MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	 2017	ME	95	
Docket:	   Yor-15-515	
Argued:	   June	9,	2016	
Decided:	  May	11,	2017	
                                                                                           	
Panel:	        ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	     ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
Concurrence/	
					Dissent:	 HJELM,	J.	
	
	
                              WAYNE	KNOPE	et	al.	
                                       	
                                      v.	
                                       	
                           GREEN	TREE	SERVICING,	LLC	
	
	
ALEXANDER,	J.	

      [¶1]	 	 Dorothy	 and	 Wayne	 Knope	 appeal	 from	 a	 judgment	 of	 the	

Superior	Court	 (York	 County,	 O’Neil,	 J.),	 following	 a	 non-jury	 trial.	 	 The	

judgment	 applied	 principles	 of	 unjust	 enrichment	 to	 determine	 that	 the	

Knopes	are	liable	for	certain	charges	beyond	undisputed	amounts	of	principal	

and	 interest	 owed	 pursuant	 to	 a	 promissory	 note	 owned	 by	 Green	 Tree	

Servicing,	LLC.		The	note	had	been	secured	by	a	mortgage,	but	an	assignment	

failed	to	convey	to	Green	Tree	all	of	the	rights	created	by	the	mortgage.	

      [¶2]		The	Knopes	contend	that	the	contractual	relationship	between	the	

parties,	 as	 established	 by	 the	 note,	 bars	 application	 of	 rules	 of	 unjust	

enrichment	to	allow	retention	of	funds	that	were	obligations	pursuant	to	the	
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ineffective	mortgage	but	were	not	obligations	pursuant	to	the	note.		Because	

the	trial	court,	in	its	decision,	did	not	sufficiently	distinguish	charges	that	were	

obligations	 pursuant	 to	 the	 note	 from	 charges	 that	 were	 obligations	 only	

pursuant	to	the	mortgage,	we	vacate	the	judgment	and	remand	for	the	court	

to	determine	what	amount,	if	any,	Green	Tree	may	retain	pursuant	to	the	note.	

                                        I.		CASE	HISTORY	

         [¶3]	 	 The	 following	 facts	 were	 either	 alleged	 in	 the	 Knopes’	 complaint	

and	deemed	admitted	because	a	default	was	entered	against	Green	Tree,	see	

M.R.	Civ.	P.	8(d);	Ireland	v.	Carpenter,	2005	ME	98,	¶	18,	879	A.2d	35,	or	found	

by	 the	 trial	 court	 and	 supported	 by	 the	 evidence	 in	 the	 record	 at	 trial.	 	 In	

November	 2004,	 Dorothy	 and	 Wayne	 Knope	 executed	 and	 delivered	 a	

promissory	 note	 for	 $324,940	 payable	 to	 GMAC	 Mortgage	 Corporation,	 to	

purchase	 a	 house	 in	 Eliot.	 	 The	 house	 was	 to	 be	 an	 income-producing	

property,	 not	 a	 residence	 for	 the	 Knopes.	 	 To	 secure	 the	 debt,	 the	 Knopes	

executed	 a	 mortgage	 deed	 to	 Mortgage	 Electronic	 Registration	 Systems,	 Inc.	

(MERS),	 as	 nominee	 for	 GMAC	 Mortgage	 Corporation.1	 	 In	 early	 2013,	

Green	Tree	 purchased	 various	 assets	 and	 mortgage	 servicing	 rights	 from	

     1		Although	not	expressly	recited	by	the	court,	the	mortgage,	which	was	admitted	in	evidence	at	

trial	 without	 objection,	 identified	 GMAC	 as	 the	 lender,	 and	 Mortgage	 Electronic	 Registration	
Systems,	Inc.,	as	both	nominee	for	GMAC	and	mortgagee	of	record	“FOR	PURPOSES	OF	RECORDING	
THIS	MORTGAGE.”	
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GMAC,	including	the	Knopes’	loan.		MERS	purportedly	assigned	the	mortgage	

to	Green	Tree	in	April	2013,	but	because	MERS	had	acquired	only	the	right	to	

record	 the	 mortgage,	 the	 assignment	 to	 Green	 Tree	 conveyed	 nothing	 more	

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

96	A.3d	700.	

      [¶4]		In	January	2013,	the	pipes	in	the	second	floor	of	the	house	burst,	

resulting	 in	 severe	 water	 damage	 that	 rendered	 the	 house	 uninhabitable.		

Faced	with	significant	costs	to	repair	the	house,	the	Knopes	did	not	make	any	

further	 mortgage	 payments	 except	 for	 the	 escrow	 portion	 of	 two	 monthly	

payments.		In	May	2014,	pursuant	to	14	M.R.S.	§	6301	(2016),	the	Knopes	sent	

Green	 Tree	 a	 written	 demand	 for	 an	 accounting	 of	 their	 liability	 under	 the	

note	 and	 mortgage,	 but,	 as	 with	 earlier	 attempts	 at	 contact	 by	 the	 Knopes,	

Green	Tree	did	not	respond.	

      [¶5]	 	 In	 May	 2014,	 the	 Knopes	 filed	 a	 complaint	 against	 Green	 Tree,	

seeking	a	declaratory	judgment	as	to	the	amount	owed	to	Green	Tree	on	their	

note	 and	 mortgage,	 an	 accounting	 pursuant	 to	 section	 6301,	 equitable	 relief,	

and	 a	 determination	 of	 impracticability	 of	 performance	 because	 the	 Knopes	

had	been	unable	to	make	payments	due	to	the	loss	of	rental	income.		Shortly	
4	

after	the	Knopes	filed	this	action,	Green	Tree	commenced	a	separate	action	for	

foreclosure.	

      [¶6]		Green	Tree	failed	to	file	a	timely	answer	to	the	Knopes’	complaint,	

and	on	the	Knopes’	motion,	the	clerk	entered	a	default.		See	M.R.	Civ.	P.	55(a).		

After	 Green	 Tree	 moved	 unsuccessfully	 to	 set	 aside	 the	 default,	 the	 court	

ordered	that	a	hearing	be	held	to	determine	the	relief	available	to	the	Knopes.	

      [¶7]		While	this	action	was	pending,	but	before	the	hearing	was	held,	the	

Knopes	 repaired	 and	 then	 sold	 the	 property.	 	 Pursuant	 to	 an	 agreement	

reached	by	the	parties,	the	foreclosure	action	was	dismissed,	and	the	Knopes	

paid	to	Green	Tree	both	the	undisputed	portion	of	their	debt	on	the	note	and,	

subject	to	the	outcome	of	this	action,	additional	amounts	that	were	in	dispute.		

Specifically,	 the	 Knopes	 paid	 to	 Green	 Tree	 $338,892.45,	 which	 included	

(1)	the	amount	that	the	parties	agreed	was	owed	for	principal	and	interest	on	

the	note,	and	(2)	an	additional	amount	of	$19,265.68	charged	by	Green	Tree	

but	 contested	 by	 the	 Knopes.	 	 The	 disputed	 amount	 represented	

reimbursements	for	payments	that	had	been	made	by	Green	Tree:	$14,701.49	

in	 property	 taxes	 and	 insurance	 on	 the	 property;	 $945	in	 property	

preservation	 fees;	 $2,769.19	 in	 “foreclosure	 fees”;	 and	 $850	 in	 “legal	 fees.”		
                                                                                      5	

The	 parties	 agreed	 that	 they	 would	 litigate	 the	 question	 of	 whether	 Green	

Tree	was	entitled	to	retain	all	or	part	of	that	disputed	sum.	

      [¶8]	 	 The	 court	 held	 a	 non-jury	 trial	 in	 July	 2015,	 where	 the	 Knopes	

pressed	 only	 their	 claim	 for	 a	 judgment	 declaring	 that	 Green	 Tree	 was	 not	

entitled	 to	 retain	 the	 disputed	 sum.	 	 The	 evidence	 included	 a	 copy	 of	 the	

promissory	 note,	 which	 the	 Knopes	 agreed	 had	 been	 owned	 by	 Green	 Tree	

before	it	was	discharged.		The	note	provided	that	in	the	event	of	a	default,	the	

holder	 of	 the	 note	 would	 be	 entitled	 to	 recover	 the	 costs	 and	 expenses	 of	

enforcing	the	note,	including	reasonable	attorney	fees.		A	mortgage	deed	was	

also	 admitted	 into	 evidence.	 	 The	 mortgage	 deed	 specified	 that	 the	 lender	

would	be	entitled	to	reimbursement	for	its	payment	of	property	taxes;	hazard	

and	property	insurance;	costs	to	secure	and	protect	the	property;	and,	in	the	

event	of	nonpayment	on	the	note,	attorney	fees	and	costs	to	foreclose.	

      [¶9]	 	 The	 Knopes	 argued	 at	 trial	 that	 the	 mortgage	 assignment	 from	

MERS	to	Green	Tree	was	not	effective	to	convey	the	mortgage-based	rights	for	

reimbursement	 of	 expenses	 paid	 by	 Green	 Tree	 and	 that	 Green	 Tree	 was	

therefore	not	entitled	to	retain	payments	for	expenses	that	were	allowed	only	

by	 the	 mortgage.	 	 Because	 the	 Knopes	 had	 not	 previously	 raised	 a	 question	

regarding	 the	 effectiveness	 of	 the	 assignment,	 and	 in	 light	 of	 Green	 Tree’s	
6	

assertion	of	surprise,	the	court	granted	Green	Tree	leave	to	submit	additional	

evidence	on	the	issue	and	granted	the	parties	leave	to	file	post-trial	briefs.	

      [¶10]		In	September	2015,	the	court	issued	a	judgment	in	favor	of	Green	

Tree	based	on	a	theory	of	unjust	enrichment.		The	court	determined	that	the	

mortgage	 assignment	 from	 MERS	 to	 Green	 Tree	 was	 not	 sufficient	 to	 give	

Green	Tree	“contractual	authority	to	enforce	rights	created	by	the	mortgage.”		

“[T]o	avoid	unjust	enrichment,”	the	judgment	allowed	Green	Tree	to	retain	the	

entire	disputed	amount	because	Green	Tree	had	paid	expenses	that	were	the	

Knopes’	 responsibility	 under	 the	 mortgage	 to	 protect	 Green	 Tree’s	 “security	

interest,”	and	to	keep	the	property	saleable	while	the	Knopes	were	in	default.		

The	Knopes	timely	appealed.	

                                 II.		LEGAL	ANALYSIS	

	     [¶11]	 	 The	 Knopes	 challenge	 the	 court’s	 application	 of	 unjust	

enrichment	 to	 award	 Green	 Tree	 the	 right	 to	 retain	 the	 disputed	 sum.	 	 We	

review	 both	 a	 default	 judgment	 and	 a	 declaratory	 judgment	 for	 abuse	 of	

discretion.	 	 See	 Richter	 v.	 Ercolini,	 2010	 ME	 38,	 ¶	 18,	 994	 A.2d	 404;	

Linnehan	Leasing	v.	State	Tax	Assessor,	2006	ME	33,	¶	30,	898	A.2d	408.	

      [¶12]	 	 To	 prevail	 on	 a	 claim	 for	 unjust	 enrichment,	 the	 complaining	

party	 must	 show	 that	 “(1)	 it	 conferred	 a	 benefit	 on	 the	 other	 party;	 (2)	 the	
                                                                                       7	

other	 party	 had	 appreciation	 or	 knowledge	 of	 the	 benefit;	and	 (3)	 the	

acceptance	 or	 retention	 of	 the	 benefit	 was	 under	 such	 circumstances	 as	 to	

make	it	inequitable	for	it	to	retain	the	benefit	without	payment	of	its	value.”		

Maine	 Eye	 Care	 Assocs.,	 P.A.	 v.	 Gorman,	 2008	 ME	 36,	 ¶	 17,	 942	 A.2d	 707	

(citation	 omitted).	 	 In	 this	 way,	 the	 doctrine	 of	 unjust	 enrichment	 allows	

“recovery	 for	 the	 value	 of	 the	 benefit	 retained	 when	 there	 is	 no	 contractual	

relationship,	but	when,	on	the	grounds	of	fairness	and	justice,	the	law	compels	

performance	 of	 a	 legal	 and	 moral	 duty	 to	 pay.”	 	 Paffhausen	 v.	 Balano,	

1998	ME	47,	¶	6,	708	A.2d	269.	

      [¶13]	 	 The	 existence	 of	 a	 contractual	 relationship	 between	 the	 parties	

that	addresses	the	sums	in	dispute	“precludes	recovery	on	a	theory	of	unjust	

enrichment.”	 	 Nadeau	 v.	 Pitman,	 1999	 ME	 104,	 ¶	 14,	 731	 A.2d	 863;	

Paffhausen,	1998	ME	47,	¶	6,	708	A.2d	269.		Thus,	a	limiting	principle	on	the	

availability	of	restitution	based	on	unjust	enrichment	is	that	“[a]	valid	contract	

defines	the	obligations	of	the	parties	as	to	matters	within	its	scope,	displacing	

to	 that	 extent	 any	 inquiry	 into	 unjust	 enrichment.”	 	 Restatement	 (Third)	 of	

Restitution	 &	 Unjust	 Enrichment	 §	 2(2)	 (Am.	 Law	 Inst.	 2011)	 (emphasis	

added).		The	rationale	behind	this	rule	is	that	courts	should	not	intervene	to	

redefine	 rights	 and	 obligations	 that	 parties	 have	 already	 defined	 for	
8	

themselves	 through	 a	 voluntary	 contract.	 	 See	 Wal-Noon	 Corp.	 v.	 Hill,	

119	Cal.	Rptr.	646,	651	(Cal.	Ct.	App.	1975)	(“[W]here	the	parties	have	freely,	

fairly	 and	 voluntarily	 bargained	 for	 certain	 benefits	 in	 exchange	 for	

undertaking	 certain	 obligations,	 it	 would	 be	 inequitable	 to	 imply	 a	 different	

liability	and	to	withdraw	from	one	party	benefits	for	which	he	has	bargained	

and	to	which	he	is	entitled.”).	

         [¶14]		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.		Nothing	in	the	promissory	note	

indicates	 that	 the	 Knopes	 bargained	 for	 or	 were	 entitled	 to	 most	 of	 the	

benefits	 they	 received—the	 payment,	 by	 Green	 Tree,	 of	 their	 property	 taxes,	

insurance,	and	property	preservation	costs.2		Thus,	Green	Tree’s	retention	of	

payment	for	those	expenses	on	an	unjust	enrichment	theory	is	not	barred	by	

the	law	as	articulated	in	the	Restatement.		There	is	no	apparent	rationale	for	

expanding	the	Restatement’s	limiting	principle	to	apply	to	parties	who	simply	



     2		The	payment	of	these	benefits	by	Green	Tree,	and	the	acceptance	of	these	benefit	payments	by	

the	 Knopes,	 facilitating	 the	 sale	 of	 their	 home	 in	 reasonable	 repair	 and	 without	 encumbrances,	
precludes	 the	 argument	 suggested	 in	 the	 dissent,	 referencing	 Mortgage	 Electronic	 Registration	
Systems,	Inc.	v.	Saunders,	2010	ME	79,	¶	9,	2	A.3d	289,	that	because	Green	Tree	was	presumptively	
on	 notice	 as	 to	 the	 insufficiency	 of	 the	 MERS	 assignment,	 Green	 Tree	 cannot	 recover	 the	 benefits	
accepted	 by	 the	 Knopes	 that	 facilitated	 sale	 of	 their	 home	 and	 payment	 of	 the	 note.	 See	
Concurring/Dissenting	Opinion	¶¶	41-42.	
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have	 some	 contractual	 relationship	 with	 one	 another,	 where	 their	 contract	

does	not	address	the	basis	for	the	unjust	enrichment	claim.	

      [¶15]	 	 The	 United	 States	 District	 Court	 addressed	 issues	 similar	 to	 the	

limiting	 principle	 in	 the	 Restatement	 in	 Federal	 Insurance	 Company	 v.	

Maine	Yankee	 Atomic	 Power	 Company,	 183	 F.	 Supp.	 2d	 76,	 85	 (D.	 Me.	 2001),	

discussing	 whether	 contracting	 parties	 “intended	 to	 occupy	 the	 universe	 of	

their	 financial	 relationships	 by	 the	 terms	 and	 provisions	 of”	 their	 contract.		

Maine	 Yankee,	 which	 applied	 our	 opinion	 in	Nadeau	 v.	 Pittman,	 does	 not	 bar	

recovery	 based	 on	 unjust	 enrichment.	 	 Maine	 Yankee	 expressly	 cautions	 that	

“parties	may	have	any	number	of	.	.	.	contractual	relationships	having	nothing	

to	 do	 with	 the	 issue	 in	 question	 and	 the	 Law	 Court	 cannot	 have	 intended	 to	

foreclose	 all	 unjust	 enrichment	 claims	 between	 such	 parties.”	 	 Me.	 Yankee,	

183	F.	Supp.	2d	at	84.	

      [¶16]	 	 The	 Maine	 Yankee	 opinion	 looked	 to	 the	 terms	 of	 the	 parties’	

existing	contract	to	determine	whether	the	contract	addressed	the	obligation	

at	issue	in	the	unjust	enrichment	claim,	concluding	that	it	did	not	because	the	

contract	“simply	[did]	not	speak	to	the	benefit	that	would	be	conferred	upon”	

Federal	Insurance	when	Maine	Yankee	made	payments	on	behalf	of	the	third	

party	 for	 which	 Federal	 Insurance	 was	 secondarily	 responsible.	 	 Id.	at	85-86.		
10	

Because	 the	 claim	 concerned	 obligations	 that	 the	 parties’	 contract	 did	 not	

address,	the	unjust	enrichment	claim	was	cognizable	as	long	as	it	satisfied	the	

substantive	elements	of	the	unjust	enrichment	doctrine.		Id.	

      [¶17]		The	court	thus	clarified	that	the	relevant	question	is	whether	the	

basis	 for	 the	 putative	 unjust	 enrichment	 claim	 concerns	 the	 same	 rights	 and	

obligations	 that	 the	 parties	 had	 already	 defined	 voluntarily	 by	 contract.	 	 Id.		

The	 court	 concluded	 that	 Maine	 Yankee	 could	 proceed	 in	 its	 unjust	

enrichment	 claim	 because	 (1)	 Federal	 Insurance	 had	 an	 existing,	 legally	

enforceable	 obligation	 to	 make	 certain	 payments	 if	 a	 third	 party	 failed	 to	 do	

so;	 (2)	 Maine	 Yankee	 “stepped	 in—not	 as	 a	 volunteer—and	 paid,	 the	 result	

being	 that	 Federal	 Insurance	 did	 not	 have	 to”;	 and	 (3)	 the	 contract	 between	

the	 Federal	 Insurance	 and	 Maine	 Yankee	 did	 not	 address	 the	 benefit	 that	

Maine	Yankee	conferred	on	Federal	Insurance	when	Maine	Yankee	made	the	

payments.		Id.	at	85-86.	

      [¶18]	 	 The	 court’s	 reasoning	 is	 sound,	 and	 the	 same	 situation	 exists	 in	

this	case:	(1)	the	Knopes	had	a	legally	enforceable	obligation	to	pay	the	taxes	

and	 insurance	 on	 their	 property	 and	 to	 keep	 the	 property	 in	 good	 repair;	

(2)	presumably	 under	 the	 mistaken	 belief	 that	 it	 had	 the	 right	 to	 do	 so	 to	

protect	a	security	interest	that	it	thought	it	had	acquired	and	to	be	reimbursed	
                                                                                                           11	

for	 doing	 so,	 Green	 Tree	 stepped	 in—“not	 as	 a	 volunteer”—and	 paid	 the	

Knopes’	 taxes,	 insurance,	 and	 property	 preservation	 costs,3	 the	 result	 being	

that	the	Knopes	did	not	have	to;	and	(3)	no	contract	between	the	Knopes	and	

Green	 Tree	 addressed	 the	 parties’	 rights	 and	 responsibilities	 with	 respect	 to	

taxes,	 insurance,	 or	 preservation	 costs,	 which	 was	 the	 subject	 matter	 of	 the	

unjust	enrichment	award.	

        [¶19]	 	 Holding	 the	 Knopes	 liable	 for	 restitution	 to	 avoid	 unjust	

enrichment	does	not	represent	“an	impermissible	end	run	around	a	voluntary	

structuring	 of	 relationships	 and	 their	 consequences,”	 Me.	 Yankee,	

183	F.	Supp.	2d	 at	 85,	 because	 the	 parties’	 only	 contractual	 agreement	 (the	

note)	contains	no	voluntary	structuring	of	rights	and	obligations	regarding	the	

payment	 of	 taxes,	 insurance,	 or	 preservation	 costs.	 	 As	 in	 Maine	 Yankee,	 the	

parties’	 contract	 here,	 the	 note,	 “simply	 does	 not	 speak	 to	 the	 benefit	 that	



   3	 	 Recovery	 in	 unjust	 enrichment	 is	 denied	 to	 a	 “volunteer”	 in	 order	 “to	 penalize	 those	 who	

‘thrust	 benefits	 upon	 others.’”	 	 Federal	 Insurance	 Co.	 v.	 Maine	 Yankee	 Atomic	 Power	 Co.,	
183	F.	Supp.	2d	76,	83	n.10	(D.	Me.	2001)	(quoting	Restatement	of	Restitution	§	2	cmt.	a	(Am.	Law.	
Inst.	1937)).		Here,	Green	Tree	was	not	a	volunteer—its	expectation	of	repayment	was	reasonable	
and	the	Knopes	could	not	reasonably	have	expected	that	they	would	not	have	to	pay	for	the	taxes,	
insurance,	 and	 preservation	 fees	 on	 their	 property.	 	 In	 other	 words,	 “the	 circumstances	 of	 the	
transaction	justif[ied	Green	Tree’s]	intervention	in	the	absence	of	contract.”		Restatement	(Third)	of	
Restitution	 &	 Unjust	 Enrichment	 §	 2(3)	 (Am.	 Law	 Inst.	 2011).	 	 This	 case	 presents	 a	 common	
situation	in	which	a	party	receiving	a	benefit	not	contemplated	by	a	contract	between	the	parties	
may	 be	 liable	 for	 restitution	 in	 order	 to	 avoid	 unjust	 enrichment.	 	 See	 id.	 §	 7	 (“Mistaken	
performance	 of	 another’s	 obligation	 gives	 the	 performing	 party	 a	 claim	 in	 restitution	 against	 the	
obligor	to	the	extent	of	the	benefit	mistakenly	conferred	on	the	obligor.”);	id.	cmt.	a.	
12	

would	 be	 conferred	 upon”	 the	 Knopes	 by	 Green	 Tree’s	 payment	 of	 taxes,	

insurance,	or	preservation	costs.		Id.	

	     [¶20]		The	Knopes	argue	that	the	promissory	note,	originally	executed	

between	 the	 Knopes	 and	 GMAC	 Mortgage	 Corporation,	 combined	 with	 the	

mortgage	to	create	an	integrated	contractual	relationship	between	Green	Tree	

and	 the	 Knopes	 that	 precludes	 Green	 Tree	 from	 proceeding	 on	 an	 unjust	

enrichment	 claim	 to	 retain	 expenditures	 that	 are	 not	 recoverable	 under	 the	

note.	 	 However,	 the	 promissory	 note	 is	 separate	 from	 the	 mortgage,	 and	 the	

promissory	 note’s	 obligations	 are	 separate	 from	 the	 claims	 related	 to	

enforcement	 of	 the	 mortgage.	 	 Green	 Tree	 may	 have	 acted	 in	 the	 mistaken	

belief	that	it	was	a	mortgagee,	but	that	belief	does	not	import	the	terms	of	the	

mortgage	 into	 the	 parties’	 only	 actual	 contract,	 the	 promissory	 note.	 	 The	

mortgage,	 unlike	 the	 note,	 did	 not	 occupy	 any	 part	 of	 the	 universe	 of	 the	

parties’	financial	relationships.	

      [¶21]		Were	the	note	and	the	mortgage	contract	treated,	under	the	law,	

as	one	unit,	or	as	related	transactions	involving	the	same	parties,	then	actions	

on	the	note	would	always	have	to	be	joined	and	adjudicated	with	actions	on	

the	mortgage.		Parties	could	not	achieve	a	dismissal	of	claims	asserted	under	

an	 insufficiently	 assigned	 mortgage,	 because	 the	 claims	 asserted	 under	 the	
                                                                                                                 13	

note	 would	 have	 to	 be	 considered	 in	 a	 unitary	 proceeding,	 barring	 final	

judgment	until	liability	under	the	note	had	been	adjudicated.4	

        [¶22]	 	 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.	 	 See	 Greenleaf,	 2014	 ME	 89,	 ¶¶	 14-17,	

96	A.3d	 700;	 Mortgage	 Elec.	 Registration	 Sys.	 v.	 Saunders,	 2010	 ME	 79,	 ¶	 10,	

2	A.3d	289.	

	       [¶23]		With	regard	to	at	least	the	$14,701.49	paid	for	property	taxes	and	

insurance,	 and	 the	 $945	 in	 property	 preservation	 fees,	 the	 evidence	

establishes,	and	the	trial	court	found,	that	each	of	the	elements	of	Green	Tree’s	

unjust	enrichment	claim	has	been	met:	(1)	the	benefits	were	conferred	on	the	

Knopes;	(2)	the	Knopes	had	appreciation	or	knowledge	of	these	benefits;	and	

(3)	 acceptance	 or	 retention	 of	 the	 benefits	 by	 the	 Knopes,	 after	 payment	 of	

those	benefits	enabled	them	to	sell	the	property	without	other	encumbrances,	

    4		Related	claims	between	the	same	parties	and	involving	the	same	transaction	must	be	joined	in	

the	same	action.		See	Beegan	v.	Schmidt,	451	A.2d	642,	645	(Me.	1982)	(observing	that	when	there	is	
a	 final	 judgment	 against	 the	 plaintiff,	 claims	 the	 plaintiff	 has	 against	 the	 same	 defendant	 are	
extinguished	with	regard	to	all	or	any	part	of	the	transaction,	or	series	of	connected	transactions,	
out	of	which	the	action	arose).		“The	doctrine	of	res	judicata	prevents	relitigation	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.”	 	 St.	 John	 v.	 Jordan,	 2008	 ME	 68,	 ¶	 5,	 945	 A.2d	 1232	 (quoting	
Portland	Water	Dist.	v.	Town	of	Standish,	2008	ME	23,	¶	8,	940	A.2d	1097).	
14	

was	 under	 such	 circumstances	 as	 to	 make	 it	 inequitable	 for	 the	 Knopes	 to	

retain	 the	 value	 of	 those	 benefits.	 	 See	 Gorman,	 2008	 ME	 36,	 ¶	 17,	

942	A.2d	707.	

	       [¶24]		Because,	by	agreement,	the	mortgage	is	invalid	and	inapplicable	

as	between	Green	Tree	and	the	Knopes,	and	the	benefits	Green	Tree	conferred	

were	 not	 paid	 in	 accordance	 with	 and	 are	 not	 recoverable	 under	 any	 other	

contract,	 the	 trial	 court	 properly	 determined	 that	 these	 benefits	 were	

recoverable	by	Green	Tree	to	avoid	unjust	enrichment.		Accordingly,	we	affirm	

that	 portion	 of	 the	 trial	 court’s	 judgment	 that	 authorized	 Green	 Tree	 to	

recover,	 or	 retain,	 the	 benefits	 paid	 for	 taxes,	 insurance,	 and	 property	

preservation	costs,	a	total	of	$15,646.49.		We	must	vacate	and	remand	only	for	

reexamination	 of	 the	 support	 for	 recovery	 of	 the	 foreclosure	 fees	 and	 legal	

fees	 based	 on	 an	 unjust	 enrichment	 theory	 and	 to	 determine	 what	 sums,	 if	

any,	are	due	under	the	promissory	note.5	

        The	entry	is:	

                       Judgment	 affirmed	 in	 part	 and	 vacated	 in	 part.		
                       Remanded	 to	 the	 Superior	 Court	 for	 further	
                       proceedings	in	accordance	with	this	opinion.	
                       	
                               	      	     	       	      	

    5		The	Concurring/Dissenting	Opinion,	at	¶	38,	indicates	that	unjust	enrichment	cannot	support	

the	claim	for	attorney	fees	and	foreclosure	expenses.		This	opinion	does	not	suggest	otherwise.	
                                                                                      15	

HJELM,	J.,	concurring	in	part	and	dissenting	in	part.	

	     [¶25]	 	 This	 appeal	 requires	 the	 Court	 to	 consider	 the	 extent	 of	 Wayne	

and	Dorothy	Knope’s	liability	to	Green	Tree	pursuant	to	the	promissory	note	

they	executed	that	is	now	owned	by	Green	Tree,	and	pursuant	to	the	mortgage	

they	executed	in	favor	of	a	third	party—but	that	was	not	properly	assigned	to	

Green	 Tree.	 	 I	 concur	 with	 the	 Court’s	 conclusion	 that	 this	 matter	 must	 be	

remanded	 for	 the	 Superior	 Court	 to	 determine	 the	 Knopes’	 contract-based	

liability	pursuant	to	the	note.		I	disagree,	however,	with	the	Court’s	conclusion	

that	the	Knopes	are	or	may	be	liable	for	any	amount	that	is	encompassed	only	

within	 the	 mortgage,	 and	 I	 respectfully	 dissent	 from	 that	 part	 of	 the	 Court’s	

opinion.	

      [¶26]	 	 The	 Superior	 Court	 (York	 County,	 O’Neil,	 J.)	 determined	 that,	

pursuant	 to	 a	 theory	 of	 unjust	 enrichment,	 the	 Knopes	 are	 liable	 for	 all	

amounts	that	would	be	due	under	both	the	note	that	they	executed	in	favor	of	

GMAC	Mortgage	Corporation	and	the	mortgage	that	they	executed	in	favor	of	

GMAC,	which	granted	to	MERS	only	the	right	to	record	the	mortgage.		Green	

Tree	now	owns	the	note	and	is	entitled	to	enforce	its	terms.		Green	Tree	did	

not	 acquire	 the	 mortgage-based	 rights,	 however,	 because	 the	 assignment	 of	
16	

that	 instrument	 from	 MERS	 to	 Green	 Tree	 was	 insufficient	 to	 convey	 those	

rights.	

         [¶27]	 	 After	 the	 Knopes	 fell	 into	 default	 on	 the	 note	 and	 tried	

unsuccessfully	to	obtain	information	from	Green	Tree	about	the	amount	they	

owed,	they	filed	this	action	to	force	the	 issue.		The	resulting	trial	focused	on	

whether	 the	 Knopes	 are	 liable	 for	 certain	 charges	 paid	 or	 incurred	 by	 Green	

Tree:	 property	 taxes	 and	 insurance	 on	 the	 Knopes’	 property,	 property	

preservation	fees,	“foreclosure	fees,”	and	“legal	fees.”	

         [¶28]		The	trial	evidence	included	a	copy	of	the	promissory	note,	which	

provided	that	in	the	event	of	a	default,	the	holder	of	the	note	would	be	entitled	

to	recover	the	costs	and	expenses	of	enforcing	the	note,	including	reasonable	

attorney	fees.		Additionally,	the	court	was	presented	with	the	mortgage	deed,	

which	 provided	 that	 the	 lender	 would	 be	 entitled	 to	 reimbursement	 for	 its	

payment	 of	 property	 taxes;	 hazard	 and	 property	 insurance;	 costs	 to	 secure	

and	 protect	 the	 property;	 and,	 in	 the	 event	 of	 nonpayment	 on	 the	 note,	

attorney	 fees	 and	 the	 costs	 to	 foreclose.	 	 None	 of	 the	 expenses	 and	 charges	

enumerated	in	the	mortgage	overlaps	with	the	amounts	due	pursuant	to	the	

note.	
                                                                                       17	

      [¶29]	 	 In	 its	 judgment,	 the	 trial	 court	 correctly	 determined	 that	 Green	

Tree	 could	 not	 contractually	 enforce	 the	 rights	 created	 in	 the	 mortgage	

because	of	the	deficient	assignment	of	that	instrument	from	MERS.		See	Bank	

of	 Am.,	 N.A.	 v.	 Greenleaf,	 2014	 ME	 89,	 96	 A.3d	 700.	 	 “[T]o	 avoid	 unjust	

enrichment,”	 however,	 the	 court	 allowed	 Green	 Tree	 to	 retain	 the	 entire	

disputed	amount—including	the	amounts	that	are	recoverable	only	pursuant	

to	the	mortgage.	

	     [¶30]	 	 In	 my	 view,	 the	 court’s	 award	 to	 Green	 Tree	 of	 those	

mortgage-based	 expenses	 based	 on	 the	 equitable	 doctrine	 of	 unjust	

enrichment	is	erroneous	for	two	reasons.		First,	it	amounted	to	an	improper	

restructuring	 of	 the	 parties’	 actual	 contractual	 relationship.	 	 And	 second,	

Green	Tree	is	not	entitled	to	equitable	relief	when	its	claim	is	based	on	rights	

created	 by	 a	 mortgage	 that	 it	 knew	 or	 should	 have	 known	 it	 did	 not	 own.	 	 I	

will	address	these	points	in	turn.	

A.    Existence	of	a	Contractual	Relationship	

      [¶31]		I	agree	with	the	Court’s	explanation	of	the	beneficent	principles	

that	underlie	the	doctrine	of	unjust	enrichment.		In	short,	it	creates	a	remedy,	

available	 in	 limited	 circumstances,	 to	 prevent	 an	 “inequitable	 retention	 of	 a	

benefit,”	Horton	&	McGehee,	Maine	Civil	Remedies	§	7-3	at	176	(4th	ed.	2004),	
18	

and	 allows	 “recovery	 for	 the	 value	 of	 the	 benefit	 retained	 when	 there	 is	 no	

contractual	relationship,	but	when,	on	the	grounds	of	fairness	and	justice,	the	

law	 compels	 performance	 of	 a	 legal	 and	 moral	 duty	 to	 pay,”	 Paffhausen	 v.	

Balano,	1998	ME	47,	¶	6,	708	A.2d	269.	

      [¶32]	 	 As	 the	 Court	 correctly	 observes,	 however,	 the	 existence	 of	 a	

contractual	relationship	between	the	parties	“precludes	recovery	on	a	theory	

of	unjust	enrichment.”		Court’s	Opinion	¶	13;	Nadeau	v.	Pitman,	1999	ME	104,	

¶	14,	731	A.2d	863	(quotation	marks	omitted);	Paffhausen,	1998	ME	47,	¶	6,	

708	 A.2d	 269;	 see	 also	 Restatement	 (Third)	 of	 Restitution	 &	 Unjust	

Enrichment	 §	 2(2)	 (Am.	 Law	 Inst.	 2011)	 (“A	 valid	 contract	 defines	 the	

obligations	 of	 the	 parties	 as	 to	 matters	 within	 its	 scope,	 displacing	 to	 that	

extent	 any	 inquiry	 into	 unjust	 enrichment.”);	 id.	 cmt.	 c;	 Cty.	 Comm’rs	 v.	

J.	Roland	Dashiell	&	Sons,	Inc.,	747	A.2d	600,	607-08,	608	n.8	(Md.	2000)	(citing	

additional	cases	therein).		This	is	because	when	the	parties	themselves	define	

their	rights	and	obligations	by	entering	into	a	valid	and	enforceable	contract,	

it	 is	 unnecessary	 and	 wholly	 inappropriate	 for	 a	 court	 to	 supersede	 the	

parties’	 own	 agreement	 and	 redefine	 the	 relationship	 that	 the	 parties	 have	

chosen	to	create.		This	critical	point	is	articulated	powerfully	in	authority	that	

the	 Court	 itself	 views	 favorably:	 “[W]here	 the	 parties	 have	 freely,	 fairly	 and	
                                                                                          19	

voluntarily	bargained	for	certain	benefits	in	exchange	for	undertaking	certain	

obligations,	 it	 would	 be	 inequitable	 to	 imply	 a	 different	 liability	 and	 to	

withdraw	from	one	party	benefits	for	which	he	has	bargained	and	to	which	he	

is	entitled.”		Wal-Noon	Corp.	v.	Hill,	119	Cal.	Rptr.	646,	651	(Cal.	Ct.	App.	1975);	

see	 also	 Gerlinger	 v.	 Amazon.com,	 Inc.,	 311	 F.	 Supp.	 2d	 838,	 856	 (N.D.	 Cal.	

2004).	 	 Indeed,	 it	 is	 the	 very	 absence	 of	 a	 contract	 that	 provides	 the	

justification	 for	 the	 law	 to	 intervene	 “on	 the	 grounds	 of	 fairness	 and	 justice”	

through	 judicial	 application	 of	 the	 equitable	 doctrine	 of	 unjust	 enrichment.		

See	Nadeau,	1999	ME	104,	¶	14,	731	A.2d	863	(quotation	marks	omitted).	

       [¶33]	 	 Therefore,	 as	 a	 matter	 of	 contract—but,	 contrary	 to	 the	 trial	

court’s	 judgment,	 not	 unjust	 enrichment—Green	 Tree	 is	 entitled	 to	 recover	

amounts	 due	 from	 the	 Knopes	 pursuant	 to	 the	 note,	 because	 the	 evidence	

indisputably	 establishes	 that	 Green	 Tree	 and	 the	 Knopes	 had	 a	 contractual	

relationship	arising	from	that	note.		Of	the	sums	claimed	here	by	Green	Tree,	

the	note	allows	recovery	of	any	portion	of	“legal	fees”	expended	by	Green	Tree	

that	 arose	 from	 efforts	 to	 enforce	 the	 note.	 	 I	 agree	 with	 the	 Court	 that	 this	

matter	must	be	remanded	for	the	trial	court	to	determine	that	amount.	

       [¶34]	 	 The	 remaining	 amounts	 in	 dispute	 here—taxes	 and	 insurance,	

property	preservation	costs,	“foreclosure	fees,”	and	any	portion	of	“legal	fees”	
20	

not	 attributable	 to	 the	 note—are	 not	 encompassed	 within	 the	 terms	 of	 the	

note	 but	 rather	 would	 be	 recoverable	 pursuant	 to	 the	 provisions	 of	 the	

mortgage.	 	 Due	 to	 the	 deficient	 assignment	 from	 MERS,	 Green	 Tree	 did	 not	

acquire	 any	 rights	 to	 foreclose	 on	 the	 encumbered	 property	 or	 to	 recover	

expenses	identified	in	the	mortgage.		The	resulting	question	is	whether,	based	

not	on	breach	of	contract	but	rather	on	a	theory	of	unjust	enrichment,	Green	

Tree	 is	 entitled	 to	 reimbursement	 for	 expenses	 that	 are	 only	 recoverable	

pursuant	to	mortgage-based	contract	rights	that	Green	Tree	does	not	hold.		In	

my	 view,	 unjust	 enrichment	 is	 not	 available	 to	 Green	 Tree	 as	 a	 remedy	 to	

recover	 those	 mortgage-based	 expenses,	 because	 the	 mortgage	 integrally	

relates	 to	 the	 same	 subject	 matter	 encompassed	 by	 the	 note	 to	 which	 Green	

Tree	and	the	Knopes	were	parties.	

      [¶35]		As	the	U.S.	District	Court	for	the	District	of	Maine	has	reasoned,	

where	 a	 contract	 between	 the	 parties	 covers	 “the	 same	 subject	 matter”	

underlying	 a	 claim	 for	 unjust	 enrichment,	 the	 existence	 of	 that	 contract	

operates	as	a	bar	to	recovery	in	equity,	even	where	the	amounts	sought	in	the	

unjust	 enrichment	 claim	 are	 not	 expressly	 encompassed	 within	 the	 terms	 of	

the	contract.		Fed.	Ins.	Co.	v.	Me.	Yankee	Atomic	Power	Co.,	183	F.	Supp.	2d	76,	

84	 (D.	 Me.	 2001)	 (applying	 Maine	 law).	 	 Just	 as	 the	 existence	 of	 contractual	
                                                                                                              21	

terms	precludes	a	claim	for	unjust	enrichment	on	matters	directly	addressed	

in	 that	 contract,	 a	 contract	 that	 more	 generally	 reveals	 an	 intention	 by	 the	

parties	“to	occupy	the	universe	of	their	financial	relationships”	has	the	same	

effect,	because	“[r]ecovery	under	a	theory	of	unjust	enrichment	independent	

of	 or	 parallel	 to	 the	 [contract]	 would	 then	 be	 an	 impermissible	 end	 run	

around	 a	 voluntary	 structuring	 of	 relationships	 and	 their	 consequences.”		

Id.	at	85.6	

        [¶36]		That	is	the	case	here.		In	the	underlying	secured	loan	transaction,	

GMAC	 (the	 original	 lender)	 and	 the	 Knopes	 created	 a	 comprehensive	 set	 of	

rights	 and	 obligations,	 some	 of	 which	 they	 chose	 to	 make	 part	 of	 the	

promissory	note,	with	the	remainder	allocated	to	the	mortgage.		The	structure	

of	 this	 highly	 regulated	 transaction	 establishes	 an	 intent	 “to	 occupy	 the	


   6	 	 The	 federal	 court	 concluded	 that	 Maine	 Yankee	 was	 entitled	 to	 proceed	 with	 its	 unjust	

enrichment	 claim	 against	 Federal	 Insurance	 despite	 the	 existence	 of	 a	 contract	 among	 Maine	
Yankee,	 Federal	 Insurance,	 and	 a	 third	 party.	 	 The	 circumstances	 of	 that	 action,	 however,	 were	
factually	 distinct	 from	 this	 case	 because	 there	 the	 contract	 primarily	 defined	 the	 relationship	
between	 Maine	 Yankee	 and	 the	 third	 party.	 	 Fed.	 Ins.	 Co.	 v.	 Me.	 Yankee	 Atomic	 Power	 Co.,	
183	F.	Supp.	 2d	 76,	 82-86	 (D.	 Me.	 2001).	 	 Federal	 Insurance	 “took	 on	 no	 obligations”	 in	 that	
contract,	the	contract	did	not	identify	any	benefits	that	Federal	Insurance	would	receive	pursuant	
to	the	contract,	and	Federal	Insurance’s	role	as	a	signatory	to	the	contract	“guaranteed	only	that	it	
did	 not	 object	 to	 the	 arrangement”	 between	 Maine	 Yankee	 and	 the	 third	 party.	 	 Id.	 at	 85.	 	 Given	
these	circumstances,	the	court	concluded	that	“[t]his	is	not	the	sort	of	contractual	relationship	that,	
under	 Maine	 law	 and	 general	 principles	 of	 unjust	 enrichment,	 forecloses	 recovery,”	 and	 that	
Federal	 Insurance	 could	 not	 use	 the	 existence	 of	 that	 contract	 as	 a	 shield	 against	 Maine	 Yankee’s	
unjust	enrichment	claim.		See	id.	at	85-86.			
	
   In	contrast,	the	contract	between	Green	Tree	and	the	Knopes—namely,	the	promissory	note—
creates	rights	and	imposes	obligations	on	both	parties;	neither	is	a	bystander,	as	Federal	Insurance	
was	in	the	contract	at	issue	in	that	case,	which	is	therefore	distinguishable	in	result.	
22	

universe	 of	 their	 financial	 relationship[]”	 with	 regard	 to	 the	 overall	 loan	

agreement.		Id.		Now,	Green	Tree	is	left	to	seek	an	equitable	remedy	because	it	

is	 unable	 to	 enforce	 rights	 to	 which	 GMAC	 and	 the	 Knopes	 agreed	 by	

contract—rights	that	Green	Tree	has	never	acquired.	

       [¶37]		Green	Tree	and	the	Knopes,	however,	were	parties	to	a	contract—

namely,	 the	 note—that	 covered	 the	 same	 subject	 matter	 as	 the	 mortgage	

forming	the	basis	for	at	least	part	of	the	court’s	award.		Unjust	enrichment	is	

therefore	 not	 available	 here,	 because	 that	 doctrine	 is	 reserved	 for	

circumstances	 where	 an	 enforceable	 contract	 does	 not	 exist	 and	 judicial	

intervention	would	be	needed	to	prevent	an	inequitable	retention	of	benefits.		

See	 Paffhausen,	 1998	 ME	 47,	 ¶	 6,	 708	 A.2d	 269.	 	 Because	 of	 the	 unique	

purposes	 served	 by	 the	 doctrine	 of	 unjust	 enrichment,	 it	 cannot	 properly	 be	

used	 here	 as	 an	 “end	 run,”	 Me.	 Yankee,	 183	 F.	 Supp.	 2d	 at	 85,	 to	 fill	 in	 a	 gap	

created	 by	 Green	 Tree’s	 incomplete	 acquisition	 of	 contract	 rights	 benefiting	

GMAC	 in	 the	 original	 transaction.	 	 In	 other	 words,	 it	 is	 not	 the	 role	 of	 the	

courts	to	redefine	a	contract	into	which	these	parties—including	Green	Tree,	a	

sophisticated	 concern	 that	 is	 in	 the	 business	 of	 engaging	 in	 these	 kinds	 of	

transactions—chose	to	enter.	
                                                                                                          23	

        [¶38]	 	 I	 also	 note	 that,	 as	 Green	 Tree	 itself	 acknowledged	 at	 oral	

argument,	 invocation	 of	 unjust	 enrichment	 cannot	 support	 an	 award	 of	

attorney	fees	and	expenses	incurred	in	the	foreclosure	action,	because	Green	

Tree’s	payment	of	those	expenses	did	not	inure	to	the	Knopes’	benefit.		This	

precludes	the	availability	of	an	unjust	enrichment	claim	as	a	matter	of	law	for	

that	 aspect	 of	 Green	 Tree’s	 claim.	 	 See	 Me.	 Eye	 Care	 Assocs.,	 P.A.	 v.	 Gorman,	

2008	ME	36,	¶	17,	942	A.2d	707	(stating	that	one	element	of	a	claim	for	unjust	

enrichment	 is	 “conferr[ing]	 a	 benefit	 on	 the	 other	 party”	 (quotation	 marks	

omitted)).	

        [¶39]		Because	the	parties	were	contractually	engaged	through	the	note	

that	 accompanied	 the	 mortgage,	 Green	 Tree	 cannot	 obtain	 relief	 in	 unjust	

enrichment	for	any	expenses	addressed	exclusively	in	the	mortgage.		For	this	

reason	alone,	I	conclude	that	Green	Tree	is	not	entitled	to	reimbursement	for	

taxes	and	insurance,	property	preservation	costs,	and	foreclosure	fees.7	




   7		Contrary	to	the	Court’s	suggestion,	see	Court’s	Opinion	at	¶¶	21-22,	this	result	would	not	bar	a	

party	 from	 seeking	 remedies	 available	 pursuant	 to	 a	 note	 it	 owns	 even	 where	 that	 party	 did	 not	
acquire	 the	 mortgage	 due	 to	 a	 deficient	 assignment.	 	 Viewing	 a	 mortgage	 as	 one	 element	 of	 the	
underlying	 transaction	 that	 also	 includes	 the	 note	 merely	 precludes	 the	 owner	 of	 the	 note	 from	
obtaining	 relief,	 based	 on	 notions	 of	 equity,	 otherwise	 available	 pursuant	 to	 the	 mortgage	 that	
would	have	been	available	as	a	matter	of	contract	had	that	party	also	owned	the	mortgage	rights.		
The	 converse,	 however,	 is	 not	 true:	 if	 a	 party	 is	 barred	 from	 asserting	 a	 claim	 pursuant	 to	 a	
mortgage	 because,	 like	 Green	 Tree,	 it	 did	 not	 actually	 acquire	 that	 mortgage,	 that	 party	 may	
nonetheless	seek	to	enforce	the	provisions	of	a	note	that	it	does	own.	
24	

B.    Saunders	and	Greenleaf	

      [¶40]		There	is	an	entirely	separate	reason	why,	in	the	circumstances	of	

this	case,	Green	Tree	is	not	entitled	to	recover	in	unjust	enrichment:	the	basis	

for	 Green	 Tree’s	 claims	 arose	 when	 Green	 Tree	 knew	 or	 should	 have	 known	

that	 it	 would	 not	 have	 any	 right	 to	 recover	 any	 of	 the	 expenses	 otherwise	

allowed	by	the	mortgage.	

      [¶41]	 	 MERS	 purported	 to	 execute	 an	 assignment	 of	 the	 mortgage	 to	

Green	 Tree	 in	 April	 2013.	 	 Three	 years	 earlier,	 we	 issued	 our	 decision	 in	

Mortgage	Electronic	Registration	Systems,	Inc.	v.	Saunders,	a	case	where	MERS	

sought	 to	 foreclose	 on	 property	 based	 on	 a	 mortgage	 that	 identified	 MERS	

“solely	 as	 nominee	 for	 Lender”—just	 as	 in	 the	 mortgage	 that	 MERS	 received	

from	the	Knopes.		2010	ME	79,	¶	9,	2	A.3d	289.		In	Saunders,	we	held	that	the	

“only	rights”	that	MERS	acquired	were	“bare	legal	title	to	the	property	for	the	

sole	purpose	of	recording	the	mortgage	and	the	corresponding	right	to	record	

the	mortgage	with	the	Registry	of	Deeds.”		Id.	¶	10.		We	also	concluded,	

      Not	one	of	the	mortgage	covenants	in	the	document,	including	the	
      [mortgagors’]	 obligations	 to	 make	 timely	 payments	 on	 the	 note,	
      pay	property	taxes,	obtain	property	insurance,	and	maintain	and	
      protect	the	property,	is	made	to	MERS	or	in	favor	of	MERS.	
      	
                                                                                        25	

Id.	 	 Interestingly	 for	 present	 purposes,	 the	 obligations	 that	 we	 happened	 to	

enumerate	 in	 this	 passage—expenses	 that	 MERS	 was	 not	 able	 to	 recoup—

include	many	of	the	expenses	at	issue	in	the	case	at	bar.	

	      [¶42]		Saunders	therefore	made	clear	that	a	mortgage	in	the	same	form	

used	by	MERS	in	the	transaction	with	the	Knopes	is	insufficient	to	allow	MERS	

to	do	anything	other	than	record	the	instrument,	and	that	MERS	did	not	have	

standing	 to	 seek	 a	 judgment	 of	 foreclosure.	 	 Id.	 ¶¶	 15,	 26.	 	 Because	 we	 had	

issued	 our	 decision	 in	 Saunders	 well	 before	 Green	 Tree	 accepted	 an	

assignment	of	the	mortgage	executed	by	the	Knopes,	Green	Tree	was	fully	on	

notice	 that	 it	 would	 receive	 almost	 nothing	 through	 that	 assignment—and	

certainly	not	the	rights	it	seeks	to	assert	in	this	action.	

	      [¶43]	 	 Our	 2014	 decision	 in	 Greenleaf	 was	 the	 inevitable	 and	 wholly	

foreseeable	 next	 step.	 	 In	 that	 case,	 a	 party	 to	 which	 MERS	 had	 assigned	 a	

mortgage	 containing	 the	 identical	 language	 addressed	 in	 Saunders	 sought	 to	

foreclose	on	the	mortgaged	premises.		We	reiterated	that	a	mortgage	to	MERS	

as	 the	 nominee	 for	 the	 lender	 gave	 MERS	 only	 the	 right	 to	 record	 the	

mortgage	and	“did	not,	as	a	matter	of	law,	grant	to	MERS	any	right	to	foreclose	

on	 the	 property.”	 	 2014	 ME	 89,	 ¶	 15,	 96	 A.3d	 700.	 	 An	 assignment	 of	 such	 a	

mortgage	from	MERS	to	some	other	entity	therefore	“granted	to	[the	assignee]	
26	

only	 what	 MERS	 possessed—the	 right	 to	 record	 the	 mortgage	 as	 nominee—

because	MERS	could	not	have	granted	to	another	person	or	entity	any	greater	

interest	in	the	mortgage	than	that	enjoyed	by	MERS.”		Id.	¶	16.		For	the	same	

reason	 that	 MERS	 itself	 is	 unable	 to	 enforce	 rights	 created	 by	 the	 mortgage,	

MERS’s	assignees	are	left	with	no	arrows	in	their	quiver.		See	id.	¶	17.	

	       [¶44]	 	 This	 chronology	 demonstrates	 that	 parties	 such	 as	 Green	 Tree	

were	fully	aware	at	least	as	early	as	2010	that	the	type	of	mortgage	that	Green	

Tree	 purported	 to	 acquire	 from	 MERS	 in	 2013	 would	 not	 convey	 rights	 to	

foreclose	 or	 to	 obtain	 reimbursement	 of	 expenses	 paid	 pursuant	 to	 the	

provisions	 of	 the	 mortgage.	 	 Green	 Tree	 accepted	 that	 assignment	 despite	

being	 placed	 on	 full	 notice,	 by	 our	 clear	 explication	 of	 the	 law,	 of	 how	 few	

rights—if	any—it	would	thereby	acquire.8	

	       [¶45]	 	 Given	 the	 chronology	 of	 Green	 Tree’s	 actions	 in	 relation	 to	 our	

decisions	explaining	the	law	governing	MERS	assignments,	I	conclude	that,	as	

a	matter	of	law,	Green	Tree	is	not	entitled	to	benefit	from	the	court’s	equitable	


    8		While	Green	Tree	incurred	a	number	of	the	charges	for	which	it	seeks	reimbursement	from	the	

Knopes	before	our	opinion	in	Greenleaf	was	issued,	it	continued	to	incur	such	charges	even	after	the	
issuance	 of	 that	 decision—and	 conducted	 itself	 apparently	 as	 if	 it	 possessed	 the	 rights	 that	 the	
lessons	 of	 Saunders	 and	 Greenleaf	 clearly	 established	 it	 did	 not	 have.	 	 Nonetheless,	 the	 temporal	
demarcation	signified	by	the	date	of	the	Greenleaf	opinion	is	not	particularly	significant	because	of	
the	clear	holding	in	Saunders,	which	was	issued	years	before	the	assignment	from	MERS	to	Green	
Tree.		See	Bank	of	Am.,	N.A.	v.	Greenleaf,	2014	ME	89,	96	A.3d	700;	Mortg.	Elec.	Registration	Sys.,	Inc.	
v.	Saunders,	2010	ME	79,	2	A.3d	289.	
                                                                                       27	

authority	 to	 prevent	 unjust	 enrichment.	 	 Green	 Tree	 in	 fact	 did	 not	 hold	 the	

rights	 that	 motivated	 them	 to	 incur	 expenses,	 and	 Green	 Tree	 can	 only	 have	

known	 that.	 	 Regardless	 of	 whether	 or	 to	 what	 entity	 the	 Knopes	 may	 bear	

liability	 for	 the	 charges	 for	 which	 Green	 Tree	 seeks	 recovery,	 that	 liability	

cannot	properly	be	predicated	on	notions	of	equity	when	Green	Tree	chose	to	

act	in	disregard	of	existing	law	that	defined	its	rights.	

	        [¶46]		Therefore,	on	all	aspects	of	Green	Tree’s	claim	against	the	Knopes	

except	 any	 amount	 that	 it	 can	 prove	 is	 due	 pursuant	 to	 the	 note,	 I	 would	

vacate	and	remand	for	entry	of	judgment	for	the	Knopes.	

	     	       	     	       	     	
	
Patrick	 S.	 Bedard,	 Esq.	 (orally),	 Bedard	 &	 Bobrow,	 P.C.,	 Eliot,	 for	 appellants		
Dorothy	and	Wayne	Knope	
	
Cathy	A.	Mohan,	Esq.,	and	Richard	Briansky,	Esq.	(orally),	McCarter	&	English,	
LLP,	Hartford,	Connecticut,	and	Paul	J.	Greene,	Esq.,	Global	Sports	Advocates,	
LLC,	Portland,	for	appellee	Green	Tree	Servicing,	LLC	
	
	
York	County	Superior	Court	docket	number	CV-2014-102	
FOR	CLERK	REFERENCE	ONLY	
