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Citizens Sav. Bk. v. Howland Corp.
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Decision:	1998 ME 4
Docket: 	Cum-97-288
Argued: 	December 5, 1997 
Decided:	January 2, 1998




	[¶1]  Scott Howland and The Howland Corporation (collectively
"Howland") appeal from the deficiency judgment entered in the Superior
Court (Cumberland County, Brennan, J.).  On appeal, Howland contends that
the Superior Court's determination of the fair market value of the subject
property was not supported by any competent evidence and therefore Citizens
should be denied its deficiency judgment.  We disagree and affirm the
	[¶2]  On October 25, 1993, the Superior Court entered a Judgment of
Foreclosure and Sale granting Citizens a judgment against Howland in the
amount of $75,575.91 plus interest and costs, and ordered it to sell the
subject property if Howland was unable to satisfy the money judgment amount
within 90 days.  On May 27, 1994, a foreclosure sale took place at the site of
the subject property in Standish.  Citizens was the high bidder at $46,400. 
After the auction, Citizens filed the First Affidavit and Report of Sale seeking a
deficiency judgment of $46,761.68 which reflected the principal and interest
owed the bank less the net sale proceeds.  
	[¶3]  Howland then filed a motion opposing the First Affidavit and
Report of Sale on the grounds that Citizens had failed to submit an appraisal of
the premises and that Citizens' attorney fees were excessive.  While the
motion was pending, Citizens filed a Revised Affidavit and Report of Sale
which included a copy of an appraisal of the property determining its fair
market value to be $58,000.  Howland filed an objection to the Revised
Affidavit and Report of Sale and included in its objection the affidavit of Susan
Duchaine, president of a development company, Sold, Inc., which had
purchased the subject parcel from Citizens for $46,900 shortly after the
auction.  Duchaine stated in her affidavit that Sold, Inc. would have paid up to
$94,000 for the subject property.   	
	[¶4]  On April 22, 1997, the Superior Court entered an order finding
the value of the premises to be $58,000 and granted Citizens a deficiency
judgment in the amount of $35,161.68.  This appeal followed.
	[¶5]  At issue in this case is the finding by the Superior Court of the fair
market value of the subject premises for the purposes of calculating the
deficiency judgment.  The determination of fair market value is a factual
finding by the court and as such can only be set aside if clearly erroneous. 
Hamm v. Hamm, 584 A.2d 59, 62 (Me. 1990).  A factual determination is
clearly erroneous only if there is no competent evidence in the record to
support it.  Id. (quoting Solmitz v. Maine Sch. Admin. Dist. No. 59, 495 A.2d
812, 817 (Me. 1985)).
	[¶6]  Pursuant to 14 M.R.S.A. § 6324 (Supp. 1997), if the mortgagee is
the buyer at a public foreclosure sale, the deficiency is limited to
. . . the difference between the fair market value of the premises at
the time of the public sale, as established by an independent
appraisal, and the sum due the mortgagee as established by the
court with interest plus the expenses incurred in making the sale.

Pursuant to 14 M.R.S.A. § 6324 (Supp. 1997), the fair market value of property
sold at a foreclosure sale is to be determined "by an independent appraisal." 
The appraisal "ensure[s] that the court's determination of fair market value is
based upon objective, and, arguably, more accurate data."  Kennebec Sav. Bank
v. Chandler, 447 A.2d 824, 826 (Me. 1982).
	[¶7]  Citizens provided the Superior Court with an independent
appraisal of the fair market value of the subject property.  The court afforded
the mortgagor an opportunity at the hearing to challenge the data supporting
the appraisal's conclusions -- including whether market conditions might have
materially affected the subject property's fair market value in the three
months between the date of the appraisal and the date of the foreclosure sale. 
Section 6324 does not require the mortgagee-purchaser to submit additional
affidavits or testimony to counter the mortgagor's challenge to its
independent appraisal.  The court was free to accept in whole or in part the
independent appraisal submitted by Citizens.  See Kennebec Sav. Bank, 447
A.2d at 826 ("Where the court bases its determination of the deficiency
judgment upon objective data of the property's fair market value, the statutory
provision 'as established by an independent appraisal' is satisfied.").
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Jacob A. Manheimer, Esq. Pierce Atwood One Monument Square Portland, ME 04101-1110 Attorney for defendants: Daniel L. Cummings, Esq. Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600