MAINE SUPREME JUDICIAL COURT                                                      Reporter of Decisions
Decision: 2014 ME 40
Docket:   Yor-13-384
Argued:   February 12, 2014
Decided:  March 6, 2014

Panel:         ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.


                              ESTATE OF ROBERT L. COLLOPY


PER CURIAM

         [¶1] The Bank of New York Mellon, f/k/a The Bank of New York, as

Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2006-6CB

Mortgage Pass-Through Certificates, Series 2006-6CB, appeals from the York

County Probate Court’s (Nadeau, J.) dismissal of its petition for the appointment

of a special administrator for the Estate of Robert L. Collopy. The Bank argues

that the court erred in dismissing its petition as untimely and contends that as a

mortgagee it is not subject to the three-year time limit for the filing of formal

appointment proceedings provided in 18-A M.R.S. § 3-108(a) (2006).1



   1
       Title 18-A M.R.S. § 3-108(a) (2006) provides in relevant part:

            (a) For a decedent dying on or after January 1, 1981, no informal probate or
         appointment proceeding or formal testacy or appointment proceeding, other than a
         proceeding to probate a will previously probated at the testator’s domicile and
         appointment proceedings relating to an estate in which there has been a prior
         appointment, may be commenced more than 3 years after the decedent’s death . . . .

Section 3-108(a) was subsequently amended in 2009, P.L. 2009, ch. 368, §§ 1-3 (effective Sept. 12, 2009)
(codified at 18-A M.R.S. § 3-108(a) (2013)), however, the amendment is not material to our analysis in
this case.
2

          [¶2] In January of 2006, Countrywide Home Loans, Inc., issued a mortgage

to Robert L. Collopy.           Collopy died in May of 2006, shortly after having

transferred the mortgaged property to the Robert and June Collopy Family Trust.

No formal or informal probate proceedings were commenced regarding Collopy’s

estate.

          [¶3] Payments continued to be made on the mortgage until sometime in

2009, after which payments stopped. In July of 2010, the Bank assumed trustee

responsibility for administration of the mortgage. In August of 2010, the Bank

filed an action in the District Court (York) to foreclose on the mortgage, naming as

the defendant Robert Collopy both in his individual capacity and as trustee of the

trust.

          [¶4]   Collopy’s heir and co-trustee of the trust, Bobbie King, defended

against the 2010 foreclosure action.2 Among her defenses, King asserted that

although the mortgage documents identified the address of a residential property to

describe the security for the mortgage, the property description attached to the

mortgage described only a small commercial property adjacent to the residential

property.




    2
     The Bank has never moved to amend the foreclosure action to include King and the other co-trustee
as defendants.
                                                                                  3

      [¶5] In June of 2013, shortly after an unfavorable ruling by the District

Court on a motion in limine in the foreclosure action, the Bank filed a petition for

the formal appointment of a special administrator to Collopy’s estate in the York

County Probate Court. See 18-A M.R.S. § 3-614(2) (2013). The Probate Court

dismissed the petition as untimely pursuant to 18-A M.R.S. § 3-108(a), which

prohibits the initiation of appointment proceedings “more than 3 years after the

decedent’s death.”

      [¶6] Contrary to the Bank’s contentions, section 3-108(a) unambiguously

bars the commencement of all appointment proceedings—when there has been no

prior appointment—three years after the decedent’s death and does not contain an

exception for secured creditors. The portions of the Probate Code that exempt

secured creditors from certain procedures regarding the presentation and

enforcement of claims against an estate, such as 18-A M.R.S. §§ 3-104,

3-803(c)(1) (2013), do not extend to the time limitations of section 3-108(a).

See Estate of Kruzynski, 2000 ME 17, ¶ 7, 744 A.2d 1054 (holding that the petition

of a personal injury creditor to be designated personal representative of an estate

was properly denied for having been filed outside the three-year limitations period

in section 3-108(a)). The referenced portions of the Probate Code are intended to

preserve the security interest in the property and protect the capacity of secured
4

creditors to maintain actions for collection or foreclosure, such as the pending

action in the District Court. Accordingly, the Bank’s petition was untimely.

        The entry is:

                            Judgment affirmed.



On the briefs:

        John A. Doonan, Esq., and Jenai J. Cormier, Esq., Doonan,
        Graves & Longoria, LLC, Beverly, Massachusetts, for appellant
        Bank of New York Mellon

        Patrick S. Bedard, Esq., Bedard & Bobrow, P.C., Eliot, for
        appellee Robert and June Collopy Family Trust

At oral argument:

        John P. McVeigh, Esq., Preti Flaherty Beliveau & Pachios,
        LLP, Portland, for appellant Bank of New York Mellon

        Patrick S. Bedard, Esq., for appellee Robert and June Collopy
        Family Trust



York County Probate Court docket number 2013-561
FOR CLERKS REFERENCE ONLY
