting at 2.0%. Id.
12. On September 24, 2010, the Florida Secretary of State, Division of
Corporations, administratively dissolved Challenge, listing it as an inactive corporation.
Trial Ex. 23, Fla. Action Compl.
13. In November 2010, Nationstar Mortgage LLC (“Nationstar”), became the
loan servicer and sent a welcome letter to the Howes. Trial Ex. 5, Nationstar Welcome
Letter.
14. On July 21, 2011, the Howes executed a second loan modification agreement
with Nationstar (“2011 Loan Modification”). Trial Ex. 6, 2011 Loan Modification
Agreement. This agreement reduced the monthly payment and interest rate, capitalized
additional arrears, and extended the loan’s maturity date. Id.
15. On or about July 30, 2011, the Howes executed a compliance agreement
with Nationstar, obligating them to cooperate with the lender to correct any clerical or
typographical errors in the closing documents. Trial Ex. 7, Compliance Agreement.
16. On March 1, 2013, MERS, as nominee for Challenge, assigned its interest in
the Mortgage to Nationstar and recorded in the York County Registry of Deeds in Book
16559, Page 45. Trial Ex. 8, Corporate Assignment of Mortgage.
17. In August 2014, the Howes executed a third loan modification agreement
with Nationstar and MERS (“2014 Loan Modification”). Trial Ex. 9, 2014 Loan
Modification Agreement. The 2014 Loan Modification capitalized arrears and split the
balance into a $214,129.99 interest-bearing principal and a $23,199.73 deferred non-
interest-bearing principal. It set the interest rate at 4.625%, extended the maturity to
August 2054, and required monthly principal and interest payments of $979.92
beginning September 1, 2014. Id.
18. By signing the 2014 Loan Modification, the Howes agreed that failing to pay
the full by the first of each month would constitute a default. Id. The agreement
authorized the “Note Holder” to accelerate the debt—requiring immediate payment of the
entire principal and interest—after providing written notice. Id.
19. MFRA’s current calculation of the total amount due in this litigation uses
the 2014 Loan Modification as its baseline. Bench Trial Tr. 1 at 180:3–6.
20. The Howes made only one payment under the 2014 Loan Modification. Id.
at 179:17–23.
21. The Howes defaulted on the Loan in October 2014. At that time, Nationstar
was the Loan’s servicer. Id. at 33:23–24.
22. On October 30, 2014, and again on August 13, 2015, Nationstar sent the
Howes a “Notice of Default and Right to Cure.” These letters specified the amount
required to cure the default and warned that failure to pay could lead to acceleration and
foreclosure.
23. On November 17, 2014, Fay entered into a Flow Servicing Agreement with
MFRResidential Assets I, LLC, and other trusts. Trial Ex. 10, Flow Servicing Agreement.
Under this agreement, Fay serves as the servicer for loans held by these entities. MFRA
Trust 2015-1 joined this agreement on August 25, 2015. Id.
24. In March 2015, the Howes submitted a $1,000 payment. Trial Ex. 38, J.
Figures/Payment History. Because this amount did not cover the total arrears,
Nationstar placed the funds in a “suspense account”—a holding account used for partial
payments that are insufficient to credit a full monthly installment. Bench Trial Tr. 1 at
180:15. On June 10, 2015, Nationstar returned the $1,000 to the Howes. J.
Figures/Payment History. The Howes have made no payments since. Bench Trial Tr. 1
at 179:25.
25. On December 22, 2016, FNMA sold the Mortgage to MTGLQ Investors, LP
(“MTGLQ”). Trial Ex. 14, Notice of Assignment.
26. On January 17, 2017, Nationstar assigned its interest in the MTGLQ. Trial
Ex. 12, First Corporate Assignment of Mortgage. Two days later, Nationstar
inadvertently recorded a second assignment to MTGLQ. Trial Ex. 13, Second Assignment
of Mortgage. Around this time, notice of the assignment was mailed to the Howes. Notice
of Assignment.
27. Around March 2017, Selene Finance LP (“Selene”) took over as the Loan’s
servicer and notified the Howes of the change by letter. Trial Ex. 15, Selene Servicing
Letter.
III. Prior Action in State Court
28. In June 2017, MTGLQ filed an action in Maine Superior Court against
Challenge, naming the Howes and others as parties-in-interest. Trial Ex. 41, Prior State
Action.
29. The complaint in the Prior State Action, titled “Complaint for Declaratory
Judgment,” and asked the court to find that MTGLQ owned both the Note and Mortgage
as of January 17, 2017. Id.
30. On September 12, 2017, MTGLQ assigned the Mortgage to MFRA. Trial Ex.
20, Third Assignment of Mortgage.
31. In December 2017, MGTLQ substituted MFRA as named plaintiff. Prior
State Action.
32. The Maine Superior Court dismissed the Prior State Action with prejudice
in February 2020. Id. MFRA moved to amend the judgment to specify that dismissal only
precluded future actions “as to the claims advanced in” that suit. The court denied the
motion as untimely but added that even “[i]f timely, the motion to amend judgment would
be denied.” Id.
IV. Fay as Loan Servicer
33. Fay Servicing LLC (“Fay”), a loan servicing company, began servicing the
Mortgage on September 5, 2017. Trial Ex. 18, Selene Finance Letter. In this capacity, it
collects payments, imposes fees, and performs other related servicing functions. Id. The
Loan was in default when Fay began servicing it for MFRA.
34. During the transfer of servicing from Selene, Fay received the Mortgage’s
payment history and collateral file. Trial Ex. 33, Michael Paterno Aug. 6, 2025
Deposition. Through its standard “on-boarding” process, Fay incorporated those
transferred records into its own business records for the Mortgage. Id.
35. From October 2019 through December 2021, Fay sent monthly mortgage
statements to Ms. Howe warning her that she “may risk foreclosure” if she did not pay.
Trial Ex. 59 at p. 1143–44.
36. The mailings also contained the following notices: “[Fay] is a debt collector,
and information you provide to us will be used for that purpose,” and “You are late on
your monthly payments. Id. Failure to bring the account current may result in additional
fees or expenses, and in certain instances, you may risk foreclosure - the loss of your
home.” Id.
37. In addition, Fay mailed several letters to the Howes stating Fay had “a right
to invoke foreclosure based on the terms of [their] mortgage contract.” Trial Ex. 48, Fay
Servicing Commc’ns at p. 1391. These letters encouraged them to seek alternatives to
foreclosure (e.g., refinancing, modifying terms, selling the property, or a deed-in-lieu of
foreclosure) to avoid losing their home due to non-payment. Id.
V. The Note, Foreclosure, and Florida Receivership Actions
38. On September 30, 2021, MFRA filed its Note Action against the Howes in
this Court. Note Action Compl.
39. In 2022, the Howes divorced. Joint Statement of Fact (ECF No. 138). In
February of that year, Mr. Howe conveyed his rights and interests in the Property to Ms.
Howe by quitclaim deed, which is recorded in the York County Registry of Deeds in Book
18944, Page 365. Howe Quitclaim Assignment.
40. On August 26, 2022, MFRA brought an action in state court in Florida,
seeking declaratory relief and the appointment of a receiver for Challenge (“Florida
Receivership Action”). Fla. Action Compl. Unlike the Prior State Action, this complaint
did not name Ms. Howe; it named only MFRA and Challenge. Id.
41. In the Florida Receivership Action, MFRA represented that it could not
foreclose under Maine law without obtaining a valid assignment of the Mortgage. Id.
42. Challenge did not answer and MFRA moved for and received an entry of
default against Challenge. Trial Ex. 28, Receivership Order.
43. Following MFRA’s January 18, 2023, Motion to Appoint Receiver for
Challenge, the Florida court issued an order on February 3, 2023, appointing Paul
Wersant, Esq. as the receiver for Challenge (“Receivership Order”). Id. As relevant to the
pending foreclosure, the Receivership Order empowers and authorizes the receiver “to
execute any documents on behalf of [MFRA], including but not limited to any
Assignments of Mortgages.” Id.
44. Receiver Wersant executed the quitclaim assignment of the Mortgage from
Challenge to MFRA on February 21, 2023. Trial Ex. 29, Quitclaim Assignment.
45. On April 12, 2023, Doonan, Graves & Longoria, LLC—acting on behalf of
Fay and MFRA regarding the Loan—sent a Notice of Mortgagor’s Right to Cure to the
Howes on Fay’s behalf.
46. On August 5, 2024, Doonan, Graves & Longoria, LLC, sent a second Notice
of Mortgagor’s Right to Cure. Trial Ex. 35, Notice of Right to Cure. This notice demanded
$165,537.78 to reinstate the loan and itemized principal, interest, escrow, mortgage
insurance, property inspection fees, and late charges. Id.
47. Asserting that it was the legal owner of the Mortgage with standing to sue,
MFRA filed its Foreclosure Action with this Court on October 21, 2024. Foreclosure
Action Compl.
48. At the time of the filing, the Howes were not on active duty with the United
States Military. Id. ¶ 54.
49. The parties completed mediation via the Maine Foreclosure Diversion
Program. Joint Statement of Fact.
CONCLUSIONS OF LAW
I. Statute of Limitations
The Court first resolves Ms. Howe’s statute of limitations defense, asserted in both
the Foreclosure and Note Actions. Ms. Howe contends the six-year statute of limitations
period bars all MFRA’s claims in both Actions, citing 14 M.R.S. § 752, Maine’s general
civil limitations statute, and 32 M.R.S. § 11013, the limitations provision for collection
actions under the Maine Fair Debt Collection Practices Act (“MFDCPA”). MFRA asserts
Ms. Howe waived this affirmative defense by failing to plead it, and Ms. Howe counters
that MFRA impliedly consented to litigating the defense under Federal Rule of Civil
Procedure 15(b)(2) because it did not object to her raising the statute of limitations in her
pre-trial brief and because MFRA engaged with the issue at trial.
Under Federal Rule of Civil Procedure 8(c), a party waives an affirmative defense
that it does not properly plead. Fed. R. Civ. P. 8(c); Soc’y of Holy Transfiguration
Monastery, Inc. v. Gregory, 689 F.3d 29, 58 (1st Cir. 2012) (“The law is clear that if an
affirmative defense is not pleaded pursuant to [Rule 8(c)’s] requirements, it is waived.”);
Schindler v. Nilsen, 2001 ME 58, ¶ 17 n.7, 770 A.2d 638 (“A statute of limitations defense
is an affirmative defense which is not preserved unless asserted in a timely manner.”).
This rule is not absolute: when the parties try an unpleaded affirmative defense by implied
consent, the court must treat the defense as if the defendant had raised it in a responsive
pleading. Conjugal P’ship v. Conjugal P’ship, 22 F.3d 391, 400 (1st Cir. 1994); see Fed. R.
Civ. P. 15(b)(2) (“When an issue not raised by the pleadings is tried by the parties’ express
or implied consent, it must be treated in all respects as if raised in the pleadings.”). A party
can provide implied consent to an unpleaded affirmative defense in two ways: (1) by
treating it as if it were pleaded, either by engaging the issue on the merits or by silently
acquiescing; or (2) by allowing the introduction of evidence that is relevant only to that
affirmative defense. García v. State Ins. Fund Corp., 169 F.4th 13, 22 (1st Cir. 2026); see
Conjugal P’ship, 22 F.3d at 400.
The pleadings show that Ms. Howe invoked a generic statute of limitations defense
in her answer to the Note Action complaint but only as to quantum meruit (Count III)
and unjust enrichment (Count IV). See Note Action Answer at 7. She did not plead any
statute of limitations defense in the Foreclosure Action. See Foreclosure Action Answer
at 6–7 (Docket No. 2:24-cv-00354-NT, ECF No. 14). In her Note Action counterclaims,
Ms. Howe alleged quantum meruit and unjust enrichment were time-barred because
MFRA brought them outside the six-year limitations period, but she referred to “Maine
law” and did not identify whether she relied on § 752 or the MFDCPA for this assertion.
See Note Action Answer at 22. MFRA, in responding to those counterclaims, accepted
that a six-year limitations period applies to both quantum meruit and unjust enrichment
claims but disputed that either was time-barred. Counterclaims Resp. ¶¶ 45, 46 (ECF No.
30). In her pre-trial brief, Ms. Howe cited a six-year limitations period under both § 752
and the MFDCPA as to unjust enrichment but only briefly referenced the remaining
counts in connection to the MFDCPA. See Howe Pre-Trial Brief at 4 (ECF No. 135)
(discussing unjust enrichment and noting the MFDCPA “sets the statute of limitations on
a ‘collection action’ to six years after the date of the consumers last activity on the debt”
and asserting all MFRA’s Note Action claims qualify as “collection actions” under the
MFDCPA).
Even if the passing references, considered alone, did not sufficiently establish that
MFRA “understood . . . the evidence was aimed at an unpleaded” MFDCPA limitations
defense, In re Fustolo, 896 F.3d 76, 84 (1st Cir. 2018) (quotation modified), MFRA’s post-
trial brief directly addressed that defense. MFRA characterized as “unavailing” Ms.
Howe’s argument that the Note and Mortgage were unenforceable if the Court applied the
six-year statute of limitations for consumer debt lacking an explicit limitations period and
not executed under seal. MFRA Proposed Findings of Fact at 33 (ECF No. 154). MFRA’s
response shows it understood—and chose to contest on the merits—the timeliness theory
Ms. Howe advanced. That response suffices to establish implied consent under Rule
15(b)(2). The Court therefore treats the six-year MFDCPA limitations defense preserved
as to breach of note (Count I), money had and received (Count II), quantum meruit
(Counts III), and unjust enrichment (Count IV). The Court also treats the six-year statute
of limitations defense under § 752 preserved as to quantum meruit (Count III) and unjust
enrichment (Count IV). Ms. Howe preserved no limitations defense, under either statute,
in the Foreclosure Action.
The Court next considers whether MFRA’s trial conduct broadened the scope of its
implied consent. Specifically, the Court considers whether its conduct permitted Ms.
Howe to assert the MFDCPA limitations defense as to foreclosure and sale, or the § 752
defense as to breach of note, money had and received, or foreclosure and sale. Ms. Howe
asserts MFRA impliedly consented to litigate the MFDCPA’s six-year limitations period
more broadly because: (1) she identified the six-year limitations issue in her opening
statement without objection; (2) MFRA agreed that its status as a “debt collector”
presented “an issue of law” for the Court to decide; and (3) Ms. Howe elicited extensive,
unobjected-to testimony on whether MFRA qualifies as a debt collector under the
MFDCPA. Howe Proposed Findings of Fact, Brief at 5 n.5 (ECF No. 156).
The trial record she cites, however, does not support that contention. The
testimony on which Ms. Howe relies concerns whether MFRA qualifies as a “debt
collector” under the MFDCPA, not on the statute’s limitations period.3 Ms. Howe’s
counsel mentioned the limitations period only once and only in connection with the debt-
collector definition: “some of the defenses depend on what [the Defendants] did, at least
as far as whether each is a debt collector under the [MFDCPA]. They could both be a debt
collector, and that could have implications through the statute of limitations, at least
3 Specifically, MFRA’s counsel stated: “We understand that Fay is a debt collector. That’s not an issue. But
the law, I would argue, is clear that [MFRA] is not a debt collector. And that’s an issue of law for Your Honor
to decide, not an issue of fact that has relevant testimony to it.” Bench Trial Tr. 1 at 16:9–13.
under our theory.” Bench Trial Tr. 1 at 9:4–9. This isolated, undeveloped remark did not
expand MFRA’s consent to litigate an MFDCPA defense in the Foreclosure Action. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.”). Nor did MFRA’s agreement that its debt-collector status presented “an
issue of law” coupled with the testimony concerning the statutory definition of “debt
collector” broaden its consent. See Bench Trial Tr. 1 at 16:9–13. MFRA never invoked the
MFDCPA’s limitations period at trial. Moreover, MFRA’s status as a debt collector bore
directly on Ms. Howe’s separate federal FDCPA claims; the related testimony was
therefore not uniquely relevant to an MFDCPA limitations defense. Because MFRA “did
not introduce any evidence that was relevant only to a claim under” the MFDCPA—let
alone evidence relevant solely to the limitations defense concerning foreclosure and sale—
MFRA’s trial conduct did not establish implied consent to litigate that defense in the
Foreclosure Action. Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1173 (1st Cir. 1995)
(emphasis in original); see García, 169 F.4th at 22. For the same reason, MFRA’s conduct
at trial did not expand its consent to litigate the § 752 defense beyond the quantum meruit
and unjust enrichment claims. In short, MFRA impliedly consented only to the limitations
defenses Ms. Howe preserved in the Note Action; that consent did not extend to the
Foreclosure Action.
Having concluded that MFRA impliedly consented to litigate the timeliness
defenses preserved in the Note Action, the Court turns to MFRA’s alternative argument
that 14 M.R.S. § 751 supplies the governing twenty-year limitations period, rather than
the six-year periods under the MFDCPA or § 752. MFRA argues that because the
legislature enacted the MFDCPA’s six-year limitations period in 2015, the provision
cannot bar claims arising from a loan and mortgage executed in 2007, when § 751
imposed a twenty-year limitations period. MFRA further maintains the MFDCPA’s six-
year limitations provision operates only prospectively and does not reach back to existing
loans. Ms. Howe counters by arguing that the MFDCPA, as a specific consumer-protection
statute, takes precedence over the more general limitations statute in § 751 and MFRA
acquired no vested right to a twenty-year limitations period merely because the Howes
executed the Loan and Mortgage in 2007. For the reasons set forth below, the Court
agrees with MFRA: the MFDCPA’s six-year limitations period does not apply retroactively
to the Howe Loan and Mortgage.
In Maine, civil actions are subject to a six-year limitations period, “except as
otherwise specially provided.” 14 M.R.S. § 752. One exception is found in § 751, which
creates a twenty-year statute of limitations for “personal actions on contracts or liabilities
under seal, promissory notes signed in the presence of an attesting witness, or on the bills,
notes or other evidences of debt issued by a bank.” Id. § 751. Another exception, the
MFDCPA, prohibits a debt collector from commencing “a collection action more than [six]
years after the date of the consumer’s last activity on the debt.” 32 M.R.S. § 11013(8). A
law in effect at the time of a contract’s execution generally is incorporated into that
contract. Portland Sav. Bank v. Landry, 372 A.2d 573, 575 (Me. 1977). Both § 751 and
§ 752 were in effect when the Howes executed the Loan and Mortgage in 2007, while the
MFDCPA’s limitations period was not enacted until 2015. Still, a legislatively enacted
statute can apply retroactively if: (1) the legislature expressly states its intent for
retroactive application of the statute; and (2) retroactive application does not violate the
Maine Constitution. Black v. Bureau of Parks & Lands, 2022 ME 58, ¶ 34, 288 A.3d 346.
Neither condition is met here. The text of the MFDCPA does not suggest retroactive
application; nothing in the statute expresses a clear legislative intent that the six-year
limitations period apply to preexisting debts or contracts. As such, the presumption under
Maine law that statutes operate prospectively absent a clear legislative statement to the
contrary controls. See Miller v. Fallon, 134 Me. 145, 148, 183 A. 416 (1936). That is not,
however, the only relevant presumption. Maine’s highest court also presumes that
“procedural or remedial enactments . . . apply retroactively and that statutes affecting
substantive rights . . . apply only prospectively.” Sinclair v. Sinclair, 654 A.2d 438, 439
(Me. 1995). Because of the “elusive distinction between substance and procedure,” the
Law Court employs a legislative-purpose inquiry to determine whether a newly enacted
statute of limitations period should apply retroactively or prospectively. Id. at 439–440.
In Sinclair v. Sinclair, the Law Court applied a legislative-purpose analysis to
permit retroactive application of a limited procedural requirement in the
mortgage-foreclosure context. Id. The statute at issue, 14 M.R.S.A. § 6111, required
mortgagees to provide a right-to-cure notice before foreclosure. Id. at 438. The Court held
that because the notice requirement “introduced [only] a minimum delay in the process
of protecting the mortgagees’ interest,” it did not substantially impair the mortgagees’
rights and was reasonable in light of the “significant and legitimate public purpose” it
served—preventing “the unnecessary loss of a mortgagor’s home.” Id. at 440. In reaching
that result, the Court reiterated that any retroactive application must remain consistent
with constitutional principles and must not impair existing rights or contracts. Id.
Applying that framework here, two considerations favor prospective-only
application of the MFDCPA’s six-year limitations period. First, nothing in the record
suggests that applying the MFDCPA prospectively would frustrate any identifiable
legislative purpose. This case materially differs from Sinclair: there, prospective-only
application would have left existing mortgagors without the right-to-cure notice the
legislature created specifically “to prevent the unnecessary loss of a mortgagor’s home,”
id., thereby undermining the very purpose for which the legislature enacted § 6111. Here,
by contrast, the record contains no indication that the legislature adopted the MFDCPA’s
six-year limitations period to address an urgent problem of stale debt collection on
pre-2015 loans, or that prospective application would leave any class of borrowers
unprotected from a harm the statute specifically targeted. Absent such evidence, the Court
has no basis to conclude that prospective application frustrates the MFDCPA’s purpose
in the way that prospective-only application would have frustrated § 6111’s purpose in
Sinclair.
Second, retroactive application of the MFDCPA would not merely impose the kind
of minimal procedural delay tolerated in Sinclair; it would substantively shorten the
governing limitations period from twenty years to six. That distinction matters.
Section 6111 imposed only a brief, fixed delay before foreclosure could proceed, leaving
the mortgagee’s underlying enforcement rights intact. Retroactively applying the
MFDCPA here would extinguish fourteen years of MFRA’s enforcement window outright,
impairing a substantive right rather than imposing an incidental procedural burden.
Ms. Howe contends this reduction would not impair MFRA’s rights because MFRA
has no vested interest in a longer limitations period, relying on Dupuis v. Roman Catholic
Bishop of Portland. 2025 ME 6, 331 A.3d 294. But Dupuis does not endorse retroactively
shortening an unexpired limitations period; it holds that “[o]nce a statute of limitations
has expired for a claim, a right to be free of that claim has vested, and the claim cannot be
revived.” Id. ¶ 56, 331 A.3d 294. Dupuis thus addressed the opposite scenario, and the
Law Court has long distinguished between statutes that enlarge a limitations period and
those that shorten it. See Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 817 (Me.
1980). Accordingly, Dupuis offers little guidance on whether the Legislature may
retroactively shorten an unexpired limitations period. Rather, Miller v. Fallon provides
the closer analogue. 134 Me. 145, 183 A. 416 (1936). In Miller, the Court held a statute
that shortened the limitations period for medical malpractice claims from six years to two
applied only prospectively because the statute contained no “legislative intent to the
contrary.” Id. at 151, 183 A. at 417. The MFDCPA likewise contains no indication that the
Legislature intended to apply the limitations period retroactively. And, as in Miller, the
Legislature here provided no “grace period” to afford a reasonable time to bring existing
claims before the new, shorter limitations period would bar them. See Me. Med. Ctr. v.
Cote, 577 A.2d 1173, 1178 (Me. 1990) (distinguishing Miller from a statute that included a
two-year grace period). In these circumstances, Maine’s presumptions against
retroactivity and its distinction between procedural and substantive changes point in the
same direction: the MFDCPA’s six-year limitations period applies only prospectively and
does not retroactively shorten the twenty-year period that governed the Howe Loan and
Mortgage.
Because the MFDCPA applies only prospectively here, its six-year limitations
period does not govern MFRA’s claims in the Note Action. The only limitations defense
that remains available to Ms. Howe is 14 M.R.S. § 752, which the Court already
determined applies only to quantum meruit and unjust enrichment.
Having concluded that Ms. Howe may raise a statute of limitations defense as to
quantum meruit and unjust enrichment, the Court considers whether those claims are
time-barred. The parties agree that the cause of action accrued with the 2014 default,
which occurred more than six years before MFRA filed the Note Action on September 30,
2021. Consequently, both claims are time-barred. See 14 M.R.S. § 752 (“All civil actions
shall be commenced within [six] years after the cause of action accrues . . .”). The Court
therefore enters judgment in Ms. Howe’s favor on Counts III and IV.
II. MFRA’s Foreclosure Action
Foreclosure in Maine is a “creature of statute” and a party seeking a foreclosure
must strictly comply with statutory requirements.4 Bank of Am., N.A. v. Greenleaf, 2014
ME 89, ¶¶ 8–9, 18, 96 A.3d 700; see 14 M.R.S. §§ 6101–6327. Maine law requires a
plaintiff to prove eight statutory elements to foreclose on real property:
(1) “the existence of the mortgage, including the book and page number of the
mortgage, and an adequate description of the mortgaged premises, including
the street address, if any”;
(2) “properly presented proof of ownership of the mortgage note and [evidence of
the mortgage note and] the mortgage, including all assignments and
endorsements of the note and the mortgage”;
(3) “a breach of condition in the mortgage”;
(4) “the amount due on the mortgage note, including any reasonable attorney fees
and court costs”;
(5) “the order of priority and any amounts that may be due to other parties in
interest, including any public utility easements”;
(6) “evidence of properly served notice of default and mortgagor’s right to cure in
compliance with statutory requirements [of 14 M.R.S. § 1611]”;
(7) “after January 1, 2010, proof of completed mediation (or waiver or default of
mediation), when required, pursuant to the statewide foreclosure mediation
program rules”; and
(8) “if the homeowner has not appeared in the proceeding, a statement, with a
supporting affidavit, of whether or not the defendant is in military service in
accordance with the Servicemembers Civil Relief Act.”
4 When sitting in diversity, federal courts apply the substantive law of the forum state. See Doe v.
Missionary Oblates of Mary Immaculate E. Province, 761 F. Supp. 3d 218, 222 (D. Me. 2025).
Greenleaf, 2014 ME 89, ¶ 18, 96 A.3d 700 (citing Chase Home Fin. LLC v. Higgins, 2009
ME 136, ¶ 11, 985 A.2d 508).
Ms. Howe disputes three of these elements. She contends: (1) MFRA lacks standing
because it failed to establish itself as the holder of the Note and Mortgage; (2) MFRA has
not properly established the amount due because MFRA bases its judgment figure on the
2014 Modification Agreement, which she alleges is void; and (3) the notice of default fails
to comply with 14 M.R.S. § 1611.
A. Standing
Because standing is the threshold inquiry, the Court begins there. See Franklin
Prop. Tr. v. Foresite, Inc., 438 A.2d 218, 220 (Me. 1981); Warth v. Seldin, 422 U.S. 490,
498 (1975). To have standing to foreclose under Maine law, a plaintiff must have the
requisite legal interest in both the promissory note and the mortgage. Greenleaf, 2014
ME 89, ¶ 9, 96 A.3d 700; see 14 M.R.S. § 6321. The Maine Uniform Commercial Code
(“UCC”) governs the enforceability of a note. Greenleaf, 2014 ME 89, ¶ 10, 96 A.3d 700.
Because a note is a negotiable instrument, a plaintiff that “merely holds or possesses—but
does not necessarily own—the note satisfies the note portion of the standing analysis.”
Id. ¶ 12, 96 A.3d 700. A mortgage, by contrast, is not a negotiable instrument, and the
mortgage portion of the standing analysis requires the plaintiff to establish ownership of
the mortgage under 14 M.R.S. § 6321. Id. Accordingly, to establish standing, the plaintiff
must prove its requisite interest in both the note and the mortgage. If the plaintiff fails to
establish the requisite interest in either, it lacks standing to foreclose. See id. ¶ 17, 96 A.3d
700.
The parties do not dispute that MFRA, which possesses the Note endorsed in
blank, is the Note’s present holder and has the authority to enforce it. See id. ¶ 10, 96 A.3d
700 (under Maine law, a party may enforce a note if “if it is the ‘holder’ of the note, that
is, if it is in possession of the original note that is indorsed in blank”);
11 M.R.S. § 1-1201(21)(a) (defining “holder” to include the “person in possession of a
negotiable instrument that is payable . . . to bearer”). Because MFRA possesses the power
to enforce the Note, its standing to foreclose hinges on whether it can demonstrate
ownership of the Mortgage under § 6321. See Greenleaf, 2014 ME 89, ¶ 12, 96 A.3d 700.
In 2007, the Howes executed the Note in favor of Challenge and secured it with a
Mortgage listing MERS as Challenge’s nominee. The Mortgage was subsequently assigned
three times—from MERS (as Challenge’s nominee) to Nationstar, from Nationstar to
MTGLQ, and from MTGLQ to MFRA. Because the initial assignment from MERS to
Nationstar did not transfer substantive legal rights in the mortgage, to prove ownership,
MFRA must produce a valid chain of assignments leading back to the original mortgagee
(Challenge). See id. ¶¶ 16–17, 96 A.3d 700; Taitt v. Select Portfolio Servicing, Inc., No.
25-cv-00008, 2025 WL 2030197, at *5 (D. Me. July 21, 2025) (party demonstrates
ownership of a mortgage by showing it is either the mortgagee or legally possesses the
mortgage through a valid chain of assignments from the original mortgagee).
MFRA contends it lawfully owns the Mortgage in one of two ways. First, it argues
Challenge’s quitclaim assignment, which a Florida receiver executed in MFRA’s favor in
2023, validly transferred Challenge’s interest in the Mortgage to MFRA. Alternatively, it
argues the loan modification agreements ratified MFRA’s interest because, in those
agreements, the Howes purportedly acknowledged MFRA (or its predecessor) as the
lender with the authority to enforce the loan.
This case presents a question that the Law Court has not yet squarely resolved:
whether, and how, a foreclosing plaintiff may cure standing defects arising from a
defective MERS assignment when the original lender is defunct and unwilling to assign
its original rights to the party seeking foreclosure. See U.S. Bank N.A. v. Gordon, 2020
ME 33, ¶ 28 n.4, 227 A.3d 577 (Horton, J. concurring) (questioning how, after the Law
Court rejected the equitable trust doctrine’s application to mortgages, “the owner of the
mortgage note can obtain legal title to the mortgage if the holder of legal title either
refuses or is unable to transfer title”). Absent controlling authority from Maine’s highest
court, this Court must make an “informed prophecy” as to how the Law Court would
decide the issue. Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir. 2018)
(quoting Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)). In doing so, it may
consider analogous decisions, dicta, scholarly commentary, and other reliable indicators
of how the Law Court would resolve the question. Id.
Quitclaim Assignment
To establish ownership of the Mortgage, MFRA first relies on the quitclaim
assignment that Challenge’s court-appointed receiver executed in MFRA’s favor in 2023
following the Florida Receivership Action. MFRA contends this quitclaim assignment
cured the Greenleaf defect by conveying and assigning “all of [Challenge’s] rights, title
and interest (whatever they may be, if any) in the Mortgage” to MFRA. Ms. Howe disputes
that MFRA can rely on this assignment to establish standing.
The quitclaim assignment sits at the intersection of Maine property law and
Florida corporate and property law. Corporations exist by virtue of state law, and “state
courts retain the traditional equitable authority to appoint receivers for insolvent
corporations.” In re Whittaker Clark & Daniels Inc, 176 F.4th 241, 256 (3d Cir. 2026). At
the same time, the law of the situs—the law of the state in which the property sits—governs
real property rights, including the method for foreclosing on a home. Harbor Funding
Corp. v. Kavanagh, 666 A.2d 498, 500 (Me. 1995). As discussed above, Maine law
controls the process for foreclosing on the Property. With these principles in mind, the
Court considers the Florida Receivership Action and its significance for this Maine
foreclosure.
MFRA argues the Court must recognize the Florida receivership under the Full
Faith and Credit Clause. MFRA Fla. Receivership Br. Resp. at 2 (ECF No. 127); see U.S.
Const. art. IV, § 1 (“Full faith and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state.”). On that premise, MFRA contends
the Court must give effect to the Florida court’s appointment of a receiver and to the
receiver’s subsequent quitclaim assignment transferring Challenge’s legal interest in the
Mortgage to MFRA. MFRA further relies on Florida law, which provides that a dissolved
corporation continues to exist for the limited purpose of winding up and liquidating its
business and affairs, including disposing of property. Fla. Stat. § 607.1405. And, as the
Law Court confirmed in Carrington Mortg. Servs., LLC v. Brisley, Florida’s § 607.1405(1)
permits a dissolved corporation to wind up its affairs by executing a quitclaim assignment
of a mortgage encumbering real property in Maine. No. ARO-23-79, 2023 WL 11988399,
at *1 (Me. Oct. 17, 2023).
Even so, Ms. Howe disputes MFRA’s reliance on the Florida Receivership Action
to cure the defective assignment. In her view, MFRA improperly invoked the “mortgage-
follows-the-note” theory—which Maine law explicitly rejects—to establish the receiver’s
authority to transfer Challenge’s legal interest in the Mortgage to MFRA. The Law Court’s
recent decision in Wilmington v. Cortellino is instructive. See Wilmington Sav. Fund
Soc’y, FSB as Tr. for Brougham Fund I Tr. v. Cortellino, 2026 ME 49, 358 A.3d 1124.
Cortellino involved a dissolved corporation; an out-of-state receivership established after
a motion that similarly invoked a “mortgage-follows-the-note” theory; and a subsequent
quitclaim assignment executed pursuant to that receivership. Id. ¶¶ 2–5, 358 A.3d 1124.
The Law Court affirmed the plaintiff’s mortgage ownership because the receiver acted
within the scope of the authority conferred by the receivership order. The resulting
assignment was therefore enforceable and preserved an unbroken chain of title from the
original lender to the mortgagee. See id. ¶ 7, 358 A.3d 1124. And while Cortellino
concerned a corporation dissolved following bankruptcy, the Law Court centered the
discussion, not on the circumstances of the dissolution, but on whether the dissolved
corporation retained legal rights in the mortgage sufficient to effectively convey them to
the plaintiff.
Still, Ms. Howe attempts to distinguish Cortellino. She argues that, unlike the
Delaware statute at issue there, the Florida statutes underlying the Florida Receivership
Action required the joinder of third parties, including the mortgagor. Howe Cortellino
Supp’l Brief at 2–4 (ECF No. 165). In particular, she maintains that MFRA’s failure to join
her in an action that pleaded a claim under Florida’s Declaratory Judgment Act rendered
the Florida Receivership Action defective and deprived the receiver of authority to convey
Challenge’s interest in the Mortgage.
MFRA asserted two counts in the Florida Receivership Action: one seeking
appointment of a receiver under Fla. Stat. § 607.1432, and the other for declaratory relief
under Florida’s Declaratory Judgment Act, Fla. Stat. § 86.091. See Trial Ex. 23, Florida
Complaint. Attorney Adam Diaz5 testified that MFRA ultimately did not pursue the
declaratory relief count because it was “essentially an alternative” to the receivership
count. Bench Trial Tr. 1 at 145:22–146:4. The Florida court did not enter declaratory
relief. Instead, it appointed a receiver for Challenge and authorized the receiver to execute
a quitclaim assignment conveying Challenge’s interest in the Mortgage to MFRA.
Section 86.091 provides, in relevant part, that when declaratory relief is sought,
persons claiming an interest that would be affected by the declaration “may be made
parties.” Fla. Stat. § 86.091 (emphasis added). Florida Courts have treated that language
as permissive rather than mandatory. See, e.g., Century-Nat’l Ins. Co. v. Frantz, 369 So.
3d 739, 744 (Fla. Dist. Ct. App. 2023) (“In describing proper parties, [§ 86.091] uses the
word ‘may,’ which is permissive.”). The statute separately provides that “[n]o declaration
shall prejudice the rights of persons not parties to the proceedings.” Fla. Stat. § 86.091.
These provisions work together: the statute does not require every person whose interests
might be affected to join the action, and it protects those who are not parties from a
declaration affecting their rights. See Century-Nat’l Ins. Co., 369 So. 3d at 744 (“By
contrast, [§ 86.091] uses the mandatory term ‘shall’ in prohibiting prejudice to
nonparties. Thus the plain language of the first sentence broadly permits but does not
require all persons having or claiming an interest in the declaration to be parties. And the
second sentence expressly contemplates the existence of persons who are not parties to
the declaratory proceedings yet whose rights are implicated therein.” (quotation
modified)); Indep. Fire Ins. v. Paulekas, 633 So. 2d 1111, 1113 (Fla. 3d DCA 1994). Thus,
5 Attorney Diaz is a partner at a law firm in Florida whom MFRA retained to assist with obtaining the
Mortgage from Challenge. Bench Trial Tr. 1 at 111:7–15. He prepared and filed the complaint in the Florida
Receivership Action.
MFRA’s decision to plead declaratory relief in the alternative did not itself require Ms.
Howe’s joinder or strip the Florida court of authority to grant the separate receivership.
More fundamentally, the Florida court never adjudicated the declaratory relief count or
entered a declaration affecting Ms. Howe’s rights.
Ms. Howe separately argues that MFRA should not have proceeded ex parte
because the receivership statue requires a hearing after notice to “all parties to the
proceeding and any interested persons designated by the court.” Fla. Stat. § 607.1432(1).
The Florida court nonetheless permitted MFRA to proceed ex parte. Ms. Howe contends
she was an interested person entitled to notice and the lack of notice rendered the
receivership defective. Even assuming Ms. Howe was entitled to notice, however, the
record does not show that the Florida Receivership Action adjudicated her rights,
determined the validity or priority of any interest she may have held, or entered an order
purporting to bind her. The Florida court instead found that “the appointment of a
receiver is proper and necessary for [MFRA] to enforce its lien in Maine.” Trial Ex. 28,
Order Granting Receivership. The court then authorized the receiver to act for Challenge,
and the receiver exercised that authority by executing the quitclaim assignment. In other
words, the receivership order addressed Challenge’s capacity to convey its own remaining
interest in the Mortgage; it did not purport to resolve Ms. Howe’s rights in the Mortgage
or the Property. On this record, the asserted notice defect does not show that the receiver
acted outside the authority the Florida court conferred.
The Florida Receivership Action therefore differs materially from the Prior State
Action in Maine state court. In the Prior State Action, MFRA asked the Maine court to
“confirm transfer of the Mortgage and its ownership rights” to MFRA through a nunc pro
tunc order that would “effective[ly] reaffirm . . . the assignment to MERS.” The Florida
court made no comparable determination in the Florida Receivership Action; it appointed
a receiver for Challenge, and the receiver conveyed to MFRA whatever interest Challenge
retained in the Mortgage.
The Court therefore need not decide whether Ms. Howe would have been entitled
to notice had the Florida court proceeded on the declaratory relief count. It did not do so.
Nor did MFRA’s decision to plead declaratory relief in the alternative transform the
receivership proceeding into an adjudication of Ms. Howe’s underlying rights. The
relevant inquiry is what the Florida court actually ordered; it appointed a receiver for
Challenge; it did not issue a declaration concerning Ms. Howe’s rights. Ms. Howe has
therefore not shown that her non-joinder deprived the receiver of authority to execute the
quitclaim assignment.
The Court next considers whether the receiver’s assignment validly conveyed
Challenge’s interest in the Mortgage to MFRA. No separate bad-faith issue remains for
decision: Ms. Howe’s objections challenge the validity and effect of the Florida
receivership and the receiver’s authority, and the Court has concluded that the receiver
acted within the authority granted by the Florida court. The remaining question is
whether that authorized quitclaim assignment cured the defect in the prior MERS
assignment by transferring Challenge’s residual legal interest in the Mortgage.
Maine state and federal decisions recognize that a later quitclaim assignment from
the entity holding the mortgage’s legal interest can cure a prior defective MERS
assignment, provided the record establishes a continuous chain of title to the mortgage.
See, e.g., JPMorgan Chase Bank, N.A. v. Lowell, 2017 ME 32, ¶ 2 n.2, 156 A.3d 727
(recognizing mortgage ownership where a MERS assignment was followed by a
subsequent quitclaim assignment from the mortgage holder and observing that, in light
of the quitclaim assignment, the plaintiff’s standing to pursue foreclosure was not at
issue); Fed. Nat’l Mortg. Ass’n v. Quinn, No. 19-cv-00097, 2019 WL 6684489, at *2 (D.
Me. Dec. 6, 2019) (concluding that, although MERS as nominee for the original lender
invalidly assigned the mortgage, a subsequent quitclaim assignment by the original lender
conveying its mortgage rights resolved the defect and conferred enforceable ownership);
U.S. Bank Tr. Nat’l Ass’n v. Gauthier, No. 23-cv-00380, 2024 WL 1953624, at *2 (D. Me.
May 3, 2024), report and recommendation adopted sub nom. U.S. Bank Tr. Nat’l Ass’n
as Tr. of Bravo Residential Funding Tr. 2021-C v. Gauthier, 2024 WL 4825780 (D. Me.
Nov. 19, 2024) (concluding that the original lender’s quitclaim assignment of “any and all
rights it may have under the Mortgage” cured the prior Greenleaf defect and conveyed a
“ now-full bundle of rights”).
Here, the record permits the Court to trace the chain of title to the Mortgage from
Challenge through MERS to MFRA. Although Challenge’s assignment to MERS was
defective, the 2023 quitclaim assignment transferred to MFRA whatever legal interest
Challenge retained in the Mortgage, thereby supplying MFRA with the “now-full bundle
of rights.” Gauthier, 2024 WL 1953624, at *2.
Accordingly, the Court finds that the 2023 quitclaim assignment validly conveyed
ownership of the Mortgage to MFRA.6 Because MFRA has demonstrated the requisite
legal interest in both the Note and Mortgage, it has standing to foreclose on the Property.
6 Because the Court concludes the quitclaim assignment establishes MFRA’s Mortgage ownership sufficient
to confer foreclosure standing, it need not address MFRA’s alternative argument that the 2010, 2011, and
2014 Loan Modifications independently establish that interest.
B. Notice of Default and Mortgagor’s Right to Cure
Having determined that MFRA has standing to foreclose, the Court next examines
whether MFRA’s notice of default and mortgagor’s right to cure strictly complied with the
requirements of 14 M.R.S. § 6111.7 As relevant, the written notice must include an
“itemization of all past due amounts causing the loan to be in default and the total amount
due to cure the default.” 14 M.R.S. § 6111(1-A)(B). Ms. Howe argues MFRA did not
establish “the amount due on the mortgage note” as statutorily required. She contends
Nationstar and MERS lacked authority to modify the Note at the time the Howes executed
the 2014 Modification Agreement, which increased the principal balance of the Loan.
Because the judgment figure rests on the principal balance from that allegedly invalid
modification, Ms. Howe asserts that MFRA has not proven the exact amount due on the
Note.
The Howes entered into three loan modification agreements: the first in 2010, the
second in 2011, and the third in 2014. In determining the amount due under § 6111, the
Court interprets the unambiguous provisions of these three agreements according to their
plain meaning. Camden Nat’l Bank v. Steamship Navigation Co., 2010 ME 29, ¶ 16, 991
A.2d 800. In 2010, the Howes entered a loan modification between themselves as
“Borrower” and CitiMortgage as “Lender.” See 2010 Loan Modification Agreement. The
Mortgage defines “Lender” to “include any Person who takes ownership of the Note and
[Mortgage].” See Mortg. When CitiMortgage executed the 2010 Loan Modification with
7 The notice provision of 14 M.R.S. § 6111 applies “to mortgages upon residential property . . . when the
mortgagor is occupying all or a portion of the property as the mortgagor’s primary residence and the
mortgage secures a loan for personal, family or household use.” 14 M.R.S. § 6111(1). In those cases, “the
mortgagee may not accelerate maturity of the unpaid balance of the obligation or otherwise enforce the
mortgage because of a default . . . until at least 35 days after the date that written notice . . . is given by the
mortgagee to the mortgagor.” Id.
the Howes, it was neither the Note holder nor the Mortgage owner. In 2010, FNMA held
the Note, Decl. of Fannie Mae, and the Mortgage was still with Challenge because MERS
“cannot assign either a note or mortgage,” thus the “the assignment of the mortgage to
[CitiMortgage] was invalid,” Quinn, 2019 WL 6684489, at *3; see Greenleaf, 2014 ME 89,
¶¶ 16-17, 96 A.3d 700. CitiMortgage therefore lacked authority to enter the 2010 Loan
Modification with the Howes.
The same defect infects the 2011 and 2014 loan modifications. Both the 2011 and
2014 Loan Modifications are between Nationstar as “Lender” and the Howes as
“Borrower.” Compare 2010 Loan Modification Agreement, with 2011 Loan Modification
Agreement, and 2014 Loan Modification Agreement. During this time, FNMA still held
the Note and Nationstar lacked sufficient legal interest in or authority under the Mortgage
to modify it. See Greenleaf, 2014 ME 89, ¶¶ 16-17, 96 A.3d 700.
The remaining question is whether ordinary contract law principles can salvage
these otherwise invalid agreements. See Kondaur Cap. Corp. v. Hankins, 2011 ME 82,
¶ 20, 25 A.3d 960 (determining a loan modification was invalid and querying “how that
invalidity affects the amounts due on the mortgage or, perhaps, whether that invalidity
was cured by express or implied ratification of the parties, operation of estoppel, or some
other legal theory”). MFRA asserts the Howes waived any “authority issues” because they
voluntarily signed the 2010, 2011, and 2014 Loan Modifications, received a contractual
benefit, and ratified the latter agreement by making at least one payment.
Consideration of Wells Fargo, N.A. v. Burek illustrates why this argument fails.
2013 ME 87, 81 A.3d 330. In Burek, the Law Court held that a loan modification
agreement between the Bureks—the mortgagors—and Wells Fargo—the disputed note
and mortgage owner—reflected a “mutual understanding” that Wells Fargo had the right
to enforce the note. Id. ¶ 21, 81 A.3d 330. Crucially, before that loan modification
agreement, the original lender executed a separate assignment of the Burek’s mortgage to
MERS that expressly transferred “the right to enforce the note secured by the mortgage”
to MERS—language the Law Court distinguished from provisions that limit MERS solely
to the role of nominee. Id. ¶ 21 n.7, 81 A.3d 330. That broader grant of authority, coupled
with the loan modification agreement, established Wells Fargo’s right to enforce the note.
Id. ¶ 21, 81 A.3d 330.
By contrast here, the language in the Mortgage, the purported 2013 assignment
from MERS to Nationstar, and the 2014 modification all confirm MERS acted solely as
nominee for the lender and any successors or assigns. See Mortg. Elec. Registration Sys.,
Inc. v. Saunders, 2010 ME 79, ¶¶ 9–11, 15, 2 A.3d 289 (interpreting language identical to
that in this case as conferring mere “nominee” status to MERS). Nationstar therefore
obtained only what MERS possessed—the right to record the Mortgage as nominee, see
Greenleaf, 2014 ME 89, ¶ 17, 96 A.3d 700—and there is no competent evidence that either
Nationstar or CitiMortgage had authority to enter into a binding loan modification
agreement with the Howes on behalf of the actual mortgage owner. Nor does the record
show how the Howes’ signatures or payments could cure that lack of authority. A
borrower cannot ratify a defective property conveyance on behalf of an absent lender;
accordingly, ordinary contract principles cannot transform these invalid modification
agreements into a valid mortgage assignment.
Because MFRA calculated the total amount needed to cure based on the seemingly
invalid 2014 Loan Modification—which increased the principal loan amount by a deferred
balance of $23,199.73—the total amount due is overstated. See J.P. Morgan Mortg.
Acquisition Corp. v. Moulton, 2024 ME 13, ¶ 11, 314 A.3d 134 (concluding a notice which
“itself overstated the amount required to cure the default” bars proving “strict
compliance” with § 6111, which is “an essential element of foreclosure”). Because the
notice to cure is therefore defective under § 6111, MFRA has not strictly complied with the
statutory requirements and cannot foreclose. See, e.g., U.S. Bank Tr., N.A. for LSF9
Master Participation Tr. v. Jones, 330 F. Supp. 3d 530, 538 (D. Me. 2018), aff’d sub nom.
U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr. v. Jones, 925 F.3d 534 (1st
Cir. 2019) (dismissing foreclosure action because notice overstated amount due by
$2,638.32 and noting the Law Court “instructs that § 6111’s requirement that notices
include ‘the precise amount’ a borrower must pay ‘is strictly enforced’” (quoting Lowell,
2017 ME 32, ¶ 13, 156 A.3d 727)); Cortellino, 2026 ME 49, ¶ 7, 358 A.3d 1124 (remanding
case to trial court to dismiss complaint because “[w]hen a right-to-cure notice overstates
the amount required to cure the default, the notice does not strictly comply with section
6111 and is therefore deficient”). Accordingly, Ms. Howe is entitled to judgment on
MFRA’s foreclosure claim.8
III. MFRA’s Remaining Counts
In addition to the Foreclosure Action, MFRA brings four counts related to the
Note: Breach of Note (Count I); Breach of Contract, Money Had and Received (Count II);
Quantum Meruit (Count III); and Unjust Enrichment (Count IV). Note Action Compl. at
4–9. Even if a plaintiff is not entitled to foreclose on a property, it may be entitled to
judgment on its underlying note claims. See US Bank Tr. Nat’l Ass’n as trustee for
8 In November 2024, MFRA served Asset Acceptance and Credit Acceptance, parties-in-interest to the
Foreclosure Action. In February 2025, MFRA filed a motion for entry of default against both, and the clerk
entered default that same day. Because MFRA does not have standing to foreclose, the Court cannot enter
default judgment against Asset Acceptance and Credit Acceptance. Accordingly, the motion for default
judgment as to the parties-in-interest is MOOT. (ECF N0. 106).
VRMTG Asset Tr. v. Thomas, No. 19-cv-00361, 2022 WL 4546177, at *6 (D. Me. Sept. 29,
2022); see also Knope v. Green Tree Servicing, LLC, 2017 ME 95, ¶ 22, 161 A.3d 696
(“Actions under the mortgage may be treated as separate and distinct from actions under
the note because notes are unsecured and separate from mortgages, presenting differing
issues that may, sometimes, be adjudicated in separate proceedings.”). Because the Court
already dispensed with Counts III and IV as time-barred, it only addresses Counts I and
II.
A. Breach of Note (Count I)
MFRA requests all amounts due under the Note, interest, and costs and expenses
for Ms. Howe’s breach of the Note (Count I). MFRA argues it has standing to enforce the
Note as its lawful holder and that Ms. Howe breached its contractual terms by failing to
make her required payments.9 Ms. Howe contends this count is barred by claim
preclusion, but the Court previously rejected this affirmative defense in its earlier Order
denying summary judgment. Summ. J. Order at 13–19.
A promissory note is a contract to which ordinary principles of contract law apply.
Briggs v. Briggs, 1998 ME 120, ¶ 6, 711 A.2d 1286. A breach of contract claim requires
the existence of a valid contract, breach of the contract’s terms, and damages resulting
from that breach. See Tobin v. Barter, 2014 ME 51, ¶¶ 9, 10, 89 A.3d 1088. Here, the Note
is a valid contract, Ms. Howe breached its terms by failing to make her required monthly
payments, and MFRA demonstrated that it suffered financial harm from that breach.
MFRA has therefore established the requisite elements of its breach of note claim against
Ms. Howe. Having determined a contractual obligation existed, the question is whether
9 The Court already dispensed with any argument that the statute of limitations bars this count.
MFRA has established, with competent evidence, the amount presently recoverable under
the Note.
Under the terms of the Note, MFRA is entitled to recover principal, interest, and
“all of its costs and expense in enforcing th[e] Note.” Note ¶ 6(E). Because MFRA has
demonstrated legal rights in both the Note and Mortgage, it may enforce the obligations
contained in each instrument under a breach of contract theory. Cf. Carrington Mortg.
Servs., LLC v. Gionest, No. 16-cv-00534, 2020 WL 1303554, at *5 (D. Me. Mar. 19, 2020)
(“Because Carrington has not shown that it owns the mortgage, it cannot recover
payments made pursuant to the Mortgage based on breach of contract.”); Knope, 2017
ME 95, ¶ 14, 161 A.3d 696 (“Because of the ‘failed’ mortgage, the only contract between
the parties is the promissory note, and most of the expenses at issue here were not paid
or recoverable pursuant to that note.”).
In addition to the amounts due under the Note, MFRA may recover sums advanced
to protect its security interest pursuant to the terms of the Mortgage. See Mortg.
(describing the “Borrower’s Obligations” under the Mortgage to “Pay Charges,
Assessments and Claims” . . . “Maintain Hazard Insurance of Property Insurance . . . [and]
“to Maintain and Protect the Property”). MFRA specifically seeks reimbursement for the
principal balance, interest, late fees, escrow advances, and pro rata mortgage insurance
premium (“MIP”)/private mortgage insurance (“PMI”).10 At trial, MFRA’s witness11
testified that the escrow advance amount consists of payments for taxes, insurance, and
10 MFRA is not requesting as part of the judgment the recoverable corporate advance balance, which covers
attorney’s fees, title fees, and property inspection costs. MFRA Proposed Findings of Fact at 20; Bench
Trial Tr. 1 at 107:21–108:6.
11 At trial, Michael Paterno testified on behalf of both MFRA and Fay. ECF No. 146.
mortgage insurance; and the pro rata amount is the cost for mortgage insurance. Bench
Trial Tr. 2 at 211–15. Because these expenditures were incurred pursuant to the Mortgage
to protect the Property and preserve MFRA’s security interest, they are recoverable under
the Mortgage’s terms. Because the Court has determined the three loan modification
agreements are unenforceable, MFRA cannot recover any amounts attributable to those
agreements; it may recover only the amounts the record establishes are due under the
original, unmodified instruments.
To assist in determining that amount, the Court ordered the parties to submit
supplemental post-trial briefing detailing the loan and amounts due absent the three
invalid modifications. See MFRA Calculations Supp’l Brief (ECF No. 167); Howe
Calculations Supp’l Brief (ECF No. 168); MFRA Calculations Rebuttal (ECF No. 169);
Howe Calculations Rebuttal (ECF No. 170). The parties disagree on whether the evidence
permits the Court to discern the amount due under the original Note and Mortgage.
MFRA contends the record supports its demanded amount, see generally MFRA
Calculations Supp’l Brief, while Ms. Howe argues the absence of a complete payment
history from 2007 through 2010 renders the reconstruction impossible, see generally
Howe Calculations Supp’l Brief. The Court therefore considers whether the record
establishes by a preponderance of the evidence the amount due under the Note’s original
terms. Although the amount of damages need not be determined with mathematical
precision, MFRA must provide evidence from which the Court can determine the amount
with reasonable certainty. See Brown v. Compass Harbor Vill. Condo. Ass’n, 2020 ME
44, ¶ 20, 229 A.3d 158 (“[R]easonableness, not mathematical certainty, is the criteri[on]
for determining whether damages were awarded properly.” (quoting Down E. Energy
Corp. v. RMR, Inc., 1997 ME 148, ¶ 7)). “A monetary award based on a judgmental
approximation is proper, provided the evidence establishes facts from which the amount
of damages may be determined to a probability.” Merrill Tr. Co. v. State, 417 A.2d 435,
441 (Me. 1980).
The Court finds that the record, considered as a whole, establishes by a
preponderance of the evidence that the unpaid principal balance immediately before the
2010 Loan Modification was $203,256.84. Although Ms. Howe argues MFRA did not
introduce a complete loan history documenting each payment and charge from the Note’s
origination in 2007 through the 2010 Loan Modification, that gap in the record does not
defeat MFRA’s showing. That figure appears in the 2010 Loan Modification, see 2010
Loan Modification Agreement, and MFRA’s witness testified that Ms. Howe’s payments
reduced the original $208,000.00 principal to $203,256.84, Bench Trial Tr. 1 at 38:13–
18. The Court need not disregard this evidence simply because the transaction history is
incomplete. Moreover, the record contains no evidence suggesting a different principal
balance related to the original Note. The Court therefore finds it more likely than not that
$203,256.84 represented the unpaid principal under the original Note immediately
before the 2010 Loan Modification.12
Having found that the original unpaid principal was $203,256.84, the Court
accepts MFRA’s reconstruction of the account from that starting point. See MFRA
Calculations Supp’l Brief at 3–5. Its calculation applies the terms of the original Note,
including its 7.25% annual interest rate. Id. at 4. It credits all of Ms. Howe’s payments
12 The Court recognizes the loan servicing history reflects a principal balance of $223,541.08 for November
2010. See Trial Ex. 38, Judgment Figures/Payment History at 604. This figure does not alter the Court’s
finding. The $223,541.08 balance appears to reflect capitalized arrears—unpaid interest, fees, or other
charges added to principal—that are properly excluded from the $203,256.84 the Court finds proven as the
unpaid principal due under the Note’s original, unmodified terms.
from December 2010 onward, totaling $27,243.46, and applies them entirely to the
principal balance. Id. This approach is conservative: crediting payments directly against
principal lowers the balance on which interest accrues. These figures are supported by the
record and thus established with reasonable certainty and probability. See Brown, 2020
ME ¶ 20, 229 A.3d 158; Merrill Tr. Co., 417 A.2d at 441. The Court therefore accepts
MFRA’s reconstruction as establishing the principal amount and interest due under the
Original Note and Mortgage, without giving effect to amounts generated by the three
invalid loan modifications.
The Court enters judgment for MFRA on Count I in the amount of $319,798.42.
This award consists of $176,013.38 in principal, $143,196.16 in accrued interest, and
$588.88 in late fees. In its supplemental calculations, MFRA identified various
components of its claimed damages and listed a total of $420,279.00. But the individual
components listed in MFRA’s calculations sum to only $391,157.00, a difference of
$29,122.00. See MFRA Calculations Supp’l Brief at 5. The discrepancy appears to result
from inadvertent double counting of the $29,122.00 tax amount in calculating the total.
The Court nonetheless finds MFRA has established the damages amount of $319,798.42
with reasonable certainty.
MFRA’s supplemental calculations also include $15,056.26 for “Total Attorney
Fees and Costs.” Id. Elsewhere, however, MFRA identified the same amount as
“Corporate Advances including Attorney costs and fees” and expressly stated the amount
was “not requested as part of the Proposed Judgment.” See MFRA Proposed Findings of
Fact at 20. At trial, MFRA likewise confirmed that amount included attorney’s fees, title
fees, and other property-related costs, but that it did not seek some of these costs in the
proposed judgment. Bench Trial Tr. 1 at 107:21–108:6. Because MFRA inconsistently
characterizes the $15,056.26 and failed to establish its recoverability with reasonable
certainty, the Court excludes it from the judgment.
MFRA’s post-trial proposed findings of fact and conclusions of law request
$55,725.92 in escrow advances for taxes, insurance, and mortgage insurance. See MFRA
Proposed Findings of Fact at 20. In its subsequent supplemental calculation, however,
MFRA identified $13,285.48 in insurance, $29,122.00 in taxes, and $13,894.84 in PMI,
totaling $56,302.32 in escrow advances. See MFRA Calculations Supp’l Brief at 4–5. This
unexplained discrepancy between the requested escrow amount and the amount reflected
in MFRA’s supplemental calculations is not readily reconcilable, particularly when
considered alongside the other mathematical errors and discrepancies described above.
The Court cannot determine the amount of escrow advances with reasonable certainty
and therefore does not include the requested escrow amount in the award.
Although damages need not be established with mathematical precision, MFRA
must present evidence from which the Court can determine the amount with reasonable
certainty. See Brown, 2020 ME 44, ¶ 20, 229 A.3d 158. The Court is not required to
reconstruct or reconcile an internally inconsistent accounting on the parties’ behalf. See
Poultry Processing, Inc. v. Old Orchard Ocean Pier Co., 780 F. Supp. 846, 865 (D. Me.
1991) (denying request for attorney fees where court found mathematical discrepancies).
B. Money Had and Received (Count II)
MFRA also asserts a claim for breach of contract, money had and received (Count
II). Ms. Howe argues MFRA cannot recover under a theory of money had and received
because MFRA seeks to affirm the parties’ contractual agreement by collecting on the
Note and Mortgage, and the existence of a contract precludes such a claim. MFRA
maintains it has advanced taxes, insurance, and other corporate funds to preserve the
Property and is entitled to recover this money from which Ms. Howe unfairly benefited.
An action in assumpsit for money had and received may be brought where “one
person has in [her] possession money which in equity and good conscience belongs to
another.” Greenlaw v. Rodick, 158 Me. 440, 447, 185 A.2d 895 (1962); see Ketch v. Smith,
131 Me. 275, 161 A. 300, 300 (1932). For such claims, because the law implies both the
contract and the obligation to reimburse the payor, an express contract or privity between
the parties is not needed. See Greenlaw, 158 Me. at 447, 185 A.2d 895; Dresser v.
Kronberg, 108 Me. 423, 81 A. 487, 488 (1911) (an action for money had and received does
not require a valid contract because when one person holds “another’s money which he
has not a right conscientiously to retain,” the law “creates both the privity and the
contract,” as well the implied promise to repay).
Money had and received, however, cannot recover amounts arising under an
enforceable contract that the plaintiff continues to affirm. Harmony Homes Corp. v.
Cragg, 390 A.2d 1033, 1035 (Me. 1978) (“Ordinarily, a party may not affirm, or make use
of, a contract to recover damages for breach thereof consistently with treating the contract
as having been disaffirmed and proceeding on a ‘money had and received’ (restitution)
rationale of recovery.”); see also Berry Huff McDonald Milligan, Inc. v. McCallum, No.
BCD-cv-12-01, 2013 WL 1845778, at *2 (Me. B.C.D. Mar. 26, 2013) (labeling money had
and received “a restitutionary cause of action that disaffirms the existence of a contract in
the first instance”).
As the Court explained in its analysis of Count I, the original Note and Mortgage
are valid and enforceable, while the three loan modification agreements are invalid and
thus do not alter the parties’ contractual rights and obligations. Because the original Note
and Mortgage remain valid and enforceable, any amounts owed under those instruments
are recoverable, if at all, through the parties’ existing contractual rights and remedies, and
MFRA cannot separately recover those amounts through equitable restitution. See
Harmony Homes Corp., 390 A.2d at 1035–37.
As to the sums not authorized under the original Note and Mortgage—amounts
instead attributable to the invalid load modification agreements and thus unrecoverable
under Count I—the Court must determine whether MFRA may recover them under a
theory of money had and received. To succeed, MFRA must establish Ms. Howe received
money from MFRA that equity and good conscience require her to repay. See Greenlaw,
158 Me. at 447, 185 A.2d 895; Ketch, 131 Me. 275, 161 A. at 300.
MFRA has not shown how the increased principal balance, interest, and late fees
created by the three invalid loan modifications represent money or value conferred on
Ms. Howe. These figures merely recalculate Ms. Howe’s alleged contractual obligations
under the invalid modified loan terms: the principal increase revises her alleged
indebtedness, the interest derives from that revised balance, and the late fees penalize
nonpayment. See 2014 Loan Modification Agreement ¶¶ 1, 2. A claim for money had and
received requires Ms. Howe to possess money that, in equity and good conscience,
belongs to MFRA; it does not permit recovery for amounts that merely represent a
contractual measure of liability under an unenforceable agreement. See Ketch, 131 Me.
275, 161 A. at 300; Harmony Homes Corp., 390 A.2d at 1035–37.
The remaining amounts MFRA identifies—escrow advances, pro rata MIP/PMI
amount, and corporate advances13—represent MFRA’s actual expenditures and require
13 MFRA does not request judgment on the corporate advance amount, so the Court does not address it.
MFRA Proposed Findings of Fact at 19–20.
further consideration. Bench Trial Tr. 2 at 211–14. MFRA spent the pro rata amount and
a portion of the escrow advances on mortgage insurance, which the Mortgage defines as
“insurance protecting [MFRA] against the nonpayment of, or default on, the Loan.” See
Mortg. The Mortgage further provides: “A Mortgage Insurance policy pays
[MFRA] . . . for certain losses it may incur if [Ms. Howe] does not repay the Loan as
agreed. [Ms. Howe] is not a party to the Mortgage Insurance policy.” Id. ¶ 10 (“Mortgage
Insurance”). Because MFRA incurred the mortgage insurance costs to protect MFRA’s
interest in the Property, rather than to satisfy an obligation of Ms. Howe, MFRA has not
shown Ms. Howe received, actually or constructively, money which, in equity and good
conscience, belongs to MFRA. See Ketch, 131 Me. 275, 161 A. at 300; Harmony Homes
Corp., 390 A.2d at 1035–37. As such, MFRA may not recover the mortgage insurance
costs under either the escrow advances or the pro rata amount.
The remainder of the escrow advances consists of payments MFRA made for real
estate taxes and property insurance. Bench Trial Tr. 1 at 11:23–24; Trial Ex. 39 (including
hazard insurance and city tax disbursement in the escrow advance calculations). Unlike
the mortgage insurance, these payments to a third party conferred an economic benefit
on Ms. Howe by preserving the Property and satisfying obligations associated with
ownership. Cf. Gionest, 2020 WL 1303554, at *6 (permitting recovery on equitable
restitution theory of unjust enrichment, in part because the lender “conferred a benefit”
on the mortgagor “by paying the city taxes and hazard insurance on her property” and “it
would be inequitable” for the mortgagor to “retain the value of those benefits without
paying for them, as that would amount to a windfall for her”); Knope, 2017 ME 95, ¶ 23,
161 A.3d 696 (upholding district court award for property taxes, insurance, and property
preservation fees under unjust enrichment theory because it was ”inequitable for the
[mortgagor] to retain the value of those benefits”). The question under Count II, however,
is not merely whether Ms. Howe received a benefit that could support some form of
equitable restitution, but whether MFRA established entitlement to recover on a theory
of money had and received.
Historically, Maine courts have framed the action around the defendant’s receipt
or retention of money belonging to the plaintiff. See, e.g., Titcomb v. Powers, 108 Me.
347, 80 A. 851, 852 (1911) (“Under the count for money had and received it is incumbent
upon the plaintiff to prove, not only the receipt of the money by the defendant, but also
that it was received by him to plaintiff’s use, that is, the plaintiff’s title to it.” (emphasis
added)); Jellison v. Jordan, 68 Me. 373, 374 (1878) (“It is well settled that an action for
money had and received lies to recover back money paid by a party to an agreement
invalid by the statute of frauds, which the other party refuses to perform.” (emphasis
added)). Even so, Maine courts have also recognized that, although money had and
received is an action at law, it remains “equitable in spirit and purpose” and
“comprehensive in its reach and scope.” Webb v. Brannen, 128 Me. 287, 147 A. 208, 210
(1929). For example, in Hathaway v. Burr, the Law Court recognized that payment “in
any manner” may be treated as the equivalent of money where the defendant took and
sold the plaintiff’s property. 21 Me. 567, 569–72 (1842). Because the Hathway defendant
received payment for the value of the plaintiff’s stolen property through that transaction,
the Law Court treated the payment as the equivalent of money belonging to the plaintiff
for the purposes of money had and received. Id. at 570. The circumstances here are
different. Ms. Howe did not take or sell MFRA’s property, receive payment from a third
party, or otherwise obtain MFRA’s funds through a transaction comparable to that in
Hathway.
Maine law treats the payment of real estate taxes and property insurance as
obligations associated with owning mortgaged property. See 36 M.R.S. § 554 (“In cases of
mortgaged real estate, the mortgagor, for the purposes of taxation, shall be deemed the
owner, until the mortgagee takes possession.”); 33 M.R.S. § 769 (instructing mortgagor
to pay taxes and assessments on the mortgaged premises and maintain the required
insurance); 9-B M.R.S. § 429(1)(A) (defining residential mortgage escrow account as “any
account established by agreement between a mortgagor and mortgagee under which the
mortgagor pays to the mortgagee sums to be used to pay taxes or insurance premiums”).
MFRA paid the real estate taxes and property insurance directly to the taxing authority
and insurer, thereby extinguishing obligations for which Ms. Howe was otherwise
responsible. See Bench Trial Tr. 1 at 21:16–21, 36:6–15. Although those payments may
have conferred an economic benefit on Ms. Howe, see Carrington Mortg. Servs., 2020
WL 1303554, at *6; Knope, 2017 ME 95, ¶ 23, 161 A.3d 696, MFRA has not identified a
basis for treating its direct payment to third parties as money had and received by Ms.
Howe. As such, it has not met its burden of demonstrating how those circumstances fit
within a claim for money had and received.
Accordingly, although MFRA made payments for real estate taxes and property
insurance that benefited Ms. Howe, it has not established that those payments give rise
to a claim for money had and received. Nor has MFRA met its burden as to any other
amount sought under the invalid loan modifications. The Court enters judgment in Ms.
Howe’s favor on Count II.
IV. Ms. Howe’s Counterclaims14
A. Judicial Notice
Before turning to the substance of Ms. Howe’s counterclaims, the Court first
considers her motion for judicial notice pursuant to Federal Rule of Evidence 201. Motion
for Judicial Notice (ECF No. 142). On the first day of trial, Ms. Howe requested—in a
motion spanning over 300 pages—that the Court take judicial notice of various court
proceedings and land records purportedly bearing on whether MFRA qualifies as a “debt
collector.” Id. She contends these materials concern her affirmative defenses under the
MFDCPA and not her counterclaims. MFRA opposes the motion, describing it as an
attempt to introduce “essentially 22 additional exhibits” whose relevance would require
the Court to make unsupported inferential leaps. Motion for Judicial Notice Resp. at 3
(ECF No. 153).
Rule 201(b) authorizes judicial notice only of facts “not subject to reasonable
dispute” because they either are “generally known within the trial court’s territorial
jurisdiction” or “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court may take judicial notice
“at any stage of the proceeding.” Id. 201(d). Although federal courts may take judicial
notice of relevant proceedings from other courts, Kowalski v. Gagne, 914 F.2d 299, 305
(1st Cir. 1990), they apply Rule 201(b) narrowly. As the First Circuit has cautioned,
14 The day before trial, Ms. Howe filed a motion in limine asking the Court to exclude the testimony of Mr.
Paterno and Mr. Diaz to the extent they sought “to offer testimony, directly, or indirectly, about the laws
governing the issues before the Court.” See Mot. in Limine (ECF No. 137). Because the bench trial has
concluded, Ms. Howe’s request to exclude testimony concerning the laws governing the issues before the
Court is DENIED AS MOOT. To the extent the witnesses offered such testimony, the Court either
addressed its admissibility and weight during the trial or did so, as necessary, in resolving the merits of the
case.
“accepting disputed evidence not tested in the crucible of trial is a sharp departure from
standard practice.” Lussier v. Runyon, 50 F.3d 1103, 1114 (1st Cir. 1995).
Courts also recognize that Rule 201 sets an exacting standard: “if judicial notice
should be taken, the Court will wonder why the lawyers could not agree on something that
is indisputable.” Hinton v. Outboard Marine Corp., No. 9-cv-00554, 2012 WL 174934, at
*2 (D. Me. Jan. 20, 2012). Here, Ms. Howe could have submitted many of her proffered
documents prior to trial under other evidentiary provisions that would have permitted
MFRA to test and challenge their contents and relevance. Accordingly, the Court
DENIES Ms. Howe’s motion for judicial notice.
B. Fair Debt Collection Practices Act (“FDCPA”) Counterclaim
Ms. Howe alleges MFRA violated two provisions of the FDCPA. First, she claims
MFRA violated 15 U.S.C. § 1692e by using “false, deceptive, or misleading
representation[s] or means in connection with the collection of any debt” when it
assertedly threatened foreclosure without a lawful right to do so and misrepresented the
legal status and amount of the debt. Second, she claims MFRA violated 15 U.S.C. § 1692f
by using “unfair or unconscionable means to collect or attempt to collect any debt”—when
it allegedly sought to recover amounts not owed and relied on inaccurate loan data
without adequate procedures to ensure accuracy. Ms. Howe contends MFRA is a “debt
collector” within the meaning of the statute and agency principles render MFRA
vicariously liable under the FDCPA for Fay’s debt collection activities. MFRA disputes it
is a debt collector subject to the FDCPA and contends Fay did not engage in prohibited
practices, asserting that all communications were proper because MFRA had standing to
foreclose through the quitclaim assignment or the three loan modifications.
Congress enacted the FDCPA to “eliminate abusive, deceptive, and other unfair
debt collection practices.” Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 22 (1st Cir. 2002)
(citing 15 U.S.C. § 1692). A private cause of action arises under the FDCPA when there are
“legal actions against a debtor, . . . for the benefit of the creditor, . . . [and] conduct[] by
persons within the [statute’s] scope.” Hamilton v. Fed. Home Loan Mortg. Corp., No. 13-
cv-00414, 2014 WL 4594733, at *18 (D. Me. Sept. 15, 2014). To prevail on her FDCPA
claim, Ms. Howe must prove by a preponderance of the evidence that she: (1) “was the
object of collection activity arising from consumer debt”; and that MFRA (2) “is a debt
collector within the meaning of the statute”; and (3) “engaged in a prohibited act or
omission under the FDCPA.” Poulin v. The Thomas Agency, 760 F. Supp. 2d 151, 158 (D.
Me. 2011) (quotation modified). The Court evaluates the debt collection conduct from the
perspective of an “unsophisticated consumer.” Pollard v. L. Off. of Mandy L. Spaulding,
766 F.3d 98, 103 (1st Cir. 2014). Moreover, district courts in this circuit treat defendants
as “vicariously liable under the FDCPA for the debt collection efforts of an apparent or
authorized agent, provided that the principal party meets the definition of a ‘debt
collector’ under the [FDCPA].” Winne v. Nat’l Collegiate Student Loan Tr. 2005-1, 228 F.
Supp. 3d 141, 152 (D. Me. 2017).
As a preliminary matter, neither party disputes that Ms. Howe is a “consumer”
under the FDCPA. The Court previously determined that Fay is a “debt collector” within
the meaning of the FDCPA and liable to Ms. Howe under § 1692e for its debt collection
activities.15 It also determined that Ms. Howe’s FDCPA claim was timely as to debt
15 The Court adopts its previous ruling that Fay’s conduct violated § 1692e, as detailed in its December 2024
Order granting Ms. Howe’s motion for partial summary judgment. See Summ. J. Order at 19–30, 32.
Specifically, the Court determined Fay violated the FDCPA by: (1) sending a September 2021 letter that
collection conduct that took place on or after December 10, 2020. See Summ. J. Order at
23–30; 15 U.S.C. § 1692k(d) (an action to enforce liability pursuant to the FDCPA must
be brought “within one year from the date on which the violation occurs”). The Court did
not, however, reach the question of Fay’s liability under § 1692f. Thus, the remaining
issues are: (1) whether Fay violated § 1692f; (2) whether MFRA is a debt collector within
the meaning of the FDCPA; and, if so, (3) whether MFRA is vicariously liable under
agency principles for Fay’s FDCPA violations. The Court addresses each issue in turn.
First, Ms. Howe alleges Fay violated § 1692f by demanding amounts not owed and
by directing property inspections on MFRA’s behalf despite lacking standing to foreclose.
Section 1692f prohibits “unfair or unconscionable means” of debt collection and provides
examples of potentially prohibited conduct. 15 U.S.C. § 1692f. Relevant here, the statute
prohibits collecting “any amount (including any interest, fee, charge, or expense
incidental to the principal obligation) unless such amount is expressly authorized by the
agreement creating the debt or permitted by law.” Id. § 1692f(1). Ms. Howe claims Fay
charged her unauthorized escrow payments in its monthly mortgage statements from
October 2019 through December 2020, Howe Proposed Findings of Fact, Brief at 12–13,
but the Court already held that only conduct occurring after December 10, 2020, is timely.
Ms. Howe also alleges Fay’s use of third parties to inspect the Property was an
improper means of collecting debt under § 1692f. Id. Property preservation activities,
such as inspections, are not inherently undertaken “in connection with the collection of
any debt” or an attempt to collect a debt under the FDCPA. 15 U.S.C. § 1692c; see, e.g.,
falsely stated it had “a right to invoke foreclosure”; and (2) including language in the Delinquency Notice
portion of various monthly mortgage statements to Ms. Howe falsely stating it “made the first notice or
filing required by applicable law for any judicial or non-judicial foreclosure process” and warning her that
she may risk losing her home “to a foreclosure sale.” Id. at 29. At the time Fay sent these communications
to Ms. Howe, MFRA did not have legal rights to the Mortgage and could not foreclose on the Property.
Fermaint v. Planet Home Lending, LLC, No. 18 C 07325, 2023 WL 5227381, at *22 (N.D.
Ill. Aug. 15, 2023) (noting “property preservation services generally do not trigger the
FDCPA”). In alleging liability under § 1692f, Ms. Howe relies, in part, on a summer 2020
incident in which an inspector on the Property instructed Ms. Howe to “pay [her] bills.”
Bench Trial Tr. 2 at 123. Unlike a routine inspection or property preservation visit, that
statement—which the Court credits—provides a direct connection between the inspection
and the attempt to collect the underlying debt. But any § 1692f claim predicated on that
incident is untimely because it occurred before December 10, 2020. And while Ms. Howe
suggests that inspectors continued to visit the Property after that date, the record does
not establish the nature of those later inspections with sufficient detail to support finding
that they constituted debt collection activity rather than ordinary property preservation
visits. See, e.g., Gordon v. Bank of N.Y. Mellon Corp., 964 F. Supp. 2d 937, 949 (N.D. Ind.
2013) (explaining that property-related conduct is not inherently debt collection absent a
connection to an attempt to collect a debt). Accordingly, while Fay violated § 1692e
through its debt collection communications that threatened foreclosure when it lacked a
right to foreclose, Ms. Howe has not proved that Fay violated § 1692f.
Turning next to whether MFRA is a debt collector under the FDCPA. The statute
defines a debt collector as any person who: (1) “uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of
any debts”; or (2) “regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). This statutory
definition excludes those trying to collect a debt that “was not in default at the time it was
obtained by such person.” Id. § 1692a(6)(F). It may, however, include “loan servicers who
take on loans only after they are in default.” Beaulieu v. Bank. of Am., N.A., No. 14-cv-
00023, 2014 WL 4843809, at *12 (D. Me. Sept. 29, 2014). The FDCPA defines a “debt” as
“any obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, [or] property . . . which are the subject of the transaction
are primarily for personal, family, or household purposes, whether or not such obligation
has been reduced to judgment.” 15 U.S.C. § 1692a(5).
The FDCPA does not define the word “collector” or “collection.” Even so,
“[c]reditors collecting on their own accounts are generally excluded from the statute’s
reach.” Chiang v. Verizon New Eng., Inc., 595 F.3d 26, 41 (1st Cir. 2010) (citing
15 U.S.C. § 1692a(6)(F)(ii)); see Bank of Am., N.A. v. Camire, 2017 ME 20, ¶ 13, 155 A.3d
416. The Supreme Court has explained that under the statute’s “regularly collects”
definition of debt collector, a debt buyer may “collect debts for its own account without
triggering the statutory definition.” Henson v. Santander Consumer USA, Inc., 582 U.S.
79, 83 (2017). But the Court did not address whether a debt purchaser under the
“principal purpose” definition is likewise excluded from qualifying as a debt collector. Id.
at 82; see 15 U.S.C. § 1692a(6).
MFRA admits that it attempted to collect on the Note, which it acquired in 2017
after the Howes had already defaulted. But MFRA maintains it attempted to collect its
own debt and is therefore not a debt collector under the FDCPA. The requirement that a
debt be owed or due to another only modifies the “regularly collects” definition, however,
not the “principal purpose” definition See Henson, 582 U.S. at 83; see also Barbato v.
Greystone All., LLC, 916 F.3d 260, 266 (3d Cir. 2019) (noting the same). Although the
First Circuit has not directly addressed whether a debt purchaser who collects on their
own debt qualifies as a “debt collector” under the FDCPA’s “principal purpose” definition,
other courts of appeals have held that an entity whose principal purpose is collecting
debts, even if their own debt, may qualify as a debt collector under the statute. See, e.g.,
Barbato, 916 F.3d at 267 (stating “[a]s long as a business’s raison d’être is obtaining
payment on the debts that it acquires, it is a debt collector” under the FDCPA); McAdory
v. M.N.S. & Assocs., LLC, 952 F.3d 1089, 1094 (9th Cir. 2020) (in using the noun
“collection,” Congress “did not specify who must do the collecting or to whom the debt
must be owed” (quotation modified)).
Ms. Howe argues MFRA is a debt collector because its principal purpose is the
collection of debts. Howe Proposed Findings of Fact, Brief at 11. Under the FDCPA, Ms.
Howe bears the burden to establish MFRA’s status as a debt collector. Goldstein v.
Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 60 (2d Cir. 2004). The
relevant inquiry is whether debt collection is incidental to the business’s objectives, or its
dominant objective. See McAdory, 952 F.3d at 1093. The trial testimony establishes that
MFRA’s business model consists of purchasing debt and that it derives its revenue from
mortgage servicers’ collection of payments and from the sale of real-estate-owned
properties. Bench Trial Tr. 2 at 221–23. MFRA further testified that it holds no assets
apart from mortgage investments and relies on third-party servicers to collect mortgage
debts on its behalf. When asked whether its “money comes from mortgage servicers
collecting mortgage payments,” MFRA responded “correct,” and when asked whether
those servicers remit the collected funds to MFRA, it again responded “correct.” Bench
Trial Tr. 2 at 220–23. This evidence demonstrates that mortgage debt collection
constitutes MFRA’s dominant or principal objective. Accordingly, MFRA qualifies as a
debt collector under the FDCPA’s principal-purpose definition. See, e.g., Barbato, 916
F.3d at 268 (noting that “the record reflects that [the alleged debt collector’s] only
business is the purchasing of debts for the purpose of collecting on those debts, and, as
[the alleged debt collector] candidly acknowledged at oral argument, without the
collection of those debts, [it] would cease to exist.”); see also Reygadas v. DNF Assocs.,
LLC, 982 F.3d 1119, 1125 (8th Cir. 2020) (“The foreseeable and logical consequence of
hiring lawyers and debt collection agencies to collect debts [defendant] has purchased is
itself evidence of purpose.” (emphasis in original)).
Moreover, MFRA’s use of third parties, like Fay, to collect these debts does not
exclude it from the principal purpose definition of a debt collector. See Barbato, 916 F.3d
at 270 (“[A]n entity that is itself a ‘debt collector’—and hence subject to the FDCPA—
should bear the burden of monitoring the activities of those it enlists to collect debts on
its behalf.” (quoting Police v. Nat’l Tax Funding, L.P., 225 F.3d 379, 405 (3d Cir. 2000));
McAdory, 952 F.3d at 1095 (stating the “fact that the FDCPA includes limits on direct
collection activities does not require the conclusion that Congress intended to regulate
only those entities that directly interact with consumers” and noting “the text of the
principal purpose prong contains no such limitation”); Janetos v. Fulton Friedman &
Gullace, LLP, 825 F.3d 317, 325 (7th Cir. 2016) (“A debt collector should not be able to
avoid liability for unlawful debt collection practices simply by contracting with another
company to do what the law does not allow it to do itself.”).
Having determined that MFRA is a debt collector, the Court considers whether it
can be held vicariously liable under traditional agency principles for Fay’s violation of
§ 1692e. See Clark v. Cap. Credit & Collection Servs., Inc., 460 F.3d 1162, 1173 (9th Cir.
2006) (stating “general principles of agency . . . form the basis of vicarious liability under
the FDCPA”). “Agency is the fiduciary relationship that arises when one person (a
‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the
principal’s behalf and subject to the principal’s control, and the agent manifests assent or
otherwise consents so to act.” Restatement (Third) of Agency § 1.01 (A.L.I. 2006); see
State Farm Mut. Auto. Ins. Co. v. Koshy, 2010 ME 44, ¶ 16, 995 A.2d 651. An agency
relationship exists where the principal: (1) has the “right to direct or control” the agent’s
actions; (2) manifests consent to the agent acting on its behalf; and (3) receives consent
from the agent to so act. Meyer v. Holley, 537 U.S. 280, 286 (2003). Vicarious liability
attaches where the agent acts with actual authority or the principal ratifies the agent’s
conduct. See Restatement (Third) of Agency § 7.03.
Here, under the servicing agreement between Fay and MFRA,16 Fay was
responsible for “servicing[ing] and administer[ing] each of the Assets on behalf of, and in
the best interest of, the Owners.” Flow Servicing Agreement at 55. The servicing
agreement also granted Fay with “full power and authority, acting alone, or to the extent
contemplated by and in accordance with the [servicing agreement’s performance
standards] . . . to do all things in connection with such servicing and administration which
[Fay] my deem necessary or desirable.” Id. At trial, Fay testified that it acts as a
comprehensive “soup-to-nuts” loan servicer for MFRA, including accepting borrower
payments and pursuing foreclosure. Bench Trial Tr. 1 at 21:16–21. The Court finds the
language of the servicing agreement, coupled with MFRA’s testimony that Fay collected
mortgage debts on its behalf, establishes an agency relationship and actual authority for
Fay to engage in the challenged collection activities. Therefore, because agency principles
permit “a principal entity which meets the definition of a ‘debt collector’ [to] be held
vicariously liable for the acts of its authorized or apparent agent under the FDCPA,”
16 The flow servicing agreement is between Fay, MFResidential I, LLC, and “any Person and Trusts joined
hereto from time to time.” MFRA Trust 2015-1 signed onto this agreement in 2015. In 2017, Fay became the
servicer of the Howe Loan.
Oberther v. Midland Credit Mgmt., Inc., 45 F. Supp. 3d 125, 130 (D. Mass. 2014)
(quotation modified), MFRA is vicariously liable for Fay’s violations of § 1692e.
Finally, MFRA argues even if an FDCPA violation occurred, the bona fide error
defense applies because any violation resulted from a good faith mistake. Ms. Howe
contends MFRA cannot invoke this affirmative defense because: (1) it does not apply to
mistakes of law; (2) MFRA and Fay knew they lacked foreclosure rights; (3) and Fay failed
to show it had procedures designed to prevent such violations, which is required to claim
a bona fide error. The Court agrees. Under the bona fide error defense to the FDCPA, a
debt collector is not liable if it shows by a preponderance of the evidence that the violation
was: (1) unintentional; and (2) the result of a bona fide error; (3) “notwithstanding the
maintenance of procedures reasonably adopted to avoid any such error.”
15 U.S.C. § 1692k(c); see Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559
U.S. 573, 573, 605 (2010) (holding the bona fide error defense under the FDCPA is not
available for mistakes of law). Here, MFRA had actual knowledge that it did not have the
right to foreclose following the state court dismissing the Prior State Action in 2020.
Further, even though the 2023 quitclaim assignment established MFRA’s legal rights in
the Mortgage,17 from December 10, 2020 (the date from which Ms. Howe’s claims under
the FDCPA are considered timely) to February 3, 2023 (the date of the Mortgage
quitclaim assignment), MFRA had actual knowledge that it did not own the Mortgage
17 To the extent MFRA argues it believed it had standing to foreclose based on the three loan modification
agreements, it is judicially estopped from relying on this position. In the Florida Receivership Action, MFRA
stated “only an assignment directly from the originating lender (Challenger) will permit the assignee to
foreclose the Mortgage” and “without a Quitclaim Assignment of Mortgage from the now defunct Challenge
. . . [MFRA] cannot foreclose pursuant to the terms of the Howe Mortgage.” Motion to Appoint Receiver
¶¶ 16, 19. For MFRA to now argue it can establish standing to foreclose through the loan modification
agreement: (1) is “clearly inconsistent” with the position it took in the Florida Receivership Action; (2)
creates “the perception that either” the Florida court or this court “was misled”; and (3) unfairly advantages
MFRA. New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quotations modified).
and, therefore, lacked standing to foreclose on the Property during that time. That
knowledge forecloses the bona fide error defense. Therefore, the bona fide error defense
is not applicable and MFRA is vicariously liable for Fay’s actions that violated the FDCPA.
Accordingly, the Court enters judgment in favor of Ms. Howe on her counterclaim against
MFRA for violating § 1692e of the FDCPA.
C. Mortgage Servicer Duty of Good Faith Counterclaim Against Fay
Ms. Howe also alleges Fay violated its duty of good faith under Maine’s mortgage
servicer statute: 14 M.R.S. § 6113. She contends Fay breached that duty by falsely
representing in its communications with her that it held certain rights under the Mortgage
and by continuing to exercise said purported Mortgage-related rights—including sending
inspectors to the Property—when it knew that MFRA lacked an enforceable interest in the
Mortgage. The statute defines a mortgage servicer as “a person responsible for servicing
an obligation, including a person that holds or owns an obligation . . . if the person also
services the obligation.” 14 M.R.S. § 6113(1)(B-1). The parties do not dispute that Fay
qualifies as a mortgage servicer within the meaning of the statute.
Section 6113 requires a mortgage servicer to “act in good faith toward an obligor in
the servicing of an obligation secured by a mortgage and in any foreclosure action relating
to such an obligation.” Id. § 6113(2). The statute defines “good faith” as “honesty in fact
and the observance of reasonable commercial standards of fair dealing.” Id. § 6113(1)(A).
Because Maine courts have provided limited guidance concerning the conduct that
violates § 6113, the Court looks to analogous sources. The Maine UCC likewise imposes
an obligation of good faith in the performance and enforcement of contracts and defines
good faith in materially identical terms. See 11 M.R.S. § 1-304 (Maine UCC obligation of
good faith); id. § 1–1201(20) (defining “good faith” as “honesty in fact and the observance
of reasonable commercial standards of fair dealing”). The Law Court has interpreted this
definition to include both a subjective component—honesty in fact—and an objective
component—commercial reasonableness. See Chartier v. Farm Fam. Life Ins. Co., 2015
ME 29, ¶ 7, 113 A.3d 234 (finding good faith under this two-part inquiry when a bank
permitted a wife to cash out the husband’s annuity policy, deposit the funds with a forged
check, and shortly thereafter withdraw more than one-third of the total amount before
filing for divorce the same day because Maine law permitted the bank to authorize such
transactions between joint owners of a shared bank account). Guided by this framework,
the Court evaluates Ms. Howe’s claim by determining whether Fay: (1) acted honestly;
and (2) observed reasonable commercial standards of fair dealing in servicing the Loan.
See Me. Fam. Fed. Credit Union v. Sun Life Assur. Co. of Can., 1999 ME 43, ¶¶ 18, 24,
727 A.2d 335.
With respect to the subjective component, the relevant inquiry is whether Fay
knew that MFRA lacked an enforceable interest in the Mortgage. See id. ¶ 22, 727 A.2d
335 (inquiring into actual knowledge in evaluating good-faith obligations under the
Maine UCC and determining defendant acted with honesty in fact where it had no notice
of problem at issue or knowledge of fraud involved). The record establishes that, following
the February 2020 dismissal of the Prior State Action, MFRA had actual knowledge that
it lacked enforceable mortgage rights because the state court rejected its equitable-trust
theory based solely on possession of the Note. The record further establishes that Fay
possessed this same knowledge by at least March 2020. Fay’s representative testified that
Fay authorized counsel to file a motion to amend the judgment in the Prior State Action
on March 11, 2020. See Trial Ex. 33, Michael Paterno Aug. 6, 2025 Deposition at 19:25–
20:11. Although the representative expressed less certainty as to Fay’s awareness of the
motion’s denial in April 2021, that uncertainty does not alter the dispositive point: by
March 2020, Fay knew that MFRA did not own the Mortgage and therefore could not
foreclose. Despite that knowledge, Fay continued to service and enforce the Loan as
though MFRA possessed rights in the Mortgage. Id. 20:12–21:22. Fay sent Ms. Howe
communication asserting a right to foreclose and caused or permitted a property
inspector to enter the Property in connection with its servicing or enforcement activities,
despite knowing that MFRA lacked an enforceable mortgage interest. Accordingly, these
actions demonstrate Fay’s lack of honesty in servicing the loan.
As to the objective component, Ms. Howe bears the burden to show that Fay failed
to observe reasonable commercial standards of fair dealing. She has not carried that
burden. The record does not contain sufficient evidence of prevailing industry standards
or of how Fay’s policies and procedures deviated from those standards in a manner that
would render its conduct commercially unreasonable. See, e.g., Me. Fam. Fed. Credit
Union, 1999 ME 43, ¶ 30, 727 A.2d 335 (considering internal policies, regulatory
compliance, and industry practice); Chartier, 2015 ME 29, ¶ 7, 113 A.3d 234 (evaluating
commercial reasonableness against contractual provisions and governing law). Absent
such evidence, the Court cannot conclude that Fay’s servicing practices fell below the
objective standard required by § 6113.18
Nevertheless, the statute requires both honesty in fact and adherence to
reasonable commercial standards. 14 M.R.S. § 6113(1)(A). Because Fay failed to satisfy
18 Ms. Howe introduced into evidence a 2024 consent order between the Consumer Financial Protection
Bureau (“CFPB”) and Fay, Trial Ex. 46, which the CFPB terminated in 2025, Trial Ex. 61. The parties did
not sufficiently develop, during trial or in their post-trial briefing, how the requirements or findings
described in the CFPB’s 2024 consent order bear on the reasonable commercial standards of fair dealing
applicable to Fay’s servicing conduct at issue in this case. The Court therefore does not rely on that order in
determining whether Fay satisfied the objective component of § 6113.
the subjective component requiring acting in honesty, it breached its duty of good faith.
See Me. Fam. Fed. Credit Union, 1999 ME 43, ¶ 17, 727 A.2d 335 (“Because the tests are
presented in the conjunctive, a holder must now satisfy both a subjective and an objective
test of ‘good faith.’”). Accordingly, the Court enters judgment in favor of Ms. Howe on her
counterclaim for Fay’s violation of the duty of good faith pursuant to 14 M.R.S. § 6113.
DAMAGES
Having determined liability, the Court turns to assessing damages under the
FDCPA and 14 M.R.S. § 6113.
I. FDCPA
Under 15 U.S.C. § 1692k, a debt collector who violates the FDCPA is liable to the
debtor for three categories of relief: (1) actual damages; (2) “additional damages as the
court may allow” not to exceed $1,000; and (3) reasonable attorney’s fees.
15 U.S.C. § 1692k(a). To determine the damages MFRA and Fay owe, the Court first
addresses how liability is allocated between the two Defendants and then determines the
amount of actual and additional damages. See Sweetland v. Stevens & James, Inc., 563
F. Supp. 2d 300, 303, 304 (D. Me. 2008).
A. Multiple Defendants
The Court first addresses how the damages award applies to the two Defendants.
As discussed above, Fay is directly liable for the underlying FDCPA violations, while
MFRA is vicariously liable under agency principles. The Defendants, therefore, share
liability for the same underlying conduct, rather than being independently liable for
distinct FDCPA violations. Because no First Circuit precedent directly addresses whether
the FDCPA requires courts to enforce the actual and additional damages provisions per
suit or against each defendant, the Court looks to persuasive authority from other circuits.
As to additional damages, other courts have held that when a “plaintiff “suffered
an indivisible harm caused by defendants who did not violate the FDCPA independently
of each other,” additional damages are “not multiplied by the number of defendants” but
are instead capped at $1,000 per suit, regardless of the number of violations. Portalatin
v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 900 F.3d 377, 386 (7th Cir. 2018). The
Court finds that approach persuasive because, while awarding additional damages up to
$1,000 per defendant would further the FDCPA’s goal of incentivizing debt collectors to
follow the law, limiting that award to defendants who acted independently of one another
prevents double recovery. See Wilson v. NACM-Or. Serv. Co., No. 12-cv-01515, 2013 WL
6780627, at *12 (D. Or. Dec. 19, 2013). This case does not involve multiple defendants
independently liable for distinct FDCPA violations; rather, MFRA is vicariously liable
based on Fay’s conduct. Cf. Overcash v. United Abstract Grp., Inc., 549 F. Supp. 2d 193,
196 (N.D.N.Y. 2008) (allowing per-defendant recovery where multiple defendants
separately attempted to collect a single debt). Accordingly, Fay and MFRA are jointly and
severally liable for Ms. Howe’s additional damages award.
The same principle applies to Ms. Howe’s actual damages, which compensate for
the harm Fay’s FDCPA violations caused her. See Portalatin, 900 F.3d at 385 (“[T]he
actual-damages provision mirrors the additional-damages (also known as ‘statutory
damages’) provision. There is no doubt actual damages for the same single, indivisible
injury are not multiplied by the number of defendants.”). Section 1692k permits the
recovery of “any actual damage[s] sustained.” 15 U.S.C. § 1692k(a)(1). The statute
therefore does not authorize assessing actual damages separately against each defendant
for the same injury. See Miranda v. Cnty. of Lake, 900 F.3d 335, 346 (7th Cir. 2018)
(“Under the single recovery rule, defendants are jointly and severally liable for the full
amount of compensatory damages that result from an indivisible harm; a plaintiff can
recover only once for those damages.”). Because Ms. Howe suffered indivisible harm
arising from conduct for which Fay was directly liable and MFRA was vicariously liable,
the Defendants are jointly and severally liable for Ms. Howe’s actual damages award.
Accordingly, because Ms. Howe’s injury arose from Fay’s course of conduct, for
which MFRA is vicariously liable, Fay and MFRA are jointly and severally liable for the
total award amount.
B. Actual Damages
The Court now turns to determining actual damages. This category encompasses
emotional distress and exists to compensate the plaintiff fairly, “not to punish or deter the
defendant.” Sweetland, 563 F. Supp at 304. Actual damages, however, are not awarded
on a strict liability basis: rather, a plaintiff must establish a causal connection between
the defendant’s conduct and her claimed harm. See 15 U.S.C. § 1692k(a)(1) (permitting
award of actual damage the plaintiff sustains “as a result of” the debt collector’s failure
“to comply with any provision” of the FDCPA (emphasis added)).
Ms. Howe seeks damages for emotional distress she experienced from December
2020 through December 2021, a period during which Fay sent her a series of violative
monthly mortgage notices and letters. Those communications warned: “You are late on
your monthly payments. Failure to bring the account current may result in additional fees
or expenses, and in certain instances, you may risk foreclosure - the loss of your home.”
The letters also declared Fay’s “right to invoke foreclosure based on the terms of [the
Howes’] mortgage contract.” Mrs. Howe also testified that unannounced visits to the
property left her feeling “like she is being watched.” The incident that first provoked this
fear, however, predates December 2020, and Mrs. Howe’s trial testimony did not
establish that the more recent visits were connected to debt collection activity; the Court
therefore does not attribute that particular harm to Fay’s conduct.
The remaining evidence supports an award for actual damages. Ms. Ada Wood,
Ms. Howe’s mother, remains in regular contact with her daughter and testified that Ms.
Howe has been “stressed” and “tearful sometimes” about the foreclosure and related debt
collection activity. Ms. Howe and her son likewise testified that the stress of the
foreclosure brings migraines. Crediting this testimony, the Court awards Ms. Howe
$2,000.00 in actual damages. See, e.g., Sweetland, 563 F. Supp. 2d at 301, 303–04
(awarding $2,500 for violations of 15 U.S.C. §§ 1692d and 1692e when debt collection
conduct caused plaintiff to be “upset, anxious, and distressed” and the conduct consisted
of two aggressive and rude phone calls, during one of which the debt collector threatened
to send a private investigator to plaintiff’s home and “made it clear that he was going to
extract money from her one way or the other”); Salazar v. Green Square Co., LLC, No.
21-cv-00542, 2022 WL 1492577, at *8 (D.N.M. Mar. 16, 2022), report and
recommendation adopted, 2022 WL 1115271 (D.N.M. Apr. 14, 2022) (awarding $2,000
for violations of § 1692d as a result of “aggravation and [emotional] distress,” including
“hours of lost sleep, worry, anxiety, fear, and relapsed mental health”); Bullock v. Abbott
& Ross Credit Servs., L.L.C., No. A-09-cv-413, 2009 WL 4598330, at *4 (W.D. Tex. Dec.
3, 2009), report and recommendation adopted, 2009 WL 10713334 (W.D. Tex. Dec. 22,
2009) (citing cases awarding $1,000 to $3,000).
C. Additional Damages
Having awarded actual damages, the Court turns to whether—and how much—
additional damages should be awarded, up to the $1,000 statutory ceiling. See Sweetland,
563 F. Supp. 2d at 303. In setting that amount, the Court weighs “the frequency and
persistence of noncompliance by the debt collector, the nature of such noncompliance,
and the extent to which such noncompliance was intentional.” 15 U.S.C. § 1692k(b)(1).
Because the FDCPA imposes strict liability for this category of damages, a plaintiff who
proves a violation may recover additional damages regardless of whether she can also
prove actual damages. Sweetland, 563 F. Supp. 2d at 304; see Shapiro v. Haenn, 222 F.
Supp. 2d 29, 43 n.8 (D. Me. 2002).
The record here reflects sustained, deliberate noncompliance rather than an
isolated mistake. As discussed above, Defendants violated § 1692e by mailing Ms. Howe
a letter that threatened foreclosure despite knowing they lacked standing to foreclose, and
by sending approximately ten monthly mortgage statements that included a “Delinquency
Notice” falsely asserting a right to foreclose. Fay repeated this same false representation
to Ms. Howe over an extended period, all while knowing that MFRA had no lawful right
to foreclose on the Property. That frequency and persistence, combined with the
deliberate and knowingly false nature of the threat—one directed at the loss of Ms. Howe’s
home—together justify a substantial additional damages award. Because MFRA’s liability
is derivative of Fay’s conduct rather than independent misconduct of its own, the Court
treats the FDCPA violation as giving rise to a single statutory recovery rather than
separate awards against each Defendant. Weighing the frequency, persistence, nature,
and intentionality of Fay’s violations together, the Court concludes that the statutory
maximum of $1,000 best serves the FDCPA’s remedial and deterrent purposes, and the
Defendants are jointly and severally liable for that amount. See, e.g., Clomon v. Jackson,
988 F.2d 1314, 1316 (2d Cir. 1993) (upholding $1,000 additional damages award where
the defendant “authorized the sending of debt collection letters bearing his name and a
facsimile of his signature without first reviewing the collection letters or the files of the
persons to whom the letters were sent”); Campos v. Tolteca Enters., Inc., No. 14-cv-874,
2015 WL 13802511, at *1 (W.D. Tex. Dec. 4, 2015) (concluding $1,000 “is a relatively
modest penalty and that a lower figure would do little to effectuate the FDCPA’s statutory
purpose”).
In sum, the Court awards Ms. Howe $2,000 in actual damages and $1,000 in
additional damages, for a total award of $3,000 under the FDCPA. MFRA and Fay are
jointly and severally liable for that amount.
II. Mortgage Servicer Duty of Good Faith
The Court next determines Ms. Howe’s actual and statutory damages under
14 M.R.S. § 6113(4). When a mortgage servicer violates its duty of good faith, the statute
permits a homeowner to recover “for all actual damages sustained” because of that
violation. 14 M.R.S. § 6113(4)(A). In addition to actual damages, courts may award
statutory damages “not exceeding $15,000 for a pattern or practice” of the mortgage
servicer’s violations. Id. § 6113(4)(B). The statute also requires courts to award the
homeowner costs and reasonable attorney fees when a violation occurs. Id. § 6113(4)(C).
The contours of § 6113’s damages provision remain largely undefined. No authority
addresses how courts should determine actual damages or how courts should exercise
their discretion to award statutory damages up to the $15,000 maximum. The Court
therefore turns to ordinary rules of statutory construction for interpretive guidance,
beginning with the plain language of § 6113. See Penobscot Nation v. Frey, 3 F.4th 484,
490–491 (1st Cir. 2021).
A. Actual Damages
The Court first considers the actual damages Ms. Howe sustained as a result of
Fay’s § 6113 violations. The statute provides: “A homeowner or obligor injured by a
violation of the duty of good faith may bring an action against the mortgage servicer for
all actual damages sustained by the homeowner or obligor.” 14 M.R.S. § 6113(4)(A). The
text of § 6113(4)(A) does not limit actual damages to any particular category of loss.
Rather, it permits recovery for “all actual damages.” Id. The Court therefore considers
whether Ms. Howe’s emotional distress, which she identifies as the consequence of Fay’s
violative servicing conduct, constitutes actual damages under § 6113. The Court concludes
that it does.
As the Supreme Court has recognized, the meaning of “actual damages” depends
on the statutory context in which the phrase appears. See F.A.A. v. Cooper, 566 U.S. 284,
292–94 (2012). Here, the legislature’s use of the unqualified phrase “all actual damages”
favors a broad construction.
In Kowalski v. Seterus, Inc., the District of Maine distinguished the Maine Unfair
Trade Practices Act, which requires a “loss of money or property” and therefore excludes
emotional distress, from the Maine Consumer Credit Code (“MCCC”), which imposes no
such limitation and simply authorizes recovery of “actual damages.” No. 16-cv-00160,
2017 WL 79949, at *18 (D. Me. Jan. 9, 2017) (citing 5 M.R.S. § 213; 9-A M.R.S. § 9-405).
Because the MCCC’s undifferentiated reference to “actual damages” carries no pecuniary-
loss requirement, the court held it permits recovery for emotional distress—consistent
with how courts construe “actual damages” under analogous consumer-protection
statutes—and denied the servicer’s motion to dismiss the plaintiff’s MCCC claim on that
basis. Id. (quotation modified).
Section 6113(4)(A) shares this same unqualified structure: it authorizes recovery
for “all actual damages sustained” without requiring a showing of pecuniary loss.
14 M.R.S. § 6113(4)(A). As in Kowalski, that language forecloses reading in a limitation
the Legislature did not write. See Cornn v. United Parcel Serv., Inc., No. C03-2001, 2006
WL 449138, at *3 (N.D. Cal. Feb. 22, 2006) (construing similarly broad “all actual
damages” language). Nothing in § 6113(4)(A) excludes emotional distress damages, and
the Court declines to read such an unstated exception into the statute.
The Court must nevertheless distinguish damages Fay’s § 6113 violations caused
from damages for which Ms. Howe already recovered under her successful FDCPA claim.
The rule against double recovery prohibits Ms. Howe from obtaining two awards for an
indivisible injury arising from the same conduct. See Miranda, 900 F.3d at 346. Thus, the
Court awards no damages under § 6113 for the emotional distress that Ms. Howe
experienced from December 2020 through December 2021 for which she already
recovered under the FDCPA. Instead, the Court considers whether Fay’s conduct before
December 2020 caused an additional injury for which the FDCPA award does not
compensate her.
The record establishes such an injury. As discussed above, Fay’s conduct
supporting the § 6113 claim began no later than March 2020, when Fay knew that MFRA
lacked an enforceable interest in the Mortgage and therefore could not lawfully foreclose
on the Property. Nevertheless, during the period from March 2020 through December
2020, Fay continued servicing and collection activities as though MFRA possessed
enforceable mortgage rights. Those activities included communications threatening
foreclosure and the property inspection that occurred during the first summer of the
COVID-19 pandemic. Ms. Howe identifies both the communications and property
inspection as sources of additional emotional distress for which she seeks damages under
§ 6113. Howe Proposed Findings of Fact, Brief at 13–14, 15.
Although the Court did not find the summer 2020 inspection constituted a timely
FDCPA violation, it is relevant to and timely under the separate § 6113 claim because it
occurred during the period in which Fay continued to exercise purported mortgage-
related rights despite knowing MFRA lacked an enforceable interest in the Mortgage. Ms.
Howe encountered the property inspector in her backyard, where he yelled at her to pay
her bills. She testified that this incident made her feel “invaded,” caused her to fear that
“people were going to start coming and [spying on her],” and was sufficiently stressful
that she was “probably incapacitated after.” Bench Trial Tr. 2 at 315–16. The Court finds
this testimony credible.
Fay’s mortgage statements during this period further support an actual damages
award. From April 2020 through November 2020, Ms. Howe received eight monthly
statements warning she was delinquent and failure to bring her account current could
result in additional fess, expenses, or “foreclosure - the loss of [her] home.” These
communications reinforced the false assertion that MFRA possessed enforceable
mortgage rights, despite Fay’s knowledge to the contrary. The Court credits Ms. Howe’s
testimony that these violative statements contributed to her emotional distress.
Taken together, the property inspection, eight mortgage statements, and Ms.
Howe’s testimony establish that she sustained actual damages resulting from Fay’s § 6113
violations distinct from the damages already awarded under the FDCPA. The Court
therefore awards Ms. Howe $1,500 in actual damages under § 6113(4)(A) for the
additional injury Fay’s March 2020 through December 2020 conduct caused her.
B. Statutory Damages
Ms. Howe also seeks statutory damages under § 6113(4)(B), which authorizes the
Court to award damages “not exceeding $15,000 for a pattern or practice of the mortgage
servicer’s violating the duty of good faith.” 14 M.R.S. § 6113(4)(B). The statute instructs
the Court to consider: (1) the frequency and persistence of violations; (2) the nature of the
violations; (3) the extent to which the violations were intentional; and (4) the extent to
which the violations were prohibited by state or federal laws, rules or regulations, or any
consent judgments to which the mortgagor is a party. Id.
1. Pattern or Practice
The Court first considers whether Fay’s conduct establishes a “patten or practice”
under § 6113. Because the statute does not define that phrase and neither party proposes
an interpretation, the Court must supply one. A pattern or practice ordinarily means more
than single or sporadic act; it denotes a standard way of operating. See Pattern, Black’s
Law Dictionary (12th ed. 2024) (defining pattern as a “mode of behavior or series of acts
that are recognizably consistent”); Practice, Black’s Law Dictionary (12th ed. 2024)
(defining practice as an “established custom or prescribed usage”). That definition
nonetheless leaves open several unanswered questions, so the Court looks to analogous
statutes for guidance.
Other Maine statutes employ the phrase “pattern or practice” in different contexts,
see, e.g., 38 M.R.S. § 349-N (barring Maine Department of Environmental Protection
from recommending criminal charges against a regulated entity absent a “pattern or
practice” demonstrating a management philosophy that conceals environmental
violations or conscious involvement by corporate officials in such violations). But § 6113’s
use of the phrase as a prerequisite for statutory damages is best compared to federal
consumer protection law, particularly the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. §§ 2605 et seq., which likewise conditions statutory damages on a
“pattern or practice” of noncompliance. RESPA aims “to encourage communication to
provide borrowers with accurate information about, and transparency regarding, their
loans,” McGahey v. Fed. Nat’l Mortg. Ass’n, 266 F. Supp. 3d 421, 442 (D. Me. 2017), and
permits statutory damages up to $2,000 in the case of “a pattern or practice of
noncompliance,” 12 U.S.C. § 2605(f)(1).
Courts applying RESPA have not adopted a uniform test, but two commonalities
emerge from that body of law. One or two single RESPA violations are generally
insufficient to find a pattern or practice of noncompliance, but more than two violations
can support a pattern or practice claim under the statute. Compare Long v. Residential
Credit Sols., Inc., No. 15-cv-80590, 2015 WL 4983507, at *2 (S.D. Fla. Aug. 21, 2015) (one
violation insufficient), and McLean v. GMAC Mortg. Corp., 595 F. Supp. 2d 1360, 1365
(S.D. Fla. 2009) (two violations insufficient), with Ploog v. HomeSide Lending, Inc., 209
F. Supp. 2d 863, 868–69 (N.D. Ill. 2002) (five violations sufficient). Multiple violations
against the same individual may suffice. See, e.g., Smith v. Specialized Loan Servicing,
LLC, No. 16-cv-2519, 2017 WL 1711283, at *8 (S.D. Cal. May 3, 2017) (seventeen unlawful
letters to single borrower over period of twenty two months sufficient for pattern or
practice under RESPA); Ploog, 209 F. Supp. 2d at 867 (five violations of RESPA against
single borrower sufficient for pattern or practice); see also Aduayi v. PHH Mortg. Servs.,
No. 23-cv-10857, 2024 WL 1018441, at *5 (D. Mass. Mar. 8, 2024) (“If alleging statutory
damages related to a pattern or practice of noncompliance, repeated failures to respond
to a single Plaintiff may qualify as a pattern or practice.”). Under this reasoning, which
the Court finds persuasive, multiple violative acts against a single borrower can sustain
statutory damages under § 6113.
Here, Fay’s communications with Mrs. Howe were not an isolated, erroneous
occurrence. Rather, the record establishes that Fay repeated the same underlying false
representation—that MFRA possessed a right to foreclose—across multiple
communications, even after Fay knew that MFRA lacked an enforceable interest in the
Mortgage. The repeated conduct establishes a pattern or practice of violations within the
meaning of § 6113.
2. Statutory Factors
The Court next considers the relevant statutory factors. The first enumerated
factor—the frequency and persistence of violations—weighs in favor of a statutory award.
Fay’s conduct was not confined to a single communication or isolated error. The record
establishes multiple communications asserting a right to foreclose, as well as continued
servicing and enforcement activity premised on that purported right. Ms. Howe’s
mortgage statements alone reflect violative communications sent on a monthly basis.
Fay’s violations were therefore both frequent and persistent.
The second factor—the nature of the violations—also weighs in favor of a statutory
award. Fay repeatedly communicated a foreclosure right to Ms. Howe that MFRA did not
possess. These were not incidental or inconsequential representations; they concerned
the right to enforce the Mortgage against Ms. Howe’s Property, including the right to
foreclose—a grave misrepresentation. The nature of these violations is particularly
serious given the absence of any policies or procedures on Fay’s part designed to identify
or prevent such errors or to ensure that correspondence concerning foreclosure was
tailored to the requirements of Maine law. Bench Trial Tr. 2 at 206. The record instead
reflects that Fay repeatedly communicated a purported foreclosure right without
safeguards sufficient to account for the legal circumstances governing MFRA’s interest in
the Mortgage.
The third factor—the extent to which the violations were intentional—also weighs
in favor of an award. In determining liability, the Court found that Fay possessed actual
knowledge, by at least March 2020, that MFRA lacked an enforceable interest in the
Mortgage. Despite that knowledge, Fay continued to service and enforce the Loan as
though MFRA possessed rights in the Mortgage, including by communicating a right to
foreclose and causing or permitting a property inspector to enter the Property in
connection with its servicing or enforcement activities. Fay’s § 6113 violation rests on
Fay’s failure to act with honesty in fact and not merely on an inadvertent or mistaken
representation. The absence of policies or procedures to identify such errors, or to ensure
that foreclosure-related correspondence accounted for the particular requirements of
Maine law, further underscores the significance of the repeated conduct.
The fourth factor—the extent to which the violations were “prohibited by state or
federal laws, rules or regulations, and the extent to which such actions constitute
violations by the mortgage servicer of any consent judgments to which it is a party”—is
notable because it does not limit the Court’s consideration of statutory damages to
violations of § 6113 itself. Instead, the Maine legislature specifically contemplated other
legal and regulatory obligations as relevant to a court’s statutory damages determination.
Here, the Court found that Fay’s servicing activities violated federal law, namely, the
FDCPA. The Court therefore considers that violation as an additional circumstance
bearing on statutory damages.19
19 The Court does not, however, rely on the 2024 consent order in determining damages under § 6113. As
with the liability analysis, the parties did not sufficiently develop at trial or in their post-trial briefing how
the requirements or findings described in that 2024 order bear on the statutory damages amount, including
any basis for using the order to establish quantity, or otherwise determine the damages attributable to Fay’s
violations.
Weighing these factors together where the evidence establishes a persistent
pattern of intentional, false foreclosure representations repeated across multiple
communications.
The Court concludes that $10,000 in statutory damages is warranted.
CONCLUSION
In light of the foregoing findings of fact and conclusions of law, the Court enters
judgment in MFRA’s favor on Count I in the Note Action to the extent set forth herein and
awards $319,798.42. The Court enters judgment in Ms. Howe’s favor on Counts II, III,
and IV in the Note Action.
In the Foreclosure Action, the Court enters judgment on Count I in favor of Ms.
Howe. As a result, MFRA’s motion for default judgment against defaulted parties-in-
interest Asset Acceptance and Credit Acceptance (ECF No. 106) requesting the Court
determine the order of priority and other related matters is MOOT.
As to Ms. Howe’s counterclaims, the Court grants judgment in her favor on Counts
I and II. The Court AWARDS her $14,500 in damages. Finally, the Court DENIES Ms.
Howe’s motion for judicial notice with prejudice (ECF No. 142) and DENIES AS MOOT
her motion in limine. (ECF No. 137).
SO ORDERED.
Dated this 15th day of September, 2026.
/s/ Stacey D. Neumann
UNITED STATES DISTRICT JUDGE