Opinion

Maine State Housing Authority v. Vigue

Court
Superior Court of Maine
Filed
Feb 2, 2016
Status
Unpublished
On the bench
Daniel I. Billings
Cited by
0 cases

The opinion

STATE OF MAINE SUPERIOR COURT

LINCOLN, SS. CIVIL ACTION

DOCKET NO. RE-14-16

MAINE STATE HOUSING AUTHORITY ,)

)

Plaintiff, )

) ORDER AND JUDGMENT OF

v. ) FORECLOSURE AND SALE

)

DARLENE J. VIGUE, f/k/a DARLENE J. )

BIXBY and RONALD S. GROVER, SR., )

)

Defendants, )

)

and )

)

CACY OF COLORADO, LLC, NCO )

PORTFOLIO MANAGEMENT, INC., and )

PHILIP S. COHEN, ESQ. , ) Title to Real Estate Involved

)

Parties-In-Interest. )

Title to 24 Philbrook Lane, Waldoboro, Maine is involved

Mortgage recorded in the Lincoln County Registry of Deeds at Book 2280, Page 3

Following hearing on this matter on February 2, 2016, after notice to all parties, after

review of the pleadings, Affidavit, and other information of record, the Court finds pursuant to

M.R. Civ. P. 55(a) and certifies pursuant to 14 M.R.S.A. § 2401(3):

1. That the record indicates the following Parties and Counsel of Record:

PARTY COUNSEL

Plaintiff: Maine State Housing Authority Julianne C. Ray, Esq.

353 Water Street Perkins Thompson, P.A.

Augusta, ME 04330 P.O. Box 426

Portland, ME 04112-0426

(P 1078894. 1)

Maine State Housing Authority v. Darlene J. Vigue, et al.

Docket No. RE-14-16

Defendants: Darlene J. Vigue Prose

24 Philbrook Lane

Waldoboro, ME 04572

Ronald S. Grover, Sr. None ofrecord

2902 Atlantic Highway

Warren, ME 04864

Parties-In-Interest: CACV of Colorado, LLC None of record

c/o The Corporation Company

1675 Broadway, Suite 1200

Denver, CO 80202

NCO Portfolio Management, Inc. None ofrecord

c/o NCO Funding, INc.

1201 Market Street, Suite 800

Wilmington, DE 19801

Philip S. Cohen, Esq. None ofrecord

Law Offices of Cohen and Cohen

P.O. Box 1

Waldoboro, ME 04572

2. That all parties have received notice of the proceedings in this action and that the

notice was given in accordance with the applicable provisions of the Maine Rules of Civil

Procedure;

3. That venue is properly laid in this Court;

4. That Defendant Darlene J. Vigue, f/k/a Darlene J. Bixby participated in mediation

but the case was not resolved and was returned to the regular docket;

5. That Defendant Ronald S. Grover, Sr. , did not appear or request mediation;

6. That Plaintiff is entitled to judgment;

7. That Defendants are in default under the terms of a certain Note and Mortgage

held by the Plaintiff dated October 8, 1997 (the "Note"), and received proper notice of said

default;

{P107SS94. 1) 2

Maine State Housing Authority v. Darlene J. Vigue, et al.

Docket No. RE-14-16

8. That Plaintiff holds a mortgage on real estate located at 24 Philbrook Lane, in the

Town of Waldoboro, County of Lincoln, and State of Maine, to secure the Note, and which

Mortgage is recorded in the Lincoln County Registry of Deeds in Book 2280, Page 3; the legal

description of the mortgaged property contained in said Mortgage is incorporated herein by

reference; the Mortgage was assigned to Plaintiff by instrument recorded in said Registry of

Deeds in Book 2281, Page 78;

9. That as of January 14, 2016, unless otherwise noted, Plaintiff is owed the

following under its Note and Mortgage:

a. principal balance: $33,487.69

b. deficit in escrow account: $ 8,072 .58

c. accrued interest: $13,720.59

d. attorneys' fees and costs through October 29, 2015: $ 3,952.60

SUBTOTAL: $59,233.46

e. additional reasonable attorneys ' and paralegal fees and expenses incurred

by Plaintiff preparing for and attending the hearing; drafting a letter regarding the

period of redemption; obtaining and recording Clerk's Certification regarding

appeal; drafting redemption documents or obtaining a Writ of Possession and

preparing for and conducting the foreclosure sale; filing and supporting a Report

to Court; in obtaining relief from automatic stay in any subsequent proceeding in

U.S. Bankruptcy Court; and in pursuing collection of any deficiency judgment to

the extent it is not discharged in bankruptcy;

f. additional interest accruing on said principal balance from and including

January 15, 2016, at the rate of $6.10896 per day; and

g. any amounts advanced by Plaintiff to protect its mortgage security.

10. That the order of priority and the amount of the claim of each party appearing and

proving its claim against the proceeds of sale, after payment of expenses of sale, is as follows:

'

a. Plaintiff, Maine State Housing Authority: $59,233.46, plus accrued interest at the

Note rate of $6.10896 per day (which is 7 .675% per annum) from and including January 15,

2016, to the date of entry ofjudgment, plus interest after judgment at the Note rate (the

(P1 078 894. I} 3

Maine State Housing Authority v. Darlene J. Vigue, et al.

Docket No. RE-14-16

appropriate rate pursuant to 14 M.R. S .A. § 1602-C because the Note rate is greater than the

weekly average one-year United States Treasury bill rate as published by the Board of Governors

of the Federal Reserve System for the last full week of 2015 plus 6%);

b. Party-In-Interest CACY of Colorado, LLC: the amount, if any, established by

affidavit;

c. Party-In-Interest NCO Portfolio Management, Inc.: the amount, if any,

established by affidavit;

d. Party-In-Interest Philip S. Cohen, Esq.: the amount, if any, established by

affidavit; and

e. Defendants: any excess proceeds from sale, pursuant to 14 M.R.S.A. § 6324.

11 . That Plaintiffs claim for attorneys ' fees is integral to the relief sought, within the

meaning of M.R. Civ. P. 54(b)(2); and

12. That there is no just reason for delay in the entry of final judgment for Plaintiff on

all claims, except for the claim for attorney fees incurred by Plaintiff after October 29, 20 15, for

the following reasons:

(a) If judgment is granted but not entered as final , the time periods set forth in 14

M.R.S.A §§ 6322 and 6323 will commence even though the judgment is subject to later revision;

(b) The Plaintiff and any bidders at the foreclosure sale would be exposed to some

risk in proceeding to a sale ifjudgment is not final and remains subject to revision; and

(c) Any dispute regarding attorney fees incurred by Plaintiff after October 29, 2015,

may be resolved by either Defendant filing a motion contesting Plaintiffs Report of Public Sale

as provided in 14 M.R.S.A. § 6324.

WHEREFORE, it is hereby Ordered and Decreed:

(P1078894. 1} 4

Maine State Housing Authority v. Darlene J. Vigue, et al.

Docket No. RE-14-16

(a) That if Defendants, their heirs and assigns do not pay the Plaintiff the amounts

adjudged to be due to Plaintiff in paragraph 9 above within ninety (90) days from the date of

entry of this Order, Plaintiff (through its agents or attorneys) shall, unless it elects to allow

Defendants to cure and reinstate, proceed with a sale of the real estate described in the mortgage

deed recorded in the Lincoln County Registry of Deeds in Book 2280, Page 3, pursuant to 14

M.R.S.A. §§ 6321-6324, free and clear of all liens, except liens senior to Plaintiffs Mortgage ,

and shall pay the proceeds of sale, after satisfying expenses of sale, in the priority order and

amounts set forth in paragraph 10 above;

(b) That the Clerk is hereby directed to enter this Order and Judgment of Foreclosure

and Sale as a final judgment pursuant to Rule 54(b )(1 ), except as to attorney fees incurred after

October 29, 2015;

(c) That if Defendants fail to redeem by paying the above amounts adjudged to be

due on or before ninety (90) days from the date of entry of this Order (or cure and reinstate

within such additional time as Plaintiff may in its sole discretion allow), or if Defendants

abandon the mortgaged property, Plaintiff shall then be entitled, at its option, without further

hearing to take exclusive possession of the real estate described in Plaintiffs Mortgage, and a

writ of possession shall then issue forthwith upon Plaintiffs request;

(d) That an execution shall issue against Defendants for any deficiency, provided the

statutory requirements are met;

(e) That Plaintiff shall specify attorney fees incurred after October 29, 2015 , in its

Report of Public Sale, which shall then constitute a timely application for an award of additional

attorneys' fees, notwithstanding the requirements of M.R. Civ. P. 54(b)(3) to file such

application within 60 days after judgment; Defendants may contest the Report and application

{PI 078894 . I } 5

Maine State Housing Authority v. Darlene J. Vigue, et al.

Docket No. RE-14-16

for additional fees by filing a motion pursuant to 14 M.R.S.A. § 6324;

(f) That once the applicable appeal period has expired, Plaintiff shall prepare and the

Clerk shall execute an appropriate certification either that no action was taken or that an appeal

was filed, and Plaintiff shall then record the said certification and a copy of this Judgment in the

Registry of Deeds for Cumberland County and pay the recording fees therefore, in compliance

with 14 M.R.S.A. § 2401(3), such fees and costs so incurred by Plaintiff to be added to and

become part of the mortgage indebtedness secured by the Mortgage; and

(g) That the Clerk shall enter the following in the docket:

"Order and Judgment of Foreclosure and Sale entered for the Plaintiff as a final judgment

except for attorneys' fees incurred after October 29, 20 15 . Said Order is incorporated in the

docket by reference . This entry is made in accordance with M.R. Civ. P. 79(a) at the specific

direction of the Court." +

Dated at

v--1 '·~ c. ~~ '-') <-:{

, Maine, this~ day of

- \.-.

)~,Xn-2016.

~~Justice, Supenor Court fun~ i ~

Date Order Entered on the Court's Docket:

I hereby certify that the applicable appeal period expired without action on

CLERK, LINCOLN COUNTY SUPERIOR COURT

{Pl078894 . I} 6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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