MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 2 ME 4 Docket: Yor

- 21

- 144 Argued : December	9,	2021 Decided: January	13,	2022 Panel: STANFILL ,	C.J.,	and MEAD, GORMAN,	JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.
JACKSON	LUMBER	&	MILLWORK	CO.,	INC.

v. ROCKWELL	HOMES,	LLC,	et	al.

HUMPHREY ,	J. [¶1] In	ruling	on	a	motion	for approval	of attachment	and	trustee	process filed	by	Jackson	Lumber	&	Millwork	Co.,	Inc.,	t he	Superior	Court	(York	County, Douglas,	J. ) concluded that	because Jackson	Lumber was both	 the	mortgagee and the “ purchaser	at	the	public	sale ”	of	foreclosed	property	in	Lebanon, Maine, the	 fair	 market	 value	 of	 that	 property as	 established	 by	 an	 independe nt appraisal

— not	the	value established by	the	highest	bid at	the	public	sale

— was used	in	determining the	amount	of	any	deficiency.		14 M.R.S.	§ 6203

- E	(2021). Jackson	Lumber appeals	 from the	court’s	denial	of	its	motion	 for approval	of attachment	and	trustee	process in	the	amount	of	$620,942.63	against	the	real and	 personal	 property	 of	 mortgagor	 Rockwell	 Homes,	 LLC,	 and	 individual guarantors	Rock	Bisson,	Rock	Bisson	 II,	and	Aaron	Wiswell ,	arguing	 that	 the2 court	erred	in	treating Jackson Lumber as	the	“purchaser	at	the	public	sale”	of the	 property	 when	 it	 had	 assigned	 its rights	 under	 the purchase	 and	 sale agreement to	another	entity	and	was	not	the	party	that	received	the	deed

. 1 W e affirm	the	court’s	order	denying	Jackson	Lumber’s	moti on. I.		BACKGROUND [¶ 2 ]		T he	facts	found	by	the	court	in	reaching	its	decision	are ,	except	as noted, supported	 by	 the	 affidavits	 and	 attached	 exhibits	 submitted	 in conjunction	with	 the	motion	 for approval	of attachment	and	 trustee	process. See	 Libby	O’Brien	 Kingsley	&	 Champion,	 LLC	 v.	 Blanchard ,	 2015	ME	 101,	 ¶ 5,
121 A.3d	109. In	September	2017,	Rockwe ll	Homes borrowed	$1,300,000 from Jackson	Lumber to	acquire real	property	in	Lebanon.		The	loan	was	secured	by a	mortgage on	the	property ,	and	Wiswell	executed	a	promissory	note	on	behalf of	Rockwell	Homes .		The	note	also included	personal	guaranties	execu ted	by the Bisson s and	Wiswell.		Rockwell	Homes	defaulted	on	the	note	in	September
2018.

1 Separately,	t he	court	approved	attachment	and	trustee	process	against	the	real	and	personal property	of	Rock	Bisson	in	 the	amount of $300,000	based	on	a separate line	of	credit	 that	Bisson opened	with	Jackson	Lumber	on	behalf	of	“Bisson	Const”	and	personal ly	guaranteed. That	ruling	is not	challenged	on	appeal	and	will	not	be	discussed	further.		The	court	also	reached	findings	about	a November	2018	promissory	note	and	mortgage	on	property	in	Sanford,	but	the	complaint	did	not allege	 a	 deficiency	 on	 that	 not e	 or	 seek	 any	 recovery	 on	it,	 and	 that	 note	is	 not pertinent	 to	 our discussion here.3 [¶ 3 ]	 	 In	 January	 2019 , the	 CEO	 and	 treasurer	 of	 Jackson	 Lumber	 sent emails	 to	 Wiswell	 informing	 him	 that	 the	 balance	 due	 on	 the	 loan	 was $1,041,026.95	 and	 that	 an appraisal	 showed	 the	 Lebanon	 property	 against which	that	debt	was	secured	had	an	“as	is”	value	of	$1,100,000.		In	March	2019, Jackson	Lumber	provided	notice	of	default	and	demanded	payment	in	full	of	all amounts	 due	 on	 the	 note	 secured	 by	 the	 Lebanon	 prope rty

— the	 sum	 of $1,070,918.37. 2 [¶ 4 ]		On	April	22,	2019 ,	acting	pursuant	 to	14	M.R.S.	§	6203

- A	(2021), Jackson	Lumber	provided	notice	to	Rockwell	Homes, the Bisson s , and	Wiswell of	 its	 intention	 to	 foreclose	 on	 the	 mortgage	 by	 public	 sale	 of	 the	 Lebanon property on	May	23,	2019

. The public	sale	was	conducted as	scheduled ,	and Jackson	Lumber	was	the	highest	bidder	at	$550,000. Jackson	Lumber	executed a	purchase	and	s ale	agreement	naming	itself	as	both	the	seller	and	“Purchaser” of	the	Lebanon	property. [¶ 5 ]	 	 On	 July	 15,	 2019,	 Jackson	 Lumber	 assigned	 its	 rights	 under	 the purchase	 and	 sale	 agreement	 to	 Robert	 DiBerto in	 exchange for	 $600,000.

2 Although	the	court	characterized	the	March	2019	communication	as	providing	to	the	relevant mortgagors	and	guarantors	a	“Notice[]	of	Intention	to	Foreclose	and	Liability	for	Deficiency”	as	to	the secured	debt,	that	finding	is	erroneous .		T he	March	2019	co mmunication	was	a	notice	of	default	and demand	 for	payment	of	 the	note	secured	by	 the	mortgage	on	 the	Lebanon	property;	 the	notice	of intention	to	foreclose	and	liability	for	deficiency	as	to	the	property	followed	in	April. This	erroneous but	unchallenged factual	finding	does	not	affect	the	issue	of	statutory	construction	raised	on	appeal.4 DiBerto	 then	 assigned	 his rights	 to	 Agamenticus	 Holdings,	 LLC,	 and	 on August 15,	2019,	Jackson	Lumber	conveyed	the	property	to	Agamenticus. [¶ 6 ]	 	 Jackson	 Lumber	 filed	 a	 complaint	 in	 the	 Superior	 Court	 on November	25,	2019,	seeking	monetary	damages,	attorney	fees,	and	costs	based

o n	 claims	 for	 a	 deficiency	 judgment	 against	 Rockwell	 Homes	 and	 for enforcement	of	the	individual	guaranties	of the Bisson s and	Wiswell.		Jackson Lumber	simultaneously	moved	for approval	of attachment	and	trustee	process against	 all	 defendants. It filed a	 draft	 order	 and	 the	 affidavit	 of	 its	 chief executive	officer	and	treasurer,	who	authenticated	and	attached	documentary exhibits.		All	defendants	opposed	 the	motion	 for approval	of attachment	and trustee	process. Rock Bisson	and	Wiswell	attached th eir	own affidavits	with exhibits.	 	 Jackson	 Lumber	 filed	 a	 reply	 memorandum	 and	 a	 supplemental affidavit	from	its	CEO	and	treasurer. [¶ 7 ]		The	court	held	a nontestimonial hearing	in	April	2021	and	entered an	order	denying	the	motion	for approval	of attachm ent	and	trustee	process	as to	the	claims	for	deficiency	against	Rockwell	Homes	and for	enforcement	of the guaranties	of the Bisson s and	Wiswell	on	the	mortgage	note	 for	the	Lebanon property.	 	 The	 court	 reasoned	 that	 Jackson	 Lumber	 had	 not	 established	 a
lik elihood	 of	 success	 on	 the	 merits	 because	 when	 the	 mortgagee	 is	 the5 “purchaser	at	 the	public	 sale”	 of	 the	mortgaged	premises,	 the	amount	 of	 the deficiency	must	be	determined	by	comparing	 the	amount	owed	with	 the	 fair market	 value	 of	 the	 property at	 the	 time of	 the	 sale ,	 as	 established	 by	 an independent	 appraisal .	 	 14 M.R.S.	 §	 6203

- E

. The	 court	 regarded	 mortgagee Jackson	Lumber	as	the	“purchaser	at	the	public	sale”	and	concluded	that	there

was no recoverable deficiency	given that the appraised value	of	 the	Lebanon property	($1,100,000)	exceeded	the	amount	owed	by	Rockwell	Homes	at	the time	of	the	foreclosure	($1,070,918.37). Id. [¶ 8 ]		Jackson	Lumber	timely	appealed	from	the	denial	of	its	motion for approval	 of attachment	and	 trustee	 process	a s	 to	 the	 claims	 for	a	 deficiency owed	 on	 the	 Lebanon	 property	 and for the	 enforcement	 of	 the	 individual guaranties	 of the Bisson s and	 Wiswell. See 14	 M.R.S.	 §	 1851	 (2021);	 M.R. App. P. 2B(c)(1); Sweeney	v.	Hope	House,	Inc. ,	656	A.2d	1215,	1216	(Me.	1995) (“An	order	denying	a	motion	for	approval	of	attachment	and	trustee	process	is immediately	appealable	as	an	exception	to	the	final	judgment	rule.”)

. II.		DISCUSSION [¶ 9 ] We review	a	decision	to	deny	approval	of	attachment	and	trustee process	for	an abuse	of	discretion	or	clear	error. See	Sweeney ,	656	A.2d	at	1216.
We will	 disturb the	 trial	 court’s	 findings	 based	 on	 the	 affidavits only	if “ the6 affidavits	 contain	 no	 competent	 evidence	 to	 support	 the	 finding	 as	 to	 the plaintiffs’	likelihood	of	success .” Blanchard ,	2015	ME	101,	¶	5,	121	A.3d	109 (quotation	marks	omitted). [¶1 0 ]		Issues	of	statutory	interpretation	are,	however,	reviewed	de	novo, and	 the fundamental issue	 on	 appeal	 here	 is	 the	 interpretation	 of	 the	 term “purchaser	 at	 the	 public	 sale”	in 14	M.R.S.	 §	 6203

- E. See	 Fleet	Nat’l	 Bank	 v. Liberty ,	2004	ME	36,	¶	5,	845	A. 2 d	1183.		In	interpreting	a	statute, we “look	to the	 plain	 meaning	 of	 the	 statute,	 interpreting	 its	 language	 to	 avoid	 absurd, illogical	or	inconsistent	results	and	attempting	to	g ive	all	of	its	words	meaning.” Thurston	v.	Galvin ,	2014	ME	76,	¶	13,	94	A.3d	16	(quotation	marks	omitted).		In doing	so, we view	“the	relevant	provisions	in	the	context	of	the	entire	statutory scheme	to	generate	a	harmonious	result.” Corinth	Pellets,	LLC v.	Arch	Specialty
Ins.	Co. ,	2021	ME	10,	¶	19,	246	A.3d	586	(quotation	marks	omitted).		If	a	statute is	unambiguous, we interpret	the	statute	directly	without	examining	legislative history; we “look	 to	 legislative	 history	 and	 other	 extraneous	 aids	 in
inter pretation	of	a	statute	only	when we	have determined	 that	 the	statute	is ambiguous,”	 meaning	 that	 it	 “is	 reasonably	 susceptible	 to	 different interpretations.” Thurston ,	 2014	ME	 76,	 ¶	 13,	 94	 A

. 3d	 16	 (quotation	marks omitted).7 [¶1 1 ]		The	relevant	paragraph	o f	section	6203

- E	provides,	“In	the	event that	the	mortgagee	is	the purchaser	at	the	public	sale ,	any	deficiency	is	limited to	the	difference	between	the	fair	market	value	of	the	premises	at	the	time	of the	 sale,	 as	 established	 by	 an	 independent	 appraisal, and	 the	 sum	 due	 the mortgagee	 with	 interest	 plus	 the	 expenses	 incurred	 in	 making	 the	 sale.” (Emphasis	added.) This	stands	in	contrast	to	the	ordinary	determination	of	a deficiency	by	comparing	the sale	price with	the	sum	owed	to	the	mortgagee and adding interest	 and	 expenses. See 14	 M.R.S.	 §	 6203

- E ; cf. 14	 M.R.S.	 §	 6323 (2021)	(providing,	in	the	statute	governing	public	sales	in	foreclosures	by	civil action, 3 that	 “[a]ny	 rights	 of	 the	mortgagee	 to	 a	 deficiency	 claim	 against	 the mortgagors	are	limited	to	the	amount	established	as	of	the	date	of	the	public sale.	 	 The	 date	 of	 the	 public	 sale	 is	 the	 date	 on	 which	 bids	 are	 received	 to establish	the	sales	price,	no matter	when	the	sale	is	completed	by	the	delivery of	the	deed	to	the	highest	bidder.”).

3 Although	 we	 do	 not	 consider	 the	 pertinent	 language	 of 14	 M.R.S.	 § 6203

- E (2021) to	 be ambiguous,	we	reference	its	legislative	history in	this	footnote for	the	limited purpose	of supporting our	comparison	of	that	provision	with	the	law	governing	public	sales	in	foreclosures	by	civil	action. The	language	in	 6203

- E was	 proposed	 to	 establish	 a	method	 for	 determining	 the	 deficiency that parallels the	 method employed	 for	 sa les	 in	 foreclosures	 by	 civil	 action , 14 M.R.S.	 § § 632 3

- 632 4 (2021). See	An	Act	Regarding	Maine’s	Power	of	Sale	Foreclosure	Law:	Hearing	on	L.D.	276	Before	the J.	Standing	Comm.	on	Judiciary ,	127th	Legis.	(2015)	(testimony	of	Ben	Marcus	on	behalf	of	the	Ma ine Credit	Union	League).		The	language	of	section	6203

- E,	which tracks the	language	of	section	6324, thus	s imilarly	s erves	as	“a	protection	against	a	self

- dealing	mortgagee.” Peoples	Sav.	Bank	v.	Spencer , 482	A.2d	832,	834	(Me.	1984).8 [¶1 2 ]		Thus,	when	“(1)	the	mortgagee	is	the	purchaser	at	the	public	sale and	 (2) the	 mortgagee	 seeks	 a	 deficiency	 judgment,”	 the	 deficiency	 is determined	based	on	a	com parison	of	the	fair	market	value	at	the	time	of	the public	sale ,	as	established	by	an	independent	appraisal, with	the	amount	owed to	 the	mortgagee. Key	Bank	of	Me.	v.	Holman ,	657 A.2d	775 ,	776 (Me.	1995) (construing	 the	 comparable	 provision in	 the statute governing	 a	 public	 sale ordered	 in	 a foreclosure	 by	 civil	 action). At	 issue	 here	 is	 whether	 Jackson Lumber	was	the	“purchaser	at	the	public	sale”	even	though	it	did	not	ultimately acquire	 the	 property	 because	 it later assigned	 away	 its	 rights	 under	 the
p urchase	and	sale	agreement	and	never	received	the	deed.		14 M.R.S.	§	6203

- E. [¶1 3 ]		The	term	“purchaser,”	viewed	in	isolation,	means “[s]omeone	who obtains	 property	 for	 money	 or	 other	 valuable	 consideration;	 a	 buyer.” Purchaser , Black’s	 Law Dictionary (11th	 ed.	 2019).	 	 The	 statutory	 term “purchaser	at	the	public	sale”	has	its	own	meaning,	however,	based	on	its	usage in	 the	statutory	scheme.		For	instance,	14	M.R.S.	§	6203

- A(5)	requires	 that	a purchase	and	sale	agreement	be	executed	“[a]t	the completion	of	a	public	sale,” after	 which	 the	 agreement	 “may	 be	 assigned by	 the	 purchaser .” 4 (Emphasis

4 Although	a	purchase	and	sale	agreement	need	not	be	executed	if	the	mortgagee	is	the	successful bidder,	Jackson	Lumber	did	execute a	purchase	and	sale agreement and	then	assigned	its right s as the	“Purchaser”	of the	property

. See 14	M.R.S.	§ 6203

- A(5)	(2 021).9 added.)		That	the	“purchaser”	is	authorized	to	assign	the	agreement	suggests that	the	successful	bidder 5 at	the	public	sale	is	the	“purchaser	at	the	p ublic	sale.” Id. §	6203

- E; see	also	id. § 6203

- A(5)	(“A	mortgagee	may	bid	and	may	purchase any	 real	 estate	 sold	 at	 such	 sale,	 as	 long	 as	 the	 mortgagee	 is	 the	 highest bidder.”); cf.	 id. §	 6323	 ( providing,	 in	 the	 statute	 governing	 public	 sales	 in foreclosur es	 by	 civil	 action,	 that	 “[t]he	 date	 of	 the	 public	 sale	is	 the	 date	 on which	bids	are	received	to	establish	the	sales	price,	no	matter	when	the	sale	is completed	 by	 the	 delivery	 of	 the	 deed	 to	 the	 highest	 bidder”) .	 	 Thus,	 the assignee	of	the	purchase	and	s ale	agreement	may receive	the	deed even	if	it	is not	“the	purchaser	at	the	public	sale”	and	might	not	have	even	participated	in the	public	sale. Id. §	6203

- E; see	also 14	M.R.S.	§ 6324	(2021)	(referring,	in	the statute	 governing	 sales	 in	 foreclosures	 by	 c ivil	 action,	 to	 the	 real	 estate “purchased	by	the	highest	bidder	at	the	public	sale”	and	a	mortgagee	that	is	“the purchaser	at	the	public	sale”). [¶1 4 ]		Interpreting	“purchaser	at	the	public	sale”	to	mean	the	successful bidder	at	the	public	sale	is	support ed	by	section	6203

- E	itself,	which	provides for	calculation	of	the	deficiency	based	on	the	fair	market	value “at	the	time	of

5 We	use the	 term	 “successful	bidder”	because	 “[i]f	 the	highest	bidder	 fails	 to	perform	 on	 the agreement,	 the	 foreclosing	mortgagee	may	 execute	 a	 purchase	 and	 sale	 agreement	with	 the	 next highest	bidder.”		14	M.R.S.	§	6203

- A(5).10 the	sale,”	not	the	fair	market	value	at	the	time	that	money	or	the	deed	changes hands. T his	provision	connects	a	mortgagee	that	is a	“purchaser	at	the	public sale”	with	the	value	of	the	property	at	the	time	of	that	sale. See	id. §	6203

- E. [¶1 5 ]		Other	statutes	use	the	term	“purchaser”	rather	than	“purchaser	at the public	sale”	 to	describe	 the	entity	 that	ultimately	 receives	 the	deed .		For instance,	 14 M.R.S.	 §	 6203

- B	 (2021)	 requires the recording	 of	 an	 affidavit memorializing	the	sale	“within	30	days	after	the	date	of	delivery	of	the	deed	to the	purchaser	or	the	purchaser’s	agent.”		This	statute	notably	does	not	describe the	purchaser	as	 the “ purchaser at	 the	 public	 sale .” 6 Id. §	6203

- E (emphasis added)

. Similarly,	33 M.R.S.	 §	501

- A	 (2021),	which	establishes	 the	statutory power	of	sale,	uses	the	term	“purchaser	or	purchasers”	to	describe	the	entity	or entities	that	receive	the	deed;	again,	the	reference	is	not	to	a	“purchaser	at	the pub lic	sale , ” 14	M.R.S.	§	6203

- E. [¶1 6 ]		The	statutory	scheme	at	issue	therefore	supports	the trial	court’s determination:	Jackson	Lumber,	which	was	the	successful	bidder	at	the	public sale	and	the	buyer	listed	on	the	purchase	and	sale	agreement	of	the	Lebano n

6 See	also J.	E.	Keefe,	Jr.,	Annotation, What c onstitutes	a “ p ublic s ale , ” 4	A.L.R.2d	575,	575	(1949) (“Generally	speaking,	the	term	‘public	sale,’	as	used	in	statutes	.	.	.	means	a	sale	in	which	the	public, upon	proper	notice,	is	invited	to	participate	and	give	ful l	opportunity	to	bid	upon	a	competitive	basis for	the	property	placed	on	sale,	which	is	sold	to	the	highest	bidder.”); Offredi	v.	Huhla ,	60	A.2d	779, 781	 (Conn.	 1948)	 (“A	 ‘public	 sale’	is	 one	made	 at	 auction	 to	 the	 highest	 bidder	 and	 at	 which	 all persons	h ave	a	right	to	come	in	and	bid.”).11 property,	was	 the “ purchaser	 at	 the	 public	 sale”	 of	 that	 property.	 	 14 M.R.S. § 6203

- E. T he	 Superior	 Court	 did	 not misinterpret	 the	 law	 and	 did	 not otherwise err	 or	 abuse	 its	 discretion	 in	 denying	 the	 motion	 for approval	 of attachment	and	trustee	proces s as	to	the	Lebanon	property

. The	entry	is: Order	 denying	 the	 motion	 for approval	 of attachment	 and	 trustee	 process related	 to	 the $1,300,000	promissory	note affirmed.

Anthony	J.	Manhart,	Esq. (orally) ,	and	Bodie	B.	Colwell,	Esq.,	Preti	Flaherty	LLP, Portland,	for	appellant	Jackson	Lumber	&	Millwork,	Co.,	Inc. James	 F.	 Molleur,	 Esq.,	 and	 Christopher	 J.	 Keach,	 Esq. (orally) ,	 Molleur	 Law Office,	Saco,	for	appellees	Rockwell	Homes,	LLC ,	Rock	Bisson,	and	Rock	Bisson II Shea	H.	Watson,	 Esq. (orally) ,	 and	 Timothy	H.	Norton,	 Esq.,	Kelly	Remmel	& Zimmerman,	Portland,	for	appellee	Aaron	Wiswell

York	County	Superior	Court	docket	number CV

- 2019

- 261 F OR C LERK R EFERENCE O NLY