TD Bank, N. A. V. Tucson Inc., More Properties, Inc., and Morency
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STATE OF MAINE BUSINESS AND CONSUMER COL'RT Cumberland, ss, TD BANii, N.A. Plaintiff Docket No, JJCD-CV-H-3.'l v' TUCSON, INC., MORE PROPERTIES, INC,, CRAIG D. MOUENCY and SCOTT P. MOnENCY Defendants ORDER ON PLAINTIFF'S MOTION FOR SUMMAR.Y JUDGMENT PlaintiiTTD Rani<, N.A.'s Motion for Summm·y Judgment crune before the comt for· om! argLtment January 7, 20!5. The col'j>Oration ,Jefendants have not defended in this case, and the Motion JS directed to the llldividual d~fcmdants, O·aig Morency and Scott Morency, gnanmtors of the obligations of the COI')JOmte defendants The Morencys raise several defenses and objections to the Bank's Motion_ l"n·st, they assert that theit· guarallters were not -'llpported by consideration beeausr, although they were nominal pr·indpals in the coq>or·"tious, the corporatiom were functionally controlled by their father, Paul Morency, and the sons derived loan~ that they guaranteed llo financial benefit from tlte The 1·ecord does indicate that the sons signed the guanmties mainly o1· entnely because the Bank did not consider the li1lher r.rcd•t-worthy and required gLtarantle.< fronl Fir~(, th~re oth~,·~. For two reasons, the COLirt docs not accept the Mo1·cn~ys' ;u-g,.ncnt. is no requirement that a lnan gum·antm· benefit personally m· directly fi·om a loan, ,,ludcnt loans g·uarantecd by paren1s 01· grandparents or non-relatives being a common example of wch a srtuation. The SOlW p•·csumably wollld not have signed the guaranties 1111less they wished to Jaditate the loan to the r"athet' -aJtd the gra1:t of that wi,,h is Collsidcratlon ~nough. F'"rthcr, ao the Bank points out, the gum·antees unambtgumrsly recite that they are s.lpported by ,-al'd and suffictent constde•·R'ion, oo the son,· co11temion is inadmissible u11der the parol rvidence n~c- See Clarke J}. Dr..P1elm, 525 A.2d li2.~. 625 (Me 1.987). The sons' scw•1d a1·gmnem is that they IClt rushed and pressured mto .1igning the guarantees and dill not uutlerHand what rhey were signing t~nns of the ?;H~ran tees prevail Here ngain, the nnambigumrs See Pelermml 11. Clegg, 6·J. 1 A. 2d 867, Rf!8 (Me_ 19M) ("sig!led contract is sufficient eviJence to overcome the defendants' testimony to the cont,·ary.") Third, the Morencys daim to have brrn ]lromised by their father that they wot1ld never be bable on the gum·1mt~cs. They do not claim the Bank itself made ouch an exphcit promise, but rl1ey do assert that !he Bank had a liducim·y dt•ty to cmwct the misilllp•essio!l, t~nambiguous Again, the language of the guarantees negates any such argnment Mureove1·, the Morencys have not demonstmted that the Hank was unt!er any fiduciary duty to them. In Stewart v. 1Wuduas SaviNgs Ba11k, the Law Court said. Standing alone, a crcditm·-<:lebtm· •·e]ationship does not establish the existence of a confidential ,·elationship. To demonstrate the necessary disparity of position and infiuencP in such a bank-borrower relationship, a party must demo11strate diminished emotional 01 physical capn6ty or the letting clown of all guards and bars. 2000 ME 207, ~I I, 762 A 2d +'1•, ·1·6, grmlmg a!l(i citillg Reid 11. Key Bmlk ofSouthem .iWmm, !11c., 821 F'.2cl9, 18 ( 1.<! Cir. J.g87), See Fmt ?VI-I Ba11ks Gramte Stale v. Scarborough, 6 !5 A2d 2+8, 250 .;Me !992): Dwnsified Foods, f11c .,_First Natioual Bauk ofBostou, 605 A 2d 609, 6!5 (Me.l9!J2) Lastly, the MMencys ns,e,-t tlmt the I3anl< ;, not emitlcd to >Hmmar-y judgmeut becnlls~ it !Riled to noltlj tlw•n oftlw sale& on fOreclosure of the Hanl<'s secllt'ity for the loans_ For two •·en,ons, that argulllent filil.1 as well Fits!, tile rcconl mdicatcs that the Hank did send twttce to (he address that they hat! provided. t'CQlltremen• that a foreclosi~g Second, the npplicnhle foredosw-e statme contains no lender send notice oi' foreclosure to secondary obligors, sllch as gllarantor,, in addition to the reull·Hcd notice to the mnJ·tgHgm· Sec H M.RS. § 620.~-E (")io action ioJ a ddiciency sha.il Le bt'OHgh: by the secwwl by nwl'tg:age of real est~te ~fte,- holci~•· of the mo•·tgage note or other ohligatwn foreclosure by exe:-cisc oi' tile powet' of sal~. uole"' a notice in ,,·[tin g of the 1'101 tgagee's intention to JOrec'o.'e the mortgag., ;/.all have been serve<i "). gL~at'mttor; ~-~we! I would To impose the requirement of notice to be to add a provision to tlw >tatute. i'or all of the foregoirlg reason.<, it'" ORDERED: P1aintJJ]'T.D. Bank, }),A's J\.lotion for l! Summ~ry Judgment Js granted. The Plainti!l's dainlS against the corporations rcm:un pending. If the l')aintill' intcncls to pHrsuc those claims, it shall clo so throug-h a filing within 20 days. If the Plaintiff docs not intend to pursue those claims, it shall so advise the CO\Il'l within 20 days. Pursnnnt toM R. Ctv P. ~9(a), the dcrlt is hcr~by directed to mcorpoi'<lte th.is order Oy re!Crence in the docl<et. Dated .January l.'l, 201.'5 Jl!stice, llusiness ancl ConstJme•· Cotu·t tnto"'~ on the Ood<et Cooio$ '""I'''" Moll .. TD Bank, N.A. v. Tuscon, Inc., More Properties, Inc., Craig D. Morency and Scott P. Morency BCD-CV-14-33 TD Bank, N.A. Plaintiff Counsel: liMon Uurns, Esq. Two Monument Square, 9th Floor PO JJox 108 Portl<lnd, ME 0~ 112 Tuscon, Inc., More Properties, Inc., Craig D. Morency and Scott P. Morency Defendants Counsel: llndre Duchctte, Esq. 30 Milk Street, 5th Floor Portland, ME 04101
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