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WBL SPE II, LLC v. Black Bear Industrial Inc.

Superior Court of Maine, Oxford

December 11, 2017

WBL SPE II, LLC, Plaintiff
v.
BLACK BEAR INDUSTRIAL INC., JEFFREY P. RICHARD, and NORTHERN MOUNTAIN CONSTRUCTION, LLC, Defendants

          ORDER ON MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT

          Robert W. Clifford Active Retired Justice.

         Before the Court is plaintiff WBL SPEII, LLC's motion for summary judgment in a commercial foreclosure action brought pursuant to 14 M.R.S. §§ 6321-6325. Defendants Black Bear Industrial Inc., Jeffrey P. Richard, and Northern Mountain Construction, LLC have filed an opposition to plaintiffs motion.

         I. BACKGROUND

         On June 21, 2016, defendant, Black Bear Industrial Inc., executed a commercial promissory note in the amount of $150, 000 to World Business Lenders, LLC . On the same date defendants Jeffrey P. Richard and Northern Mountain Construction, LLC executed a continuing guaranty. The promissory note was secured by a mortgage on real estate located at 16 Andover Road, in Rumford. The mortgage issued by Northern Mountain Construction was in favor of World Business Lenders. The promissory note has been specially endorsed to plaintiff WBL SPE II, LLC and plaintiff is in possession of the original note. The mortgage has been assigned to plaintiff by written assignment recorded in the Oxford County Registry of Deeds.

         The promissory note provides that defendant Black Bear "shall repay the principal and interest commencing on 6/23/16 and on each Business Day thereafter until 12/22/2017 with each daily payment equaling $714.31, followed by a final payment of $707.97 on 12/26/2017" The interest rate in the note is .239068493151% per day until paid in full. Defendant Black Bear has a right to prepay the principal in full, but such prepayment would result in a prepayment charge. Such a charge would be

equal to the greater of (a) fifteen percent (15%) of the amount of the unpaid Principal or (b) the aggregate amount required to be repaid by Borrower to Lender during the repayment period reduced by (i) the aggregate amount of any payments made by Borrower to Lender . . . prior to the date of such prepayment and (ii) the amount of the unpaid principal.[1]

         The note also provided that any payment of principal and interest due to acceleration of the note upon default would be deemed a prepayment.

         Plaintiff alleges that defendants have defaulted on their obligations by failing to make payment as called for under the note, guaranty, and mortgage. According to plaintiff, the total amount due under the note-including attorney fees and costs as well as the prepayment penalty-is $350, 539.08. Plaintiff mailed defendant Black Bear a notice of right to cure on January 26, 2017. Plaintiff filed a complaint for foreclosure on March 16, 2017. Plaintiff amended its complaint in April of 2017, and moved for summary judgment on July 5, 2017. Defendants filed an opposition to plaintiffs motion on July 26, 2017. Plaintiff filed a reply on August, 2, 2017. A hearing was held on September 27, 2017. Plaintiff was represented by John A. Turcotte, Esq.; Dawn Harmon, Esq., represented the defendants.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute of material fact and that any party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c). A genuine dispute exists "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, ¶ 8, 828 A.2d 778. "To avoid a summary judgment, the nonmoving party must respond by filing (1) a memorandum of law in opposition to the motion for summary judgment; (2) a statement of material facts in opposition, with appropriate record references; and (3) copies of the corresponding record references." Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 6, 770 A.2d 653.

         Plaintiffs motion for summary judgment is subject to Rule 56(j), which imposes detailed requirements for granting summary judgment in foreclosure actions. M.R. Civ. P. 56(j). Pursuant to Rule 56(j), the court must independently assess whether the mortgage holder has properly set forth in its statement of material facts all of the elements necessary for a foreclosure judgment. Id.; Chase Home Fin. LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508. The court must apply the rules of summary judgment strictly when determining whether the plaintiff has properly supported the necessary statements of material fact for a judgment of foreclosure. HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, ¶ 9, 28 A.3d 1158. Each statement of material fact must be "supported by evidence of a quality that could be admissible at trial." Id. ¶ 10; M.R. Civ. P. 56(h)(4). The court must not consider a statement of material fact unsupported by citation to record evidence, nor is the court allowed to search the record to find evidence in support of such unsupported statements. M.R. Civ. P. 56(h)(4); Gabay, 2011 ME 101, ¶ 17, 28 A.3d 1158.

         In order to obtain summary judgment in a commercial foreclosure action, the plaintiff seeking foreclosure must provide proof of the following essential elements:

1. the existence of the mortgage, including the book and page number of the mortgage, and an adequate description of the mortgaged premises, including the street address, if any;
2. properly presented proof of ownership of the mortgage note and the mortgage, including all assignments and endorsements ...

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