FOR PLAINTIFF: DAVID M HIRSHON, HIRSHON LAW GROUP PC, PORTLAND ME; JEFFREY P WHITE, LAW OFFICE OF JEFFREY P WHITE, AUBURN ME.
FOR JUDITH KEHL & PORT OF CALL LLC, DEFENDANTS: MARK A KEARNS, LAW OFFICE OF MARK KEARNS, MARK RANDALL, RANDALL LAW OFFICE PA, PORTLAND ME.
FOR PLAINTIFF: DAVID M HIRSHON, MARSHALL J TINKLE, HIRSHON LAW GROUP PC, PORTLAND ME.
FOR STEPHEN KEHL, DEFENDANT: JAMES B BARTLETT, JAMES B BARTLETT PA, YORK ME.
FOR JUDITH KEHL, 37 THAXTER LANE LLC & 35 THAXTER LANE LLC, DEFENDANTS: MARK A KEARNS, LAW OFFICE OF MARK KEARNS, MARK RANDALL, RANDALL LAW OFFICE PA, PORTLAND ME.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON COUNT IV OF THE AMENDED COMPLAINT
John O'Neil, Jr.,
On January 4, 2008, Defendants Judith and Stephen Kehl transferred the property located at 35 Thaxter Lane, Kittery Point, Maine, to Defendant 35 Thaxter Lane, LLC and the property situated at 37 Thaxter Lane Kittery Point, Maine to 37 Thaxter Lane, LLC by Quitclaim Deed recorded in the York County Registry of Deeds. That same day, a " Non-Encumbrance Covenant" between Defendants Judith and Stephen Kehl, dated December 18, 2007, was recorded in the York County Registry of Deeds for each of the 35 and 37 Thaxter Lane properties. The Non-Encumbrance Covenant for 35 Thaxter Lane (which is exactly mirrored in the language of the Non-Encumbrance Covenant for 37 Thaxter Lane) states:
I, Judith Kehl, individually and as a member of 35 Thaxter Lane, LLC hereby grants a Non-Encumbrance Covenant on property located at 35 Thaxter Lane, Kittery Point, Kittery, Maine to:
Stephen Kehl of 28 Thaxter Lane, Kittery Point, Maine, as collateral security for the payment of the sum of $250, 000.00 owed to Stephen L. Kehl under the terms of a certain Agreement between Stephen L. Kehl and Judith R. Kehl, on land located at 35 Thaxter Road, Kittery, Maine
The Non-Encumrance Covenants further state that the purpose of the Covenants is to ensure that no encumbrance is placed on the properties without prior approval by Defendant Stephen Kehl.
Plaintiff brought this action in December 2009 seeking pre-judgment attachment of the amount due subsequent to the default on three promissory notes executed by Defendant Judith Kehl in its favor. The court issued an Order Approving Plaintiff's Motion for Ex Parte Approval of Attachment and Attachment on Trustee Process on February 5, 2010 granting an attachment to Plaintiff on the real and personal property of Defendants Judith Kehl, 35 Thaxter Lane, LLC and 37 Thaxter Lane, LLC in the amount of $1, 595, 292.65. Plaintiff recorded the Order in the York County Registry of Deeds. In March 2011, Plaintiffs filed a second action, which has been consolidated with the first, asking the court to grant foreclosure on the 2007 Mortgage, and to find fraud and fraudulent transfer on behalf of Defendants. Plaintiffs have amended the complaint to add a count of declaratory judgment.
The parties have filed cross motions for summary judgment on Plaintiff's Count IV of the amended complaint seeking declaratory judgment. Parties dispute whether Plaintiff may attach a lien against the Thaxter Lane ...