OCEANIC INN, INC. and ARMAND VACHON, Plaintiffs,
SLOAN'S COVE, LLC, Defendant and PETER FESSENDEN, Chapter 13 Trustee, and JEFF CORBIN Parties-in-Interest
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF'S ACCOUNTING CLAIM
A. M. Morton, Justice
The Motion for Summary Judgment filed by Defendant Sloan's Cove, LLC ["Sloan's Cove"] regarding Count IX-Action for Accounting of the Plaintiffs' Complaint is before the court, together with the Plaintiffs' opposition and Sloan's Cove's reply memorandum. The court elects to decide the Motion without oral argument, see M.R. Civ. P. 7(b)(7).
The parties agree that, in context, the Plaintiffs' claim for an accounting is simply a claim for justification of any and all amounts claimed and/or received by Sloan's Cove in connection with the Note and Mortgage, as modified by the Allonge and Modification Agreement ["the Allonge"] between Sloan's Cove and Plaintiff Armand Vachon, now held by Sloan's Cove and the power of sale foreclosure conducted by Sloan's Cove of the Oceanic Inn property owned by Mr. Vachon.
The Note was originally given in January 2006 by Proulx Real Estate Investment Limited Liability Company ["Proulx Real Estate"], an entity controlled by Mr. Vachon's mother and stepfather, to TD BankNorth, N.A. ["TD"]. The Note was secured by mortgages given by Proulx Real Estate Investment Company and Plaintiff Oceanic, Inn, Inc. In November 2009, TD assigned its rights under the Note and mortgages to Sloan's Cove. Around the same time, Sloan's Cove as the lender's assignee and Mr. Vachon entered into the Allonge and Modification Agreement. By virtue of the Allonge, which is dated November 12, 2009, Mr. Vachon agreed to assume the borrower's obligations on the Note, as modified by the Allonge. The mortgages remained in place.
The underlying facts culminating in Sloan's Cove's sale of the Oceanic Inn property through a power of sale foreclosure are summarized in detail in the court's Order on Amended Motion for Summary Judgment of Defendant Sloan's Cove dated October 15, 2014. That summary is incorporated by reference here rather than being repeated.
Sloan's Cove claims that it is entitled to recover and retain the following amounts against Mr. Vachon:
• $284, 500 reflecting the principal balance due on the Note. Tins is the same amount that the Allonge between Sloan's Cove and Mr. Vachon identifies as the outstanding balance due as of the date of the Allonge, November 12, 2009.
• Accrued interest on the Note at both a regular interest rate and a default interest rate
• Attorneys fees and costs of collection
• $2, 990 for "insurance reimbursement" alleged to be due to Sloan's Cove under a settlement agreement between it and Mr. Vachon Mr. Vachon disputes all of these claims except that for the principal amount due.
The remaining three are addressed in the order just stated. Because Sloan's Cove's Motion seeks summary judgment, Sloan's Cove must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law, See M.R. Civ. P. 56.
1. Sloan's Cove's Interest Claim
The Note given by Proulx Real Estate to TD called for an "interest rate" of 7.47% annually and a "default interest rate" of 6% annually over and above "the rate of interest otherwise payable." The ...