MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2017	ME	190	
Docket:	   Pen-16-316	
Argued:	   May	12,	2017	
Decided:	  September	7,	2017	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                FEDERAL	NATIONAL	MORTGAGE	ASSOCIATION	
                                    	
                                   v.	
                                    	
                      PATRICIA	W.	DESCHAINE	et	al.	
	
	
HJELM,	J.	

      [¶1]	 	 In	 2012,	 a	 complaint	 for	 residential	 foreclosure	 filed	 by	 Federal	

National	 Mortgage	 Association	 (Fannie	 Mae)	 against	 Patricia	 W.	 Deschaine	

and	Paul	J.	Deschaine	was	dismissed	with	prejudice	because	the	parties	failed	

to	 comply	 with	 the	 court’s	 pretrial	 order.	 	 Fannie	 Mae	 did	 not	 seek	

post-judgment	 or	 appellate	 relief,	 and	 so	 the	 judgment	 became	 final.	 	 The	

following	year,	Fannie	Mae	filed	a	second	complaint	for	foreclosure	involving	

the	 same	 property,	 based	 on	 the	 same	 note	 and	 mortgage,	 and	 against	 the	

same	 mortgagors.	 	 The	 Superior	 Court	 (Penobscot	 County,	 Anderson,	 J.)	

ultimately	 granted	 the	 Deschaines’	 motion	 for	 summary	 judgment	 on	 Fannie	

Mae’s	complaint	and	on	their	counterclaims	to	quiet	title	and	for	a	declaratory	

judgment,	 and	 denied	 Fannie	 Mae’s	 cross-motion	 for	 summary	 judgment	 on	
2	

its	complaint.		Applying	our	decision	in	Johnson	v.	Samson	Construction	Co.,	the	

court	 concluded	 that	 this	 second	 foreclosure	 action	 is	 barred	 as	 a	 matter	 of	

law	by	the	judgment	dismissing	with	prejudice	the	earlier	foreclosure	action.		

1997	ME	220,	¶	8,	704	A.2d	866.		On	this	appeal	by	Fannie	Mae,	we	conclude	

that	 the	 court	 correctly	 determined	 that	 this	 second	 foreclosure	 claim	 is	

precluded	by	principles	of	res	judicata,	and	we	affirm	the	judgment.1	

                                            I.		BACKGROUND	

          [¶2]		The	summary	judgment	record	contains	the	following	facts,	which	

are	 not	 in	 dispute.	 	 See	Harlor	 v.	 Amica	 Mut.	 Ins.	 Co.,	 2016	 ME	 161,	 ¶	7,	

150	A.3d	793.	

          [¶3]	 	 In	 October	 2004,	 the	 Deschaines	 executed	 a	 promissory	 note	 in	

favor	 of	 First	 Horizon	 Home	 Loan	 Corporation	 in	 the	 principal	 amount	 of	

$127,920.		As	security	for	the	note,	the	Deschaines	also	executed	a	mortgage	

on	 residential	 property	 located	 in	 Lincoln	 in	 favor	 of	 Mortgage	 Electronic	

Registration	 Systems,	 Inc.	 (MERS),	 as	 “nominee”	 for	 First	 Horizon.2	 	 Fannie	


     1	
    	 Amicus	 briefs	 have	 been	 filed	 by	 National	 Consumer	 Law	 Center,	 National	 Association	 of	
Consumer	 Advocates,	 Jerome	 Frank	 Legal	 Services	 Corporation,	 and	 Maine	 Attorneys	 Saving	
Homes;	 Maine	 Bankers	 Association	 and	 The	 National	 Mortgage	 Bankers	 Association;	 Pine	 Tree	
Legal	Assistance;	Gerald	F.	Petruccelli;	and	Doonan,	Graves	&	Longoria,	LLC.		See	M.R.	App.	P.	9(e).	
   2		Later,	in	April	2011,	the	United	States	Bankruptcy	Court	for	the	District	of	Maine	(Haines,	J.)	

granted	the	Deschaines’	petition	for	a	discharge	in	bankruptcy	pursuant	to	11	U.S.C.S.	§	727	(LEXIS	
through	 Pub.	 L.	 No.	 115-50).	 	 As	 a	 result	 of	 the	 discharge,	 the	 Deschaines	 can	 no	 longer	 be	 held	
personally	 liable	 for	 their	 obligations	 under	 the	 note	 and	 mortgage.	 	 See	 11	 U.S.C.S.	 §	 524(a)(1)	
                                                                                                              3	

Mae	 eventually	 acquired	 the	 note	 endorsed	 in	 its	 favor.	 	 MERS	 purported	 to	

assign	the	mortgage	to	Fannie	Mae	in	June	2011,	but	because	MERS	possessed	

only	the	right	to	record	the	mortgage,	the	assignment	conveyed	nothing	more	

than	 that	 right.	 	 See	 Bank	 of	 Am.,	 N.A.	 v.	 Greenleaf,	 2014	 ME	 89,	 ¶¶	 15-16,	

96	A.3d	 700;	 Mortg.	 Elec.	 Registration	 Sys.,	 Inc.	 v.	 Saunders,	 2010	 ME	 79,	

¶¶	9-11,	2	A.3d	289.		

        [¶4]	 	 Paragraph	 7(C)	 of	 the	 note	 and	 Paragraph	 22	 of	 the	 mortgage	

contain	acceleration	clauses,	which	provide	that	if	the	borrower	fails	to	satisfy	

an	obligation	under	either	instrument	and	fails	to	timely	cure	the	default	after	

being	notified	of	it,	the	lender	may	require	“immediate	payment	in	full”	of	the	

amount	 then	 remaining	 unpaid	 under	 the	 loan	 documents—including	 the	

total	balance	of	principal	and	interest	under	the	note	and	any	additional	fees	

and	charges	allowed	by	the	note	and	mortgage.		

        [¶5]	 	 Additionally,	 Paragraph	 19	 of	 the	 mortgage	 is	 a	 reinstatement	

provision,	stating	that	“even	if	[the	l]ender	has	required	immediate	payment	


(LEXIS	through	Pub.	L.	No.	115-51)	(stating	that	a	discharge	in	a	Chapter	7	bankruptcy	“voids	any	
judgment	 any	 time	 obtained,	 to	 the	 extent	 that	 such	 judgment	 is	 a	 determination	 of	 the	 personal	
liability	 of	 the	 debtor	 with	 respect	 to	 any	 debt	 discharged”).	 	 Because	 a	 discharge	 in	 bankruptcy	
does	 not	 extinguish	 a	 valid	 lien	 on	 a	 property,	 however,	 that	 discharge	 does	 not	 preclude	 Fannie	
Mae	from	enforcing	its	security	interest	in	an	in	rem	foreclosure	proceeding.		See	Johnson	v.	Home	
State	Bank,	501	U.S.	78,	82-84	(1991)	(“[A]	discharge	[in	a	Chapter	7	liquidation]	extinguishes	only	
the	personal	liability	of	the	debtor.	.	.	.	[A]	creditor’s	right	to	foreclose	on	the	mortgage	survives	or	
passes	through	the	bankruptcy.”	(citations	and	quotation	marks	omitted));	New	Eng.	Merchs.	Nat’l	
Bank	v.	Herron,	243	A.2d	722,	726	(Me.	1968).			
4	

in	 full,	 [the	 borrower]	 may	 have	 the	 right	 to	 have	 enforcement	 of	 [the	

mortgage]	 discontinued”	 if,	 among	 other	 things,	 the	 borrower	 “pay[s]	 to	

[the	l]ender	the	full	amount	that	then	would	be	due	under	[the	mortgage]	and	

the	[n]ote	as	if	immediate	payment	in	full	had	never	been	required”	before	the	

earliest	of	the	date	a	foreclosure	judgment	is	issued,	five	days	prior	to	the	sale	

of	the	property,	or	“such	other	period	as	[a]pplicable	[l]aw	might	specify	for	

the	 termination	 of	 [the]	 right	 to	 reinstate.”	 	 Paragraph	 19	 further	 provides	

that	if	the	borrower	exercises	her	right	of	reinstatement,	“the	[n]ote	and	this	

[s]ecurity	 [i]nstrument	 will	 remain	 in	 full	 effect	 as	 if	 immediate	 payment	 in	

full	had	never	been	required.”			

	     [¶6]		In	September	2011,	Fannie	Mae	issued	to	the	Deschaines	a	notice	

of	 default	 and	 right	 to	 cure	 because,	 among	 other	 things,	 they	 had	 not	 made	

any	monthly	payments	on	the	note	since	January	2011.		The	Deschaines	failed	

to	pay	the	stated	amount	due—$7,719.33—by	the	date	specified	in	the	notice.		

As	a	result,	in	December	2011	Fannie	Mae	filed	a	foreclosure	complaint	in	the	

District	Court	(Lincoln).		In	its	complaint,	Fannie	Mae	alleged,	“[I]n	accordance	

with	the	terms	of	the	[l]oan	[d]ocuments,	[Fannie	Mae]	has	declared	the	entire	

outstanding	 principal	 amount,	 accrued	 interest	 thereon,	 and	 all	 other	 sums	

due	 under	 the	 [l]oan	 [d]ocuments	 to	 be	 presently	 due	 and	 payable.”		
                                                                                        5	

Specifically,	 Fannie	 Mae	 alleged	 that	 the	 amount	 due	 included	 a	 principal	

balance	of	$122,712.93,	which,	together	with	accrued	interest,	fees,	and	other	

charges,	resulted	in	a	total	amount	due	of	$131,944.56.		

	     [¶7]	 	 In	 June	 2012,	 the	 court	 (Stitham,	 J.)	 issued	 a	 trial	 management	

order	 stating	 that	 neither	 party	 had	 complied	 with	 an	 earlier	 order	 that	 had	

established	 a	 deadline	 for	 the	 parties	 to	 exchange	 witness	 and	 exhibit	 lists,	

and	 warning	 the	 parties	 that	 sanctions	 would	 be	 imposed	 if	 they	 did	 not	

comply	 with	 a	 revised	 deadline.	 	 See	 M.R.	 Civ.	 P.	 16A(a),	 (d)	 (authorizing	 a	

court	to	dismiss	an	action	with	prejudice	for	a	party’s	failure	to	comply	with	a	

pretrial	order).		The	following	month,	the	court	issued	a	judgment	stating	that	

there	 had	 been	 “no	 filings	 by	 either	 party,”	 and	 dismissed	 Fannie	 Mae’s	

foreclosure	complaint	“with	prejudice.”		Fannie	Mae	did	not	seek	any	type	of	

relief	from	the	dismissal	through	a	post-judgment	motion	or	an	appeal,	and	so	

the	judgment	became	final.		

	     [¶8]		In	September	2013—more	than	one	year	after	the	first	foreclosure	

action	 had	 been	 dismissed—Fannie	 Mae	 sent	 a	 new	 notice	 of	 default	 to	 the	

Deschaines,	 this	 time	 stating	 that,	 among	 other	 grounds	 for	 a	 default,	 the	

Deschaines	 had	 failed	 to	 make	 payments	 on	 the	 note	 since	 February	 2011.		

The	 Deschaines	 did	 not	 take	 the	 actions	 specified	 in	 the	 notice	 to	 cure	 the	
6	

purported	default,	and	in	December	2013	Fannie	Mae	filed	a	complaint	in	the	

Superior	 Court	 (Penobscot	 County),	 which,	 as	 later	 amended,	 requested	 a	

judgment	 of	 foreclosure	 and	 other	 relief	 based	 on	 theories	 of	 equitable	

mortgage	 and	 unjust	 enrichment.3	 	 In	 both	 the	 original	 and	 amended	

complaints,	Fannie	Mae	alleged,	“[I]n	accordance	with	the	terms	of	the	[n]ote	

and	 [m]ortgage,	 [Fannie	 Mae]	 has	 declared	 the	 entire	 outstanding	 principal	

amount,	accrued	interest	thereon,	and	all	other	sums	due	under	the	[n]ote	and	

[m]ortgage	to	be	presently	due	and	payable.”			

         [¶9]	 	 After	 an	 unsuccessful	 mediation	 session	 held	 in	 the	 summer	 of	

2014,	 the	 Deschaines	 filed	 an	 answer	 that	 denied	 many	 of	 the	 allegations	 in	

the	amended	complaint	and	asserted,	among	others,	the	affirmative	defenses	

of	 lack	 of	 standing	 and	 res	 judicata.	 	 The	 Deschaines’	 responsive	 pleading	

included	counterclaims	to	quiet	title	and	for	a	declaratory	judgment	that,	as	a	

result	 of	 the	 dismissal	 with	 prejudice	 of	 Fannie	 Mae’s	 prior	 foreclosure	

complaint,	Fannie	Mae	was	no	longer	entitled	to	enforce	the	mortgage	and	so	

the	 Deschaines	 held	 title	 to	 the	 property	 unencumbered	 by	 the	 mortgage	 in	

favor	of	Fannie	Mae.		

     3	 	 The	 amended	 complaint	 named	 21st	 Mortgage	 Corporation	 as	 a	 party-in-interest	 because	 it	

allegedly	holds	a	junior	interest	in	the	mortgaged	property.		See	14	M.R.S.	§	6321	(2013),	amended	
by	P.L.	2013,	ch.	555,	§	2	(effective	Aug.	1,	2014);	P.L.	2015,	ch.	229,	§	1	(effective	October	15,	2015).		
That	entity	did	not	participate	in	either	the	trial	court	proceedings	or	this	appeal.			
                                                                                       7	

      [¶10]	 	 In	 January	 2015,	 Fannie	 Mae	 obtained	 an	 assignment	 of	 the	

mortgage	from	the	successor-in-interest	to	First	Horizon,	the	original	lender,	

and	 thus	 acquired	 standing	 to	 pursue	 this	 second	 foreclosure	 action	 against	

the	 Deschaines,	 which	 had	 already	 been	 pending	 for	 over	 a	 year.	 	 See	

Greenleaf,	2014	ME	89,	¶	17,	96	A.3d	700.			

	     [¶11]	 	 In	 November	 2015,	 the	 Deschaines	 moved	 for	 summary	

judgment	on	their	counterclaims	and	on	all	counts	of	Fannie	Mae’s	complaint.		

See	 M.R.	 Civ.	 P.	 56.	 	 With	 the	 motion,	 the	 Deschaines	 filed	 a	 statement	 of	

material	facts,	see	M.R.	Civ.	P.	56(h)(1),	in	which	they	asserted	that	the	notice	

of	 default	 issued	 by	 Fannie	 Mae	 in	 September	 2011	 “resulted	 in	 the	

acceleration	 of	 the	 mortgage	 debt.”	 	 In	 support	 of	 this	 assertion,	 the	

Deschaines	 cited	 to	 the	 2011	 foreclosure	 complaint	 as	 one	 of	 several	 record	

references.		See	M.R.	Civ.	P.	56(h)(4).		Based	on	that	assertion	and	our	decision	

in	Johnson,	the	Deschaines	argued	that	Fannie	Mae	was	barred	from	bringing	a	

second	foreclosure	claim	and	that	they	were	therefore	entitled	to	a	judgment	

as	a	matter	of	law	on	that	claim	and	on	their	counterclaims.		

	     [¶12]		In	its	opposition	to	the	Deschaines’	motion,	Fannie	Mae	disputed	

the	assertion	that	the	debt	was	accelerated	in	the	2011	action,	characterizing	

it	 as	 a	 legal	 conclusion	 that	 did	 not	 require	 a	 response.	 	 Fannie	 Mae	
8	

simultaneously	filed	its	own	motion	for	summary	judgment	on	each	count	of	

its	 complaint.	 	 In	 its	 statement	 of	 material	 facts,	 Fannie	 Mae	 reiterated	

allegations	 it	 had	 made	 in	 its	 complaint,	 including	 the	 Deschaines’	 failure,	

since	 February	 2011,	 to	 make	 principal	 and	 interest	 payments	 due	 pursuant	

to	the	note,	among	other	grounds	for	default.		Fannie	Mae	argued	that	it	was	

not	 precluded	 from	 bringing	 a	 second	 foreclosure	 claim	 against	 the	

Deschaines	 because	 the	 2013	 action	 was	 based	 on	 new	 breaches	 of	 the	 note	

and	mortgage	that	had	not	been	at	issue	in	the	earlier	proceeding	and	because	

there	had	not	been	an	effective	acceleration	of	the	debt	in	that	proceeding.			

	     [¶13]	 	 In	 June	 2016,	 the	 court	 (Anderson,	 J.)	 granted	 the	 Deschaines’	

motion	 for	 summary	 judgment	 on	 both	 Fannie	 Mae’s	 complaint	 and	 their	

counterclaims,	and	denied	Fannie	Mae’s	cross-motion	for	summary	judgment.		

The	court	concluded,	as	a	matter	of	law,	that	each	of	Fannie	Mae’s	claims	was	

barred	by	res	judicata,	and	alternatively	that	in	the	circumstances	of	this	case	

Fannie	 Mae	 was	 not	 entitled	 to	 relief	 on	 its	 equitable	 claims.	 	 As	 to	 the	

counterclaims,	 the	 court	 concluded	 that	 the	 Deschaines	 were	 not	 subject	 to	

any	 remaining	 obligation	 created	 by	 the	 note	 and	 mortgage	 because	 Fannie	

Mae	was	“barred	from	enforcing	the	note,”	and	the	Deschaines	were	therefore	

entitled	to	a	declaratory	judgment	that	they	held	title	to	the	Lincoln	property	
                                                                                                              9	

unencumbered	by	the	mortgage	in	favor	of	Fannie	Mae.		See	14	M.R.S.	§	6206	

(2016)	(“If	it	appears	that	nothing	is	due	on	the	mortgage,	judgment	shall	be	

rendered	 for	 the	 defendant	 and	 for	 his	 costs,	 and	 he	 shall	 hold	 the	 land	

discharged	 of	 the	 mortgage.”).	 	 Fannie	 Mae	 timely	 appealed.	 	 See	 14	 M.R.S.	

§	1851	(2016);	M.R.	App.	P.	2(b)(3).	

                                             II.		DISCUSSION	

	       [¶14]		Fannie	Mae	argues	that	the	court	erred	by	concluding,	as	a	matter	

of	 law,	 that	 the	 present	 foreclosure	 action	 is	 barred	 by	 the	 doctrine	 of	 res	

judicata.4		“We	review	a	grant	of	a	summary	judgment	on	a	res	judicata	issue	

de	 novo,	 viewing	 the	 record	 in	 the	 light	 most	 favorable	 to	 the	 party	 against	

whom	judgment	has	been	granted	to	decide	whether	the	parties’	statements	

of	material	facts	and	the	referenced	record	material	reveal	a	genuine	issue	of	

material	fact.”		Wilmington	Tr.	Co.	v.	Sullivan-Thorne,	2013	ME	94,	¶	6,	81	A.3d	

371	(quotation	marks	omitted).	


    4		In	its	summary	of	the	issues	on	appeal,	Fannie	Mae	also	states	as	an	issue	that	the	court	erred	

by	 concluding	 that	 its	 claims	 to	 enforce	 an	 equitable	 mortgage	 and	 for	 unjust	 enrichment	 were	
precluded	as	a	matter	of	law.		Because	Fannie	Mae	fails	to	develop	that	issue	in	its	brief,	we	do	not	
address	it.		See	Bayview	Loan	Servicing	v.	Bartlett,	LLC,	2014	ME	37,	¶	15	n.5,	87	A.3d	741	(stating	
that	a	party	waives	any	argument	that	it	fails	to	adequately	develop	in	briefing).		Fannie	Mae	does	
not	argue	that	the	court	erred	by	denying	its	cross-motion	for	summary	judgment	on	its	foreclosure	
claim.		Rather,	Fannie	Mae	argues	that	it	should	“be	allowed	to	proceed	on	its	foreclosure	claim”—in	
other	 words,	 it	 argues	 the	 court	 did	 not	 err	 by	 denying	 its	 summary	 judgment	 motion,	 which,	 if	
granted,	 would	 have	 precluded	 a	 trial.	 	 (Emphasis	 added.)	 	 Our	 discussion	 is	 therefore	 limited	 to	
whether	 the	 court	 erred	 by	 granting	 the	 Deschaines’	 motion	 for	 summary	 judgment	 on	 Fannie	
Mae’s	 foreclosure	 complaint	 and	 on	 their	 counterclaims.	 	 See	 Thurston	 v.	 Galvin,	 2014	 ME	 76,	 ¶	 5	
n.1,	94	A.3d	16	(stating	that	an	issue	not	raised	on	appeal	is	deemed	waived).		
10	

        [¶15]	 	 The	 doctrine	 of	 res	 judicata	 prevents	 “a	 party	 and	 its	 privies	

.	.	.	from	 relitigating	 claims	 or	 issues	 that	 have	 already	 been	 decided.”		

Portland	 Co.	 v.	 City	 of	 Portland,	 2009	 ME	 98,	 ¶	 22,	 979	 A.2d	 1279.	 	 The	

doctrine	 “has	 two	 components:	 collateral	 estoppel,	 also	 known	 as	 issue	

preclusion,	 and	 claim	 preclusion.”	 	 Wilmington	 Tr.	 Co.,	 2013	 ME	 94,	 ¶	 7,	

81	A.3d	 371	 (quotation	 marks	 omitted).	 	 Claim	 preclusion,	 which	 is	 the	

component	at	issue	in	this	case,	“bars	the	relitigation	of	claims	if:	(1)	the	same	

parties	or	their	privies	are	involved	in	both	actions;	(2)	a	valid	final	judgment	

was	entered	in	the	prior	action;	and	(3)	the	matters	presented	for	decision	in	

the	second	action	were,	or	might	have	been,	litigated	in	the	first	action.”5		Id.	

(quotation	marks	omitted).			

        [¶16]		Fannie	Mae	does	not	dispute	that	the	same	parties	were	involved	

in	both	the	2011	and	2013	foreclosure	actions.		

        [¶17]	 	 Additionally,	 as	 Fannie	 Mae	 acknowledged	 at	 oral	 argument,	

because	 the	 dismissal	 with	 prejudice	 in	 the	 2011	 action	 was	 imposed	 as	 a	

sanction	 pursuant	 to	 Rule	 16A(d)	 based	 on	 both	 parties’	 failure	 to	 comply	


   5		In	contrast,	issue	preclusion	“merely	prevents	the	reopening	in	a	second	action	of	an	issue	of	

fact	actually	litigated	and	decided	in	an	earlier	case.”		Johnson	v.	Samson	Constr.	Corp.,	1997	ME	220,	
¶	 6,	 704	 A.2d	 866	 (quotation	 marks	 omitted).	 	 Because	 the	 question	 here	 is	 whether	 the	 2011	
action	 prohibits	 the	 relitigation	 of	 an	 entire	 cause	 of	 action—namely,	 Fannie	 Mae’s	 claim	 for	
residential	foreclosure—and	is	not	limited	to	a	single	issue	of	fact,	see	id.,	we	address	only	the	claim	
preclusion	component	of	res	judicata.			
                                                                                                             11	

with	a	scheduling	order,	that	dismissal	has	the	same	effect	as	an	adjudication	

on	 the	 merits	 of	 Fannie	 Mae’s	 foreclosure	 complaint	 regardless	 of	 whether	

Fannie	 Mae	 had	 standing	 at	 the	 time	 of	 the	 dismissal	 to	 pursue	 foreclosure.6		

See	Green	Tree	Servicing,	LLC	v.	Cope,	2017	ME	68,	¶¶	17-18	&	n.10,	158	A.3d	

931.	 	 The	 dismissal	 is	 therefore	 a	 valid	 final	 judgment	 for	 purposes	 of	 res	

judicata.	 	 See	 Penkul	 v.	 Matarazzo,	 2009	 ME	 113,	 ¶	 8,	 983	A.2d	 375	 (“For	 a	

valid	final	judgment	to	have	preclusive	effect,	it	must	be	made	on	the	merits	of	

the	 case.”);	 Johnson,	 1997	 ME	 220,	 ¶¶	 3,	 8,	 704	 A.2d	 866	 (concluding	 that	 a	

judgment	 dismissing	 the	 plaintiff’s	 foreclosure	 complaint	 with	 prejudice	

based	on	its	failure	to	timely	file	a	report	of	conference	of	counsel	“operated	

as	an	adjudication	on	the	merits”	(quotation	marks	omitted)).			

        [¶18]	 	 We	 therefore	 proceed	 to	 address	 the	 remaining	 element	 of	 res	

judicata,	 namely,	 whether	 the	 matters	 presented	 for	 decision	 in	 this	

foreclosure	action	were,	or	might	have	been,	litigated	in	the	2011	foreclosure	




   6		Any	assertion	to	the	contrary	would	have	been	unavailing	in	any	event.		Fannie	Mae	may	not	

now	collaterally	attack	the	earlier	judgment	of	dismissal	with	prejudice	(i.e.,	on	the	merits)	based	
on	its	alleged	lack	of	standing	in	the	2011	action	in	an	attempt	to	render	that	judgment	void	or	limit	
its	preclusive	effect,	because	Fannie	Mae	failed	to	raise	the	standing	issue	during	those	earlier	trial	
court	 proceedings	 or	 through	 a	 timely	 appeal	 from	 the	 dismissal.	 	 Cf.	 Wells	 Fargo	 Bank	 v.	 White,	
2015	ME	145,	¶¶	10-13,	127	A.3d	538	(holding	that	the	court	did	not	err	or	abuse	its	discretion	by	
denying	a	plaintiff’s	M.R.	Civ.	P.	60(b)(4)	request	for	relief	from	a	judgment	of	foreclosure	based	on	
the	plaintiff’s	contention	that	the	judgment	was	void	for	want	of	standing,	because	the	plaintiff	had	
the	opportunity	to	raise	the	standing	issue	during	the	trial	court	proceedings	but	did	not	do	so).			
12	

action.		See	Wilmington	Tr.	Co.,	2013	ME	94,	¶	7,	81	A.3d	371.		To	answer	that	

question,	we	must	determine	

       whether	the	same	cause	of	action	was	before	the	court	in	the	prior	
       case.	 	 We	 define	 a	 cause	 of	 action	 through	 a	 transactional	 test,	
       which	 examines	 the	 aggregate	 of	 connected	 operative	 facts	 that	
       can	 be	 handled	 together	 conveniently	 for	 purposes	 of	 trial	 to	
       determine	if	they	were	founded	upon	the	same	transaction,	arose	
       out	of	the	same	nucleus	of	operative	facts,	and	sought	redress	for	
       essentially	the	same	basic	wrong.	.	.	.	Claim	preclusion	may	apply	
       even	where	a	suit	relies	on	a	legal	theory	not	advanced	in	the	first	
       case,	 seeks	 different	 relief	 than	 that	 sought	 in	 the	 first	 case,	 or	
       involves	evidence	different	from	the	evidence	relevant	to	the	first	
       case.	
       	
Id.	¶	8	(citations,	alterations,	and	quotation	marks	omitted).	

       [¶19]		Claim	preclusion	“is	grounded	on	concerns	for	judicial	economy	

and	 efficiency,	 the	 stability	 of	 final	 judgments,	 and	 fairness	 to	 litigants.”	 	 Id.	

¶	6.	 	 The	 doctrine	 promotes	 those	 goals	 by	 preventing	 a	 party	 “from	

splintering	his	or	her	claim	and	pursuing	it	in	a	piecemeal	fashion	by	asserting	

in	a	subsequent	lawsuit	other	grounds	of	recovery	for	the	same	claim	that	the	

litigant	 had	 a	 reasonable	 opportunity	 to	 argue	 in	 the	 prior	 action.”	 	 Johnson,	

1997	ME	220,	¶	7,	704	A.2d	866	(quotation	marks	omitted).	

       [¶20]	 	 We	 previously	 addressed	 claim	 preclusion	 in	 the	 foreclosure	

context	 in	 Johnson.	 	 In	 that	 case,	 the	 mortgagee	 commenced	 a	 foreclosure	

action	in	August	1990	alleging	that	the	mortgagor	had	defaulted	by	failing	to	
                                                                                          13	

make	the	periodic	payment	due	on	the	note	in	May	1990;	that	the	mortgagor	

failed	 to	 timely	 cure	 the	 default;	 and	 that	 therefore,	 pursuant	 to	 the	

acceleration	clause	in	the	note,	the	mortgagee	was	entitled	to	a	judgment	for	

the	 entire	 unpaid	 principal	 balance.	 	 Id.	 ¶¶	 2-3.	 	 Four	 years	 later,	 the	 court	

dismissed	the	foreclosure	action	with	prejudice	after	the	mortgagee	failed	to	

timely	 file	 a	 court-ordered	 report	 of	 conference	 of	 counsel.	 	 Id.	 ¶	 3.	 	 The	

mortgagee	then	filed	a	second	foreclosure	complaint	in	August	1995,	this	time	

alleging	that	the	mortgagor	had	failed	to	make	any	payments	due	on	the	note	

since	 September	 1990	 and	 again	 seeking	 a	 judgment	 for	 the	 entire	 unpaid	

principal	balance.		Id.	¶	4.		Rejecting	the	mortgagee’s	argument	that	the	first	

judgment	 should	 only	 bar	 claims	 based	 on	 defaults	 that	 occurred	 before	 the	

first	 action	 was	 filed,	 the	 trial	 court	 granted	 the	 mortgagor’s	 motion	 for	

summary	judgment	based	on	res	judicata.		Id.	

       [¶21]	 	 We	 affirmed	 the	 court’s	 decision	 on	 appeal.	 	 Id.	 ¶¶	 1,	 8.	 	 We	

reasoned	 that	 once	 the	 mortgagor	 “triggered	 the	 acceleration	 clause	 of	 the	

note”	 by	 “demand[ing]	 payment	 of	 the	 entire	 unpaid	 principal	 balance,”	 the	

installment	 contract,	 which	 “required	 240	 equal	 monthly	 payments	 of	

principal	 and	 interest[,]	 .	 .	 .	 became	 indivisible.	 	 The	 obligations	 to	 pay	 each	

installment	merged	into	one	obligation	to	pay	the	entire	balance	on	the	note.”		
14	

Id.	 ¶	 8.	 	 Accordingly,	 we	 concluded,	 as	 a	 matter	 of	 law,	 that	 the	 judgment	

dismissing	 the	 first	 foreclosure	 complaint	 with	 prejudice	 barred	 the	 second	

foreclosure	 complaint,	 “which	 allege[d]	 precisely	 what	 the	 complaint	 in	 the	

first	 action	 alleged:	 that	 [the	 mortgagor]	 defaulted	 on	 the	 note	 and	 that	 [the	

mortgagee	 was]	 entitled	 to	 a	 judgment	 for	 the	 amount	 due	 under	 the	 note.”		

Id.	 	 We	 stated	 that	 the	 mortgagee	 could	 not	 “avoid	 the	 consequences	 of	 his	

procedural	 default	 .	 .	 .	 by	 attempting	 to	 divide	 a	 contract	 which	 became	

indivisible	when	he	accelerated	the	debt	in	the	first	lawsuit.”		Id.	

      [¶22]		Johnson	fully	disposes	of	the	issue	in	this	case.		The	Deschaines’	

promissory	 note	 requires	 360	 equal	 monthly	 payments	 of	 principal	 and	

interest.		Paragraph	7(C)	of	the	note	states,	however,	that	if	the	borrower	fails	

to	“pay	the	full	amount	of	each	monthly	payment	on	the	date	it	is	due	.	.	.	the	

[n]ote	 [h]older	 may	 send	 [the	 borrower]	 a	 written	 notice	 telling	 [the	

borrower]	that	if	[she]	do[es]	not	pay	the	overdue	amount	by	a	certain	date,	

the	 [n]ote	 [h]older	 may	 require	 [the	 borrower]	 to	 pay	 immediately	 the	 full	

amount	 of	 [p]rincipal	 that	 has	 not	 been	 paid	 and	 all	 the	 interest	 that	 [the	

borrower]	owe[s]	on	that	amount.”		An	acceleration	clause	at	Paragraph	22	of	

the	 mortgage	 states	 that	 if	 the	 borrower	 “fail[s]	 to	 keep	 any	 promise	 or	

agreement	made	in	this	[s]ecurity	[i]nstrument,	including	the	promises	to	pay	
                                                                                        15	

when	due	the	[s]ums	[s]ecured,”	and	fails	to	timely	cure	the	default	after	being	

notified	 of	 it,	 then	 the	 “[l]ender	 may	 require	 that	 [the	 borrower]	 pay	

immediately	 the	 entire	 amount	 then	 remaining	 unpaid	 under	 the	 [n]ote	 and	

under	this	[s]ecurity	[i]nstrument	.	.	.	without	making	any	further	demand	for	

payment.”	 	 Paragraph	 22	 further	 provides,	 “If	 [l]ender	 requires	 immediate	

payment	 in	 full,	 [l]ender	 may	 bring	 a	 lawsuit	 to	 take	 away	 all	 of	 [the	

borrower’s]	remaining	rights	in	the	[p]roperty	and	have	the	[p]roperty	sold.”			

       [¶23]	 	 It	 is	 undisputed	 that	 in	 September	 2011	 Fannie	 Mae	 sent	 the	

Deschaines	 a	 notice	 of	 default	 informing	 them	 that	 they	 had	 failed	 to	 make	

monthly	 payments	 on	 the	 note	 since	 January	 2011,	 and	 stating	 that	 if	 the	

Deschaines	failed	to	cure	the	default	“within	35	days	of	receipt	of	this	notice,	

the	balance	of	the	[n]ote	may	be	deemed	accelerated	without	further	demand,	

and	 the	 [l]ender	 may	 proceed	 with	 foreclosure	 of	 the	 [m]ortgage.”	 	 It	 is	 also	

undisputed	that	the	Deschaines	failed	to	timely	cure	the	default.		Accordingly,	

the	necessary	predicates	for	acceleration	as	specified	in	Paragraph	7(C)	of	the	

note	 and	 Paragraph	 22	 of	 the	 mortgage—namely,	 a	 default,	 a	 subsequent	

notice	 of	 default,	 and	 a	 failure	 to	 cure	 the	 default—were	 fulfilled.	 	 Then,	 in	

December	 2011,	 Fannie	 Mae	 filed	 a	 foreclosure	 complaint	 alleging	 that	 “in	

accordance	 with	 the	 terms	 of	 the	 [l]oan	 [d]ocuments,	 [Fannie	 Mae]	 has	
16	

declared	 the	 entire	 outstanding	 principal	 amount,	 accrued	 interest	 thereon,	

and	all	other	sums	due	under	the	[l]oan	[d]ocuments	to	be	presently	due	and	

payable.”7		(Emphasis	added.)		If	Fannie	Mae	in	fact	accelerated	the	debt	in	the	

2011	 action—as	 it	 had	 alleged—then	 this	 case	 would	 be	 indistinguishable	

from	 Johnson	 because	 Fannie	 Mae	 would	 have	 placed	 the	 entire	 outstanding	

balance	 on	 the	 note	 at	 issue	 in	 the	 first	 case,	 precluding	 any	 future	 separate	

action	to	recover	the	same	debt.		

       [¶24]		In	an	attempt	to	avoid	the	effects	of	Johnson,	Fannie	Mae	makes	

several	 arguments	 to	 support	 its	 contention	 that	 the	 record	 does	 not	

conclusively	establish	that	acceleration	occurred	in	the	2011	action.			

       [¶25]		First,	Fannie	Mae	contends	that	the	acceleration	provisions	in	the	

note	 and	 mortgage,	 which	 state	 that	 the	 lender	 “may”	 require	 immediate	

payment	in	full	upon	the	borrower’s	failure	to	cure	a	default,	merely	give	the	

lender	 the	 option	 to	 accelerate	 the	 debt	 and	 that	 Fannie	 Mae	 did	 not	

indisputably	 exercise	 that	 option.	 	 In	 contrast,	 the	 note	 in	 Johnson	 stated	 in	

mandatory	terms	that	upon	a	borrower’s	failure	to	cure	a	default	“the	entire	

unpaid	 principal	 and	 accrued	 interest	 shall	 become	 immediately	 due	 and	

   7		We	note	that	according	to	its	own	complaint,	filed	in	December	2011,	Fannie	Mae	alleged	that	

the	principal	balance	alone	that	was	due	from	the	Deschaines	exceeded	$122,000,	in	contrast	to	the	
$7,719.33	required	to	cure	the	default	as	stated	in	the	notice	of	default	issued	by	Fannie	Mae	only	
one	month	earlier.			
                                                                                        17	

payable	 without	 further	 demand.”	 	 Johnson,	 1997	 ME	 220,	 ¶¶	 2,	 8,	 704	 A.2d	

866	(emphasis	added)	(quotation	marks	omitted).	

       [¶26]	 	 In	 the	 circumstances	 of	 this	 case,	 however,	 the	 permissive	

acceleration	 language	 in	 the	 Deschaines’	 note	 and	 mortgage	 does	 not	 make	

Johnson	distinguishable	because,	as	shown	in	the	summary	judgment	record,	

Fannie	 Mae	 exercised	 its	 optional	 right	 to	 accelerate	 the	 entire	 obligation.		

When,	 as	 here,	 a	 note	 contains	 an	 optional	 acceleration	 clause,	 some	

affirmative	 action	 is	 required	 by	 the	 note	 holder	 to	 provide	 notice	 to	 the	

borrower	 that	 the	 holder	 has	 exercised	 that	 option.	 	 See,	 e.g.,	 Hassler	 v.	

Account	Brokers	of	Larimer	Cty.,	Inc.,	274	P.3d	547,	553-54	(Colo.	2012);	Reano	

v.	U.S.	Bank,	Nat’l	Ass’n,	191	So.	3d	959,	961	(Fla.	Dist.	Ct.	App.	2016);	Bischoff	

v.	Cook,	185	P.3d	902,	911	n.8	(Haw.	Ct.	App.	2008);	First	Fed.	Sav.	&	Loan	Ass’n	

v.	 Stone,	 467	 N.E.2d	 1226,	 1232	 (Ind.	 Ct.	 App.	 1984).	 	 The	 filing	 of	 a	

foreclosure	 complaint	 “constitutes	 a	 valid	 exercise	 of	 a	 mortgagee’s	

acceleration	 right”	 and	 is	 sufficient	 to	 provide	 notice	 to	 the	 mortgagor.		

Hartford	Fed.	Sav.	&	Loan	Ass’n	v.	Tucker,	491	A.2d	1084,	1086	(Conn.	1985);	

see	 also	 FAS	 Capital,	 LLC	 v.	 Carr,	 7	 F.	 Supp.	 3d	 1259,	 1270	 (N.D.	 Ga.	 2014);	

Reano,	 191	 So.	 3d	 at	 961;	 Bischoff,	 185	 P.3d	 at	 911	 n.8;	 C.T.	 Drechsler,	

Annotation,	What	is	Essential	to	Exercise	of	Option	to	Accelerate	Maturity	of	Bill	
18	

or	Note,	5	A.L.R.2d	968	§	5[a]	(1949)	(“The	institution	of	a	suit	for	the	whole	

debt	is,	of	course,	the	most	solemn	form	in	which	the	holder	can	exercise	his	

option.	 	 This	 is	 well	 recognized	 and	 it	 is,	 hence,	 generally	 held	 that	 the	

institution	 of	 a	 suit	 on	 the	 bills	 or	 notes	 is	 notice	 of	 the	 most	 unequivocal	

character	 that	 the	 holder	 wishes	 to	 avail	 himself	 of	 his	 option	 for	

acceleration.”).	

        [¶27]		Here,	in	its	2011	complaint	for	foreclosure,	Fannie	Mae	alleged—

subject	 to	 the	 requirements	 of	 M.R.	 Civ.	 P.	 11(a)—that	 it	 had	 declared	 the	

entire	 unpaid	 principal	 balance	 to	 be	 due	 immediately.	 	 Accordingly,	 Fannie	

Mae’s	own	complaint	in	the	2011	proceeding	establishes	that	it	exercised	its	

right	to	accelerate	the	underlying	debt	on	the	note,	and	it	may	not	now	argue	

otherwise.8	

        [¶28]		Fannie	Mae	next	argues	that	under	the	parties’	mortgage	contract	

an	attempted	acceleration	is	not	effective	 unless	and	until	the	court	enters	a	


   8		This	case	is	therefore	distinguishable	from	Wilmington	Trust	Co.	v.	Sullivan-Thorne,	where	we	

concluded	that	the	summary	judgment	record	did	not	establish	that	the	mortgagee	had	accelerated	
a	promissory	note	in	previous	litigation	between	the	parties.		2013	ME	94,	¶	12	n.4,	81	A.3d	371.		In	
the	first	action,	the	mortgagee	merely	sent	the	mortgagor	a	notice	stating	that	it	would	accelerate	
the	 debt	 if	 the	 mortgagee	 failed	 to	 cure	 the	 default,	 but	 did	 not	 actually	 commence	 a	 foreclosure	
proceeding	carrying	out	that	threatened	action.		See	id.	¶¶	3-4,	12	n.4.		Rather,	the	mortgagee,	which	
the	 mortgagor	 brought	 in	 as	 a	 third-party	 defendant,	 filed	 a	 counterclaim	 against	 the	 mortgagor,	
but	the	counterclaim	did	not	clearly	place	the	full	unpaid	principal	balance	at	issue	and	also	was	not	
a	claim	for	foreclosure.		See	id.	¶¶	4,	11-12.		We	stated	that	Johnson	did	not	bar	the	mortgagee	from	
bringing	the	later	foreclosure	action	because	the	underlying	debt	had	not	been	accelerated.		Id.	¶	12	
n.4.					
                                                                                       19	

foreclosure	 judgment,	 because	 until	 that	 time	 the	 mortgagor	 has	 the	 right	

under	 Paragraph	 19	 to	 “discontinue[]”	 enforcement	 of	 the	 mortgage.	 	 The	

mortgagor	 may	 do	 so	 by	 paying	 the	 mortgagee	 “the	 full	 amount	 that	 then	

would	be	due	under	[the	mortgage]	and	the	[n]ote	as	if	immediate	payment	in	

full	 had	 never	 been	 required,”	 thereby	 reinstating	 the	 parties’	 prior	

contractual	relationship	with	the	same	continuing	obligation	on	the	part	of	the	

mortgagor	to	make	installment	payments.		In	Fannie	Mae’s	view,	acceleration	

occurs	 only	 if	 the	 borrower	 fails	 to	 take	 certain	 actions	 to	 stop	 foreclosure,	

thereby	putting	the	onus	on	the	borrower	to	elect	whether	acceleration	by	the	

lender	occurs.			

      [¶29]	 	 Fannie	 Mae’s	 argument	 misconstrues	 the	 nature	 of	 its	 right	 to	

accelerate.	 	 Pursuant	 to	 Paragraph	 7(C)	 of	 the	 note	 and	 Paragraph	 22	 of	 the	

mortgage,	acceleration	is	the	lender’s	unilateral	right,	upon	stated	conditions,	

to	require	“immediate	payment	in	full”	of	the	amount	then	remaining	unpaid	

under	the	loan	documents	“without	making	any	further	demand	for	payment.”		

The	loan	documents	therefore	establish	that	acceleration	was	not	dependent	

on	 the	 Deschaines’	 failure	 exercise	 their	 rights	 under	 Paragraph	 19	 of	 the	

mortgage.		Rather,	as	we	have	discussed,	see	supra	¶¶	26-27,	the	acceleration	

occurred	 here	 no	 later	 than	 when	 Fannie	 Mae	 commenced	 the	 first	
20	

foreclosure	 action	 and	 declared	 in	 its	 complaint	 that	 the	 entire	 amount	 the	

Deschaines	 were	 obligated	 to	 pay	 pursuant	 to	 the	 loan	 documents	 was	 then	

due.		Further,	it	is	undisputed	that	in	the	2011	action	the	Deschaines	did	not	

take	 the	 actions	 required	 by	 Paragraph	19	 to	 discontinue	 Fannie	 Mae’s	 right	

to	foreclose	prior	to	entry	of	the	dismissal	with	prejudice.		Accordingly,	even	

assuming	 a	 borrower’s	 invocation	 of	 the	 right	 to	 reinstate	 renders	

acceleration	ineffective,	that	did	not	occur	in	this	case.			

      [¶30]	 	 Finally,	 relying	 on	 case	 law	 from	 other	 jurisdictions,	 see,	 e.g.,	

Singleton	v.	Greymar	Assocs.,	882	So.	2d	1004,	1006-08	(Fla.	2004);	Cenlar	FSB	

v.	 Malenfant,	 151	 A.3d	 778,	 785-92	 (Vt.	 2016),	 Fannie	 Mae	 urges	 us	 to	

abandon	our	holding	in	Johnson,	arguing	that	we	misunderstood	the	effect	of	a	

dismissal	 with	 prejudice	 on	 subsequent	 foreclosure	 actions.	 	 Specifically,	

Fannie	 Mae	 argues	 that	 if	 the	 dismissal	 with	 prejudice	 in	 the	 2011	 action	

operates	 as	 an	 adjudication	 on	 the	 merits,	 see	 supra	 ¶	 17,	 then	 it	 was	

necessarily	 an	 adjudication	 in	 favor	 of	 the	 Deschaines,	 which	 requires	 us	 to	

treat	the	judgment	of	dismissal	as	if	the	court	had	determined	that	Fannie	Mae	

failed	 to	 prove	 the	 elements	 of	 foreclosure,	 including	 default.	 	 See	 Greenleaf,	

2014	 ME	 89,	 ¶	 18,	 96	 A.3d	 700	 (listing	 the	 elements	 of	 proof	 to	 obtain	 a	

foreclosure	 judgment).	 	 Fannie	 Mae	 goes	 on	 to	 argue	 that	 under	 the	 loan	
                                                                                       21	

documents	a	default	is	a	condition	precedent	to	acceleration,	and	so	contrary	

to	our	holding	in	Johnson,	which	also	involved	a	note	where	acceleration	arose	

from	a	default,	1997	ME	220,	¶¶	3,	8,	704	A.2d	866,	the	effect	of	the	dismissal	

with	prejudice	was	to	invalidate	the	attempted	acceleration	because	in	effect	

the	court	determined	that	the	Deschaines	were	not	in	default.		See	Cenlar	FSB,	

151	 A.3d	 at	 787-88.	 	 Fannie	 Mae	 argues	 that	 absent	 a	 prior	 adjudication	 of	

default	 or	 an	 effective	 acceleration,	 it	 remains	 free	 to	 file	 a	 new	 claim	 for	

foreclosure	based	on	defaults	that	have	allegedly	occurred	since	the	dismissal	

was	entered,	because	those	new	grounds	for	foreclosure	could	not	have	been	

litigated	in	the	2011	action.				

	     [¶31]	 	 We	 are	 not	 persuaded	 by	 Fannie	 Mae’s	 challenges	 to	 Johnson’s	

continuing	 vitality.	 	 In	 a	 statement	 of	 material	 fact,	 Fannie	 Mae	 itself	

asserted—and	 the	 Deschaines	 admitted—that	 the	 Deschaines	 “failed	 to	 cure	

the	default”	that	was	the	basis	for	the	2011	action.		To	the	extent	that	Fannie	

Mae	now	argues	that	the	dismissal	with	prejudice	means	that	the	Deschaines	

were	 not,	 in	 fact,	 in	 default,	 thereby	 rendering	 acceleration	 ineffective,	 its	

argument	does	not	carry	the	day.		Although	the	dismissal	with	prejudice	in	the	

2011	 action	 operates	 as	 an	 adjudication	 on	 the	 merits	 for	 purposes	 of	 res	

judicata,	see	Johnson,	1997	ME	220,	¶¶	3,	8,	704	A.2d	866,	that	dismissal	was	
22	

not	 actually	 an	 adjudication	 in	 favor	 of	 the	 Deschaines,	 but	 rather	 resulted	

from	 both	 parties’	 failure	 to	 comply	 with	 a	 scheduling	 order,	 see	 Cope,	

2017	ME	 68,	 ¶	 18,	 158	 A.3d	 931	 (“A	 dismissal	 with	 prejudice	 imposed	 as	 a	

sanction	is	not	an	adjudication	of	the	merits	of	a	plaintiff's	claim.		Rather,	the	

imposition	 of	 a	 sanction	 represents	 the	 court’s	 determination	 of	 a	 collateral	

issue:	 whether	 the	 party	 or	 attorney	 has	 abused	 the	 judicial	 process.”	

(alteration	 and	 quotation	 marks	 omitted)).	 	 The	 dismissal	 with	 prejudice	

therefore	does	not	undermine	the	undisputed	facts	in	the	summary	judgment	

record	 demonstrating	 that,	 as	 we	 have	 concluded,	 see	 supra	 ¶	 23,	 the	

conditions	precedent	to	acceleration—including	default—were	satisfied	in	the	

2011	action.		Further,	because	acceleration	is	entirely	the	lender’s	prerogative	

and	 occurs	 upon	 the	 filing	 of	 a	 foreclosure	 complaint,	 see	 supra	 ¶¶	26-27,	 it	

does	not	depend	on	any	judicial	imprimatur	in	the	form	of	a	judgment	in	the	

lender’s	favor.	

	     [¶32]		Fannie	Mae	also	contends	that	adherence	to	Johnson	will	result	in	

a	windfall	to	the	Deschaines—namely	a	“free,”	or	deeply	discounted,	house—

and	that	this	consequence	is	disproportionate	to	the	bank’s	procedural	default	

in	the	2011	action.		
                                                                                        23	

       [¶33]		We	disagree.		To	the	contrary,	abandoning	our	analysis	in	Johnson	

would	 result	 in	 a	 windfall	 to	 Fannie	 Mae	 and	 all	 other	 similarly	 situated	

mortgagees	 because	 those	 parties	 would	 become	 entitled	 to	 commence	

successive	foreclosure	actions	indefinitely	until	they	eventually	win.		In	other	

words,	 mortgagees	 would	 be	 treated	 differently	 from	 all	 or	 most	 other	

litigants	in	other	types	of	cases.		We	have	held	that	a	judgment	entered	for	the	

defendant	 based	 on	 a	 procedural	 aspect	 of	 the	 case,	 such	 as	 the	 statute	 of	

limitations	 or	 some	 other	 grounds	 unrelated	 to	 the	 substance	 of	 the	 claim,	

bars	 another	 effort	 by	 the	 plaintiff	 to	 obtain	 the	 same	 relief	 from	 the	 same	

defendant.	 	 See	 Hebron	 Acad.,	 Inc.	 v.	 Town	 of	 Hebron,	 2013	 ME	 15,	¶¶	 29-30,	

60	A.3d	 774	 (concluding	 that	 a	 municipal	 decision	 denying	 a	 tax	 abatement	

request	based	on	the	applicant’s	failure	to	meet	a	statute	of	limitations	“was	a	

decision	 on	 the	 merits	 for	 res	 judicata	 purposes”	 and	 barred	 a	 future	

declaratory	 judgment	 action	 concerning	 the	 tax	 status	 of	 the	 property);	

Spickler	 v.	 Dube,	 644	 A.2d	 465,	 467-68	 (Me.	 1994)	 (concluding	 that	 an	

involuntary	 dismissal	 for	 want	 of	 prosecution	 of	 a	 shareholders’	 derivative	

suit	 “serve[d]	 as	 a	 valid	 final	 judgment	 for	 the	 purposes	 of	 res	 judicata”	 and	

barred	 relitigation	 of	 the	 same	 cause	 of	 action).	 	 The	 salutary	 purposes	

supporting	 the	 doctrine	 of	 claim	 preclusion—to	 promote	 judicial	 economy,	
24	

and	 to	 conserve	 the	 resources	 of	 the	 courts	 and	 litigants	 by	 protecting	 them	

from	sequential,	piecemeal	litigation,	see	Wilmington	Tr.	Co.,	2013	ME	94,	¶	6,	

81	 A.3d	 371—are	 as	 relevant	 and	 important	 in	 foreclosure	 litigation	 as	 in	

other	areas	of	the	law.		We	find	no	persuasive	justification	for	carving	out	an	

exception	 to	 the	 settled	 doctrine	 of	 claim	 preclusion	 that	 would	 protect	

mortgagees	 from	 the	 adverse	 consequences	 of	 judgments	 dismissing	 their	

complaints	with	prejudice,	particularly	when	unsuccessful	litigants	in	all	other	

categories	of	civil	litigation	would	continue	to	be	barred	from	relitigating	their	

claims.9			

        [¶34]	 	 Further,	 our	 recent	 decisions	 contain	 multiple	 examples	 of	

proceedings—not	at	all	unlike	the	case	at	bar—where	mortgagees	have	failed	

to	abide	by	court	orders	and	established	rules	of	court	procedure,	resulting	in	

dismissals	of	their	complaints.		See,	e.g.,	United	States	Bank	v.	Sawyer,	2014	ME	

81,	¶¶	12-13,	17,	95	A.3d	608;	Bayview	Loan	Servicing	v.	Bartlett,	2014	ME	37,	

¶	15-18,	22-23,	87	A.3d	741;	Bank	of	N.Y.	v.	Richardson,	2011	ME	38,	¶¶	2-6,	

   9	 	 We	 note	 that	 a	 mortgagee	 is	 not	 without	 an	 opportunity	 to	 avoid,	 where	 appropriate,	 the	

preclusive	 effect	 of	 the	 judgment	 that	 would	 dismiss	 with	 prejudice	 a	 foreclosure	 complaint	 as	 a	
sanction	for	the	mortgagee’s	misconduct.		For	example,	the	mortgagee	is	entitled	to	notice	and	an	
opportunity	to	be	heard	before	a	court	considers	entering	such	a	judgment,	which	should	define	the	
terms	of	the	dismissal	so	that	the	scope	and	effect	of	that	order	will	be	clear	to	the	parties,	to	us,	
and	 to	 courts	 addressing	 any	 subsequent	 attempt	 to	 relitigate	 a	 particular	 claim.	 	 See	 Green	 Tree	
Servicing,	 LLC	 v.	 Cope,	 2017	 ME	 68,	 ¶¶	 20-22,	 158	 A.3d	 931.	 	 Additionally,	 a	 mortgagee	 may	 also	
seek	appellate	relief	from	the	terms	of	a	judgment	of	dismissal	with	prejudice	that	it	contends	are	
oppressive—something	Fannie	Mae	did	not	do	after	the	court	dismissed	its	2011	complaint.			
                                                                                        25	

15	A.3d	756;	Johnson,	1997	ME	220,	¶¶	3,	8,	704	A.2d	866;	cf.	also	Homeward	

Residential,	Inc.	v.	Gregor,	2015	ME	108,	¶¶	13-14,	21,	24,	122	A.3d	947.		If	we	

were	 to	 shield	 mortgagees	 and	 their	 attorneys	 from	 the	 preclusive	 effects	 of	

adverse	 judgments	 arising	 from	 deficient	 pretrial	 conduct,	 we	 would	

improperly	 tolerate	 and	 perhaps	 even	 foster	 within	 that	 limited	 group	 of	

parties	 and	 counsel	 an	 inappropriately	 casual	 attitude	 toward	 the	 processes	

necessary	 for	 the	 prompt,	 orderly,	 and	 fair	 administration	 of	 justice.	 	 See	

Cenlar	FSB,	151	A.3d	at	796	(Dooley,	J.,	dissenting)	(stating	that	the	“message”	

that	 should	 be	 sent	 to	 mortgagees	 and	 counsel	 who	 engage	 in	 unacceptable	

litigation	 practices	 “should	 not	 be	 that	 they	 may	 file	 foreclosure	 action	 after	

foreclosure	 action	 until	 they	 finally	 win”);	 M.	 Wachspress,	 et	 al.,	 Comment,	

In	Defense	 of	 “Free	 Houses,”	 125	 Yale	 L.J.	 1115,	 116	 (2016)	 (stating	 that	

application	 of	 principles	 of	 res	 judicata	 in	 foreclosure	 cases	 will	 “provide[]	 a	

necessary	 market-correcting	 incentive	 to	 promote	 greater	 responsibility	

among	foreclosure	litigators”).			

       [¶35]	 	 For	 these	 reasons,	 we	 reaffirm	 our	 analysis	 in	 Johnson	 as	 good	

and	 settled	 law,	 and	 conclude	 that	 because	 Fannie	 Mae	 exercised	 its	 right	 to	

accelerate,	 the	 promissory	 note	 became	 “indivisible”	 and	 the	 Deschaines’	

obligation	to	pay	each	monthly	installment	of	principal	and	interest	over	the	
26	

life	 of	 the	 note	 merged	 into	 a	 unitary	 obligation	 to	 pay	 the	 entire	 debt.		

1997	ME	220,	¶	8,	704	A.2d	866.		Contrary	to	Fannie	Mae’s	contention,	there	

could	 be	 no	 new	 breaches	 of	 the	 Deschaines’	 obligations	 following	

acceleration	 because,	 once	 the	 contract	 became	 unified	 as	 a	 result	 of	 that	

acceleration,	 the	 Deschaines	 did	 not	 have	 any	 continuing	 responsibility	 to	

make	 monthly	 installment	 payments.10	 	 Fannie	 Mae	 “cannot	 avoid	 the	

consequences	 of	 [its]	 procedural	 default”	 by	 alleging	 grounds	 for	 foreclosure	

that	 are	 different	 from	 those	 alleged	 in	 the	 2011	 action—in	 other	 words,	 by	

“attempting	 to	 divide	 a	 contract	 which	 became	 indivisible	 when	 [it]	

accelerated	the	debt	in	the	first	lawsuit.”		Johnson,	1997	ME	220,	¶	8,	704	A.2d	

866.			

          [¶36]		Consequently,	the	matters	presented	for	decision	in	the	present	

foreclosure	 action	 were	 or	 might	 have	 been	 litigated	 in	 the	 2011	 action	

because	in	each	case	Fannie	Mae	sought	“redress	for	the	same	basic	wrong,”	

see	 Wilmington	 Tr.	 Co.,	 2013	 ME	 94,	 ¶¶	 7-8,	 81	 A.3d	 371,	 and—as	 explicitly	

stated	 in	 both	 its	 2011	 and	 2013	 complaints—requested	 precisely	 the	 same	

form	of	relief:	a	judgment	of	foreclosure	for	“the	entire	outstanding	principal	

   10	 	 In	 Wilmington,	 we	 concluded	 that	 a	 second	 action	 on	 the	 same	 note	 and	 mortgage	 was	 not	

precluded,	in	part	because	the	mortgagor	sought	to	recover	for	breaches	that	were	not	at	issue	in	a	
prior	action.		2013	ME	94,	¶	12,	81	A.3d	371.		There,	however,	the	mortgagor	had	not	accelerated	
the	debt	in	the	prior	action,	see	supra	n.8,	and	so	the	contract	had	not	become	unified.			
                                                                                        27	

amount,	 accrued	 interest	 thereon,	 and	 all	 other	 sums	 due	 under	 the	 [l]oan	

[d]ocuments.”		The	third	element	of	res	judicata	is	therefore	satisfied.	

                                   III.		CONCLUSION	

       [¶37]	 	 In	 sum,	 based	 on	 the	 application	 of	 the	 principles	 articulated	 in	

Johnson	 to	 the	 undisputed	 facts	 of	 this	 case,	 Fannie	 Mae’s	 2013	 foreclosure	

complaint	 is	 barred	 by	 the	 judgment	 dismissing	 with	 prejudice	 its	

2011	complaint.		The	court	therefore	did	not	err	by	granting	the	Deschaines’	

motion	 for	 summary	 judgment	 on	 Fannie	 Mae’s	 foreclosure	 complaint.		

Additionally,	 because	 Fannie	 Mae	 is	 precluded	 from	 seeking	 to	 recover	 the	

underlying	 debt	 on	 the	 note,	 the	 court	 did	 not	 err	 by	 concluding,	 based	 on	

14	M.R.S.	 §	 6206,	 that	 the	 Deschaines	 were,	 as	 a	 matter	 of	 law,	 entitled	 to	 a	

judgment	declaring	that	they	hold	title	to	the	Lincoln	property	unencumbered	

by	the	mortgage	in	favor	of	Fannie	Mae.			

       The	entry	is:	

                     Judgment	affirmed.		
	
	      	      	    	      	      	
	
	
Jeffrey	 J.	 Hardiman,	 Esq.,	 and	 Dean	 J.	 Wagner,	 Esq.,	 Shechtman	 Halperin	
Savage,	 LLP,	 Pawtucket,	 Rhode	 Island,	 and	 Marissa	 I.	 Delinks,	 Esq.	 (orally),	
Hinshaw	 and	 Culbertson	 LLP,	 Boston,	 Massachusetts,	 for	 appellant	 Federal	
National	Mortgage	Association	
	
28	

	
James	F.	Cloutier,	Esq.,	Cloutier,	Conley	&	Duffett,	P.A.,	Portland,	for	appellees	
Patricia	W.	Deschaine	and	Paul	J.	Deschaine	
	
L.	 Scott	 Gould,	 Esq.,	 Cape	 Elizabeth,	 for	 amici	 curiae	 National	 Consumer	 Law	
Center	and	National	Association	of	Consumer	Advocates	
	
Jeffrey	 Gentes,	 Esq.,	 Jerome	 Frank	 Legal	 Services	 Corporation,	 New	 Haven,	
Connecticut,	for	amicus	curiae	Jerome	Frank	Legal	Services	Corporation	
	
Thomas	 A.	 Cox,	 Esq.	 (orally),	 Portland,	 for	 amicus	 curiae	 Maine	 Attorneys	
Saving	Homes	
	
Catherine	 R.	 Connors,	 Esq.,	 and	 John	 J.	 Aromando,	 Esq.,	 Pierce	 Atwood	 LLP,	
Portland,	 for	 amici	 curiae	 Maine	 Bankers	 Association	 and	 The	 National	
Mortgage	Bankers	Association	
	
Frank	 D’Alessandro,	 Esq.,	 Pine	 Tree	 Legal	 Assistance,	 Portland,	 for	 amicus	
curiae	Pine	Tree	Legal	Assistance	
	
Gerald	F.	Petruccelli,	Esq.,	amicus	curiae	pro	se	
	
John	A.	Doonan,	Esq.,	and	Reneau	J.	Longoria,	Esq.,	Doonan,	Graves	&	Longoria,	
LLC,	Beverly,	Massachusetts,	for	amicus	curiae	Doonan,	Graves	&	Longoria	
	
	
Penobscot	County	Superior	Court	docket	number	RE-2013-140	
FOR	CLERK	REFERENCE	ONLY	
	
