MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 42 Docket: Ken

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- 233 Submitted

On	Briefs: February	10 ,	201 7 Decided: March	9,	2017
Panel: ALEXANDER , MEAD, GORMAN , HJELM, and HUMPHREY, JJ.

DAVID	BORDETSKY

v. JAK	REALTY	TRUST

GORMAN ,	J. [¶1] David	Bordetsky	appeals	 from	a	judgment	in	 favor	 of	 JAK	Realty
Trust	 entered in the	 Superior	 Court	 (Kennebec	 County, Mullen,	 J. ) after	 a

non jury	trial on	Bordetsky’s	foreclosure	complaint.		Bordetsky	argues	that	the court	erred	by	applying	 the requirements	 for	a notice	of	default	and	right	 to

cure contained	 in 14 M.R.S.	 §	 6111	 (2012) 1 to	 his	 attempt	 to	 foreclose. We agree	and	vacate	the	judgment.
I. BACKGROUND [¶2 ] On	 October	 3,	 2013,	 Bordetsky	 filed	 a	 complaint	 for	 foreclosure against	 the	 Trust,	 alleging	 that	 on	 April	 13,	 2009, Gregory O’Halloran

— as

1 Title	 14	M.R.S.	 §	 6111	 has	 since	 been	 amended,	 but	 not	in	 any	way	 that	 affects	 this	 appeal. See P.L. 2015,	ch.	36,	§§	1

- 2	(effective	Oct.	15,	2015)	(codified	at 14	M.R.S.	§	6111	(2016) ).2 trustee	of	the	Trust

— executed	a	promissory	note	in	the	amount	of	$140,000, secured	 by	 a	 mortgage	 on	 p roperty	 located	 in	 Benton;	 that	 the	 Trust	 had defaulted	on	the	note	as	of	August	13,	2011;	and	that	the	total	amount	due	on the	note,	including	principal,	interest,	and	late	charges,	was	$193,625.42. 2 [¶3 ]		After	a	non jury	 trial ,	 the	court issued	a	judgme nt	dated	April	15, 2016,	 containing	 the following	 findings	 of	 fact,	 which	 are	 supported	 by competent	record	evidence. O’Halloran	is	trustee	of	the	JAK	Realty	Trust;	the Trust’s	beneficiaries	are	O’Halloran’s	 four	daughters.		On	April	13,	2009,	 the
Trust

— t hrough	 O’Halloran,	 as	 trustee

— executed	 a	 document	 entitled “COMMERCIAL	NOTE”	in	the	amount	of	$140,000	in	 favor	of	Bordetsky. The note	 states	 that	 it	 is	 secured	 by	 a	 mortgag e	 on	 real	 estate	 located	 at
157 Wyman	 Road	 in	 Benton,	 and	 lists the	 same	 address	 a s	 the “Borrower’s
Address

. ” 157 Wyman	Road , Benton , is O’Halloran’s	address

. The	 note	also states,	“This	note	evidences	a	loan	for	business	and	commercial	purposes	and not	for	personal,	household,	or	family	purposes.”

2 The	complaint	named	“Gregory	O’Halloran,	Trustee	of	JAK	Realty	Trust”	as	the	defendant	and O’Halloran	 individually	 as	 a	 party

- in

- interest. By	 amended	 complaint, Bordetsky	 also	 named,	 as parties

- in

- interest,	the	United	States , based	on	a	federal	tax	lien	on	the	property ; the	State , based	on a	state	tax	lien ; and	NETCO	 Inc. , based	on	a	writ	of	execution	on	 the	property. The	United	States, the	State,	and	NETCO	all	a nswered	the	complaint,	each	acknowledging	its	interest	in	the	property. Additional	parties	were	later	joined

— the	Jerome	Lipman	Revocab le	Trust	and	Robert	Lar ochelle as plaintiffs,	and	Jessica	O’Halloran	Smart	as a party
- in

- interest. None	of	these	persons or	entities	is	a party	to	the	appeal.3 [¶4 ] On	 the	 same	 day,	 the	 Trust	 executed	 a	 mortgage	 in	 favor	 of Bordetsky on real	 property	 at	 157	 Wyman	 Road	 in	 Benton. The	 mortgage mentions	 no	 commercial	 purposes,	 and	 states	 only	 that	 the	 mortgage	 is	 to secure	payment	“in	accordance	with	the	terms	of	a	cert ain	promissory	note	of
even	date.” [¶5 ] The	 court	 determined	 that	 “the	 language	 of	 the	 agreement between	 the	 parties	 was	 ambiguous”	 as	 to	 whether	 it	 was	 residential	 or commercial	 in	 nature,	 and	 therefore	 considered	 extrinsic	 evidence

— O’Halloran’s testimo ny	 in	 particular

— regarding	 the	 parties’	 intent	 in executing	the	note	and	mortgage. Based	on	O’Halloran’s	testimony,	the	court further	 found	 that,	 at	 the	 time	 the	 note	 and	 mortgage	 were	 executed, Bordetsky	knew	that	O’Halloran	and	his	children	were	residin g	at	the	Wyman Road	 property. O’Halloran	 has	 continued	 to	 reside	 there. Of	 the	 $140,000 loaned	to	the	Trust,	$67,421.68 was used	to	purchase	the	“Beckris,	LLC	loan,” a	“business	involvement”	in	which	 the	Trust	was	purchasing	a	different	note and	 mortgage from	 Bordetsky. Most	 of	 the	 remaining	 loan	 proceeds

— $61,491 .89

— were	 used	 to	 pay	 O’Halloran	 as	 trustee;	 of	 that	 amount, O’Halloran	 used	 roughly	 $30,000	 to	 $40,000	 to	 fix	 up	 the	 Wyman	 Road property,	 and	 the	 remainder	 was	 used	 for	 O’Halloran’s	 living	 expens es,4 including	 food,	 utilities,	 and	 clothing. Bordetsky	 was	 aware	 when	 the	 note and	 mortgage	 were	 executed	 that O’Halloran	 int ended	 to	 use the	 loan proceeds for	 both	 commercial	 and	 household	 purposes. O n	 these	 facts,	 the court	concluded	that	Bordetsky	was required to

— but did	not

— comply	with
the requirements	 for	 a notice	 of	 default and	 right	 to	 cure contained	 in
14 M.R.S. § 6111,	 and	 issued	 a	 judgment	 in	 favor	 of	 the	 Trust. Bordetsky timely	appeals.
II. DISCUSSION [¶6 ] A party	seeking	to	foreclose a	mortgage	on	a	residential property pursuant	 to	 14	 M.R.S.	 §	 6111 must	 first	 comply	 with	 certain	 notice requirements. 3 More	particularly, “ [a] mortgagee	may	not	accelerate	maturity

3 Title	14	M.R.S.	§	6111	(2012)	provides	as	follows: §	6111.	Notice	of	mortgagor’s	right	to	cure
1. Notice;	 payment. With	 respect	 to	mortgages	 upon	 residential	 property located	 in	 this	 State	 when	 the	 mortgagor	 is	 occupying	 all	 or	 a	 portion	 of	 the property	as	the	mortgagor’s	primary	residence	and	the	mortgage	secures	a	loan	for personal,	family	or	household	use,	the	mort gagee	may	not	accelerate	maturity	of	the unpaid	 balance	 of	 the	 obligation	 or	 otherwise	 enforce	 the	 mortgage	 because	 of	 a default	 consisting	 of	 the	 mortgagor’s	 failure	 to	 make	 any	 required	 payment,	 tax payment	or	insurance	premium	payment,	by	any	method	aut horized	by	this	chapter until	at	least	35	days	after	the	date	that	written	notice	pursuant	to	subsection	1

- A	is given	 by	 the	 mortgagee	 to	 the	 mortgagor	 and	 any	 cosigner	 against	 whom	 the mortgagee	 is	 enforcing	 the	 obligation	 secured	 by	 the	 mortgage	 at	 the	 l ast	 known addresses	 of	 the	 mortgagor	 and	 any	 cosigner	 that	 the	 mortgagor	 has	 the	 right	 to cure	 the	 default	 by	 full	 payment	 of	 all	 amounts	 that	 are	 due	without	 acceleration, including	reasonable	interest	and	late	charges	specified	in	the	mortgage	or	note	as well	 as	 reasonable	 attorney’s	 fees.	 	 If	 the	 mortgagor	 tenders	 payment	 of	 the amounts	 before	 the	 date	 specified	 in	 the	 notice,	 the	 mortgagor	 is	 restored	 to	 all rights	under	the	mortgage	deed	as	though	the	default	had	not	occurred.5

1
- A. Contents	 of	 notice
. A	 mortgagee	 shall	 include	 in	 the	 written	 notice under	subsection	1	the	following:
A. The	mortgagor’s	right	to	cure	the	default	as	provided	in	subsection	1;
B. An	itemization	of	all	past	due	amounts	causing	the	loan	to	be	in	default;
C. An	itemizat ion	of	any	other	charges	that	must	be	paid	in	order	to	cure	the default;
D. A	 statement	 that	 the	 mortgagor	 may	 have	 options	 available	 other	 than foreclosure,	 that	 the	 mortgagor	 may	 discuss	 available	 options	 with	 the mortgagee,	 the	 mortgage	 servicer	 or	 a	 counselor	 approved	 by	 the	 United States	 Department	 of	 Housing	 and	 Urban	 Devel opment	 and	 that	 the mortgagor	is	encouraged	to	explore	available	options	prior	to	the	end	of	the right

- to
- cure	period;
E. The	address,	telephone	number	and	other	contact	information	for	persons having	 authority	 to	 modify	 a	 mortgage	 loan	 with	 the	 mortgagor to	 avoid foreclosure,	 including,	 but	 not	 limited	 to,	 the	 mortgagee,	 the	 mortgage servicer	and	an	agent	of	the	mortgagee;
F. The	name,	address,	 telephone	number	and	other	contact	information	 for all	 counseling	 agencies	 approved	 by	 the	 United	 States	 Depart ment	 of Housing	and	Urban	Development	operating	to	assist	mortgagors	in	the	State to	avoid	foreclosure; and
G. Where	mediation	is	available	as	set	 forth	in	section	6321

- A,	a	statement that	 a	 mortgagor	 may	 request	 mediation	 to	 explore	 options	 for	 avoiding foreclosure	judgment. 2.	Repealed.
3. Notice	procedure. A	mortgagee	shall	provide	notice	to	a	mortgagor	and any	cosigner	under	 this	section	 to	 the	last	 known	addresses	 of	 the	mortgagor	and cosigner	by:
A. Certified	 mail,	 return	 receipt	 requested.	 For	 the	 purposes	 of	 this paragraph,	the	time	when	the	notice	is	given	to	the	mortgagor	or	cosigner	is the	 date	 the	 mortgagor	 or	 cosigner	 signs	 the	 receipt	 or,	 if	 the	 notice	 is undeliverable,	the	date	the	post	offi ce	last	attempts	to	deliver	it;	or
B. Ordinary	 first	 class	 mail,	 postage	 prepaid.	 For	 the	 purposes	 of	 this paragraph,	the	time	when	the	notice	is	given	to	the	mortgagor	or	cosigner	is the	date	when	 the	mortgagor	or	cosigner	receives	 that	notice.	A	post	of fice6 of	 the	 unpaid	 balance	 of	 [an]	 obligation	 or	 otherwise	 enforce [a] mortgage because	of	a	default” unless	and	until	a	notice	of	default	and	right	to	cure	has been	provided	to	the	mortgag or . 14	M.R.S.	§	6111(1); s ee Bank	of	Am.,	N.A.	v.

department	certificate	of	mailing	to	the	mortgagor	or	cosigner	is	conclusive proof	of	receipt	on	the	3rd	calendar	day	after	mailing.
3
- A. Information;	Bureau	of	Consumer	Credit	Protection. Within	3	days of	providing	written	notice	to	the	mortgagor as	required	by	subsections	1	and	1

- A, the	 mortgagee	 shall	 file	 with	 the	 Department	 of	 Professional	 and	 Financial Regulation,	 Bureau	 of	 Consumer	 Credit	 Protection,	 in	 electronic	 format	 as designated	by	the	Bureau	of	Consumer	Credit	Protection,	information	i ncluding:
A. The	name	and	address	of	 the	mortgagor	and	 the	date	 the	written	notice required	 by	 subsections	 1	 and	 1

- A	 was	 mailed	 to	 the	 mortgagor	 and	 the address	to	which	the	notice	was	sent;
B. The	 address,	 telephone	 number	 and	 other	 contact	 informatio n	 for persons	having	authority	 to	modify	a	mortgage	loan	with	 the	mortgagor	 to avoid	foreclosure,	including,	but	not	limited	to,	the	mortgagee,	the	mortgage servicer	and	an	agent	of	the	mortgagee;	and
C. Other	information,	as	permitted	by	state	and	federal	law,	requested	of	the mortgagor	by	the	Bureau	of	Consumer	Credit	Protection.
3
- B. Report. On	 a	 quarterly	 basis,	 the	 Department	 of	 Professional	 and Financial	Regulation,	Bureau	of	Consumer	Credit	Prote ction	shall	report	to	the	joint standing	 committee	 of	 the	 Legislature	 having	 jurisdiction	 over	 insurance	 and financial	services	matters	on	the	number	of	notices	received	pursuant	to	subsection 3

- A. To	the	extent	information	is	available,	the	report	must	a lso	include	information on	the	number	of	foreclosure	filings	based	on	data	collected	from	the	court	and	the Department	 of	 Professional	 and	 Financial	 Regulation,	 Bureau	 of	 Financial Institutions	and	on	the	types	of	lenders	that	are	filing	foreclosures.
4. Repealed.
4
- A. Letter	to	mortgagor. Within	3	days	of	receiving	electronic	information from	 the	mortgagee	as	set	 forth	in	subsection	3

- A,	 the	Department	of	Professional and	Financial	Regulation,	Bureau	of	Consumer	Credit	Protection	shall	send	a	written notice	 to	 the	 mortgagor	 that	 includes	 a	 summary	 of	 the	 mortgagor’s	 rights	 and available	 resources,	 including	 information	 concerning	 the	 foreclosure	 mediation program	as	established	in	section	6321

- A. 5.		Repealed.7 Greenleaf ,	2014	ME	89,	¶ ¶ 18, 29, 96	A.3d	700 (requiring,	as	an	element	of	a foreclosure,	“evid ence	of	[a]	properly	served	notice	of	default	and	mortgagor’s right	 to	 cure”	 in	 compliance	 with	 14 M.R.S.	 §	 6111 (quotation	 marks omitted) ); Chase	Home	Fin.	LLC	v.	Higgins ,	2009	ME	136,	¶	11,	985	A.2d	508 (same). [¶7 ] Not	all	attempts	to	foreclose	are	subject	to	section	6111,	however; pursuant	 to	 14	 M.R.S.	 §	 6111(1),	 only	 “[w]ith	 respect	 to	 mortgages	 upon residential	property	located	in	this	State	when	the	mortgagor	is	occupying	all or	 a	 portion	 of	 the	 property	 as	 the	 m ortgagor’s	 primary	 residence	 and	 the mortgage	 secures	 a	 loan	 for	 personal,	 family	 or	 household	 use”	 must	 a mortgagee	 satisfy	 the requirements	 for a notice	 of	 default	 and	 right	 to	 cure
contained	in 14 M.R.S.	 § 6111.	 	 In	 short ,	 section	 6111(1)	applies	when	 t hree discrete	 facts	are	 true:	 (1) the	mortgage	is	 on	 residential	 property	in	Maine; (2)	the	mortgagor	occupies	the	property	as	his	primary	residence;	and	(3)	the mortgage	secures	a	loan	for	personal,	family,	or	household	use. Thus,	t he	first two	 facts	reg ard	 the	nature	and	use	of	 the	property	 that	is	 the	subject	of	 the mortgage,	and	the	third	fact	regards	the	nature	of	the	loan that	the	mortgage

secures .8 [¶8 ] The	court’s	decision	here	rests	entirely	on	its	determination	 that the	 notice	 requirements	 of	 section	 6111	 applied	 to	 Bordetsky’s	 foreclosure action	and	that	Bordetsky	failed	to	meet	his	burden	of	establishing	that	those requirements	 were	 satisfied. There is	 no	 dispute

— and	 Bordetsky stipulated

— that	 he,	 as	 mortgagee,	 did	 not	 comply	 with	 section	 6111. Bordetsky	 challenges	 the	 court’s	 determination	 that	 section	 6111	 applies	 to
this	foreclosure. [¶9 ] As	to	the	first	two requirements ,	the	court	found	that	t he	mortgage is	on	real	property	located	at	157 Wyman	Road	in	Benton,	Maine;	O’Halloran “has	 been	 residing	 at	 the	 subject	 property”	 at	 least	 since	 2009;	 and O’Halloran’s	 four	 daughters	 also	 resided	 there	 as	 well. These	 findings	 are supported	 by	 O’Halloran’ s	 testimony	 and	 indeed,	 Bordetsky	 has	 never challenged	 that	a	residential	home	is	situated	on	 the	Wyman	Road	property. The	 crux	 of	 the	 appeal	 is	 the	 trial	 court’s	 determination	 as	 to	 the	 third requirement

— that the	 mortgage	 “secures	 a	 loan	 for	 personal,	 fa mily	 or household	use.”		14	M.R.S.	§	6111(1). [¶1 0 ] Because	 the	 note	 is	 the	 document	 that memorializes the	 loan,

see Harbor	Funding	Corp.	v.	Kavanagh ,	666	A.2d	498,	499	(Me.	1995) ,	the	court must	interpret	the	note	to	determine whether	a	loan	is	for	“personal,	family	or9 household	 use , ” 14 M.R.S.	 §	 6111(1). If	 the note is	 unambiguous,	 the	 court interprets	 it	 according	 to	 the	 language	 within	 “the	 four	 corners	 of	 the
instrument	without	 resort	 to	extrinsic	evidence.” Am.	Prot.	 Ins. Co.	v.	Acadia
Ins.	Co. ,	2003	ME	6,	¶	11,	814	A.2d	989 (quotation	marks	omitted); see Coastal Ventures	v.	Alsham	Plaza,	LLC ,	2010	ME	63,	¶	26,	1	A.3d	416 (stating	 that	 “a contract	 is	 to	 be	 interpreted	 to	 give	 effect	 to	 the	 intention	 of	 the	 parties	 as
refle cted	in	 the	written	instrument” (quotation	marks	 omitted) ).	 	 If	 the	 trial court	determines	 that	 the note is	ambiguous,	 that	is,	“reasonably	susceptible
to	 more	 than	 one interpretation”	 it	 may	 consider	 extrinsic	 evidence	 of	 the parties’	intent	in	executing it

. Coastal	Ventures ,	2010	ME	63,	¶ 27,	1 A.3d	416 (quotation	marks	omitted)

. [¶1 1 ] We	 review	 de	 novo	 both	 the	 trial	 court’s	 determination	 of whether	 a note is	 ambiguous	 or	 unambiguous,	 and	 its	 interpretation	 of	 an unambiguous note

. Thurston v.	Galvin ,	2014	ME	76,	¶ 11,	94	A.3d	16; Coastal
Ventures ,	 2010	 ME	 63,	 ¶	 30,	 1	 A.3d	 416.	 	 The	 trial	 court’s	 factual	 findings regarding	 the	 intent	 of	 the	 parties	 in	 executing	 an	 ambiguous note are reviewed	for	clear	error. Coastal	Ventures ,	2010	ME	63,	¶¶ 28,	3 1 ,	1 A.3d	416. [¶1 2 ] Here,	 the	 court	 found	 that	 the	 note	 is	 entitled	 “ COMMERCIAL
NOTE ”	and	that	it	states	that	it	“evidences	a	loan	for	business	and	commercial10 purposes	 and	 not	 for	 personal,	 household,	 or	 family	 purposes.” The	 court
determined ,	 however, that “the	 language	 of	 the	 agreement	 between	 the parties	was	ambiguous	with	respect	to	the	existence	and	scope	of	integration” as	between	the	note	and	the	mortgage	because	although	the	note	purported	to be	 commercial	 in	 nature,	 the	 mortgage	 was	 silent	 as	 to	 any commercial
purpose. On	this	basis,	the	court	considered	extrinsic	evidence	of	O’Halloran’s intended	 use	 of	 the	 loan	 proceeds	 and	 Bordetsky’s	 knowledge	 of	 those intended	uses. [¶1 3 ] Pursuant	 to the	 third	 requirement	 set	 forth	in section	 6111 (1) , the	cou rt ’s	task	was to	consider	the	nature	of	the loan .		The	nature	of	the	loan
is explained	 by	 the note alone , and the	 note	 unambiguously	 states	 that	 the loan	was	“not	for	personal,	household,	or	family	purposes.” Given	the	lack	of any	 ambiguity	 in	 the	 note,	 we	 conclude	 that the	 court	 erred	 when it consider ed extrinsic	 evidence	 of	 the	 parties’	 intent	 in	 executing	 the	 note or any	other	instrument

. T he	loan	was unambiguous ly not	“for	personal, family

or household	 use ”	within	 the	meaning	 of	 section	 6111(1),	and therefore	 the requirements for	 a notice	 of	 default	 and	 right	 to	 cure contained	 in section 6111	 did	 not	 apply	 to	 Bordetsky’s	 foreclosure	 action	 against	 the	 Trust. We vacate	 the	 court’s	entry	 of	a judgment	in	 fav or	 of	 the	 Trust	and	 remand	 the11 matter	 for the	 court	 to consider the evidence	 already	 presented	 at the	 first trial	in	determining	whether	Bordetsky	is	entitled	to	judgment

. The	entry	is: Judgment vacated

. Remanded	 for	 further proceedings	consistent	with	this	opinion.

Adam	 J.	 Shub,	 Esq.,	 Pr eti	 Flaherty	 Beliveau	 &	 Pachios,	 LLP ,	 Portland,	 for appellant	David	Bordetsky Mark A.	 Kearns,	 Esq.,	 and	 Mark	 L.	 Randall,	 Esq.,	 Portland,	 for appellee JAK Realty	Trust

Kennebec	County	Superior	Court	docket	number	RE

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