Law Court invites amicus briefs regarding preclusive effect of judgment in favor of mortgagor on future actions to enforce a promissory note and mortgage

Date: 8/23/2022

The Maine Supreme Judicial Court, sitting as the Law Court, invites briefs of amici curiae in the appeal of J.P. Morgan Acquisition Corp. v. Camille Moulton, Law Court docket number Oxf-21-412. J.P. Morgan Acquisition Corp. appeals from a judgment entered by the Superior Court on J.P. Morgan's foreclosure action against Moulton. The Superior Court determined that J.P. Morgan failed to comply with the provisions of 14 M.R.S. § 6111, which requires a mortgagee to provide a mortgagor with a notice of default and right to cure before bringing a foreclosure action, and entered a summary judgment in favor of Moulton. As part of the judgment, the Superior Court declared that Moulton holds title to the real property at issue, unencumbered by the mortgage and promissory note.

The Court invites amicus briefs on the following issues:

  1. Should the Court reconsider its existing precedent that a foreclosure judgment in favor of the mortgagor based on the mortgagees failure to comply with 14 M.R.S. § 6111 renders the note and mortgage unenforceable because a second foreclosure action is barred by principles of res judicata?
    1. If so, upon what grounds, and to what extent, should principles of res judicata continue to apply? Should it make a difference if the second foreclosure action is based on a new default?
    2. If the lender is barred from pursuing a second foreclosure action under principles of res judicata, does this inability render the note and mortgage unenforceable such that the lender may pursue alternative claims including, but not limited to, an unjust enrichment claim against the borrower consistent with Restatement (Third) of Restitution & Unjust Enrichment § 2(2)?

  2. Should the court reconsider and repudiate the language in Fed. Natl Mortg. Assn v. Deschaine, 2017 ME 190, ¶ 37, 170 A.3d 230, and Pushard v. Bank of. Am., N.A., 2017 ME 230, ¶ 36, 175 A.3d 103, ordering that a failed foreclosure action barring a second foreclosure action on res judicata principles entitles the borrower to a discharge of the mortgage and title to the mortgaged property?

The parties briefs and the appendix are available at the links below.

An amicus brief may be filed by or on behalf of any individual, entity, or group of individuals and/or entities without separate leave of the Court. Any amicus brief must be filed on or before September 27, 2022. An amicus brief must be filed at the address listed below and must comply with M.R. App. P. 7A. In addition to filing and serving the required number of copies, any amicus must send a copy of the brief electronically, as a single "native" or text-based .pdf file, to the Clerk of the Law Court at

Dated: August 23, 2022

Matthew Pollack
Clerk of the Law Court
205 Newbury Street Room 139
Portland, Maine 04101
(207) 822-4146

Supporting documents

Appellant's brief

Appellee's brief

Appellant's reply brief