Breakaway Inc. v. MacDonald

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TIMOTHY M MACDONALD - DEFENDANT 30 LANE STREET BANGOR ME 04401 Attorney for: TIMOTHY M MACDONALD JAMES C MUNCH III - WITHDRAWN 01/26/2010 VAFIADES BROUNTAS & KOMINSKY 23 WATER STREET PO BOX 919 BANGOR ME 04402-0919 Attorney for: TIMOTHY M MACDONALD EDWARD C SPAIGHT - WITHDRAWN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