Breakaway Inc. v. MacDonald

• Court: Superior Court of Maine
• Decided: July 19, 2010
• Docket: PENre-08-58
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, 55. CIVIL ACTION DOCKET NO RE-08-58 ,~ r ;: /' ." BREAKAWAY INC.,

Plaintiff, v. ORDER TIMOTHY MACDONALD, ET AL

Defendant.

Following the last conference and damages hearing held in this case, the Court

has signed the proposed foreclosure order that plaintiff has submitted in this case. The

Court deleted the portion of the order addressing attorney fees and will decide the issue

after receiving written argument on the appropriate amount to be awarded because it

could be argued that a portion was not incurred in the foreclosure action, but may have

been incurred to defend unresolved counterclaims. At the conference, the Court

indicated that it continued to study the propriety of its Order granting summary

judgment to the plaintiff. The Court still concludes that its order in this regard was

correct, especially after reviewing Camden National Bank v. Crest Construction, Inc., 2008

ME 113, 952 A.2d 213. In Crest, the Law Court held that the bank, as mortgagee, owed

no duty in negligence to Morrow, a mortgagor, but not a borrower. Id. at 111. Crest

borrowed funds from plaintiff to build an addition on Morrow's home, the debt secured

by a mortgage on the home and signed by Morrow only. When Crest defaulted, the

bank was entitled to foreclosure. The Court also ruled that, under the circumstances,

there was no fiduciary duty or confidential relationship between the bank and Morrow,

id. at 115, and also ruled that there is no duty of good faith and fair dealing in the

transaction because it is not governed by the U.c.c. Id. at 118. The counterclaims remain pending. The Court will decide defendant Linda

MacDonald's motion for summary judgment on her cross-claims against Timothy

MacDonald after it receives proof that she has provided Mr. MacDonald a proper notice

pursuant to M.R.Civ.P. (b) (l)(A). The parties shall submit brief written argument on the

attorney fees issue within 14 days.

The clerk is directed to- incorporate this Order into the docket by reference.

Dated: July 19, 2010 BREAKAWAY INC - PLAINTIFF SUPERIOR COURT 632 MAIN ROAD PENOBSCOT, ss. HOLDEN ME 04429 Docket No BANSC-RE-2008-00058 Attorney for: BREAKAWAY INC CURTIS KIMBALL - RETAINED 04/16/2008 RUDMAN & WINCHELL DOCKET RECORD 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401

vs TIMOTHY M MACDONALD - DEFENDANT 30 LANE STREET BANGOR ME 04401 Attorney for: TIMOTHY M MACDONALD JAMES C MUNCH III - WITHDRAWN 01/26/2010 VAFIADES BROUNTAS & KOMINSKY 23 WATER STREET PO BOX 919 BANGOR ME 04402-0919

Attorney for: TIMOTHY M MACDONALD EDWARD C SPAIGHT - WITHDRAWN 03/02/2010 VAFIADES BROUNTAS & KOMINSKY 23 WATER STREET PO BOX 919 BANGOR ME 04402-0919

LINDA A MACDONALD - DEFENDANT 30 LANE STREET BANGOR ME 04401 Attorney for: LINDA A MACDONALD N LAURENCE WILLEY JR - RETAINED WILLEY LAW OFFICES 15 COLUMBIA STREET, SUITE 501 PO BOX 924 BANGOR ME 04402-0924

Attorney for: LINDA A MACDONALD THOMAS M MATZILEVICH - RETAINED WILLEY LAW OFFICES 15 COLUMBIA STREET, SUITE 501 PO BOX 924 BANGOR ME 04402-9924

Filing Document: COMPLAINT Minor Case Type: FORECLOSURE Filing Date: 04/16/2008

Docket Events: 06/09/2008 TRANSFER - REMOVAL TO SUPERIOR COURT EDI ON 06/09/2008 @ 18:00 TRANSFERRED CASE: SENDING COURT CASEID BANDCRE200800094

FILING DOCUMENT - COMPLAINT FILED ON 04/16/2008

Page 1 of 13 Printed on: 07/29/2010