ATLANTIC OCEANIC KAMPGROUNDS, INC. v. CAMDEN NATIONAL BANK
Supreme Judicial Court of Maine.
April 5, 1984
Argued Nov. 7, 1983.
473 A.2d 884
Secondly, the question is framed in the past tense. Although the jury need not be invited to reconsider, the individual juror “has a right to change his mind about a verdict to which he has agreed in the jury room.” United States v. Shepherd, 576 F.2d 719, 724 (7th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 155 (1978); 5 Wharton‘s Criminal Procedure § 2142 (10th Ed.1957). We again suggest that “in the interest of clarity, the question should be asked in such a manner as to elicit from each juror a ‘guilty’ or ‘not guilty’ response.” State v. Sargent, 435 A.2d 1094, 1095 n. 1 (Me.1981). For example, the clerk might inquire as follows: “John Jones, do you find the defendant guilty or not guilty?”
Having said what ought to have been done, however, we conclude that the record before us does not disclose obvious error affecting White‘s substantial rights. This case involved a short, uncomplicated trial although based upon circumstantial evidence. The presiding justice had made clear the necessity of unanimity in the jury verdict. The entire colloquy between the judge and the clerk was in the presence of the jurors. We have no doubt that under all the circumstances each individual juror understood the inquiry addressed to him.
The entry is:
Judgment affirmed.
All concurring.
WATHEN, Justice.
Plaintiff Atlantic Oceanic Kampgrounds, Inc., appeals from an order of the Superior Court (Knox County) dismissing its complaint for failure to state a claim. Plaintiff contends that the complaint stated a claim against defendant, as mortgagee, seeking an accounting for the proceeds from a sale of mortgaged real estate following strict mortgage foreclosure and the recovery of any surplus resulting from that sale. We conclude that the Superior Court did not err in holding that plaintiff did not state a cause of action and we deny the appeal.
The allegations in plaintiff‘s complaint may be summarized as follows: On October 18, 1972, plaintiff executed a promissory note in the amount of $60,000.00 in favor of the defendant bank, securing the note by a mortgage on property located in Camden. On December 27, 1979 defendant commenced a strict foreclosure by serving plaintiff with notice of foreclosure pursuant to
On September 16, 1982 plaintiff brought this action seeking an accounting of the proceeds of the sale and recovery of the surplus. Plaintiff relies on
Susan Thiem (orally), Lincolnville, James W. Strong, Rockland, for plaintiff.
Eaton, Peabody, Bradford & Veague, P.A., Thomas M. Brown (orally), Bangor, for defendant.
Our view is supported by our decision in Pierce v. Northeast Bank of Westbrook, 381 A.2d 667 (Me.1978). In Pierce this Court sustained an appeal from an order granting summary judgment in favor of the defendant bank. Plaintiff‘s complaint alleged that after the defendant strictly foreclosed on her property, the bank used a portion of the “surplus” to pay off the debt of a third party. Plaintiff sought an accounting, a recovery of the surplus and punitive damages. We found the complaint to be ambiguous, necessitating an evidentiary hearing and precluding the granting of summary judgment. The ambiguity resulted from plaintiff‘s allegation that a “surplus” could arise from the mortgagee‘s sale of property acquired by strict foreclosure. We held
Had the bank effectively completed its foreclosure by virtue of the expiration of one year without redemption of the mortgaged property, under the strict foreclosure law of Maine which was then in effect defendant bank would have acquired title to the real estate; any subsequent sale would be a sale of property which had become absolutely owned by the bank. Martel v. Bearce, Me., 311 A.2d 540 (1973); Smith v. Varney, Me., 309 A.2d 229 (1973). . . . Had defendant bank effected a strict foreclosure, there was no need of a sale to produce “proceeds” to be applied in payment of plaintiff‘s indebtedness; hence, there would be no “surplus” for which the bank would be obliged to account to plaintiff. See: City of Auburn v. Mandarelli, Me., 320 A.2d 22 (1974).
381 A.2d at 669. We concluded, however, that plaintiff‘s complaint could be construed to allege a “waiver” of strict foreclosure by the bank and the assumption of a duty to turn over a “surplus” to the plaintiff. We thus sustained the plaintiff‘s appeal in Pierce.
On this appeal we are compelled by the reasoning of Pierce and the authority cited therein to hold that this defendant acquired title to the property on December 27, 1980 when its foreclosure was completed by the expiration of the one year period of redemption. Defendant was under no duty to generate proceeds by offering the property for sale. The defendant‘s subsequent sale of the property to a third party on August 5, 1981 was not a sale pursuant to a foreclosure and did not give rise to any “surplus” contemplated by
The entry must be:
Judgment affirmed.
McKUSICK, C.J., SCOLNIK, J., and DUFRESNE, A.R.J., concurring.
GLASSMAN, Justice, with whom ROBERTS, J., joins, concurring.
I cannot join in the analysis the majority employs in holding
Repeatedly, this court has unequivocally declared that the plain meaning of a statute as manifested on its face will control its interpretation. See, e.g., Soucy v. Board of Trustees of the Maine State Retirement System, 456 A.2d 1279, 1281 (Me.1983); Opinion of the Justices, 460 A.2d 1341, 1345 (Me.1982); Coffin v. Rich, 45 Me. 507, 511 (1858). This fundamental tenet of statutory construction represents an important constraint on the power of the judiciary. If the courts were to construe statutes in a manner inconsistent with plain meaning, they would in effect act as a law making rather than interpretive body, and therefore, usurp the legislative function.
The holder of a mortgage of real estate, or his representative, out of the money arising from a completed sale after the period of redemption has expired pursuant to a foreclosure under this subchapter, shall be entitled to retain all sums which were secured by the mortgage, whether then or thereafter payable, including all costs, charges or expenses incurred or sustained by him or them by
(emphasis added). According the express terms of this statute their plain and common meaning, it is clear the statute is applicable to all methods of foreclosure under
When, however, a mortgagee in whom absolute title has vested under the provisions of
To the extent
Moreover, it is important to note that construing
Having determined that
Article I, section 11 of the Maine Declaration of Rights, and article I, section 10 of the United States Constitution are similar in structure and scope. These constitutional provisions, read literally, prohibit state legislatures from enacting any law that impairs the obligation of contract. Tradition-
Recently, however, the United States Supreme Court enunciated a standard which suggests the traditional rights/remedies distinction is no longer the critical inquiry when determining whether a statute enacted pursuant to the police power unconstitutionally impairs existing contractual obligations. In Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983), the Supreme Court declared, “Although the language of the Contract Clause is facially absolute, the prohibition must be accommodated to the inherent police power of the State ‘to safeguard the vital interests of its people.‘” Id. at 410, 103 S.Ct. at 704, 74 L.Ed.2d at 580 (quoting in part Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 434, 54 S.Ct. 231, 78 L.Ed. 413 (1934)). The Court then stated:
The threshold inquiry is “whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” (citations omitted). The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. (citations omitted). Total destruction of contractual expectations is not necessary for a finding of substantial impairment. United States Trust Co. [v. State of New Jersey], 431 US [1,] at 26-27, 52 L Ed 2d 92, 97 S Ct 1505 [1519-1520]. On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. Id., at 31, 52 L Ed 2d 92, 97 S Ct 1505 [at 1522] citing El Paso v. Simmons, 379 US 497, 515, 13 L Ed 2d 446, 85 S Ct 577 (1965). In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. (citations omitted).
Id. at 411, 103 S.Ct. at 704-05, 74 L.Ed.2d at 580-81. The Court declared that if the state regulation amounts to a substantial impairment, it must have a significant and legitimate public purpose. Id. at 411, 103 S.Ct. at 705, 74 L.Ed.2d at 581. The Court noted that the elimination of unforeseen windfall profits is one such legitimate state interest. Id. Finally, the Court stated that “[o]nce a legitimate public purpose has been identified, the next inquiry is whether the adjustment of ‘the rights and responsibilities of [the] contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation‘s] adoption.‘” Id. at 412, 103 S.Ct. at 705, 74 L.Ed.2d at 581 (quoting in part United States Trust Company of New York v. New Jersey, 431 U.S. 1, 22, 97 S.Ct. 1505, 1518, 52 L.Ed.2d 92 (1977)).
Applying this analysis to the instant case, I would hold
Having determined that the degree of contractual impairment is substantial, it is necessary under Energy Reserves to examine the countervailing interest of the public protected by the legislation, and weigh it against the degree of contractual impairment. The Legislature, in enacting
Additionally, I deem significant the Legislature‘s failure specifically to provide for retroactive application of
Notes
Disposition of proceeds of foreclosure sale
The holder of a mortgage of real estate, or his representative, out of the money arising from a completed sale after the period of redemption has expired pursuant to a foreclosure under this subchapter, shall be entitled to retain all sums which were secured by the mortgage, whether then or thereafter payable, including all costs, charges or expenses incurred or sustained by him or them by reason of any default in the performance or observance of the condition of the mortgage or of any prior or subsequent mortgage, rendering the surplus, if any, to the mortgagor or his heirs, successors or assignees. (sic) The mortgagee shall also be entitled to deduct from the proceeds of the sale all costs incurred and interest at the rate provided in the note which was secured by the mortgage from the expiration of the redemption period to the date of sale. No person other than the holder of the mortgage shall be bound to see to the application of the money arising from such sale nor submit an account relating to same and in the absence of fraud the consideration received by the mortgagee or his representative shall be deemed to be adequate consideration and the mortgagor shall have no claim that the sale price was inadequate.