MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2017	ME	230	
Docket:	   BCD-16-247	
Argued:	   February	7,	2017		
Decided:	  December	12,	2017	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              HEIDI	M.	PUSHARD	et	al.	
                                          	
                                         v.	
                                          	
                              BANK	OF	AMERICA,	N.A.	
	
	
HUMPHREY,	J.	

      [¶1]	 	 Heidi	 M.	 Pushard	 and	 Jeffrey	 A.	 Pushard	 appeal	 from	 summary	

judgments	entered	in	the	Business	and	Consumer	Docket	(Horton,	J.)	in	favor	

of	Bank	of	America,	N.A.	(the	Bank),	on	the	Pushards’	claims	against	the	Bank	

for	declaratory	and	injunctive	relief,	slander	of	title,	and	damages	pursuant	to	

33	 M.R.S.	 §	 551	 (2016).	 	 We	 do	 not	 disturb	 the	 judgments	 on	 the	 Pushards’	

claims	 for	 slander	 of	 title,	 damages	 pursuant	 to	 section	 551,	 and	 injunctive	

relief.	 	 We	 vacate	 the	 judgment	 on	 the	 Pushards’	 claim	 for	 declaratory	 relief	

and	remand	the	case	for	entry	of	summary	judgment	in	the	Pushards’	favor	on	

that	claim.	
2	

                                   I.		BACKGROUND	

        [¶2]		In	October	2011,	the	Bank	initiated	a	foreclosure	action	against	the	

Pushards	in	the	Superior	Court	(Androscoggin	County,	MG	Kennedy,	J.).		In	its	

amended	 complaint,	 filed	 in	 May	 2013,	 the	 Bank	 made	 the	 following	

allegations:	

     • In	December	2006,	the	Pushards	executed	a	promissory	note	in	favor	of	
       Countrywide	 Home	 Loans,	 Inc.,	 (Countrywide)	 in	 the	 amount	 of	
       $145,000.	
	
     • As	 security	 for	 the	 note,	 the	 Pushards	 executed	 a	 mortgage	 on	 their	
       property	in	Wales	in	favor	of	Mortgage	Electronic	Registration	Systems,	
       Inc.	(MERS),	“as	nominee	for”	Countrywide.			
	
     • The	 Pushards	 failed	 to	 make	 the	 monthly	 mortgage	 payment	 due	 on	
       April	1,	2008,	and	have	failed	to	make	all	subsequent	monthly	mortgage	
       payments.			
	
     • In	 2008,	 MERS	 assigned	 the	 mortgage	 to	 Countrywide.	 	 In	 2011,	
       Countrywide	assigned	the	mortgage	to	the	Bank.			
	
     • The	Bank	became	the	holder	of	the	promissory	note.		
	
     • In	May	2011,	the	Bank	sent	the	Pushards	notice	of	their	default	and	of	
       their	 right	 to	 cure	 the	 default	 “in	 conformity	 with	 Maine	 law.”	 	 The	
       Pushards	received	the	notice	in	June	2011.			
	
     • The	 amount	 due	 “[a]s	 of	 September	 6,	 2011,”	 was	 $191,717.91,	
       including	 the	 “principal	 balance”	 of	 $142,882.25,	 an	 “escrow	 balance,”	
       interest,	fees,	and	late	charges.			
	
                                                                                                              3	

         [¶3]	 	 The	 Bank	 sought	 judicial	 foreclosure	 of	 the	 Pushards’	 mortgage.1		

Among	other	documents	attached	to	its	complaint,	the	Bank	included	copies	of	

the	note	and	the	mortgage.		Included	in	the	note	was	a	provision	stating:		

     If	[the	Pushards	are]	in	default,	the	Note	Holder	may	send	[them]	
     a	 written	 notice	 telling	 [them]	 that	 if	 [they]	 do	 not	 pay	 the	
     overdue	 amount	 by	 a	 certain	 date,	 the	 Note	 Holder	 may	 require	
     [them]	to	pay	immediately	the	full	amount	of	Principal	which	has	
     not	been	paid	and	all	the	interest	that	[they]	owe	on	that	amount.	
     	
The	mortgage	contained	a	provision	stating	that	the	lender		

         may	 require	 that	 [the	 Pushards]	 pay	 immediately	 the	 entire	
         amount	 then	 remaining	 unpaid	 under	 the	 Note	 and	 under	 this	
         Security	Instrument	.	.	.	if	all	of	the	following	conditions	are	met:	
	
               (a)	 [The	 Pushards]	 fail	 to	 keep	 any	 promise	 or	 agreement	
               made	in	this	Security	Instrument,	including	the	promises	to	
               pay	when	due	the	Sums	Secured;	
               	
               (b)	Lender	sends	to	[the	Pushards]	.	.	.	a	notice	that	[meets	
               various	requirements];	.	.	.	and	
               	
               (c)	 [The	 Pushards]	 do	 not	 correct	 the	 default	 stated	 in	 the	
               notice	from	Lender	by	the	date	stated	in	that	notice.	
               	
	        [¶4]		After	a	trial	on	the	Bank’s	foreclosure	complaint,	the	court	entered	

a	judgment	in	the	Pushards’	favor	in	October	2014.		The	court	determined	that	


    1	 	 With	 regard	 to	 the	 Bank’s	 standing,	 the	 court	 concluded	 that	 Countrywide’s	 (and,	 therefore,	

the	 Bank’s)	 ownership	 interest	 in	 the	 mortgage	 was	 not	 compromised	 by	 the	 assignment	 from	
MERS	 to	 Countrywide.	 	 The	 court	 determined	 that	 that	 assignment	 was	 superfluous	 because	
“Countrywide	 was	 the	 lender	 named	 on	 the	 note[]	 and	 in	 the	 mortgage”	 and	 “was	 thereby	 the	
mortgagee	from	the	outset.”		It	therefore	distinguished	the	case	from	Bank	of	Am.,	N.A.	v.	Greenleaf,	
2014	ME	89,	¶¶	13-16,	96	A.3d	700,	which	we	decided	after	the	trial	but	before	the	court	issued	the	
judgment.			
4	

the	Bank	had	failed	to	meet	its	burden	to	prove	three	of	the	eight	elements	of	

a	 foreclosure	 action:	 (1)	 a	 breach	 of	 a	 condition	 of	 the	 mortgage;	 (2)	 the	

amount	 due;	 and	 (3)	 that	 the	 notice	 of	 default	 that	 it	 sent	 to	 the	 Pushards	

complied	 with	 statutory	 requirements.2	 	 See	 Bank	 of	 Am.,	 N.A.	 v.	 Greenleaf,	

2014	 ME	 89,	 ¶	 18,	 96	 A.3d	 700	 (“A	 plaintiff	 seeking	 a	 foreclosure	 judgment	

must	 comply	 strictly	 with	 all	 steps	 required	 by	 statute.”)	 (quotation	 marks	

omitted).		Neither	the	Bank	nor	the	Pushards	appealed	from	the	judgment.	

	        [¶5]		Five	months	later,	in	March	2015,	the	Pushards	initiated	the	action	

giving	rise	to	this	appeal.3		In	an	amended	complaint,	based	on	the	judgment	

in	 their	 favor	 in	 the	 Bank’s	 foreclosure	 action	 and	 the	 Bank’s	 failure	 to	

subsequently	 discharge	 the	 mortgage,	 the	 Pushards	 averred	 that	 they	 owe	

nothing	 on	 the	 note	 and	 sought	 a	 declaration	 that	 they	 are	 entitled	 to	 (1)	 a	

discharge	of	the	mortgage	and	(2)	an	order	enjoining	the	Bank	from	enforcing	

the	 note	 and	 mortgage	 and	 compelling	 the	 Bank	 to	 record	 a	 release	 of	 the	

mortgage.	 	 They	 also	 asserted	 a	 claim	 for	 slander	 of	 title,	 alleging	 that	 the	

Bank’s	 failure	 to	 discharge	 the	 mortgage	 prevents	 them	 from	 transferring	

clean	 title	 to	 the	 property	 or	 using	 it	 as	 collateral,	 and	 a	 claim	 for	 damages	

     2		The	Bank’s	notice	of	default	was	defective	because	it	did	not	meet	the	requirements	found	in	

14	M.R.S.	§	6111	(2011).		
   	
   3		The	Pushards	filed	their	initial	complaint	in	the	Superior	Court	(Androscoggin	County).		The	

case	was	transferred	to	the	Business	and	Consumer	Docket	in	May	2015.			
                                                                                                              5	

pursuant	to	33	M.R.S.	§	551.4		The	Bank	counterclaimed	for	breach	of	contract,	

unjust	enrichment,	and	a	declaratory	judgment.			

	        [¶6]		The	Pushards	moved	for	summary	judgment	on	all	of	their	claims.		

See	 M.R.	 Civ.	 P.	 56(a).	 	 In	 their	 statement	 of	 material	 facts,	 see	 M.R.	 Civ.	 P.	

56(h)(2),	 they	 described,	 with	 reference	 to	 supporting	 evidence,	 the	

procedural	history	and	outcome	of	the	Bank’s	foreclosure	action.		Specifically,	

the	Pushards	asserted	that	(1)	the	Bank	had	“sought	the	entire	amount	due	on	

the	 note	 and	 foreclosure	 of	 the	 mortgage”;	 (2)	 the	 court	 had	 entered	 a	

judgment	 in	 the	 Pushards’	 favor;	 and	 (3)	 the	 Bank	 had	 not	 thereafter	

discharged	the	mortgage.		

	        [¶7]	 	 In	 its	 opposition	 to	 the	 Pushards’	 motion,	 the	 Bank	 effectively	

admitted	all	of	the	Pushards’	stated	facts.5		The	Bank	submitted	an	opposing	

statement	of	material	facts	in	which	it	asserted,	with	references	to	supporting	

evidence,	 that	 the	 Pushards	 had	 not	 made	 mortgage,	 tax,	 or	 insurance	




    4		 Title	 33	 M.R.S.	 §	 551	 requires	 a	 mortgagee	 to	 record	 a	 valid	 and	 complete	 release	 of	 the	
mortgage	“[w]ithin	60	days	after	full	performance	of	the	conditions	of	the	mortgage,”	and	provides	
that	 a	 mortgagee	 that	 violates	 this	 release	 provision	 is	 “liable	 to	 an	 aggrieved	 party	 for	
damages	.	.	.	.”	
   	
   5	 	 Although	 the	 Bank	 denied	 that	 it	 had	 “sought	 the	 entire	 amount	 due”	 on	 the	 note	 in	 the	

foreclosure	action,	because	it	did	not	provide	a	citation	to	the	record	in	support	of	this	denial,	the	
fact	is	deemed	admitted.		See	M.R.	Civ.	P.	56(h)(2),	(4);	Halliday	v.	Henry,	2015	ME	61,	¶	7,	116	A.3d	
1270.	
   	
6	

payments	on	the	property	since	2008.		The	Bank	also	filed	its	own	motion	for	

summary	judgment	on	the	Pushards’	claims.6		

          [¶8]	 	 The	 Pushards	 filed	 an	 opposing	 statement	 of	 material	 facts	 in	

response	to	the	Bank’s	motion	for	summary	judgment.		They	did	not	properly	

controvert	 the	 Bank’s	 statements	 that	 they	 had	 not	 made	 mortgage,	 tax,	 or	

insurance	 payments	 since	 2008.	 	 See	 M.R.	 Civ.	 P.	 56(h)(2),	 (4);	 Halliday	 v.	

Henry,	2015	ME	61,	¶	7,	116	A.3d	1270.	

	         [¶9]	 	 After	 a	 hearing,	 by	 order	 dated	 March	 15,	 2016,	 the	 court	

concluded	that	the	Bank	was	entitled	to	a	judgment	as	a	matter	of	law	on	each	

of	the	Pushards’	claims.		See	M.R.	Civ.	P.	56(c).		The	court	therefore	denied	the	

Pushards’	 motion	 for	 summary	 judgment	 and	 granted	 the	 Bank’s	 motion	 for	

summary	judgment.		After	the	Bank’s	counterclaims	were	dismissed	without	

prejudice	by	consent	of	the	parties	,	the	Pushards	filed	this	timely	appeal	from	

the	 judgment	 in	 the	 Bank’s	 favor.	 	 14	 M.R.S.	 §	1851	 (2016);	 M.R.	 App.	 P.	

2(b)(3)	(Tower	2016).7	



     6	
      	 The	 Bank	 captioned	 its	 motion	 as	 a	 “motion	 for	 judgment	 on	 the	 pleadings	 or,	 in	 the	
alternative,	for	summary	judgment	on	plaintiffs’	complaint.”		We	treat	it	as	a	motion	for	summary	
judgments	 on	 the	 Pushards’	 claims.	 	 See	 M.R.	 Civ.	 P.	 12(c)	 (“If,	 on	 a	 motion	 for	 judgment	 on	 the	
pleadings,	matters	outside	the	pleadings	are	presented	to	and	not	excluded	by	the	court,	the	motion	
shall	be	treated	as	one	for	summary	judgment	and	disposed	of	as	provided	in	[M.R.	Civ.	P.]	56	.	.	.	.”).	
   	
   7	 	 This	 appeal	 was	 commenced	 before	 September	 1,	 2017,	 and	 therefore	 the	 restyled	 Maine	

Rules	of	Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rule).	
                                                                                             7	

                                     II.		DISCUSSION	

A.	    Justiciability	

	      [¶10]	 	 As	 a	 preliminary	 matter,	 the	 Bank	 argues	 that	 the	 Pushards’	

claims	 are	 nonjusticiable	 because	 resolution	 of	 those	 claims	 involves	

examining	the	res	judicata	effect	of	the	judgment	in	the	foreclosure	action	and	

no	subsequent	foreclosure	action	has	been	filed.			

	      [¶11]		“Courts	can	only	decide	cases	before	them	that	involve	justiciable	

controversies.”	 	 Homeward	 Residential,	 Inc.	 v.	 Gregor,	 2015	 ME	 108,	 ¶	 16,	

122	A.3d	 947	 (quotation	 marks	 omitted).	 	 “Justiciability	 requires	 a	 real	 and	

substantial	 controversy,	 admitting	 of	 specific	 relief	 through	 a	 judgment	 of	

conclusive	 character.”	 	 Id.	 (quotation	 marks	 omitted).	 	 “A	 justiciable	

controversy	 involves	 a	 claim	 of	 present	 and	 fixed	 rights	 based	 upon	 an	

existing	state	of	facts.		Accordingly,	rights	must	be	declared	upon	the	existing	

state	 of	 facts	 and	 not	 upon	 a	 state	 of	 facts	 that	 may	 or	 may	 not	 arise	 in	 the	

future.”	 	 Madore	 v.	 Me.	 Land	 Use	 Regulation	 Comm’n,	 1998	 ME	 178,	 ¶	 7,	

715	A.2d	157	(quotation	marks	omitted).	

	      [¶12]	 	 The	 Bank	 relies	 on	 our	 decisions	 in	 recent	 cases	 in	 which	 the	

parties	 disputed	 whether	 a	 judgment	 in	 the	 mortgagor’s	 favor	 would	 bar	 a	

future	foreclosure	action	based	on	principles	of	res	judicata,	but	in	each	case	
8	

we	concluded	that	that	issue	did	not	present	a	justiciable	controversy	because	

no	second	action	had	yet	been	filed.		See	U.S.	Bank,	N.A.	v.	Tannenbaum,	2015	

ME	 141,	 ¶	6	n.3,	 126	 A.3d	 734;	 Wells	 Fargo	 Bank,	 N.A.	 v.	 Girouard,	 2015	 ME	

116,	 ¶	 10,	 123	 A.3d	 216.8	 	 Our	 holdings	 in	 those	 cases	 do	 not	 determine	 the	

result	here	because	this	case	comes	to	us	in	a	different	posture.		Although,	as	

in	 Girouard	 and	 Tannenbaum,	 the	 Bank	 has	 not	 filed	 a	 second	 foreclosure	

action,	 there	 does	 exist	 a	 second	 action—the	 Pushards’	 action	 against	 the	

Bank—that	 presents	 a	 live	 controversy.	 	 As	 the	 trial	 court	 recognized,	 the	

Pushards’	 claims	 are	 “not	 contingent	 upon	 the	 occurrence	 of	 any	 future	

event,”	and	“even	if	the	Bank	were	content	to	do	nothing	to	enforce	the	loan,	

the	 mortgage	 remains	 on	 record	 in	 the	 registry	 of	 deeds	 as	 a	 present	

encumbrance	 on	 the	 Pushards’	 property.”	 	 The	 Pushards	 have	 claimed	 that	

they	are	entitled	to	relief	based	on	“the	existing	state	of	facts.”		Madore,	1998	

ME	178,	¶	7,	715	A.2d	157	(quotation	marks	omitted).		We	therefore	conclude	

that	 the	 Pushards’	 claims	 present	 a	 justiciable	 controversy	 and	 turn	 to	 the	

merits	 of	 their	 appeal.	 	 See	 Mass.	 Delivery	 Ass’n	 v.	 Coakley,	 769	 F.3d	 11,	 16	




   8		These	cases	are	distinguishable	from	foreclosure	cases	in	which	a	“court	dismisses	an	action	as	

a	sanction	for	a	plaintiff’s	misconduct”	and	must	make	clear	the	future	effect	of	the	order	dismissing	
the	case,	including	whether	the	judgment	bars	a	subsequent	action.		See	Green	Tree	Servicing,	LLC	v.	
Cope,	2017	ME	68,	¶	22,	158	A.3d	931.			
                                                                                          9	

(1st	Cir.	 2014);	 Annable	 v.	 Bd.	 of	 Envtl.	 Prot.,	 507	 A.2d	 592,	 595	 (Me.	 1986);	

Me.	Sugar	Indus.	v.	Me.	Indus.	Bldg.	Auth.,	264	A.2d	1,	4-5	(Me.	1970).	

B.	    Summary	Judgments	

	      [¶13]		“We	review	a	[trial	court’s]	ruling	on	cross-motions	for	summary	

judgment	 de	 novo,	 considering	 the	 properly	 presented	 evidence	 and	 any	

reasonable	 inferences	 that	 may	 be	 drawn	 therefrom	 in	 the	 light	 most	

favorable	to	the	nonprevailing	party,	in	order	to	determine	whether	there	is	a	

genuine	issue	of	material	fact	and	whether	any	party	is	entitled	to	a	judgment	

as	a	matter	of	law.”		Estate	of	Frost,	2016	ME	132,	¶	15,	146	A.3d	118;	see	M.R.	

Civ.	 P.	 56(c).	 	 “Cross	 motions	 for	 summary	 judgment	 neither	 alter	 the	 basic	

Rule	 56	 standard,	 nor	 warrant	 the	 grant	 of	 summary	 judgment	 per	 se.”		

Remmes	 v.	 Mark	 Travel	 Corp.,	 2015	 ME	 63,	 ¶	 19,	 116	 A.3d	 466	 (quotation	

marks	 omitted).	 	 “When	 the	 material	 facts	 are	 not	 in	 dispute,	 we	 review	

de	novo	the	trial	court’s	interpretation	and	application	of	the	relevant	statutes	

and	legal	concepts.”		Id.	

	      [¶14]		The	Pushards	argue	that	the	court	erred	by	granting	the	Bank’s	

motion	 for	 summary	 judgment	 and	 that	 they	 are	 entitled	 to	 judgments	 as	 a	

matter	of	law	on	all	four	of	their	claims	against	the	Bank.		They	contend	that	

any	future	action	by	the	Bank	to	recover	on	the	note	and	the	mortgage	would	
10	

be	 barred	 by	 principles	 of	 res	 judicata,	 the	 note	 and	 mortgage	 are	 therefore	

unenforceable,	 and	 as	 a	 result	 the	 mortgage	 must	 be	 discharged.	 	 We	 first	

address	 their	 section	 551	 and	 slander-of-title	 claims	 and	 conclude,	 without	

needing	to	address	the	res	judicata	effects	of	the	judgment	in	the	foreclosure	

action,	 that	 the	 court	 correctly	 entered	 summary	 judgments	 in	 the	 Bank’s	

favor	 on	 those	 claims.	 	 We	 then	 turn	 to	 the	 claims	 for	 declaratory	 and	

injunctive	relief.	

	     1.	     Section	551	

	     [¶15]	 	 Title	 33	 M.R.S.	 §	 551	 provides	 that	 a	 mortgagee	 is	 “liable	 to	 an	

aggrieved	party	for	damages”	if	the	mortgagee	fails	to	record	a	release	of	the	

mortgage	 “[w]ithin	 60	 days	 after	 full	 performance	 of	 the	 conditions	 of	 the	

mortgage.”		The	Pushards	argue	that	the	judgment	in	their	favor	on	the	Bank’s	

foreclosure	 action	 means	 that	 their	 “performance	 under	 the	 note	 and	

mortgage	 was	 effectively	 fully	 performed.”	 	 (Emphasis	 added.)	 	 We	 are	 not	

persuaded.	

	     [¶16]	 	 Because	 the	 Pushards	 did	 not	 properly	 controvert	 the	 Bank’s	

statement	that	they	have	failed	to	make	monthly	mortgage	payments	since	the	

spring	of	2008,	that	fact	is	deemed	admitted.		See	M.R.	Civ.	P.	56(h)(2),	(4).		In	

order	 for	 the	 Pushards	 to	 be	 entitled	 to	 relief	 pursuant	 to	 section	 551,	
                                                                                         11	

therefore,	 we	 would	 need	 to	 hold	 that	 they	 have	 “full[y]	 perform[ed]	 .	 .	 .	 the	

conditions	of	the	mortgage,”	33	M.R.S.	§	551,	even	though	they	have	not	made	

monthly	 payments	 as	 required	 by	 the	 mortgage.	 	 This	 would	 be	 an	 illogical	

result.	 	 See	 MaineToday	 Media,	 Inc.	 v.	 State,	 2013	 ME	 100,	 ¶	 6,	 82	 A.3d	 104	

(“[W]e	 interpret	 [statutory]	 provisions	 according	 to	 their	 unambiguous	

meaning	unless	the	result	is	illogical	or	absurd.”)	(quotation	marks	omitted).		

The	 judgment	 in	 the	 Pushards’	 favor	 in	 the	 Bank’s	 foreclosure	 action	

established	 that	 the	 Bank	 was	 not	 entitled	 to	 a	 foreclosure	 judgment;	 it	 did	

not	 establish	 that	 the	 Pushards	 had	 fully	 performed	 the	 conditions	 of	 the	

mortgage.	 	 The	 trial	 court	 did	 not	 err	 by	 granting	 the	 Bank’s	 motion	 for	

summary	judgment	on	the	Pushards’	section	551	claim.	

	      2.	    Slander	of	Title	

	      [¶17]		The	Pushards’	argument	regarding	their	claim	for	slander	of	title	

also	warrants	little	discussion.		In	order	to	succeed	on	that	claim,	the	Pushards	

would	 need	 to	 prove	 that	 “(1)	 there	 was	 a	 publication	 of	 a	 slanderous	

statement	 disparaging	 [their]	 title;	 (2)	 the	 statement	 was	 false;	 (3)	 the	

statement	was	made	with	malice	or	made	with	reckless	disregard	of	its	falsity;	

and	 (4)	 the	 statement	 caused	 actual	 or	 special	 damages.”	 	 Harvey	 v.	 Furrow,	

2014	ME	149,	¶	25,	107	A.3d	604	(quotation	marks	omitted).		The	Pushards	
12	

argue	 that	 the	 “continued	 publication	 without	 a	 discharge”	 of	 the	 mortgage	

“constitutes	 a	 false	 publication	 of	 a	 slanderous	 statement	 disparaging	 [their]	

title.”		Even	if	we	were	to	assume	that	the	undischarged	mortgage	constitutes	

a	 “slanderous	 statement”	 that	 was	 “false”	 and	 that	 “the	 statement	 caused	

actual	or	special	damages,”	there	is	nothing	in	the	summary	judgment	record	

that	could	induce	a	fact-finder	to	determine	that	the	Bank	failed	to	discharge	

the	 mortgage	 with	 malice	 or	 a	 “reckless	 disregard”	 of	 the	 “falsity”	 of	 the	

encumbrance.		Id.	(quotation	marks	omitted);	see	Morgan	v.	Kooistra,	2008	ME	

26,	¶	34,	941	A.2d	447;	Onat	v.	Penobscot	Bay	Med.	Ctr.,	574	A.2d	872,	874-75	

(Me.	1990).	 	 We	 therefore	 do	 not	 disturb	 the	 court’s	 entry	 of	 a	 summary	

judgment	in	the	Bank’s	favor	on	the	Pushards’	slander-of-title	claim.	

	     3.	    Declaratory	and	Injunctive	Relief	

	     [¶18]	 	 In	 order	 to	 resolve	 the	 question	 of	 whether	 either	 party	 is	

entitled	to	a	judgment	on	the	Pushards’	claims	for	declaratory	and	injunctive	

relief,	 we	 must	 examine	 the	 effect	 of	 the	 judgment	 in	 the	 Pushards’	 favor	 in	

the	 foreclosure	 action.	 	 The	 Pushards	 argue	 that	 any	 further	 action	 by	 the	

Bank	to	recover	on	the	note	or	mortgage	would	be	barred	by	principles	of	res	

judicata,	that	the	Bank	therefore	has	no	enforceable	legal	interest	in	the	note	

or	 the	 property	 designated	 as	 collateral	 according	 to	 the	 mortgage,	 and	 that	
                                                                                        13	

the	Bank	therefore	must	discharge	the	mortgage	to	remove	the	unenforceable	

encumbrance	on	the	property.			

	      [¶19]		“The	doctrine	of	res	judicata	.	.	.	is	a	court-made	collection	of	rules	

designed	to	ensure	that	the	same	matter	will	not	be	litigated	more	than	once.”		

Beegan	v.	Schmidt,	451	A.2d	642,	643-44	(Me.	1982).		The	term	“res	judicata”	

encompasses	two	different	legal	theories:	claim	preclusion,	or	“bar”;	and	issue	

preclusion,	 or	 “collateral	 estoppel.”	 	 Id.	 at	 644;	 see	 Wilmington	 Tr.	 Co.	 v.	

Sullivan-Thorne,	 2013	 ME	 94,	 ¶	 7,	 81	 A.3d	 371.	 	 Claim	 preclusion	 “prohibits	

relitigation	 of	 an	 entire	 ‘cause	 of	 action’	 between	 the	 same	 parties	 or	 their	

privies,	once	a	valid	final	judgment	has	been	rendered	in	an	earlier	suit	on	the	

same	 cause	 of	 action”;	 and	 issue	 preclusion	 “prevents	 the	 reopening	 in	 a	

second	 action	 of	 an	 issue	 of	 fact	 actually	 litigated	 and	 decided	 in	 an	 earlier	

case.”		Beegan,	451	A.2d	at	644;	see	Macomber	v.	MacQuinn-Tweedie,	2003	ME	

121,	 ¶	 22,	 834	 A.2d	 131	 (“The	 collateral	 estoppel	 prong	 of	 res	 judicata	 is	

focused	on	factual	issues,	not	claims	.	.	.	.”).		Because	the	Pushards’	argument	

depends	 on	 the	 legal	 effect	 of	 the	 Bank’s	 unsuccessful	 foreclosure	 cause	 of	

action,	as	opposed	to	particular	factual	issues	litigated	in	connection	with	that	

claim,	the	question	here	involves	claim	preclusion.	
14	

	       [¶20]		“Claim	preclusion	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.”		

Sullivan-Thorne,	2013	ME	94,	¶	7,	81	A.3d	371	(quotation	marks	omitted).		At	

issue	 in	 this	 case	 is	 the	 third	 element—whether,	 given	 the	 judgment	 in	 the	

foreclosure	 action,	 the	 Bank	 could	 bring	 an	 action	 on	 the	 note	 or	 mortgage	

other	 than	 one	 that	 would	 present	 matters	 that	 were,	 or	 might	 have	 been,	

litigated	in	the	foreclosure	action.9		See	id.			

	       [¶21]	 	 To	 analyze	 this	 third	 element,	 we	 “examine	 whether	 the	 same	

cause	 of	 action	 was	 before	 the	 court	 in	 the	 prior	 case.”	 	 Id.	 ¶	 8	 (quotation	

marks	omitted).		We	define	the	parameters	of	the	phrase	“cause	of	action”	by	

applying	 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	




   9	 	 The	 parties	 present	 no	 argument	 related	 to	 the	 first	 two	 elements	 of	 claim	 preclusion.	 	 We	

conclude	that	those	elements	are	met	here	because	the	judgment	in	the	Bank’s	foreclosure	action	
was	a	final	judgment	on	the	merits	and	the	issue	raised	by	the	Pushards’	claims	involves	the	same	
parties	as	the	foreclosure	action.			
                                                                                         15	

basic	wrong.”		Id.	¶	8	(alteration	omitted)	(citation	omitted)	(quotation	marks	

omitted).		

	       [¶22]		As	we	discussed	in	Federal	National	Mortgage	Ass’n	v.	Deschaine,	

2017	ME	190,	¶¶	19-21,	170	A.3d	230,	we	previously	addressed	this	element	

of	 claim	 preclusion	 in	 the	 context	 of	 a	 mortgage	 foreclosure	 in	 Johnson	 v.	

Samson	Construction	Corp.,	1997	ME	220,	704	A.2d	866.		In	Johnson,	the	trial	

court	 concluded	 that	 the	 mortgagee’s	 second	 foreclosure	 action	 was	

precluded	by	the	dismissal,	with	prejudice,	of	an	earlier	foreclosure	action.		Id.	

¶¶	3-8.		In	the	earlier	foreclosure	action,	the	mortgagee,	Johnson,	had	claimed	

he	was	entitled	to	the	entire	amount	of	the	unpaid	principal	pursuant	to	the	

note’s	acceleration	clause.		Id.	¶¶	3,	8.		We	affirmed	the	judgment,	explaining	

that	

        Johnson’s	first	cause	of	action	.	.	.	demanded	payment	of	the	entire	
        unpaid	 principal	 balance.	 	 This	 suit	 was	 an	 action	 for	 the	
        accelerated	debt.		Once	Johnson	triggered	the	acceleration	clause	
        of	the	note	and	the	entire	debt	became	due,	the	contract	became	
        indivisible.	 	 The	 obligations	 to	 pay	 each	 installment	 merged	 into	
        one	 obligation	 to	 pay	 the	 entire	 balance	 on	 the	 note.	 .	 .	 .	 [The	
        judgment	 in	 the	 first	 action]	 bars	 the	 complaint	 in	 this	 action	
        which	 alleges	 precisely	 what	 the	 complaint	 in	 the	 first	 action	
        alleged:	 that	 Samson	 defaulted	 on	 the	 note	 and	 that	 Johnson	 is	
        entitled	 to	 a	 judgment	 for	 the	 amount	 due	 under	 the	 note.		
        Johnson	cannot	avoid	the	consequences	of	his	procedural	default	
        in	 this	 second	 lawsuit	 by	 attempting	 to	 divide	 a	 contract	 which	
        became	 indivisible	 when	 he	 accelerated	 the	 debt	 in	 the	 first	
        lawsuit.	
16	

       	
Id.	¶	8	(footnote	omitted).10	

	       [¶23]		Recognizing	the	ramifications	of	our	holding	in	Johnson,	the	Bank	

argues	that	our	reasoning	in	that	case	does	not	apply	here	because	it	did	not	

“effectively”	 trigger	 the	 acceleration	 clauses	 of	 the	 note	 and	 mortgage	 in	 its	

foreclosure	 action	 against	 the	 Pushards.	 	 The	 Bank	 relies	 principally	 on	 the	

language	of	14	M.R.S.	§	6111	and	the	acceleration	clauses	at	issue.		We	are	not	

persuaded	by	these	arguments.	

	       [¶24]	 	 It	 is	 helpful	 to	 review	 the	 ways	 in	 which	 acceleration	 clauses	

operate	 before	 we	 turn	 to	 the	 Bank’s	 specific	 arguments.	 	 An	 acceleration	

clause	 is	 a	 “loan-agreement	 provision	 that	 requires	 the	 debtor	 to	 pay	 off	 the	

balance	 sooner	 than	 the	 due	 date	 if	 some	 specified	 event	 occurs,	 such	 as	

failure	to	pay	an	installment	or	to	maintain	insurance.”11		Acceleration	Clause,	

Black’s	Law	Dictionary	(10th	ed.	2014).		“Automatic”	acceleration	clauses	are	

self-executing	 and	 render	 the	 entire	 indebtedness	 due	 immediately	 upon	



    10		In	2008,	the	Supreme	Court	of	Ohio	held,	similarly,	that	res	judicata	barred	a	third	foreclosure	

action	 after	 the	 mortgagee	 voluntarily	 dismissed	 two	 prior	 actions,	 concluding	 that	 after	
acceleration	“each	missed	payment	under	the	promissory	note	and	mortgage	did	not	give	rise	to	a	
new	claim	.	.	.	.”		U.S.	Bank	Nat’l	Ass’n.	v.	Gullotta,	899	N.E.2d	987,	990	(Ohio	2008).	
   	
   11	 	 “Acceleration”	 means,	 in	 general	 terms,	 the	 “act	 or	 process	 of	 quickening	 or	 shortening	 the	

duration	of	something,	such	as	payments	or	other	functional	activities.”		Acceleration,	Black’s	Law	
Dictionary	 (10th	 ed.	 2014).	 	 More	 specifically,	 as	 applied	 in	 the	 context	 of	 a	 secured	 loan,	
acceleration	 means	 the	 “advancing	 of	 a	 loan	 agreement’s	 maturity	 date	 so	 that	 payment	 of	 the	
entire	debt	is	due	immediately.”		Id.	
                                                                                     17	

some	 specified	 default;	 by	 contrast,	 where	 the	 acceleration	 clause	 is	

“optional,”	 the	 lender	 must	 affirmatively	 exercise	 its	 option	 to	 declare	 the	

entire	indebtedness	due.		See	Mullins	v.	IBCS	Mining,	Inc.,	No.	10-93-ART,	2011	

U.S.	 Dist.	 LEXIS	 116083,	 at	 *6	 (E.D.	 Ky.	 Oct.	 6,	 2011)	 (“The	 optional	

acceleration	 clause	 [gave	 the	 lender]	 the	 right,	 but	 not	 the	 obligation,	 to	

accelerate	payments	on	the	Note.”);	Snow	v.	Wells	Fargo	Bank,	N.A.,	156	So.	3d	

538,	541	(Fla.	Dist.	Ct.	App.	2015);	Found.	Prop.	Invs.,	LLC	v.	CTP,	LLC,	186	P.3d	

766,	 771-72	 (Kan.	 2008);	 Note,	 Acceleration	 Clauses	 in	 Notes	 and	 Mortgages,	

88	U.	Pa.	L.	Rev.	94,	95-96	(1939-40).			

	     [¶25]	 	 An	 optional	 acceleration	 clause	 is	 therefore	 a	 bargained-for	

contract	 term	 that	 gives	 a	 lender,	 upon	 specified	 conditions	 such	 as	 the	

borrower’s	 uncured	 default,	 the	 right	 to	 demand	 immediate	 payment	 of	 any	

remaining	debt	under	the	note	and	mortgage,	including	installment	payments	

that	 would	 not	 otherwise	 have	 come	 due	 until	 a	 later	 date.	 	 An	 acceleration	

clause	does	not,	on	its	own,	entitle	the	lender	to	the	sums	to	which	it	claims	it	

has	a	legal	right.		Instead,	it	allows	the	lender	to	elect	to	hasten	the	due	date	of	

sums	to	which	it	is	otherwise	legally	entitled.	

	     [¶26]		It	has	long	been	understood	that	it	is	the	mortgagee’s	choice,	or	

“election,”	 whether—and	 when—to	 exercise	 its	 right	 under	 an	 optional	
18	

acceleration	 clause.	 	 See,	 e.g.,	 Me.	 Sav.	 Bank	 v.	 Chee,	 576	 A.2d	 1358,	 1358	

(Me.	1990)	(referring	to	“the	Bank’s	election	to	exercise	the	acceleration	clause	

of	a	promissory	note	secured	by	the	mortgage”)	(emphasis	added);	Mitchell	v.	

Fed.	Land	Bank,	174	S.W.2d	671,	676	(Ark.	1943)	(“The	right	to	accelerate	the	

indebtedness	is	exercised	by	the	unilateral	act	of	the	creditor	.	.	.	.”)	(emphasis	

added);	 Note,	 Acceleration	 Clauses	 in	 Notes	 and	 Mortgages	 at	 95-98.	 	 In	

Johnson,	 for	 example,	 we	 repeatedly	 referred	 to	 the	 fact	 that	 it	 was	 the	

mortgagee	 who	 had	 the	 power	 to	 accelerate	 the	 debt—he	 “demanded	

payment	of	the	entire	unpaid	principal	balance,”	he	“triggered	the	acceleration	

clause	 of	 the	 note	 and	 the	 entire	 debt	 became	 due,”	 and	 he	 therefore	

“accelerated	the	debt	in	the	first	lawsuit.”		1997	ME	220,	¶	8,	704	A.2d	866.	

	     [¶27]		Bearing	these	principles	in	mind,	we	turn	to	the	Bank’s	argument	

that	 it	 could	 not	 have	 triggered	 the	 acceleration	 clauses	 of	 the	 note	 and	

mortgage	 in	 the	 foreclosure	 action	 in	 this	 case.	 	 Title	 14	 M.R.S.	 §	 6111	

provides	 that,	 with	 respect	 to	 residential	 mortgages,	 a	 mortgagee	 “may	 not	

accelerate	 maturity	 of	 the	 unpaid	 balance	 of	 the	 obligation	 or	 otherwise	

enforce	the	mortgage	because	of	a	default”	without	first	giving	the	mortgagor	

adequate	notice	of	the	default	as	described	in	the	statute.		The	Bank	relies	on	

this	 statutory	 language	 to	 contend	 that	 because,	 as	 the	 foreclosure	 court	
                                                                                                    19	

determined,	 it	 failed	 to	 give	 adequate	 notice	 of	 the	 default,	 it	 could	 not	

“effectively	 accelerate”	 the	 debt	 in	 its	 foreclosure	 action.12	 	 Although	 section	

6111	 contains	 the	 term	 “accelerate,”	 we	 conclude	 that	 the	 Legislature	 could	

not	 have	 intended	 for	 the	 statute	 to	 carry	 the	 meaning	 that	 the	 Bank	

propounds.		See	Farris	v.	Libby,	141	Me.	362,	365,	44	A.2d	216	(1945)	(“[W]e	

must	assume	that	the	[L]egislature	did	not	intend	an	absurd	result	.	.	.	.”).	

	       [¶28]	 	 Compare,	 for	 example,	 the	 case	 at	 hand	 to	 a	 hypothetical	 case	

with	identical	facts	except	that	the	mortgagee	sent	to	the	mortgagor,	and	the	

mortgagor	 received,	 a	 notice	 of	 the	 default	 and	 right	 to	 cure	 that	 complied	

flawlessly	 with	 section	 6111.	 	 After	 the	 mortgagor	 failed	 to	 cure	 the	 default,	

the	 mortgagee	 initiated	 a	 foreclosure	 action	 in	 which	 it	demanded,	 pursuant	

to	an	acceleration	clause,	immediate	payment	of	the	entire	remaining	balance	

on	the	note.		After	hearing	evidence,	the	foreclosure	court	concluded	that	the	

mortgagee	 had	 not	 proved	 its	 claim	 and	 entered	 a	 judgment	 accordingly,	

because	 even	 though	 the	 mortgagee	 met	 its	 burden	 to	 prove	 that	 it	 had	

provided	adequate	notice	of	the	default	pursuant	to	section	6111,	it	failed	to	

prove	 the	 amount	 due,	 or	 that	 a	 breach	 of	 condition	 of	 the	 mortgage	 had	




    12		The	Bank	does	not	explain	what,	according	to	its	theory,	would	trigger	an	acceleration	clause.	
20	

occurred,	or	one	or	more	other	substantive	elements	of	proof	in	a	foreclosure	

action.		See,	e.g.,	Greenleaf,	2014	ME	89,	¶	18,	96	A.3d	700.	

	     [¶29]	 	 Plainly,	 the	 mortgagee	 in	 our	 hypothetical	 case	 could	 raise	 no	

argument	 that	 section	 6111	 prevented	 it	 from	 “effectively”	 triggering	 the	

acceleration	 clause,	 because	 that	 argument	 is	 based	 entirely	 on	 its	 own	

noncompliance	 with	 the	 statute.	 	 According	 to	 the	 Bank’s	 logic,	 the	

hypothetical	mortgagee	has	triggered	the	acceleration	clause,	placing	in	issue	

all	 of	 the	 contractual	 installments	 as	 one	 indivisible	 debt	 obligation,	 and	 a	

subsequent	 action	 to	 recover	 on	 the	 note	 and	 mortgage	 would	 be	 precluded	

by	 the	 judgment	 in	 the	 mortgagor’s	 favor.	 	 In	 other	 words,	 the	 Bank’s	

interpretation	 would	 mean	 that	 a	 mortgagee	 that	 loses	 on	 the	 merits	 in	 its	

foreclosure	 action	 based—even	 in	 part—on	 an	 inadequate	 notice	 of	 default	

has	 not	 triggered	 the	 acceleration	 clause	 and	 a	 subsequent	 action	 is	 not	

precluded.	 	 But	 if	 the	 same	 mortgagee	 had	 lost	 on	 the	 merits	 due	 only	 to	 a	

failure	 of	 proof	 on	 one	 or	 more	 other	 elements	 of	 its	 foreclosure	 action,	 a	

subsequent	action	on	the	note	and	mortgage	is	precluded.	

	     [¶30]		This	would	be	an	absurd	result.		We	cannot	hold	that	the	reason	

for	a	mortgagee’s	loss	on	the	merits	in	its	foreclosure	action	is	dispositive	of	

whether	the	judgment	precludes	a	subsequent	action	on	the	same	debt.		The	
                                                                                           21	

Bank	has	provided	no	reason	why	the	Legislature	would	have	created	such	a	

distinction.		We	therefore	interpret	section	6111	as	we	have	since	we	decided	

Chase	 Home	 Financial	 LLC	 v.	 Higgins,	 2009	 ME	 136,	 ¶	 11,	 985	 A.2d	 508,	 as	

setting	forth	a	required	element	of	proof	in	a	foreclosure	action	by	providing	

that	a	mortgagee	must	give	notice	in	accordance	with	section	6111	in	order	to	

obtain	a	foreclosure	judgment.		See,	e.g.,	Girouard,	2015	ME	116,	¶¶	7-8	&	n.3,	

123	A.3d	 216.	 	 We	 do	 not	 interpret	 section	 6111	 as	 a	 prohibition	 on	 a	

mortgagee’s	choice	to	exercise	an	acceleration	clause.	

	      [¶31]	 	 The	 language	 of	 the	 acceleration	 clauses	 at	 issue	 here	 does	 not	

alter	 our	 conclusion.	 	 It	 is	 true,	 as	 the	 Bank	 points	 out,	 that	 the	 acceleration	

provisions	at	issue	here	are	optional,	unlike	the	automatic	acceleration	clause	

in	 Johnson.	 	 The	 Bank	 does	 not	 explain	 why	 this	 distinction	 matters	 to	 the	

issue	 presented	 here,	 however,	 nor	 is	 any	 significance	 evident	 to	 us.	 	 An	

optional	acceleration	clause	that	has	been	exercised	is	no	different—legally—

than	a	self-executing	acceleration	clause.		The	essential	inquiry,	in	examining	

whether	claim	preclusion	applies,	is	what	the	mortgagee	chose	to	litigate—or	

could	have	litigated—in	the	first	action.		See	Sullivan-Thorne,	2013	ME	94,	¶	7,	

81	 A.3d	 371.	 	 That	 the	 acceleration	 provisions	 here	 are	 optional	 does	 not	

change	the	fact	that	the	Bank	could	have—and	indeed	did—exercise	its	option	
22	

to	put	the	entire	remaining	balance	in	issue	in	its	foreclosure	action,	instead	of	

simply	demanding	payment	of	past	due	amounts.		When	the	Bank	chose	to	do	

so,	 “the	 contract	 became	 indivisible”	 and	 “[t]he	 obligations	 to	 pay	 each	

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

Johnson,	1997	ME	220,	¶	8,	704	A.2d	866.13	

	       [¶32]		As	we	recently	explained	in	Deschaine,	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.”	 	 Deschaine,	 2017	 ME	 190,	

¶	26,	170	A.3d	230	(quotation	marks	omitted);	see	also	Sullivan-Thorne,	2013	

ME	 94,	 ¶	 12	 n.4,	 81	 A.3d	 371;	 Chee,	 576	 A.2d	 at	 1358	 (concluding	 that	 “the	

allegations	of	the	complaint	constituted	a	sufficient	pleading	that	acceleration	

[pursuant	 to	 an	 optional	 acceleration	 clause]	 had	 occurred”);	 Strong	 v.	

Stoneham	 Co-op.	 Bank,	 260	 N.E.2d	 646,	 649	 (Mass.	 1970)	 (“[T]he	

commencement	of	an	action	before	the	tender	of	the	amount	due	was	one	way	

in	 which	 [the]	 option	 [to	 declare	 the	 whole	 debt	 due]	 could	 be	 exercised.”)	

(quotation	 marks	 omitted);	 see	 also	 Nationstar	 Mortg.,	 LLC	 v.	 Nelson,	 No.	

2:14-cv-00507-JDL,	 2016	 U.S.	 Dist.	 LEXIS	 136660,	 at	 *12-18	 (D.	 Me.	 Oct.	 3,	

    13		We	also	do	not	see	the	relevance	of	the	note’s	provision,	highlighted	by	the	Bank,	stating	that	

“[e]ven	if,	at	a	time	when	[the	Pushards	are]	in	default,	the	Note	Holder	does	not	require	[them]	to	
pay	immediately	in	full	as	described	above,	the	Note	Holder	will	still	have	the	right	to	do	so	if	[they	
are]	in	default	at	a	later	time.”		(Emphasis	added.)		This	anti-waiver	provision	does	not	inform	the	
inquiry	here	because	the	Bank	did	require	payment	immediately	in	full	in	the	foreclosure	action.			
                                                                                          23	

2016)	 (addressing	 the	 issue	 presented	 here	 and	 concluding	 that	 the	

mortgagee	triggered	the	acceleration	clause	when	it	filed	its	foreclosure	claim	

seeking	 the	 entire	 remaining	 balance	 due	 on	 the	 note);	 C.T.	 Drechsler,	

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

or	 Note,	 5	 A.L.R.2d	 968,	 §	 5a	 (2017)	 (“The	 institution	 of	 a	 suit	 for	 the	 whole	

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

option.”).		As	one	court	explained,	

    the	filing	of	suit	for	foreclosure	amounts	to	exercise	of	the	option	
    of	 the	 mortgagee	 to	 declare	 the	 whole	 of	 the	 principal	 sum	 and	
    interest	secured	by	the	mortgage	due	and	payable.		And	the	filing	
    of	 suit	 to	 foreclose	 operates	 as	 notice	 to	 the	 mortgagor	 of	 the	
    election	 to	 accelerate,	 where	 the	 election	 to	 do	 so	 is	 declared	 in	
    the	complaint	.	.	.	or,	in	the	absence	of	such	declaration,	where	the	
    complaint	 on	 its	 face	 shows	 that	 foreclosure	 for	 the	 entire	
    mortgage	indebtedness	is	sought	therein.	
    	
Campbell	v.	Werner,	232	So.	2d	252,	254	n.1	(Fla.	Dist.	Ct.	App.	1970)	(citations	

omitted).	

	      [¶33]	 	 In	 sum,	 notwithstanding	 that	 the	 foreclosure	 court	 determined	

that	 the	 Bank	 failed	 to	 prove	 that	 its	 notice	 of	 default	 complied	 with	 section	

6111,	we	conclude	that	the	Bank	triggered	the	acceleration	clauses	of	the	note	

and	 mortgage	 when	 it	 filed	 the	 foreclosure	 action	 demanding	 immediate	

payment	of	the	entire	remaining	debt.	
24	

	     [¶34]	 	 Because	 this	 case	 is	 not	 distinguishable	 from	 Johnson,	 which	

settles	 the	 question	 of	 the	 res	 judicata	 consequence	 of	 the	 Bank’s	 failure	 to	

prove	 its	 foreclosure	 claim,	 we	 must	 address	 the	 Bank’s	 argument	 that	 we	

should	revisit	our	holding	in	that	case.			

	     [¶35]	 	 As	 we	 explain	 in	 more	 detail	 in	 Deschaine,	 2017	 ME	 190,	 ¶	33,	

170	A.3d	230,	and	for	the	reasons	expressed	in	that	opinion,	an	alteration	of	

the	 approach	 we	 expressed	 in	 Johnson	 is	 not	 warranted	 because	 we	 identify	

no	legal	reason	to	adopt	different	res	judicata	rules	for	foreclosure	cases	than	

those	that	apply	in	every	other	type	of	case.		Pursuant	to	Johnson,	because	the	

Bank	failed	to	prove	its	claim	to	the	unitary	obligation	that	it	placed	in	issue	in	

the	foreclosure	action,	it	no	longer	has	any	enforceable	interest	in	the	note	or	

in	 the	 property	 set	 up	 as	 security	 for	 the	 note,	 and	 the	 Pushards	 have	 no	

further	obligation	to	make	payments	on	the	note.	1997	ME	220,	¶	8,	704	A.2d	

866;	 see	 Deschaine,	 2017	 ME	 190,	 ¶	 35,	 170	 A.3d	 230	 (“[T]here	 could	 be	 no	

new	breaches	of	the	[mortgagors’]	obligations	following	acceleration	because,	

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

[mortgagors]	 did	 not	 have	 any	 continuing	 responsibility	 to	 make	 monthly	

installment	payments.”).			
                                                                                                    25	

       [¶36]	 	 Because	 the	 Bank	 is	 precluded	 from	 seeking	 to	 recover	 on	 the	

note	or	enforce	the	mortgage,	the	Pushards	are	entitled,	as	a	matter	of	law,	to	

the	 declaratory	 relief	 they	 seek.	 	 We	 therefore	 must	 vacate	 the	 judgment	 in	

the	Bank’s	favor	on	the	Pushards’	claim	for	declaratory	relief	and	remand	the	

case	 to	 the	 trial	 court	 to	 enter	 a	 judgment	 declaring	 that	 the	 note	 and	

mortgage	are	unenforceable	and	that	the	Pushards	hold	title	to	their	property	

free	and	clear	of	the	Bank’s	mortgage	encumbrance.		See	Deschaine,	2017	ME	

190,	 ¶	 37,	 170	 A.3d	 230.14	 	 Further,	 because	 a	 declaratory	 judgment	 “is	 a	

particularly	 efficacious	 method	 for	 quieting	 title	 to	 real	 property,”	 Welch	 v.	

State,	2004	ME	84,	¶	6	n.3,	853	A.2d	214	(quotation	marks	omitted),	that	can	

be	recorded	on	the	land	records,	we	need	not	address	the	Pushards’	claim	for	

injunctive	relief.		

       The	entry	is:	

                       Judgment	in	favor	of	the	Bank	on	the	Pushards’	
                       claim	 for	 declaratory	 relief	 is	 vacated.		
                       Remanded	 for	 entry	 of	 judgment	 in	 favor	 of	
                       Pushards	 consistent	 with	 this	 opinion.		
                       Judgment	affirmed	in	all	other	respects.		
	
	      	       	       	       	       	
	                              	

    14		Because	the	Bank’s	counterclaim	for	unjust	enrichment	was	dismissed	without	prejudice	and	

is	not	before	us,	we	do	not	address	any	issues	regarding	the	justiciability	or	merit	of	that	claim,	nor	
the	availability	of	any	process	pursuant	to	M.R.	Civ.	P.	4A	or	4B.		See,	e.g.,	Girouard,	2015	ME	116,	
¶	10,	123	A.3d	216.		
26	

Joshua	 Klein-Golden,	 Esq.	 (orally),	 Clifford	 &	 Golden,	 PA,	 Lisbon	 Falls,	 for	
appellants	Heidi	M.	Pushard	and	Jeffrey	A.	Pushard	
	
John	 J.	 Aromando,	 Esq.,	 and	 Catherine	 R.	 Connors,	 Esq.,	 Pierce	 Atwood	 LLP,	
Portland,	 and	 Elizabeth	 P.	 Papez,	 Esq.	 (orally),	 Winston	 &	 Strawn	 LLP,	
Washington,	D.C.,	for	appellee	Bank	of	America,	N.A.		
	
	
Business	and	Consumer	Docket	docket	number	CV-2015-28	
FOR	CLERK	REFERENCE	ONLY	
