Oceanic Inn, Inc. v. Sloan's Cove, LLC

STATE OF MAINE BUSINESS AND CONSUMER COURT

CUMBERLAND, ss Location: Portland

Docket No.: BCD-RE-14-01

)

OCEANIC INN, INC. and ARMAND )

VACHON, )

)

Plaintiffs, )

)

v. )

)

SLOAN'S COVE, LLC, )

)

Defendant )

)

and )

)

PETER FESSENDEN, Chapter 1.3 Trustee, )

and JEFF CORBIN )

)

Parties-in-Interest )

)

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

REGARDING PLAINTIFF'S ACCOUNTING CLAIM

The Motion for Summary Judgment filed by Defendant Sloan's Cove, LLC ["Sloan's

Cove"] regarding Count IX-Action for Accounting of the Plaintiffs' Complaint is before the

court, together with the Plaintiffs' opposition and Sloan's Cove's reply memorandum. The

court elects to decide the Motion without oral argument, see M.R. Civ. P. 7(b)(7).

The parties agree that, in context, the Plaintiffs' claim for an accounting is simply a

claim for justification of any and all amounts claimed and/or received by Sloan's Cove in

connection with the Note and Mortgage, as modified by the Allonge and Modification

Agreement ["the Allonge"] between Sloan's Cove and Plaintiff Armand Vachon, now held by

Sloan's Cove and the power of sale foreclosure conducted by Sloan's Cove of the Oceanic Inn

property owned by Mr. Vachon.

1

The Note was originally given in January 2006 by Proulx Real Estate Investment

Limited Liability Company ["Proulx Real Estate"], an entity controlled by Mr. Vachon's

mother and stepfather, to TD BankNorth, N.A. ["TD"]. The Note was secured by mortgages

given by Proulx Real Estate Investment Company and Plaintiff Oceanic, Inn, Inc. In

November 2009, TD assigned its rights under the Note and mortgages to Sloan's Cove.

Around the same time, Sloan's Cove as the lender's assignee and Mr. Vachon entered into the

Allonge and Modification Agreement. By virtue of the Allonge, which is dated November 12,

2009, Mr. Vachon agreed to assume the borrower's obligations on the Note, as modified by the

Allonge. The mortgages remained in place.

The underlying facts culminating in Sloan's Cove's sale of the Oceanic Inn property

through a power of sale foreclosure are summarized in detail in the court's Order on Amended

Motion for Summary Judgment of Defendant Sloan's Cove dated October 15, 2014. That

summary is incorporated by reference here rather than being repeated.

Sloan's Cove claims that it is entitled to recover and retain the following amounts

against Mr. Vachon:

• $284,500 reflecting the principal balance due on the Note . This is the same amount

that the Allonge between Sloan's Cove and Mr. Vachon identifies as the outstanding

balance due as of the date of the Allonge, November 12, 2009.

• Accrued interest on the Note at both a regular interest rate and a default interest rate

• Attorneys fees and costs of collection

• $2,990 for "insurance reimbursement" alleged to be due to Sloan's Cove under a

settlement agreement between it and Mr. Vachon

Mr. Vachon disputes all of these claims except that for the principal amount due.

The remaining three are addressed in the order just stated. Because Sloan's Cove's Motion

seeks summary judgment, Sloan's Cove must demonstrate that there are no genuine issues of

material fact and that it is entitled to judgment as a matter oflaw. See M.R. Civ. P. 56.

1. Sloan's Cove's Interest Claim

The Note given by Proulx Real Estate to TD called for an "interest rate" of 7.47%

annually and a "default interest rate" of 6% annually over and above "the rate of interest

otherwise payable." The Allonge includes the following pertinent provisions:

2. Terms of Note. The Lender and the Borrower hereby agree to modify the terms of

the Note as follows:

(a) Amount ...

(b) Interest: Interest under the Note shall accrue on the amount specified in

subparagraph (a), or such other amount as may be outstanding under the terms of the

Note from time to time after the effective date, at the rate per annum equal to the Wall

Street Journal Prime Rate plus three percent (3%), adjusted monthly.

(c) Payment Schedule: ...

(d) Payment Address ...

3. No Other Modifications. The Borrower and the Lender hereby agree that the

indebtedness evidenced by the Note, as modified hereby, shall be and hereby is the same

indebtedness evidenced by said Note, and this Allonge represents a modification and

renewal of the original indebtedness evidenced under the Note and the Security

Documents and is not a novation. The Note shall otherwise remain unmodified, and the

Borrower hereby affirms its obligations under the Note and stipulates that the Note as

modified by this Allonge is in full force and effect and that there are no offsets or

defenses with respect to the amounts outstanding and due hereunder.

The dispute relating to Sloan's Cove's claim for interest on the Note centers on the fact

that the default interest provisions of the Note are omitted from the above-quoted interest

provision at section 2(b) of the Allonge. Mr. Vachon construes section 2(b) of the Allonge to

replace the interest provisions of the Note, whereas Sloan's Cove asserts that section 2(b) only

modifies the regular interest rate due under the Note and leaves the default interest provision

unchanged.

Neither party's filings contend that the omission of any reference to default interest in

the Allonge is ambiguous. The court agrees: the Allonge is by no means ambiguous-it

clearly provides for interest on the Note to accrue at prime plus 3%, and it clearly contains no

reference to, or provision for, default interest. In other words, there is no ambiguity regarding

default interest on the face of the Allonge; any ambiguity arises only when the interest

provision in the Allonge is compared to the counterpart provision in the Note.

Moreover, even to the extent that comparison is deemed to raise an ambiguity that

could be resolved by extrinsic evidence, neither party has proffered any extrinsic evidence to

resolve it. Sloan's Cove's filings include an affidavit from its principal, Pauline Beale, and Mr.

Vachon's opposition includes his own affidavit, but neither addresses the question of what was

intended by the Allonge modification of the Note interest provisions.

Sloan's Cove's interpretation finds some support in the fact that the Note contains two

headings relating to interest: "Interest Rate" and "Default Interest Rate," whereas the Allonge

purports to modify "interest" but not "default interest."

Sloan's Cove also points to the section 3 "No Other Modifications" provision in support

of its argument that the modification of "interest" does not include default interest. Sloan's

Cove notes that section 3 recites that the Allonge effectuates a modification, not a novation.

However, the interest provisions of the Note could be modified to eliminate default interest

without constituting a novation. Ultimately, the "No Other Modifications" provision begs the

question presented here.

Mr. Vachon's interpretation finds strong support in the fact that the Allonge is clear

within its four corners, in providing for "[i]nterest under the Note" to accrue at the stated

prime plus 3% rate. Moreover, even were there deemed to be an ambiguity raised by

comparing the interest terms of the Allonge with those of the Note, Mr. Vachon's

4

interpretation is further bolstered by what the Law Court has termed the "bedrock rule of

contract interpretation [] that ambiguities in a document are construed against its drafter."

Barrett v. McDonald Investments, Inc., 2005 ME 4S, ~ 17, 870 A.2d 146, 150, citing 11 SAMUEL

WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS§ S2:12 at 471-72

(4th ed. 1999) ("Since the language is presumptively within the control of the party drafting the

agreement, it is a generally accepted principle that any ambiguity in that language will be

interpreted against the drafter."). Mr. Vachon's affidavit recites, without contradiction by

Sloan's Cove, that the Allonge was drafted by Sloan's Cove's counsel.

In McDonald, the court explained the justification for construing contracts against the

drafter by quoting from its decision in Monk v. Morton, 1S9 Me. 291, so A.2d 17 ( 194S):

The rule that an ambiguous contract will be construed more strongly against him who

uses the words concerning which doubt arises, is more than an arbitrary rule. Its

purpose is to give effect to the intention of the parties. To the maker of an instrument is

available language with which to adequately set forth the terms thereof. It is presumed

that he will not leave undeclared that which he would claim as his right under the

agreement; and the absence of a requirement against the obligee is evidence that such

requirement was not within the understanding of the parties. He who speaks should

speak plainly, or the other party may explain to his own advantage.

Id. at 295-96, SO A.2d at 19 (quotation marks omitted).

The fact that the Allonge modifies the Note by defining "interest under the Note"

without reference to default interest is evidence, as stated in the Monk opinion, "that such

requirement was not within the understanding of the parties." Id.

For all of the above reasons, the court construes the Allonge to entitle Sloan's Cove to

interest at the only rate specified in the Allonge-prime plus S% interest. This outcome makes

it unnecessary to address Mr. Vachon's alternative arguments against default interest-that

Sloan's Cove never effectively triggered it, and that it is an unenforceable penalty.

5

2. Sloan's Cove's Claim For Attorney Fees and Costs

Mr. Vachon presents two primary arguments against Sloan's Cove's claim for attorney

fees and costs. One is that the fees and costs attributable to Sloan's Cove's involvement in the

first bankruptcy proceeding initiated by Oceanic Inn, Inc. should be excluded. The other is

because the fees reflect "block billing" and duplicative effort on the part of Sloan's Cove's

attorneys.

The first argument has facial plausibility because it was Mr. Vachon, not the debtor in

bankruptcy, Oceanic Inn, Inc., who owned the property that Sloan's Cove ultimately foreclosed

upon. However, Oceanic Inn, Inc. identified itself as the owner of the mortgaged property, and

Oceanic Inn, Inc. had given the original mortgage securing the Note. Thus, at a minimum,

Sloan's Cove would likely have needed to obtain relief from the automatic stay in order to

proceed with the power of sale foreclosure. Also, as Sloan's Cove points out, Mr. Vachon bears

at least partial responsibility for the confusion about which entity owned the property

ultimately foreclosed on because he identified Oceanic Inn, Inc. as the owner.

The court concludes that Sloan's Cove should be entitled to recover some, but not all of

the attorney fees it incurred in the first Oceanic bankruptcy proceeding, and also concludes that

Sloan's Cove's is not entitled to recover all fees incurred by all attorneys and other timekeepers

who worked on the matter over its entire course. The court awards Defendant $59,000 in

attorney fees based on the contractual entitlement contained in the Allonge and Modification

Agreement, together with all costs requested by Defendant. Oceanic's and Mr. Vachon's other

objections to fees do not require separate discussion.

S. Sloan's Cove's Claim for Insurance Reimbursement

In addition to its claim for attorney fees, costs and interest, Sloan's Cove has claimed

$2,990 allegedly due to it from Mr. Vachon pursuant to a settlement agreement. Mr. Vachon

6

disputes the claim. The court does not view this claim as being within the scope of the

accounting, which addresses the foreclosure. The Comprehensive Settlement Agreement is

not before the court, and, as noted above, the court has always understood the accounting to be

limited to the amounts claimed by Sloan's Cove under the note and mortgage as modified by

the Allonge. Were the court to consider the insurance reimbursement claim on its merits, it

would deny summary judgment to either party. However, because the court does not view the

claim as being within the scope of this case, the court is dismissing the claim and thus making

no determination of any kind on the merits of the claim. As a result, this order constitutes a

final, appealable order as far as the court is aware because it adjudicates all claims within the

scope of the case that remained pending after the previous summary judgment ruling.

IT IS ORDERED, ADJUDGED AND DECLARED AS FOLLOWS:

1. The Motion for Summary Judgment filed by Defendant Sloan's Cove, LLC regarding

Count IX-Action for Accounting of the Plaintiffs' Complaint is hereby granted in part, and

otherwise denied. A comprehensive Judgment on all claims is being entered separately.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by

/#f!/jit~

reference in the docket.

Dated January 2, 2015

A.M. Horton, Justice

7

Oceanic Inn, Inc. and Armand Vachon v. Sloan's Cove, LLC, et al.

BCD-RE-14-01

Oceanic Inn, Inc. and Armand Vachon

Petitioner I Plaintiff

Counsel: John Campbell, Esq.

59 Baxter Boulevard

Portland, ME 04101

Sloan's Cove, LLC

Respondent I Defendant

Counsel: Daniel Cummings, Esq.

Two Canal Plaza

PO Box 4600

Portland, ME 04112-4600

Chapter 13 trustee

Party In Intrest Peter Fessenden, Esq

Jeff Corbin

Party in Intrest Pro-se

STATE OF MAINE BUSINESS AND CONSUMER COURT

CUMBERLAND, ss Location: Portland

Docket No.: BCD-RE-14·-01

)

OCEANIC INN, INC. and ARMAND )

VACHON, )

)

Plaintiff.~. )

)

v. )

)

SLOAN'S COVE, LLC, )

)

Defendant )

)

and )

)

PETER fESSENDEN, Chapter 1.'3 Trustee, )

and JEFF CORBIN )

)

Parties-in-Interest )

)

ORDER ON AMENDED MOTION FOR SUMMART JUDGMENT OF

DEFENDANT SLOAN'S COP'E

Pursuant to M.R. Civ. P. 56, Defendant Sloan's Cove, LLC [Sloan's Cove] has filed an

Amended Motion for Summary Judgment on Cotmt I of the complaint of Plaintiffs Oceanic Inn,

Inc. ["Oceanic"] and Armand Vachon, alleging breach of contract, and on Sloan's Cove's

counterclaim tor declaratory judgment. Sloan's Cove's motion does not seek smnmary

judgment on Count IX of the Complaint, for accounting·.

At Plaintiffs' request, their obligation to respond to Sloan's Cove's motion was deferred

pursuant to M.R. Civ. P. 56(f) in order for Plaintiffs to take certain discovery. Plaintiffs have

now filed an Opposition to the Motion and Sloan's Cove has filed a reply memonmdum.

BACKGROUND

This Order is based on the following facts, most of which are undisputed, with disputed

facts noted.

Plaintiff Armand Vachon is the lH'incipal and sole shareholder of Oceanic, a Maine

corporation. Sloan's Cove is a Maine limited liability company wholly owned by Pauline Beale,

Vachon's sister. For several years, Vachon and Beale have been involved in litigation

surrounding the probate of their mother's estate, of which Beale is the personal representative.

The relationship between brother and sister is contentious.

The real estate at issue in this case is a 15-unit motel, pub and cafe, collectively doing

business as the Oceanic Inn and located at •l·S West Grand Avenue in Old Orchard Beach. The

real estate is assessed by the Town for approximately $650,000, and Vachon estimates its

replacement value to be in the range of $1.5 million.

Prior to 2007, Oceanic owned the real estate and Vachon was the principal of Oceanic

and operated the motel, pub and cafe business for many years. However, sometime around

2006-07, ·when Vachon, according to his affidavit, was having emotional problems, his mother

and stepfather, Georg·ette Proulx and Gerald Proulx, became involved as principals in the

Oceanic corporation and evidently operated the business for a time. The details of their

involvement are not clear in the record. They apparently had their own operating- entity,

Proulx Real Estate Investment, LLC.

In 2006, Oceanic, acting· through Georgette and Gerald Proulx, executed a mortgage

and note on its real property in Old Orchard Beach in favor of TD Banlmorth, N.A. Proulx

Real Estate Investment, LLC was also involved in the transaction. In 2007, Oceanic conveyed

the real estate to the Proulxs, who immediately conveyed it to Mr. Vachon, both deeds being

2

dnted April 6, 2007. From these events, it can be inferred that Vachon had returned to an

active role in operating the Oceanic Inn.

In November 2009, TD Banknorth, N.A. assigned the note and mortg·age to Sloan's

Cove pursuant to a settlement agreement to satisfy Oceanic's debts. The settlement

agreement called for Oceanic and Vachon to make interest only payments to Sloan's Cove for

three yeat·s and then a balloon payment.

As part of the settlement and consistent with Vachon's ownership of the real estate,

Sloan's Cove nnd Armand Vachon entered into an Allonge and MocUfication Agreement dated

November 12, 2009. Pmsuant to express terms of the Allonge and Modification Agreement,

Vachon became the sole obligor under the note, and acknowledged and ratified the mortgage,

waiving all defenses to its enforceability.

All interest only payments due under the settlement were paid in a timely fashioi1 to

Sloan's Cove, but in November of 2012, Oceru1ic and Vachon were unable to make the balloon

payment when it became due.

Meanwhile, Vachon and his sister, Pauline Beale, the principal of Sloan's Cove, were

also involved in litigation for yeru·s regarding the conservatorship of their mother and then

regarding her estate. Vachon has been represented in the conservatorship and estate litigation

by attorney John Campbell. According to Vachon's affidavit and Plaintiffs' Statement of

Additional Material Facts, one of the issues in the conservatorship/ estate litigation has been

Beale's claim that Vachon had wrongfully induced the Proulxs to convey the Oceanic Inn real

estate to him in 2007:

[Beale and her attorneys] had claimed falsely that I had taken advantage ofmy mother

and stepfather and that the Oceanic Inn should be considered to be not my property but

the property of Oceanic Inn, Inc. which stock was owned by my mother and step father.

Vachon Aflldavit ~ 8 (emphasis in original).

In November 2012, when Vachon missed the balloon payment due to Sloan's Cove

under the 2009 settlement agreement, Vachon and Oceanic, of which Vachon was once again

the sole shareholder, retained attorney Joseph Goodman to represent them. For reasons not

clear in the record, Vachon apparently never informed attorney Goodman that he, not Oceanic

owned the real estate. 1 Attomey Joseph Goodman believed that Oceanic owned the property

and was still liable on the note and mortgage.

In December of2012, attorney Goodman on behalfofOceanic filed a voluntary petition

for relief under chapter II of the Bankruptcy Code and listed Sloan's Cove as its only secured

creditor. The purpose of the filing was to invol<e the automatic stay and allow Oceanic time to

formulate a plan to pay its debts without apprehension of foreclosure. Oceanic proposed a plan

with the Banhuptcy Court to resolve its debt, but Sloan's Cove objected, and the case was

ultimately dismissed. Throughout the proceeding, Sloan's Cove and Oceanic, as well as the

bankruptcy court, treated the real estate as owned by Oceanic rather than Vachon individually.

During 2012 and well into 2013, attorneys for the three parties to this case were in

frequent communication. By then, Sloan's Cove was represented by attorneys Daniel

Cmmnings and John Bonneau.

Sometime during the summer of2013, Sloan's Cove decided to exercise its power of sale

pursuant to the mortgage now held by it. In an internal e-mail dated August 8, 2013, attorney

Cummings asked a corporate/real estate paralegal in his law finn to ascertain ownership of the

real estate for pmposes of foreclosing· on the mortgage. The paralegal responded the same

day, advising that Vachon was the record owner, and that there was a "Clerk's Certificate on

record claiming a fi·audulent transfer," see Exhibit A to Campbell Affidavit.

1 Vachon's affidavit says that his observation of the 2012-lS banlu-uptcy proceeding indicated that

"evet·yone was treating the Inn as being the property ofthe corporation ... " Vachon Affidavit ,f-J8, 16.

It never, howevet·, says that he did not know, or had forgotten, that he owned the Inn real estate.

There is nothing in the record to indicate that Sloan's Cove's attorneys had actual

knowledge of who or what owned the real estate prior to August 8, 2013, whereas Vachon and

Beale plainly knew that Vachon owned it because his ownership was an issue in the litigation

with Beale.

On August 19, 2013, attorney Cummings on behalf of Sloan's Cove, sent tvvo documents

and a cover letter via registered mail, addressed to Armand Vachon and mailed to Vachon at

the Oceanic property rather than to Vachon's home address. T'he cover letter was addressed to

Armand Vachon. One of the two documents was a notice of mortgagee's sale of real estate

pursuant to the power of sale provisions of the mortgage and note granted by Oceanic to TD

Bank and now held by Sloan's Cove. The other document was titled Notice of Intention to

Foreclose and Liability for Deficiency After Foreclosure of Mortgage, and it was addressed to

both Vachon and Oceanic. Both documents indicated that Sloan's Cove intended to foreclose

on the mortgag·e given by Oceanic to TD Banlmorth, N.A. pursuant to the power of sale

provisions of the mortgage, and to hold the sale September 13, 20 I 3.

Although Vachon refused to sign for Sloan's Cove's August 19 mailing, there is no

dispute that he and Oceanic received actual notice of Sloan's Cove's intent to exercise the power

of sale. Prior to the sale, Sloan's Cove recorded the notice of sale in the Yor!< Cotmty Registry

of Deeds and caused it to be published in the Portland Press Herald for three successive weeks.

Attorney Cummings for Sloan's Cove and Attorney Goodman for Vachon and Oceanic

were in communication regarding possible alternatives to the sale up to the moming of

September 13. During those communications, Attorney Cummings suspected that attorney

Goodman was under the mistaken belief that Oceanic rather than Vachon owned the real estate,

and never told attorney Goodman that he had learned that Vachon rather than Oceanic owned

the real estate.

5

The day before the scheduled September 1.'3 sale, attorney Cummings asked the

paralegal in his firm to update ownership of the real estate, and she reported bacl< that record

ownership remained with Vachon.

As scheduled in the notice of sale, Attorney Cummings conducted the power of sale

foreclosure auction on behalf of Sloan's Cove on September 13, 2013. Attorney Cummings is

not an auctioneer licensed by the State of Maine. The auction was held at 55 West Grand

Avenue, Old Orchard Beach, a very short distance from the real estate being auctioned.

In an attempt to stop the auction, Oceanic filed a second voluntary petition tor relief

under chapter 11 of the U.S. Bankruptcy Code, again listing Sloan's Cove as the only creditor,

and alerting Sloan's Cove of the filing before the auction began. Attorney Cummings alerted

the bidders at the auction that a bankruptcy case had been filed, but stated he anticipated he

would be able to consummate a sale. He also clarified that only real estate and fixtw·es to the

real estate were being sold, and that no personal property (other than fixtw·es attached to the

real estate) would be sold.

Three prospective buyers registered and paid the required $25,000 deposit to bid, and

two of the three actually bid. Bidding started at $345,000, and the two bidders bid the price

upward. The winning bid of $•1<55,000 was submitted by Jeff Corbin. After the sale, Corbin

exewted a purchase and sale agreement, and satisfied Sloan's Cove of his ability to close on the

purchase.

Plaintiffs filed suit in Yorl' County Superior Court on September ~H. 20 I 3. The case

was approved for transfer to the Business and Consumer Docket on October 21•, 20 IS. As a

result of the uncertainty caused by this litigation, Corbin has requested to clefet· the closing on

his purchase, and Sloan's Cove has granted him multiple extensions of the closing- deadline.

6

STANDARD OF REVIEJ.V

For Sloan's Cove to obtain summary judgment on Count I of the complaint and on its

counterclaim fo1· declaratory judgment, it must establish that there are no genuine issues of

material fact and that it is entitled to judgment as a matter oflaw. M.R. Civ. P. 56( c); Levine v.

R.B.T<. Caly C01p., 2001 ME 77, ~·1·, 770 A.2d 653.

An issue of "fc'1ct exists when there is sufficient evidence to require a fact-finder to

choose between competing versions of the h·uth at trial." Inkell v. Livingstou, 2005 ME 4•2, ~·1·,

869 A.2d H5 (quoting Lever v. Acadia 1-Iosp. C01p., 2001- ME 35, ~12, 81<5 A.2cl 1178). Any

ambiguities "must be resolved in favor of the non-moving party." Beaulieu v. Aube Cmp., 2002

ME 79, ~2. 796 A.2cl683 (citing Green v. Cessna Aircraft Co., 673 A.2d 216, 218 (Me. 1996)).

Summary judgment is appropriate on issues such as motive or intent "if the non-moving

party rests merely upon conclusory allegations, improbable inferences, and unsupported

speculation." Dyer v. Dept. rifTnmsp., 2008 ME 106, ~ Ho, 951 A.2d 821 (quoting Vives v.

Fajardo, 4·72 F.sd 19,21 (1st Cir. 2007)) (quotations omitted).

To SlU'vive a motion for smmnary judgment on a claim as to which the non-moving

party has the burden of persuasion, the non-moving party must make out a primaj(u.:ie case on

each element of the claim that the motion puts into contention. See Quirion v. Gerou.r, 2008

ME 4<1, ~9, 94-2 A.2d 670 (negligence claim); Reliance Nat'lludem. v. Knowles Iudus. Servs., Cmp.

2005 ME 29, ~l9, 868 A.2d 220 (subrogation); Rippett v. Bemis, 672 A.2cl 82, 81· (Me. 1996)

(defamation).

The allocation of the burden of persuasion merits brief discussion. Plaintiffs have the

blU'den to prove their breach of contract claim in Count I, inclU<Ung their claims offailure to act

in good faith and failure to engage in fair dealing. Who has the burden on Sloan's Cove's

declaratory judg·ment counterclaim to validate the foreclosure sale is less clear. ln the court's

7

view, Sloan's Cove has the burden on its counterclaim to make a primajacie showing that its

power of sale foreclosure was compliant with the power of sale provision of the mortgage and

also the power of sale statutes. See l4o M.R.S. §§ 6203-A et seq.; ss M.R.S. § 50 1-A. To defeat

Sloan's Cove motion, as it relates to Sloan's Cove's declaratory judgment counterclaim,

Plaintiffs do not need to overcome that prima facie showing, but they do have to demonstrate a

genuine issue of material fact as to whether Sloan Cove's foreclosme procedure was valid.

DISCUSSION

In moving tor summary judgment on Count I of the complaint and on its declaratory

judgment counterclaim, Sloan's Cove is essentially asking the court to declare that the power of

sale foreclosure, as conducted, was valid and effective.

Count I of the complaint is styled as a breach of contract claim, but, as this court has

already observed in its Order on Sloan's Cove's Motion to Dismiss, the alleged breach consists

of Sloan's Cove's allegedly wrongful and improperly conducted power of sale foreclosure. For

that reason, Sloan's Cove's characterization of Count I and its declaratory judgment

counterclaim as each being the mirror image or "flip side" of the other is mostly, but not

entirely, correct. It is only partly correct because Plaintiffs' breach of contract claim reaches

more broadly than the Defendant's counterclaim, in that some of the alleged breaches predate

the foreclosure that the counterclaim seeks to validate.

The breaches of contract alleged in the complaint are:

• Failure to provide payoffinfonnation on request;

• Failtu·e to act in good faith and with fair dealing;

• Failure to hold a commercially reasonable auction;

• FaillU"e to notice the sale of the property properly; and

• Failure to conduct of power of sale foreclostu"e in compliance with statutory

requirements and/or on commercially reasonable terms.

(Compl. ~f ~~ 69-76.)

8

Of these, only the first, relating- to payoff information, and potentially the second, failure

to act in good faith and with fair dealing-, relate to matters occurring- prior to Sloan's Cove's

power of sale foreclosure procedure. The others all relate to the conduct of the power of sale

foreclosure itself. According-ly, this analysis focuses, first, on issues predating- Sloan Cove's

initiation of the power of sale foreclosme, and second, on the foreclosure process.

I. Issues Prior to the Foreclosure

In their Opposition, Plaintiffs focus at some length on the conflict between Vachon and

his sister and on other alleg-ed wrongdoing· by Vachon's stepfather. In the court's view, none

of the issues in the Beale-Vachon dispute is material to this case. vVhatever the issues between

Plaintiff and his sister or his stepfather, the following- facts are undisputed:

• Sloan's Cove succeeded to TD Banknorth's rights under the note and the mortgage;

• Vachon in the Allong-e and Modification Agreement, consented to Sloan's Cove

becoming- his creditor on the note and mortg-ag-e;

• Vachon in the Allong-e and Modification Ag-reement acknowledged and ratified the note

and mortg-ag-e in the hands of Sloan's Cove and ag-reed that they were enforceable

ag-ainst him; and

• Vachon has not made the balloon payment he ag-reed to pay .

By statute, the validity of a power of sale in a mortg-ag-e granted by a corporation is not

affected by the subsequent transfer of the mortg-aged real estate to an individual. See 14 M.R.S.

§ 6203-A ("Any power of sale incorporated into a mortg-ag-e is not affected by the subsequent

transfer of the mortg-aged premises from the corporation, partnership, including a limited

partnership, limited liability company or trustee of the trust to any other type of org·anization

or to an individual or individuals."). Thus, Sloan's Cove was entitled to enforce the note and

mortgag-e ag-ainst Vachon, and nothing in the record before the comt raises an issue about lack

9

of good faith and f~lir dealing, prior to the events surrounding the foreclosure, which are

addressed below.

H.eg·arding Sloan's Cove's actions during the 2012-13 Oceanic bankruptcy proceeding,

Plaintifls attempt to generate issues of good fc1ith and fc1ir dealing by arguing that Sloan's Cove

blocked Oceanic's efforts to have a plan of reorganization approved, including acquiring

unsecured debt so as to bloc}< a "cram clown" approval. Because these allegations relate to

Oceanic and not to Sloan Cove's claims against Vachon, and also because any objection to Sloan

Cove's tactics could presumably have been, and may have been, raised in the Banlo·uptcy Court,

they do not suffice to raise a genuine issue here.

As to Sloan's Cove's alleged fail me or refusal to provide payoff information, assuming

that the refusal did occur as alleged, Vachon has not made any showing by affidavit 01·

otherwise that, had such information been provided, he could or would have made payment of

the amount due on the note. Thus, assuming further that a refusal to provide payoff

information is a breach of contract, this was not a breach that caused any damage or harm. A

breach of contract that does not result in any harm or loss is not actionable. See Tobin v.

Barter, 20 1<1< ME 51, ~[1 0, 89 A. 3d I 088 ("In order to obtain relief for a breach of 0 contract,

the plaintiff must 0 demonstrate that the defendant breached a material term of the contract,

and that the breach caused the plaintiff to suffer damag·es.").

For these reasons, the court concludes that Plaintiffs have not made a prima facie

showing that Sloan's Cove committed any breach of contract prior to initiating the foreclosme

process, and thus that Sloan's Cove is entitled to summary judgment on the pre-foreclosure

aspect ofthe Plaintiffs' breach of contract claim in Count I.

10

2. Issues Uelatiug to the Foreclosure

With regard to Sloan's Cove's power of sale foreclosure, the Plaintiffs raise numerous

issues, any one of which, they claim, is sufficient to invalidate the foreclosure and thus defeat

Sloan Cove's motion, both as to Count I of Plaintiffs' Complaint and to the declaratory

judgment counterclaim.

Regardless of the type of foreclosure, Maine law requires strict compliance with the

governing statutes. See I(eyBauk Nat. Ass'n v. Smgent, 2000 ME 153, ~ 36, 758 A.2d 528 ([I]n

order to effect a legal foreclosure all steps required by the statute must be strictly performed")

(citing fViuter v. Casco Bank aud Tmst Co., 396 A.2d 1020, 1024• (Me.1979)). However, the Law

Court has suggested that in a foreclosure by civil action, the "strict compliance" doctrine is

limited to the procedmes leading to a foreclosure judgment and not to the procedm·e ofthe sale

itself T<eyBauk, 2000 ME 153, ~ 38, 758 A.2d 528 (holding "any error in the sale process

should not serve as grounds to set aside the foreclosm·e Judgment itself The "strict compliance"

doctrine is limited to those procedures leading to the foreclosure judg'lnent") (emphasis in

original); see also First Tracks Investments, LLC v. Sunrise Schoolhouse, LLC, BCD-CV-11-31 (Bus.

& Consumer Ct. Apr. 13. 2012).

In contrast, as this court stated in First Tracks, "the [Law Court's] stated rationale for

not requiring strict compliance in the post-judg·ment foreclosure sale procechu·e is that, in a

foreclosure by civil action, the mortgagee's rig-ht of redemption has already expired when the

foreclosure sale takes place." Id. (citing l•l• M.RS.A. § 6323(1)) ("[A]ll rig-hts of the

mortgag-or to possession terminate when the rig-ht of redemption expires."). However, in a

power of sale f(weclosure "the sale itself operates to terminate the mortgag·or's rights in the

ll

property."~ !d. "When the challeng·e is to the procedures used to conduct the foreclosure sale,

the proper analysis for the trial cout·t is whether it would be equitable to set aside the sale given

the procedures that were employed by the mortg·agee." KeyBank, 2000 ME 153, ~ 38, 758

A.2d 528 (citing Farm Credit ofAroostook v. Sandstrom1 634• A.2cl 961, 962-63 (Me. 1993))

(noting that action to set aside foreclosure sale "presumably rel[iesJ on the equitable power

granted to the court in actions to foreclose mortgages").

The Plaintiffs have raised four issues concerning the equities and commercial

reasonableness of the subject sale. They allege: ( 1) Attorney Cummings, who presided over

the sale, was not a licensed auctioneer; (2) the notice of the sale was presented to Vachon in his

personal capacity and not to the corporate entity; (3) Corbin, the highest bidder, has been

allowed too much time to close; and (4·) the sale price was unreasonable, in that Sloan's Cove

failed to sell the personal property along with the real estate, a step that would have enhanced

the value of the real estate to prospective bidders. The court addresses each of these issues in

turn below.

z. Failure to Procure a Licensed Auctioueer

In this case, attorney Cummings conducted the power of sale foreclosure auction on

behalf of Sloan's Cove on September 1S, 20 1.~. The Plaintiff.<; contend that the sale was

inequitable as attorney Cummings is not a licensed auctioneer tmder the laws of the State of

2

In Maine, power of sale foreclosure is governed by 1'1• M.R.S § 6203-A. Under the statute, any holde1·

of a mortgage on real estate that is granted by a c01·porate entity may, upon breach of condition,

foreclose a mortgage and sell the subject real estate. However, prior to sale:

[N]otice [must be] published once in each of 8 successive weeks, the first publication to be not

less than 2 l days before the day of the sale in a newspaper of general circulation in the town

where the land lies and which notice must prominently state the street address of the real estate

encumbered by the mortgage deed, if any, and the book and page number of the mortgage.

!d. Further, [t]he person selling shall, within so days after the sale, cause a copy of the notice as

published and the person's affidavit ... stating the person's acts, or the acts of the person's principal or

ward, to be 1·ecorded in the registry of deeds for the county where the land lies." H M.R.S. § 620.'3-B.

12

Maine. Pursuant to S2 M.R.S. § 285, "[a] person in this State who engages in the business of

auctioneering, professes or advertises to be an auctioneer or advertises the sale of real, personal

or mixed property by auction shall hold a valid auctioneer's license.'' Thus, the Plaintiffs

contend that because attorney Cummings failed to hold a valid auctioneer licenses, the auction

sale should be set-aside as void. (Pl.'s Opp. Mot. 15.)

At the outset, it must be noted that the Plaintiffs' argument finds no support in the

Maine power of sale foreclosure statute, which provides that any person acting in the name of

the holder of the mortgage may exercise the power of sale. The "Statutory Power of Sale"

provision at ss M.R.S. § 501-A states: " [U]pon any default in the performance ... the

mortgagee or ... [his or her] attorney, may sell the mortgaged premises ... by a public sale on

or near the premises then subject to the mortgage." See also 14 M.R.S. § 6203-A.

Although the Maine Law Court has not specifically decided the issue, the Superior

Court has held that a foreclosme pursuant to a power of sale conducted by an attorney who was

not a licensed auctioneer does not invalidate the sale. See Ramsey v. Pepperrell Bank & Trust,

No. CV-05-234•, 2007 WL 1523496 (Me. Super., Yor. Cty., .Tan. 11, 2007) (noting "any penalty

the attorney might f.1ce due to his lack of a license does not generate a cause of action for

'wrongful foreclosure' ... and does not affect the overall validity of the sale"). Moreover,

Massachusetts, among other jurisdictions, has long held that "[t]he fact that the auctioneer at

the sale had not an auctioneer's license does not invalidate the sale." Flynn v. Curtz~· & Pope

Lumber Co., 139 N.E. 533,536 (1923); IVilliston v. Morse, 51 Mass. 17,21 (184·5) ("An auction

sale by one not licensed as an auctioneer will not avoid the conveyance to ru1 innocent

purchaser without knowledge that the auctioneer was not licensed, althoug·h it may render the

seller liable to a penalty."); Gorman v. Be1g, 1'1<1 A. 179 (R.I. 1928) (statute requiring auctioneer

to be licensed does not invalidate auction sale by unlicensed auctioneer); Associates Discount

IS

Co1p. v. Lunsford> 204 Va. 1, 128 S.E.2cl924• (1963) (statute requiring auctioneers to be licensed

did not affect validity of vehicle sale conducted by creditor's employee who did not hold

license). See also 7 A C.J.S. Auctious ami Auctioneers§ 4•7 ("A sale at auction is g·enerally not

invalid because it is conducted by a person not licensed as an auctioneer, even though the act of

selling subjects such person to a penalty.") 3

Further, the Maine licensing statute offers a remedy that extends to setting aside the

foreclosure sale. Penalties for failing to procure an auctioneering license prior to conducting a

sale are governed by the provisions ofTitle 10, section 8003-C. Said section provides both

criminal and civil penalties. T'he civil penalties include "a fine of not less than $1,000 but not

more than $5,000 for each violation." Additionally:

The Attorney General may bring an action in Superior Court to enjoin any person from

violating subsection ·l·, whether or not proceedings have been or may be instituted in

District Court or whether criminal proceedings have been or may be instituted, and to

restore to any person who has suffered any ascertainable loss by reason of that violation

any money or personal or real property that may have been acquired by means of that

violation and to compel the return of compensation received for engaging in that

unlawful conduct.

10 M.R.S. 8003-C (6). Thus, there is no private cause of action tmder the licensing statute to

justit)r this court in setting· aside the foreclosure sale.

~ Other conm1ercial foreclosure statutes in Maine expressly authorize an attorney to auction property

without mention of the licensing statute. For example, 33 M.R.S § 595( 1)(2)(b), which governs the

foreclosure of commercial times hares states:

The f()reclosure sale must be by public auction, conducted by an auctioneer or attorney licensed

to practice in the State. At the discretion of the auctioneer or attorney, the reading of the names

of the time-share owners, if more than one, the description of time-shm·e estates, if more than

one, and the recording information, if more than one instrument, may be dispensed with.

(emphasis added). Note, the foreclosure of a commercial timeshare is not conducted plU'suant to a court

order and there is no exemption provided in the licensing statute for such sale. Thus, it can be intcned

that the legislature specifically intended attorneys to have the ability to exercise a power of sale on

behalfofhis or her clients in the commercial timeshare foreclosure setting.

Based on the statutory provisions authorizing an attorney to conduct the foreclosure

sale, and also because attorney Cummings was a duly authorized attorney of the mortgagee and

because there is no private cause of action under 32 M.R.S. § 285, this court will not set aside

the f(:)J·eclosure sale on the ground that the sale was not conducted by a licensed auctioneer.

zz. Issues Concerning Notice

Plaintiffs contend that the Defendant did not comply with the notice provision of H•

M.R.S. § 620.'3-A( 1) which requires:

A copy of the notice [to] be served on the mortgagor or its representative in interest,

or may be sent by reg·istered mail addressed to it or the representative at its last known

address, or to the person and to the address as may be agreed upon in the mortgage, at

least 2 1 days before the date of the sale.

Plaintiffs further contend that the notice provided in this case "was intended only for

Mr. Vachon as owner, but it did not reveal anything about him being the owner and was not

sent to [Vachon's] home address." (Pl.'s Opp. Mot. 17.) The court finds that notice was

sufficient in this case. The notice was sent to a post office box that is used by both Oceanic and

Vachon individually. The notice was addressed to Vachon and, although Vachon refused to

sign, there is no dispute that Vachon had notice of Sloan's Cove's intent to foreclose by power

of sale. Further, contrary to the Plaintiffs' contention, the above statute does not specify that

the notice must be provided to an individual's home address.

PI ain tiffs' contention that the Defendant had an obligation to present the Plaintiffs with

information explaining that Vachon, a named Plaintiff, was the owner of the subject property is

without merit. "The mere record of a valid tno1·tgage gives constructive notice to all. All are

presumed to know its contents, for any one interested can obtain knowledge by examining the

15

record."·t· Globe Slicing !v!ach. Co. v. Casco Bank & Trust Co., 154• Me. 59, 63, H2 A.2d so, 32

(1958) (quoting Tlzurlough v. Dresser, 98 Me. 161, 56 A. 65-t· (1903)). Thus, all interested

parties are presumed to have had constructive notice of the true owner of the property at all

points in time during this litigation. A quicl< review of the mortgage instrument and

accompanying documents would have dispelled any confusion.

zzz. Failure to Difault Corbin for Not Closing in a Timely Manner

Plaintiffs argue that the Defendant owes a fiduciary duty to enforce the terms of the

sale. In this case, Corbin has not yet closed on the property after purchasing it at the power of

sale foreclosure auction. However, the Law Court has long held that a lender owes a fiduciary

duty to a borrower, only in very limited circumstances. Stewart v. !vlachias Sav. Bank, 2000 ME

207, ~ 11, 762 A.2d 4<4• ("Standing alone, a creditor-debtor relationship does not establish the

existence of a confidential or fiduciary relationship") (quoting First NI-l Banks Granite State v.

Scarborough, 615 A.2d 24•8, 250 (Me. 1992)). Rather to establish such relationship, "a party

must demonstrate diminished emotional or physical capacity or the letting· down of all guards

and bars." ld.

In this case, the record compels the conclusion that Plaintiffs have been adverse to

Defendant in this and the Vachon-Beale litig·ation for years. Because the narrow circmnstances

under which a fiduciary duty may be established are entirely absent in this case, the court will

not analyze the conduct of the sale under a fiduciary standard.

Further, the pendency of Plaintiffs' challenge to the foreclosure sale has justified the

extensions of the deadline for Corbin to close on his pmchase ofthe real estate. Sloan's Cove

f "But a record is not constructive notice ofmore than the record itself discloses. Third persons are

chargeable with notice of no more than they can ascertain from the record or fi·mn being put upon their

inquiry by the record." Thurlough v. Dresser, 98 Me. 161, 56 A. 65·1<, 665 (!90S).

16

has indicated that Corbin will close upon the completion of this litigation, when he can obtain

adequate title insurance. (Def's Rep. Mot. 9.)

tv. Inadequate Sale Price

Plaintiffs argue that the sale price procured by the foreclosure auction was grossly

inadequate as the Defendant did not arrange to sell the contents of the hotel tog·ether with the

land and the ultimate sale price was almost $200,000 below the appraised value. (Pl.'s Opp.

Mot. 8, 29.) The Law Court has held "price inadequacy is generally an insufficient basis on

which to challenge the reasonableness of a sale unless other factors exist, such as fraud,

unfairness, or other irregularity." Bar Harbor Bauk & Trust v. lf7oods at Moody, LLC, 2009 ME

62, ~ 20, 971< A.2d 9S4•; First Tracks Investments, LLC v. Sunrise Schoolhouse, LLC, BCD-CV-11-

S l (Bus. & Consumer Ct. Apr. IS. 2012).

In this case, while the sale price was below the assessed value, the sale yielded a

$100,000 surplus. FlU'ther, pursuant to the power of sale statue:

[U]pon ... default ... in performance ... the mortgagee ... may sell the mortgaged

premises or such portion thereof as may remain subject to the mortgage in case of any

partial release thereof, either as a whole or in parcels, together with all improvements

that may be thereon, by a public sale on or near the premises then subject to the

mortgage, or, if more than one parcel is then subject thereto, then on or near one of said

parcels, or at such place as may be designated for the purpose in the mortgag·e, first

complying with the terms of the mortgage and the statutes relating to the foreclosure of

mortgage by the exercise of a power of sale.

SS M.R.S. § 501-A. This indicates that the mortgagee has some discretion as to what is sold at

the auction. Thus, even asslmling the premise of the Plaintitls' argument that including the

personality in the sale would have enhanced the foreclosure sale price for the real estate, the

court will not set aside the sale based on an inadequate sale price.

8. The Overall Equities

The foregoing sections of this Order have analyzed the validity of Sloan's Cove's

foreclosure in light of each of the Pla.intitTs' objections separately, and has concluded that none

17

of the Plaintiffs' objections, in and of itself: supports setting aside the sale. However, it is also

necessary for the court to assess the Plaintiffs' objections together, as a totality, for purposes of

deciding, "whether it would be equitable to set aside the sale given the procedures that were

employed by the mortgagee." KeyBank Nat. Ass'n v. Sargent; 2000 ME 153, ~ 38, 7 58 A.2d 528;

see also Farm Credz't of Aroostook v. Sandstrom, 634• A.2cl 961, 962-63 (Me. 1993).

Here, Sloan's Cove's filings affirmatively demonstrate that it complied with the express

requirements of the power of sale foreclosure statute. Although an attorney rather than an

auctioneer conducted the sale, the result was a winning bid higher than the amount owed. The

information on who owned the property was a matter of record and easily ascertainable.

Sloan's Cove had no obligation to assist Vachon in stopping· the sale, which was his avowed

objective, by reminding him that he owned the property.

As to the issue of an equitable basis for setting aside the sale, the court does not see the

equities tilted in favor of the Plaintiffs, and also does not see any genuine issue of material fact

that would preclude sununary judgment. Accordingly, the colU't will gTant Sloan's Cove's

motions for summary judg·ment as to Count I of the Complaint and as to the Counterclaim.

'J.. Sloan's Cove's Request for Certification Under M.R. Civ. P. 54(b)

Sloan's Cove has also moved that any judgment on its favor on Count I of the

Complaint and on the Counterclaim be certit1ed as final pursuant to Rule Mo(b) ofthe Maine

Rules ofCivil Procedure. "Rule M{b) requires a trial court to make an express determination

that there is no just reason to delay the entry of a final judg·ment on a claim." I<ey Bank ofMe.

1!. Park Entrance 111otel, 64·0 A.2d 211, 212 (Me. 199'1•). In determining whether there is "no just

reason for delay" Maine courts consider:

[T]he relationship between adjudicated and unadjudicated claims, the likelihood that

the reviewing court will face the same issues more than once, the possibility that future

action by the trial colU't will render moot the need fiH· review, whether immediate appeal

18

will expedite the trial process, and miscellaneous f~tctors such as the res.Judicata effect of

a final judgment and economic and solvency considerations.

Fleet Nat. Bank v. Oardiuer Hillside Estates, Inc., 2002 ME 120, 11 13, 802 A.2d '1·08.

The Law Court has further held that a final judgment should be entered "only in limited

and special circumstances .... Because there is a strong policy against piecemeal review of

litigation, there must be a good reason for the certification." Guidi v. Town q[Tume1~ 2004· ME

4<2, 11 9, 84·5 A.2d 1189. Thus, the court must "determine whether the facts of tllis case

constitute such an unusual circmnstance." !d. 11 10.

In this case, Count IX of the Plaintiffs' Complaint, requesting· an accounting, remains.

At this stag·e, the court needs to know more about the scope and timeframe for the accOlmting

in order to determine whether Rule M·(b) certification is appropriate. An accounting that can

be presented expeditiously argues against Rule H(b) certification; an extensive accounting

proceeding could argue in f.wor of such certification. According·ly, the court defers action on

Sloan's Cove's Rule 54·(b) request until at least a fmther conference ofcotmsel.

CONCLUSION

For the reasons stated, the court concludes that Defendant Sloan's Cove is entitled to

summary judgment on both Count I of the Complaint and the Counterclaim. The entry will be:

Defendant's Amended Motion for Summary Judgment is granted, except with regard to Rule

.5•l·(b) certification. Judgment for Defendant against Plaintiffs on Count I of the Complaint and

on the Counterclaim.

The Clerk vvill schedule a con terence of counsel on the remaining claim.

Pursuant to M.R. Civ. P. 79, the clerk is hereby directed to incorpol'ate this Order into

the docket by reference.

Dated October 15, 201+

7 A. M. Horton, Justice

Business & Consumer Court

Entered on tho Dotket: lo-17~1

Coplos sent Vla Mail_ Electronically

19

Oceanic Inn, Inc. and Armand Vachon v. Sloan's Cove, LLC, et al.

BCD-RE-14-01

Oceanic Inn, Inc. and Armand Vachon

Petitioner I Plaintiff

Counsel: John Campbell, Esq.

59 Baxter Boulevard

Portland, ME 04101

Sloan's Cove, LLC

Respondent I Defendant

Counsel: Daniel Cummings, Esq.

Two Canal Plaza

PO Box 4600

Portland, ME 04112-4600

Chapter 13 trustee

Party In Intrest Peter Fessenden, Esq

Jeff Corbin

Party in Intrest Pro-se

EN T ERED NOV 0 5 2014 v

(

(

'

STATE OF MAINE BUSINESS AND CONSUMER COURT

CUMBERLAND, ss Location: Portland

Docket No.: BCD-RE-14•-0 1

CMIVI--- aMH- 04 -17~-JLf

)

OCEANIC INN, INC. and Afu\tlAND )

VACHON, )

)

Plain tiffs, )

)

v. )

)

SLOAN'S COVE, LLC, )

)

Defendant )

)

and )

)

PETER FESSENDEN, Chapter 13 Trustee, )

and JEFF CORBIN )

)

Parties-in-Interest )

)

ORDER ON MOTION TO Dl8Ml88 OF DEFENDANT SLOAN'S COYE

Pursuant to M.R. Civ. P. 12(b)(6), Defendant Sloan's Cove, LLC has filed a Motion to

Dismiss most counts of the Complaint of Plaintiffs Oceanic Inn, Inc. and Armand Vachon,

which Complaint alleges: 1) breach of contract (Count I); 2) breach of the duty of good faith and

fair dealing (Count II); 3) tortious intetoference with prospective economic advantage (Count

III); 4) slander of title (Count IV); 5) fraud (Count V); 6) negligent misrepresentation (Count

VI); 7) violation of Maine's Uniform Fraudulent Transfer Act (UFTA), 14 M.R.S. §§ 3571-82

(2013), (Count VII); 8) violation of Maine's Unfair Trade Pt·actices Act (UTPA), 5 M.R.S. §§

205-A to 214< (2013), (Count VIII); 9) accounting (Count IX); 10) breach of fiduciary duty

(Count X); and 11) negligent infliction of emotional distress (Count XI). The only count

Defendants do not seek to dismiss is Count IX.

1

( (

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are drawn fi·om Plaintiffs' complaint and are presumed to be true for

the purposes of the motion. See Johnston v. lYle. E11ergy Recovery Co., Ltd. P'slup, 2010 ME 52,

~2, 997 A.2d 741. Armand Vachon is the principal and owner of Oceanic Inn, Inc., a Maine

corporation. (Compl. ~~ 1-2.) Sloan's Cove, LLC, is a Maine limited liability company wholly

owned by Pauline Beale, Vachon's sister. (Compl. ~~s. 9.) For several years, Vachon and

Beale have been involved in litigation surrounding the probate of their mother's estate, of

which Beale is the personal representative. (Compl. ~ ~ 10-15.) The relationship between

brother and sister is contentious. (See, e.g., Compl. ~1~\14-15, 24, 27.)

In 2006, Oceanic Inn executed a mortgage and note on its real property in Old Orchard

Beach in favor of TD Bank (Compl. ~~6, 39.) In 2009, TD Bank assigned the note and

mortgage to Sloan's Cove pursuant to a settlement agreement to satisfy Oceanic Inn's debts.

(Compl. ~\7.) The settlement agreement called for Oceanic Inn and Vachon to make interest

only payments to Sloan's Cove for three years and then a balloon payment. (Compl. ~8.)

(Compl. ~ 16.) All interest only payments were paid in a timely fashion to Sloan's Cove, but in

November of2012, Oceanic Inn and Vachon were unable to mal<e the balloon payment when it

became due. (Compl. ~ 16.)

In December of 2012, Oceanic Inn filed a voluntary petition for relief under chapter 11

of the Banlu·uptcy Code and listed Sloan's Cove as its only secured creditor. (Compl. ~ ~ 17,

19.) The purpose of the filing was to invoke the automatic stay and allow Oceanic Inn time to

formulate a plan to pay its debts without apprehension of foreclosure. (Compl. ~ 18.) Oceanic

Inn proposed a plan with the Bankruptcy Com·t to resolve its debt, but Sloan's Cove blocl<ed

the plan, and the case was ultimately dismissed. (Compl. ~ ~121-28.) Oceanic then attempted to

2

( /

'

refinance its debt, but had difficulty obtaining a payoff amount from Sloan's Cove. (Compl.

~I~Jso-35.)

On August 19, 2015, Sloan's Cove sent to Vachon a notice of sale of real estate pursuant

to the mortgage and note granted by Oceanic to TD Bank and now held by Sloan's Cove.

(Com pl. ~ ~ SS-39.) The notice stated it was regarding Oceanic Inn and was addressed to

Vachon, but sent to him at Oceanic Inn's address. (Compl. ~38.) The sale was scheduled for

September IS, 2013. (Compl. ~ S6.) During the course of preparing fot· the auction, counsel for

Sloan's Cove learned that since 2009, title to the real estate was held in the name of Vachon,

not in the name of Oceanic Inn. (Compl. ~~4·1, 61.) The parties attempted to settle their

disputes prior to the scheduled auction, but were unable to do so. (Compl. ~~ ~ .37, 40-1·2.)

Again, Oceanic Inn was unable to get accurate pay off amounts from Sloan's Cove until the one

day before the auction. (Compl. ~ 43.)

In an attempt to stop the auction, Oceanic Inn filed a second voluntary petition for relief

under chapter II of the U.S. Banln·uptcy Code, again listing Sloan's Cove as the only creditor,

and alerting Sloan's Cove of the filing before the auction began. (Compl. ~ ~·H·-1·7.) Cotmsel

tbr Sloan's Cove alerted the bidders at the auction that a bankruptcy case had been filed, but

stated he anticipated he would be able to consummate a sale. (Compl. ~·1·8.) Plaintiffs allege

the announcement had a chilling effect at the auction, at which Jeff Corbin was the highest

bidder for $4•55,000. (Compl. ~50.) Sloan's Cove proceeded with the auction despite the

bankruptcy filing because title to the property was held by Vachon, not Oceanic Inn. (Compl.

~56.)

Plaintiffs assert that the notice of sale was insufficient to put Vachon on notice that his

property would be sold because the notice only refet·ences Oceanic Inn's property. (Compl.

~ 62.) Plaintiffs sought injunctive relief fi·om the Bankruptcy Court to prevent Sloan's Cove

(

and Corbin fi·om closing on the sale on this grotmd, but the Banlcruptcy ColU't denied the

motion for preliminary injunction. (Compl. ~~ ~65-68.)

Plaintiffs filed suit in York County Superior Com't on September 2•1•, 2013. The case

was approved for transfer to the Business and Consumer Docket on October 2•1•, 2013.

STANDARD OF REVIEW

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, the material allegations of the complaint must be taken as

admitted." Shaw v. S. Aroostook Cmty. Sclz. Dist., 683 A.2d 502, 503 (Me. 1996) (quotation marks

omitted). "The complaint is viewed 'in the light most favorable to the plaintiff to determine

whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff

to relief pursuant to some leg·al theory."' Ramsey v. Baxter Title Co., 2012 ME 113, ~6, 54 A.sd

710 (quoting J\tlcCormick v. Crane, 2012 ME 20, ~ 5, 37 A.3d 295). "The pm·pose of a complaint

in modern notice pleading practice is to pl"Ovide defendants with fair notice of the claim against

them." Shaw, 683 A.2d at 503 (quotation marl<s omitted). "A complaint is properly dismi~sed

when it is beyond doubt that the plaintiff is entitled to no relief under any set of facts that

might be proven in support of the claim." Richardson v. lf7intltrop Sell. Dep't) 2009 ME 109, ~ 5,

983 A.2d 400 (quotation marks omitted).

DISCUSSION

I. Breach of contract (Count I)

In this claim, Plaintiffs assert that Sloan's Cove failed to hold a commercially reasonable

auction and notice the sale ofthe property. (Compl.1]~]70-71.) Sloan's Cove asserts that these

claims amount to a faihu·e to comply with the foreclosure statute, not a breach of the contract.

Although labeled as breach of contract action, the failure to comply with the notice provisions

of 14 M.R.S. § 6203-A (2013) is a claim upon which relief can be granted. Accordingly,

4

( (

Plaintiffs have alleged "facts that would entitle [them] to relief pursuant to some legal theory."

Ramsey, 2012 ME 113, ~6, 54< A.sd 710 (quotation marks omitted).

II. Breach of the duty of good faith and fair dealing (Cotmt II)

Plaintiffs allege that pm·suant to Maine's adoption of the Uniform Commercial Code

(UCC) and the common law, Sloan's Cove had a duty to act in good faith and deal with

Plaintiffs in an objectively fait· and commercial1y reasonable manner with respect to the note

and mm'tgage. (Compl. ~74•.) Plaintiffs assert that Defendants breached this duty by refusing

to submit accurate pay off information, failing to hold a commercially reasonable auction, and

f.'liling to propedy notice the sale of the property. (Compl. ~75.) The claim is thus premised on

the sale of the real estate.•

To the extent Plaintiffs rely on the UCC, this claim fails to state a cause of action. The

relationship between Oceanic Inn and Sloan's Cove "is that of a mortgagor to a mortgagee of

real estate and is not governed by the Uniform Commercial Code." Camden Nat'l Bank v. Crest

Constr., Inc., 2008 ME liS, ~ 18, 952 A.2d 213; accord 11 M.R.S. § 9-1109(4·)(k) (201S) ("This

Article does not apply to ... [t]he creation ot· transfer of an interest in or lien on real property

... "). Because the UCC does not apply to the relationship, the implied covenant of good faith

and fair dealing in UCC transactions does not apply.

To the extent Plaintiffs rely on the common law, the claim also fails to state a cause of

action. The Law Court has declined repeatedly "to extend the implied covenant of objective

good faith in contracts not governed by Maine's U.C.C," Niedqjadlo v. Cent. State ~Moving &

Storage Co., 1998 ME 199, ~ 10, 715 A.2d 934<; accord Crest Comtr., 2008 ME liS, ~ 18, 952

A.2d 213; Haines v. Great N. Paper Inc., 2002 ME 157, ~ 15, 808 A.2d 124<6 ("We have declined

to impose a duty of good faith and &'lir dealing except in circumstances govemed by specific

1

The mortgage at issue also g•·anted a security interest in personal property to TD Bani< (see Cummings AfT. Exh.

I), but there is no allegation •·egarding wrongdoing with •·espect to personal property.

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provisions of the Uniform Commercial Code."). Count II must be dismissed for failure to state

a claim upon which relief can be granted.

III. Tortious interference with economic advantage (Count III)

Plaintiffs assert that Sloan's Cove's commencement of the power of sale foreclosure, the

related publication of the notice of the sale, and conduct at the auction constitutes fc'llse

statements concerning· Plaintiffs that "wrongfully interfered with the Plaintiffs existing or

prospective contracts and/or economic advantage." (Compl. ~~78-80.)

A claim for "[t]ortious interference with a prospective economic advantage requires a

plaintiff to prove: (1) that a valid contract or prospective economic advantage existed; (2) that

the defendant interfered with that contract or advantage through fi·aud or intimidation; and (3)

that such interference proximately caused damages." Currie v. I11dus. Sec., Inc., 2007 ME 12,

~31, 915 A.2d 4·00 (quoting Rutlaudv.i\tlullen, 2002 ME 98, ~IS, 798 A.2d 1104•, 1110). To

interfere with the advantageous relationship by fi·aud, a plaintiff must also demonstrate ( 1) the

defendant made a false representation; (2) of a material fact; (S) with knowledge ofits falsity or

in reckless disregard of whether it is true or false; (4) for the pm·pose of inducing another party

to act in reliance upon it; and (5) the other party justifiably relied upon the representation as

true and acted upon it to the detriment of the plaintiff. See id. ~ 14. Finally, "[i]n all averments

of fraud m· mistake, the circumstances constituting fi·aud m· mistal<e shall be stated with

particularity." M.R. Civ. P. 9(b).

Plaintiffs' allegations fall shm·t of these standards. Notably, Plaintiffs have failed to

identify any false statement made by Sloan's Cove that would induce a third party to rely upon

the statement or any third party who did in fact rely upon the statement to Plaintiffs'

detriment. Count III accordingly will be dismissed.

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IV. Slander of title (Count IV)

Plaintiffs assert that Sloan's Cove's co1mnencement of the power of sale foreclosure, the

related publication of the notice of the sale, appearance in bankruptcy proceedings, and conduct

at the auction constitutes false statements concerning Plaintiffs' title to the property. (Compl.

~~83-85.)

"'[S]lander of title' is a form of the tort of injurious falsehood that protects a person's

property interest against words or conduct which bring or tend to bring the validity of that

interest into question." Colquhoun v. JVebber, 684• A.2d 4·0.5, '1·09 (Me. 1996). To make out a

claim for slander of title requires allegations that: '"( 1) there was a publication of a slanderous

statement disparaging claimant's title; (2) the statement was false; (8) the statement was made

with malice or made with recldess disregard ofits falsity; and (4•) the statement caused actual or

special damages."' Rose v. Parsous, 2013 ME 77, ~ 18, 76 A.sd 84·3 (quoting Colquhouu, 684• A.2d

The only statements alleged to have been made by Sloan's Cove are I) in the course of

the first bankruptcy filing when Sloan's Cove stated that Oceanic Inn owned the property, and

2) at the auction when Sloan's Cove's counsel stated that Oceanic Inn had filed for bankruptcy.

(Compl. ~ ~26, 4•8.) The latter statement is admittedly true, and the former statement has not

been alleged to cause any actual or special damages to Plaintiffs. Count IV will accordingly be

dismissed.

V. Fraud (Count V}

Plaintiffs' fraud claim is based on alleged false statements of material fact made by

Sloan's Cove to Plaintiffs and failure to disclose material facts to Plaintiffs in connection with

the foreclosure and auction. (Compl. ~87.) More specifically, Sloan's Cove alleged "failure to

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disclose the actual title holder of the property prior to auction and failure to give accm·ate pay

off amounts prior to auction." (Compl. ~ 88.)

Typically, a fraud claim involves an affirmative misrepresentation of a material fact by

the defendant to the plaintiff that the plaintiff justifiably relies upon to his or her damage.

See Flaherty v.l\lluther, 2011 ME 32, ~·M, 17 A.sd 6•1·0. In this case, Plaintiffs have alleged fraud

both affirmative misrepresentation and through omission. "When a plaintiff alleges a failure to

disclose rising to the level of a misrepresentation, the plaintiff must prove either ( 1) active

concealment of the truth, or (2) a specific relationship imposing on the defendant an affirmative

duty to disclose." Fitzgerald v. Gameste1~ 658 A.2d 1065, 1069 (Me. 1995). Plaintiffs' fraud

claim does not allege a special relationship, 2 and thus the Court focuses the "active concealment

of the truth" prong·, i.e. "steps tal<en by a defendant to hide the true state of affairs from the

plaintiff." [(ezer v. }.tlark Stimson Assocs., 1999 ME 184•, ~24•, 74·2 A.2d 898. To prove fraud by

active concealment, the defendant's on1ission must be an omission of a material fact, and "the

plaintiff must justifiably rely on the omission of the material fact" to his or her damage. ld.

~ 26. Further, "[iJn aU averments of fi·aud or mistake, the circumstances constituting fi·aud or

mistake shall be stated with particulru·ity." M.R. Civ. P. 9(b).

Plaintiffs' fraud allegations fall shot·t of these standards. The allegations amount to a

bare recitation of the elements of the cause of action for fraud by affirmative misrepresentation;

there is no reference to any steps taken to actively conceal information fi·om Plaintiffs.

Moreover, even the delay in receiving pay off information of the debt is not actionable because

the absence of payout information is not a misrepresentation, and because Plaintiffs did not rely

on the lack of information to their detriment. Because Plaintiffs have failed to allege facts that

would constitute fi·aud, the Com·t must dismiss Count V.

~ Plaintiff.~ have asserted a cause of action fo•· breach of fiduciary duty, but as discussed later in this orde1·, that

cause of action fuils for f.1ilurc to state a claim upon which relief can be granted. See M.R. Civ. P. 12(b)(6).

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VI. Negligent misrepresentation (Count VI)

Plaintiffs allege the same misrepresentations and omissions 111 their negligent

misrepresentation claim as in their fi·aud claim. (Compl. ~{ ~93-94•.) Plaintiffs also assert they

relied on Sloan's Cove's false statements regarding who owned the property in choosing to file

a banio'uptcy case for Oceanic Inn instead ofVachon. (Compl. ~95.)

A claim for negligent misrepresentation requires allegations that ( 1) the defendant

supplied false information to the plaintiff; (2) failed to exercise reasonable care or competence in

obtaining ot· communicating this information; (3) the plaintiff justifiably relied on this

information; (4·) to the plaintiffs detdment. Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990)

(adopting section 552(1) of the Restatement (Second) ofTorts). "A person may justifiably rely

on a representation without investigating the truth or falsity of the representation unless the

person knows that the statement is false or the falsity is obvious." Francis v. Stiuso11, 2000 ME

17 s, ~ 39, 760 A.2d 209.

Based on the allegations in the Complaint, it is less than clear upon what statement

made by Sloan's Cove that Plaintiffs intend to rely in support of this cause of action. As with

Plaintiffs' fi·aud claim the allegations amount to a bare recitation of the elements of the cause of

action fot· negligent misrepresentation. To the extent that Plaintiffs assert that they justifiably

relied upon a representation by Sloan's Cove regarding which of the Plaintiffs owned the real

estate, such reliance is not justifiable. Cf. Francis, 2000 ME 173, ~4·2, 760 A.2d 209 ("As a

matter of general contract law, parties to a contract are deemed to have read the contract and

are botmd by its terms."). Accordingly, the Court will dismiss this count.

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II

I

VI. UFTA violation (Count VII)

Plaintiff Vachon asserts that Sloan's Cove's sale of the property for an inadequate

amount is a violation of UFTA. (Compl. ~J~j99-101.) Plaintiffs however misapprehend the

nature of UFTA. UFTA provides a cause of action for a creditor when a debtor transfers

property in an attempt to avoid paying his or her debts. See H M.R.S. § 3575(1). UFTA does

not provide a cause of action for debtors, and Plaintiffs have failed to allege facts that would

qualify them for reliefpursuant to UFTA.

VIII. UTPA violation (Count VIII)

UTPA declares that "[u]nfair methods and unfair or deceptive acts or practices in the

conduct of any trade or c01mnerce" are unlawful. 5 M.R.S. § 207. UTPA provides a cause of

action for "[a]ny person who pm·chases or leases goods, services or property, real or personal,

primarily for personal, family or lzouseliold purposes and thereby suffers any loss of money or

property, real or personal" as a result of unfair methods, acts, or practices. 5 M.R.S. § 213( 1)

(emphasis added).

Plaintiffs assert that Sloan's Cove violated UTPA "as a result of its actions and conduct

and concealing of information in the f01·eclosure process" and that "Vachon is a consmner

within the meaning of UTPA." (Compl. ~ ~ 104-05.) Defendants assert, however, that the

statute does no apply because this was not a consumer transaction. Rather, the note and

mortgage were for commercial purposes, not for "personal, family 01' household purposes."

The Law Com·t has not defined the scope of "personal, family or household purposes,"

but has consistently has referred to UTPA as a consumer protection statute. See State v.

!Yeiuschenk, 2005 ME 28, ~ 11, 868 A.2d 200, 205 ("Maine's UTPA provides protection for

consumers against un£1ir and deceptive trade practices." (emphasis added) (citation omitted));

Jolovitz v. /llfa Romeo Distribs. q[N. Am., 2000 ME 17'1•, ~9 n.1, 760 A.2d 625 (stating that the

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UTPA "provides a private remedy to consumers of personal, family or household goods, services

or property" (emphasis added)); Bangor Publ'g Co. v. Union St. Mkt., 1998 ME 37, ~7, 706 A.2d

595 (explaining that unlawful practices under UTPA "must not be outweighed by any

countervailing benefits to comumers or competition that the practice produces; and it must be an

injury that consumers themselves could not reasonably have avoided" (emphasis added)); accord 5

M.R.S. § 2 H· ("Any waiver by a consumer of the provisions of this chapter ... shall be void."

(emphasis added)). Moreover, the Law Court recently affirmed a trial court decision that

concluded a transaction between two businesses was not protected by UTPA because the

tt·ansaction was not primarily for personal purposes. See Seacoast RV, Inc. v. Sawdnm, LLC,

2013 ME 6, ~l~2, 5, 58 A.sd 1135.

Fairly read, Plaintiffs' complaint portrays a commercial dispute between two business

entities reg·arding a debt and resulting foreclosure of real estate. See America v. Srmspray Condo.

Ass'n, 2013 ME ~15 (analyzing substance ofthe overall complaint). The fact that Oceanic Inn

is a family business does not alter that it is in fact a business. Vachon's conclusory assertion that

he is a "consumer" is insufficient absent any other allegations substantiating the nature of the

note and mortgage as for "personal, family, or household purposes." Accordingly, the Court

will dismiss Count VIII.

IX. Breach of fiduciary duty (Count X)

Plaintiffs assert that Beale owes fiduciary duties to Vachon as the personal

representative of the estate of Vachon and Beale's mother, including the duty to account for

disposition of assets, and this duty was breached by failing to l<eep Plaintiffs informed about the

sale ofthe real estate. (Compl. ~~ 110-11.)

The Court does not question that a cause of action for breach of fiduciary duty can be

brought by a beneficiary against a personal representative regarding distribution of estate

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assets. "Personal representatives of an estate are fiduciaries, and pursuant to 18-A M.R.S.

§ 3-703(a) (2013), they must observe the same standards of care that apply to trustees of an

express trust as set out in specified provisions of the Maine Uniform Trust Code. Among the

standards of care that apply to personal representatives are the duties of loyalty and

impartiality." In re Estate qf'Greenblatt, 20 H• ME 32, ~ 12, -- A.sd --.

Pauline Beale, however, is not a named defendant in this case.

"The salient elements of a" fiduciary or confidential relationship "are the actual placing

of trust and confidence in fact by one party in anothet· and a great disparity of position and

influence between the parties to the action." !11orris v. Resolution Tmst Corp., 622 A.2d 708, 712

(Me. 1993) (quoting Ruebsameu v. 111/addocks, 340 A.2d 31, 35 (Me. 1975)). "Standing alone, a

creditor-debtor relationship does not establish the existence of a confidential relationship. To

demonstrate the necessary disparity of position and influence in such a banl{-borrowe1·

relationship, a party must demonstrate diminished emotional or physical capacity or ... the

letting down of all guards and bars." Crest Coustr., 2008 ME 113, ~ 13, 952 A.2d 213 (quotation

marks omitted).

As alleged, the facts in the complaint do not support a fiduciary or confidential

relationship between Oceanic Inn and Sloan's Cove because there is no facts to support a great

disparity of position or the actual placing of trust in confidence by the Plaintiffs in Sloan's Cove.

Accordingly, the Court will dismiss the claim for breach of fiduciary duty.

X. Negligent Infliction of Emotional Distress (Count XI)

Finally, Plaintiff Vachon asserts a claim for negligent infliction of emotional distress

based on Sloan's Cove's breaches offiduciru·y duty. (Compl. t;lt;lll6-118.) The Law Court has

"recog·nized a duty to act reasonably to avoid emotional hann to others in very limited

circumstances: first, in claims commonly referred to as bystander liability actions; and second,

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in circumstances in which a special relationship exists between the actor and the person

emotionally haJ'lned." Curtis v. Porter, 2001 ME 158, ~ 19, 78•1• A.2d 18, 26. The present

dispute does not implicate the bystander line of cases. The Court has already stated that the

complaint does not allege the elements of a special or confidential relationship, and accordingly,

Vachon has failed to state a cause of action for negligent infliction of emotional distress. See id.

~21, 784 A.2d 18.

CONCLUSION

Based on the foregoing, the Court GRANTS the motion to dismiss as to Counts ll, III,

IV, V, VI, VII, VIII, X, and XI, and DENIES the motion to dismiss as to Count I. The

dismissal of the aforementioned counts is without prejudice, and Plaintiffs may move to amend

theit· complaint should facts develop to support further theories through the course of

discovery.

the docket by reference.

Dated, ~ ,21' 2tr/Y

.m

Pursuant to M.R. Civ. P. 79, the clerk is hereby directed to incorporate this order into

A

/~-}~.M-.-I-1-o-rt_o_n_,·_;:;._ _ _:...___ _ _ _ __

Justice, Business and Consumer Court

Entered on the Docket: JJ JP,. }/ U

Copies sent vln Mall __ Ei!c{~/

13

Oceanic Inn, Inc. and Armand Vachon

v.

Sloan's Cove, LLC

And

Parties-in-Interest: Peter Fessenden, Chapter 13 Trustee and Jeff Corbin

BCD-RE-14-01

Oceanic Inn, Inc. and Armand Vachon

Plaintiffs

Counsel: John Campbell, Esq.

59 Baxter Boulevard

Portland, ME 04101

Sloan's Cove, LLC

Defendant

Counsel: Daniel Cummings, Esq.

Two Canal Plaza

PO BOX 4600

Portland, ME 04112