PATRICIA L. PECK, TRUSTEE et. als. Plaintiff
RONALD HINKLEY, Defendant
DECISION AND ORDER
E. Mullen, Deputy Chief Justice.
matter was tried to the undersigned on July 27, 2016 with
respect to the Complaint for Foreclosure filed 9/29/15. Both
parties were represented by-counsel and testified in this
matter. After hearing, and after the Court has had an
opportunity to review the file, pertinent statutes and case
law, and the briefs filed by counsel on August 12 and 17,
2016, the Court makes the following Findings of Fact and
Conclusions of Law upon which the Decision and Order set
forth below is based:
Counsel for Plaintiff presented the testimony of Plaintiff
Patricia Peck, who testified that she first lent $60, 000.00
to Defendant Ronald Hinkley and his then-wife Rebecca Hinkley
or about October 2, 2006. The money was to be repaid one year
later, specifically on October 2, 2007. The proceeds of the
loan were to be used by the Defendant to purchase property in
parties subsequently agreed to extend the term of the
original note by Modification Agreement dated 8/26/08 to
April 12, 2009. See Plaintiff's exhibits A and
A-l for more details.
Plaintiff completely rewrote the note by reducing the
interest rate, reducing the monthly payment due on the note,
and extending the term of the note to April 12, 2014. Late
fees incurred to date were waived. See
Plaintiff's exhibit A-2 for more details.
Plaintiff loaned the Defendant and his then-wife an
additional $31, 000.00 on or about April 12, 2007 "for
them complete repairs on the place..." according to
Plaintiff. See Plaintiff's exhibit B for more
exhibit C was a copy of the mortgage associated with the loan
and associated note, Plaintiff's exhibit A. Exhibit D was
a copy of the mortgage associated with the later notes.
Defendant fell behind regarding the two notes and mortgages;
accordingly Plaintiff retained an attorney to send the
Hinkleys a letter in April of 2015 contending that they were
in breach of their obligation under the note and mortgage for
failure to make timely payments respecting same, see
Plaintiff's exhibit E for more details.
Defendants at the time of the loans were not living at the
premises the mortgages are related, at least according to the
dispute in this case centers around whether the loans in
question were commercial in nature or instead related to
property that the Defendants were residing at.
mortgage documents are labeled "MAINE-Single
Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT"
(emphasis in the original). Paragraph 6 of the mortgage reads
in part that the borrower "will occupy the property and
use the property as my principal residence within 60 days
after I sign this Security Instrument..." It seems
reasonable for the undersigned to assume this form was
created for a residential instead of commercial mortgage.
Court finds that the Hinkleys purchased the property with the
intention of residing in the property. The Court finds
further that the Hinkleys in fact moved into the property and
have since resided in the property since approximately
cannot be reasonably disputed that the Hinkleys have fallen
seriously behind on their loan obligations owed to Plaintiff;
however, that is not the critical issue here. The critical
issue is whether 14 M.R.S. § 6111 applies to the facts
of this case. The Court finds that it does, and that there is
insufficient evidence of a properly served notice of default
and right to cure, including a failure to prove the amount
due on the foreclosure notice.
Pursuant to Wells Fargo Bank, N.A. v. Girouard, 2015
ME 116 and U.S. Bank Trust, N.A. as Trustee for LSF8
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