The Law Court recently issued a short decision, Wilmington Savings Fund Society, FSB v. Abildgaard, which provides a reminder of the importance of taking the appropriate steps at trial to ensure that interlocutory orders can be challenged on appeal.
On its facts, Abildgaard is fairly straightforward. Wilmington Savings Fund sought to foreclose on Abildgaard’s mortgage. To prevail, Wilmington was required to prove (among other things) that it had sent a proper notice of default and right to cure. The notice, however, was excluded at trial on the basis that it did not comply with statutory requirements. At that point, Wilmington rested its case without presenting evidence regarding a number of other elements of its foreclosure claim. In Wilmington’s view, it was unnecessary to proffer any other evidence because, without a notice, Wilmington could not prevail. After the Superior Court entered judgment against Wilmington, Wilmington appealed and challenged the exclusion of the notice.
It was the wrong path