N. E. Bank v. Dirigo Hous. Assocs., Inc.
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Opinion
STATE OF MAINE SUPERIOR COURT KENNEBEC ss. CIVIL ACTION DOCKET NO. RE-06-76
NORTHEAST BANK, I- Plaintiff :I: 0 UJ co v. JUDGMENT a=fi = = ~~ «ca C '..I
(!) co . ...J ,--. DIRIGO HOUSING -13: -l ASSOCIATES, INC., 9:5 « => --:' et aI, Z 0 0 Defendants
In its complaint, the plaintiff Northeast Bank (Bank) seeks to foreclose on
property on Leighton Road in Augusta, Maine. All parties consent to judgment except
the defendant The Leighton Road Revocable Trust of 2003 (Trust).
The Bank's exhibits 1 through 14 and the Trust's exhibit 1 were admitted without
objection. These exhibits provide the history of this controversy:
The Bank's exhibit
1: is a note dated 7/10/03 from Dirigo Housing Associates (Dirigo) to the Bank
in the amount of $87,000.00;
2: is a note dated 7/10/03 from the Trust to Dirigo in the amount of $87,000.00;
3: is a mortgage dated 7/10/03 from the Trust to Dirigo to secure the note from
the Trust to Dirigo;
4: is a collateral assignment of the mortgage from the Trust to Dirigo by Dirigo
to the Bank to secure the note from Dirigo to the Bank;
1 5: is a letter dated 3/17/03 from the office of James Mitchell, Trustee of the
Trust, to the Bank, which included a partial release of the assignment of the mortgage
from Dirigo;
6: is the Bank's internal memo dated 4/11 /05; the memo provides that the plan
is to sell twelve acres of the mortgaged premises;
7: is a letter dated 3/18/05 to the Mitchell office from the Bank, which included
a partial release to be held until closing;
8: is a letter dated 3/25/05 to the Bank from the Mitchell office, which included
a check payable to the Bank for $87,250.63;
9: is a copy of the $87,250.63 check from the Trust to the Bank;
10: is a copy of a check from the Bank to the Primes, the Trust beneficiaries, and
Dirigo in the amount of $87,250.63;
11: is the Bank's internal memo dated 8/9/05, which describes a conversation
between Gene McKenna of the Bank and the Trustee;
12: is an internal memo of the Bank dated 7/11/06, which provides that an
employee of the Bank is working with the trustee to rewrite to the Trust a loan to
Dirigo; ,
13: is a demand letter dated 3/3/06 from the Bank to Dirigo, which provides
that the loans are in default;
14: is a copy of checks dated 7/10/03, the date of the closing on the loan from
the Bank to Dirigo, from the Bank to various entities.
The Trust's exhibit 1 is an allonge dated 4/19/05 to the note between Dirigo and
the Bank, which extended the note's maturity date to 7/10/06.
2 The court has considered the exhibits and the testimony of Trustee Mitchell, the
sole testimony presented. The issue is what was intended when the Trust paid
$87,250.63 to the Bank. (PI.'s Exs. 8, 9.)
In 2003, the Trust borrowed $87,000.00 from Dirigo to avoid a foreclosure action
by Kennebec Savings Bank. At the time the twelve acres were sold, the Bank sent to the
Trust a partial release and a payoff figure as of 3/18/05 with per diem interest. Seven
days later, on 3/25/05, the Trust sent to the Bank a check for the amount of the payoff
figure plus seven days of the per diem interest. (PI.'s Exs. 5, 7-9.) The partial release
was recorded by the Trustee. No request for a full discharge was made to the Bank.
On 4/14/05, the Bank paid the beneficiaries of the Trust $87,250.63. (PI. 's Ex. 10.)
The Trust owned the real estate and the Trustee signed no documents to authorize
release of $87,250.63 to the Primes or Dirigo. The Trustee became aware of that
payment during the current litigation. The Trustee was the only person authorized to
handle real estate transactions for the Trust. Neither he nor the beneficiaries signed the
allonge to the Bank-Dirigo note. (Def.'s Ex. 1.) The Trustee became aware of the allonge
during the current litigation. The Trustee intended the $87,250.63 as payoff for its
mortgage.
Based on the record at trial, the court concludes that the Trust intended to pay
the amount due on the note, as provided by the Bank, when the Trust's check was
tendered. (PI.'s Exs. 1, 2, 7, 8, 9.) That payment discharged the mortgage. See St.
Agatha Federal Credit Union v. Ouellette, 1998 ME 279, The entry is Judgment is entered in favor of The Leighton Road Revocable Trust of 2003 and against the Plaintiff on Counts I and II of the Plaintiff's Complaint. 3 Judgment is entered in favor of Dirigo Housing Associates and against The Leighton Revocable Trust of 2003 on its Cross-Claim. Counsel for the Plaintiff will prepare a Consent Judgment with regard to the Plaintiff's Claims against the remaining parties. Date: June 18, 2008 ancy Mills Justice, Superior Court 4 NORTHEAST BANK - PLAINTIFF SUPERIOR COURT KENNEBEC, ss. Attorney for: NORTHEAST BANK Docket No AUGSC-RE-2006-00076 BRUCE HOCHMAN - RETAINED 10/18/2006 LAMBERT COFFIN RUDMAN HOCHMAN 477 CONGRESS STREET 14TH FLOOR DOCKET RECORD PO BOX 15215 PORTLAND ME 04112-5215 vs DIRIGO HOUSING ASSOCIATES INC. - DEFENDANT Attorney for: DIRIGO HOUSING ASSOCIATES INC. DONALD J GAS INK - RETAINED LAW OFFICES OF DONALD ,J GAS INK 82 WINTHROP STREET AUGUSTA ME 04330 THE LEIGHTON ROAD REVOCABLE TRUST OF 2003 - DEFENDANT 86 WINTHROP ST AUGUSTA ME 04330 Attorney for: THE LEIGHTON ROAD REVOCABLE TRUST OF 2003 MATTHEW E CLARK - RETAINED WEEKS & HUTCHINS TWO PARK PLACE PO BOX 417 WATERVILLE ME 04903-0417 THE ESTATE OF ROBERT TISDALE - DEFENDANT PO BOX 756 GARDINER ME 04345 Attorney for: THE ESTATE OF ROBERT TISDALE MATTHEW E CLARK - RETAINED WEEKS & HUTCHINS TWO PARK PLACE PO BOX 417 WATERVILLE ME 04903-0417 [VIiWOUREEN M TORNESELLO - PARTIES IN INTEREST Attorney for: MAVOUREEN M TORNESELLO DANIEL STEVENS - RETAINED PIERCE ATWOOD 77 WINTHROP STREET AUGUSTA ME 04330-5552 [VIICHAEL P TORNESELLO - PARTIES IN INTEREST Attorney for: MICHAEL P TORNESELLO Dfu~IEL STEVENS - RETAINED PIERCE ATWOOD 77 WINTHROP STREET AUGUSTA [VIE 04330-5552 Page 1 of 7 Printed on: 06/30/2008 AUGSC-RE-2006-00076 DOCKET RECORD DEBRA A TISDALE - PERSONAL REPRESENTATIVE PO BOX 756 GARDINER ME 04345 Actorney for: DEBRA A TISDALE JAMES E MITCHELL - RETAINED 12/05/2006 MITCHELL & DAVIS 86 WINTHROP STREET AUGUSTA ME 04330 Attorney for: DEBRA A TISDALE MATTHEW E CLARK - RETAINED ','lEEKS & HUTCHINS T\VO PARK PLACE PO BOX 417 WATERVILLE ME 04903-0417 Filing Document: COMPLAINT Minor Case Type: FORECLOSURE Filing Date: 10/18/2006 Docket Events: 10/18/2006 FILING DOCUMENT - COMPLAINT FILED ON 10/18/2006 10/18/2006 Party(s): NORTHEAST BANK ATTORNEY - RETAINED ENTERED ON 10/18/2006 Plaintiff's Attorney: BRUCE HOCHMAN 10/18/2006 Party(s): MAVOUREEN M TORNESELLO ATTORNEY - RETAINED ENTERED ON 10/18/2006 10/18/2006 Party(s): MICHAEL P TORNESELLO ATTORNEY - RETAINED ENTERED ON 10/18/2006 10/18/2006 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 10/18/2006 10/19/2006 CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 10/19/2006 12/06/2006 Party (s): DEBRA A TISDALE SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 11/28/2006 JAMES E. MITCHELL, ESQ. FOR DEBRA A. TISDALE ! 2/06/2006 Party (s): DEBRA A TISDALE ATTORNEY - RETAINED ENTERED ON 12/05/2006 12/06/2006 Party(s): THE LEIGHTON ROAD REVOCABLE TRUST OF 2003 SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 11/28/2006 SERVED ON Jk~ES MITCHELL, ESQ. FOR LEIGHTON ROAD REVOCABLE TRUST OF 2003
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