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Keybank v. Sargent et al.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 153
Docket:	Han-99-381
Argued:	March 7, 2000
Decided:	August 8, 2000

Panel:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.




KEYBANK NATIONAL ASSOCIATION v. EDWARD S. SARGENT et al. ********** ORISSA SARGENT v. KEYBANK NATIONAL ASSOCIATION ********** ORISSA SARGENT v. WESTLY R. WILLIAMS et al.
CLIFFORD, J.
	[¶1]  Orissa Sargent appeals from adverse judgments entered against
her in the Superior Court (Hancock County) in three separate but
consolidated actions related to a business loan made by KeyBank to her son,
Edward Sargent, and guaranteed by Sargent.  Edward defaulted on the loan,
leading to KeyBank's foreclosure and eventual sale of Sargent's home to
Westly and Carney Williams.  Sargent contends that the court (Mead, J.)
erred (1) in the foreclosure action by denying her M.R. Civ. P. 60(b) motion
to set aside the judgment and her post-judgment M.R. Civ. P. 65(a) motion
for injunctive relief; (2) in her independent action brought against KeyBank,
Edward Sargent, and Donna Hart, a vice-president of KeyBank, by denying
her request for injunctive relief (Mead, J.), and in dismissing the remainder
of her claims (Marsano, J.) pursuant to M.R. Civ. P. 12(b)(6); and (3) in
entering a judgment against her (Marsano, J.) in her declaratory judgment
action against KeyBank and the Williamses.  Finding no error or abuse of
discretion, we affirm the judgments.
I. BACKGROUND
	[¶2]  Orissa Sargent's son, Edward, operated his own business as
Edward Sargent d/b/a Sargent Farms.  On January 19, 1995, Sargent, who
was 68 years old, guaranteed a "Commercial Term Note" of $47,500
running from Edward S. Sargent d/b/a Sargent Farms to KeyBank.  She also
executed a mortgage deed to her home, which was her primary asset, to
KeyBank to secure the guarantee.  Edward did not pay his mother for her
guarantee, and she was not represented by counsel when she signed the
guarantee and the mortgage deed.  Edward subsequently defaulted on his
obligations under the loan, and KeyBank, naming Orissa and Edward Sargent
as defendants, commenced a foreclosure action pursuant to the guarantee
and the mortgage, docketed as CV-96-82.  See 14 M.R.S.A. §§ 6321-6325
(Supp. 1999).  In November of 1996, a summary judgment was entered
against Sargent in favor of KeyBank.  Sargent did not appeal from that
judgment.

A.  The Rule 60(b) Motion

	[¶3]  On April 14, 1997, Sargent, having obtained new counsel, filed a
motion for relief from the foreclosure judgment pursuant to M.R. Civ. P.
60(b).  Sargent also filed a motion for a temporary restraining order,
preliminary injunction, and permanent injunction pursuant to M.R. Civ. P.
65(a) to prevent her from being evicted from her home and having her
property sold.  The Rule 60(b) motion seeks leave to amend her pleadings
and file affirmative defenses and counterclaims based on, among other
things, KeyBank's alleged violations of the Equal Credit Opportunity Act
(ECOA), see 15 U.S.C.A. §§ 1691-1691f (1997 & Supp. 2000), the
Improvident Transfers of Title Act (ITTA), see 33 M.R.S.A. §§ 1021-1022(1)
(1999), and the Maine Consumer Credit Code, Truth-in-Lending provisions,
see 9-A M.R.S.A. §§ 8-201 to 8-209 (1997 & Supp. 1999).  The motion for
injunctive relief was based on the same grounds.  The court (Mead, J.)
denied both motions in an order dated June 5, 1997.

B.  Sargent's First Complaint

	[¶4]  On April 14, 1997, Sargent also filed an independent complaint,
docketed as CV-97-21, in which she claims that KeyBank, Donna Hart, and
Edward Sargent (1) exerted undue influence on her in violation of the ITTA,
see 33 M.R.S.A. § 1022(1) (1999); (2) fraudulently induced Sargent to
guarantee Edward's loan; (3) failed to provide Sargent with rescission
documents, truth-in-lending documents, and other necessary documents;
and (4) were unjustly enriched by the transaction.{1}  Sargent seeks the
rescission of any promissory notes, guarantees, and real estate mortgages,
and she sought an order enjoining KeyBank from foreclosing on her
property or collecting any debt against her.  She also seeks compensatory
and punitive damages.
	[¶5]  The complaint alleges that Sargent had a confidential or fiduciary
relationship with all three defendants and that the defendants induced
Sargent to guarantee the loan because they knew that Edward was currently
involved in a property dispute that could impair the ability of his property to
serve as collateral and impair his ability to repay the loan.  She also claims
that the defendants had a duty to reveal that information to her prior to
obtaining her guarantee.
	[¶6]  The court denied Sargent's request for injunctive relief, noting
that it would be inappropriate to grant injunctive relief in the independent
action when the court had previously denied an identical request for relief
in CV-96-82, the foreclosure action.  The court then dismissed the claims
against KeyBank, concluding that they were waived because they were
compulsory counterclaims that should have been raised in the foreclosure
action.  The court also added that "any claim derived from truth-in-lending
laws fails to state a claim because the loan at issue was a commercial, not [a]
consumer, loan."  The court subsequently dismissed Sargent's claims against
Donna Hart, holding that her claims against Hart individually were barred
because Hart was an agent of KeyBank and was not subject to individual
liability.

C.  Sargent's Second Complaint

	[¶7]  On June 4, 1998, Sargent filed a second complaint in the
Superior Court, docketed as CV-98-33, an action for a declaratory judgment. 
In that complaint, Sargent claims that KeyBank did not comply with the
notice provisions of 14 M.R.S.A. § 6323 (Supp. 1999) because in its first
notice of public sale, it published a picture of a home other than Sargent's. 
Naming both KeyBank and the purchasers at the public sale, the Williamses,
as defendants, Sargent claims that the notice deficiencies rendered the sale
void or voidable.

D.  Consolidation of the Three Actions

	[¶8]  In August of 1998, the court (Kravchuk, C.J.) ordered that the
foreclosure action, CV-96-82, and Sargent's two independent complaints,
CV-97-21 and CV-98-33, be consolidated.  On May 6, 1999, a bench trial in
CV-98-33, Sargent's action for a declaratory judgment, was held on the
limited issue of whether the public sale was void or voidable.  The court
(Marsano, J.) concluded that KeyBank had adequately complied with the
notice requirements of 14 M.R.S.A. § 6323 and that printing the wrong
photo in the initial notice was harmless error.  The court also held that the
Williamses were bona fide purchasers for value and that they were protected
by the recording statute.  See 33 M.R.S.A. § 201 (1999).  The court entered
final judgment not only in CV-98-33, but also in CV-96-82 and CV-97-21 as
well.  Sargent appealed in all three cases.
II. DENIAL OF RULE 60(b) RELIEF
	[¶9]  Sargent contends that the trial court erred in denying her
motion for Rule 60(b) relief from judgment.  Before addressing whether the
trial court properly exercised its discretion in denying Sargent's motion,
however, we must first address KeyBank's argument that Rule 60(b) relief is
never available when the motion is filed after the 90-day statutory right of
redemption has expired.
	[¶10]  Title 14, section 6322 allows a mortgagor a 90-day period after
entry of the foreclosure judgment in which to pay the total amount due on
the mortgage and redeem the mortgage.  See 14 M.R.S.A. § 6322 (Supp.
1999).  Because the redemption period begins "to run upon the entry of the
judgment of foreclosure," see 14 M.R.S.A. § 6322 (Supp. 1999), that period
expired in this case on January 30, 1997.  Sargent did not file her motion
for Rule 60(b) relief until April 14, 1997, nearly two and a half months later.
	[¶11]  Because the "right of redemption, once extinguished, cannot be
revived by any court, nor can the period of redemption be abridged or
enlarged by operation of law," see Smith v. Varney, 309 A.2d 229, 232
(Me. 1973), KeyBank has argued that allowing Rule 60(b) relief after the
expiration of 90-day redemption period is impermissible, as it operates to
revive and extend the redemption period.  There are exceptional
circumstances, however, where a court of equity may provide relief, even
after the 90-day redemption period has expired.  See Smith v. Varney, 309
A.2d at 232.  Rule 60(b) itself provides that equity may be invoked to provide
relief from judgment in certain circumstances, and section 6322 does not
preclude such relief.{2}  In this case, the trial court did not abuse its
discretion in finding that exceptional circumstances were not present in
this case and denying Rule 60(b) relief from judgment.
	[¶12]  Sargent argues that the failure of KeyBank to respond to a
request for documents made prior to the entry of the foreclosure judgment
amounts to fraud, misrepresentation or other misconduct that warrants
relief from judgment pursuant to M.R. Civ. P. 60(b)(3).{3}  She also argues that
KeyBank's violations of the ITTA, see 33 M.R.S.A. §§ 1021-1022(1) (1999),
the ECOA, see 15 U.S.C.A. § 1691(a)(1) (1999), and the Maine Consumer
Credit Code-Truth-in-Lending Act, see 9-A M.R.S.A. § 8-204 (1997) require
the court to grant her relief from judgment.
	[¶13]  The party seeking relief from judgment pursuant M.R. Civ. P.
60(b) bears the "burden of proving that the judgment should be set aside." 
See Beck v. Beck, 1999 ME 110, ¶ 6, 733 A.2d 981, 983.  We review the
denial of a Rule 60(b) motion for abuse of discretion and will set aside the
judgment only if the failure to grant the relief "works a plain and
unmistakable injustice against the defendant."  See Harris v. PT Petro Corp.
v. Ballot, 650 A.2d 1346, 1348 (Me. 1994).
	[¶14]  At the hearing on the Rule 60(b) motion, Sargent argued that
fraud related to the underlying transaction was the basis for the relief she
was seeking.  On appeal, she argues for the first time that there was fraud or
misrepresentation during the course of the foreclosure proceedings that
entitled her to relief.  Because this issue is raised for the first time on
appeal, it is not properly preserved.{4}  See Rairdon v. Dwyer, 598 A.2d 444,
445 (Me. 1991).
	[¶15]  Sargent also argues that Rule 60(b) relief was warranted simply
because she was raising valid defenses and counterclaims to the foreclosure
action.  We disagree.  "'It is necessary that judgments, especially those
settling property rights . . . have a high degree of stability and finality.'"  Id.
at 421 (quoting Merrill v. Merrill, 449 A.2d 1120, 1125 (Me. 1982))
(alterations in original).  Moreover, "Rule 60(b) is not intended as an
alternative method of appeal."  Id.  Accordingly, because Sargent did not
raise her affirmative defenses and counterclaims in the foreclosure
proceedings, she is barred from using Rule 60(b) to raise those issues.  See
McKeen and Assocs. v. Department of Transp., 1997 ME 73, ¶ 6, 692 A.2d
924, 926 (holding that where party neither opposed summary judgment nor
challenged the judgment on direct appeal, principles of res judicata barred
Rule 60(b) relief).
III. DISMISSAL OF SARGENT'S CLAIMS IN CV-97-21
A. Claims Against Keybank

	[¶16]  Sargent contends that the trial court erred in dismissing her
complaint in CV-97-21, in which she alleges that KeyBank defrauded her,
violated provisions of the ITTA, see 33 M.R.S.A. §§ 1021-1022(1) (1999),
and violated truth-in-lending provisions, see 9-A M.R.S.A. §§ 8-201 to 8-209
(1997 & Supp. 1999).  She argues that those claims were not compulsory
counterclaims pursuant to M.R. Civ. P. 13(a)(1).{5}
	[¶17]  "Under principles usually analogized to res judicata, a
defendant who fails to interpose a compulsory counterclaim as required by
Rule 13(a) is precluded from later maintaining another action on the claim
after rendition of judgment."  Bartlett v. Pullen, 586 A.2d 1263, 1265
(Me. 1991).  When "the second claim arises out of the same transaction as
the first, previously-litigated claim," the second claim is barred by
M.R. Civ. P. 13(a)(1).  See DiPietro v. Boynton, 628 A.2d 1019, 1022
(Me. 1993).
"What factual grouping constitutes a "transaction" [is] to be
determined pragmatically, giving weight to such considerations
as whether the facts are related in time, space, origin, or
motivation, whether they from a convenient trial unit, and
whether their treatment as a unit conforms to the parties'
expectations or business understanding or usage."
 Id. (quoting Beegan v. Schmidt, 451 A.2d 642, 645 (Me. 1982) (alterations
in original).
	[¶18]  In the present case, the foreclosure action by KeyBank and all of
the claims raised by Sargent in CV-97-21 arise from a single transaction,
Sargent's guarantee of Edward's loan, and her grant to KeyBank of a
mortgage interest in her home to secure the guarantee.  Accordingly,
Sargent's claims against KeyBank in CV-97-21 should have been raised in
the foreclosure action and the trial court did not err in dismissing those
claims pursuant to M.R. Civ. P. 13.{6}
	[¶19]  Sargent contends, however, that because the foreclosure statute
and M.R. Civ. P. 80-A define the pleadings as containing a complaint and an
answer, and make no reference to counterclaims, the trial court had no
authority to hear counterclaims in the foreclosure action.
	[¶20]  The foreclosure action brought by KeyBank is a "civil action." 
See M.R.S.A. § 6321 (Supp. 1999).  "[A]ll suits of a civil nature" are governed
by the Maine Rules of Civil Procedure, see M.R. Civ. P. 1, and there is no
indication in 14 M.R.S.A. § 6321 (Supp. 1999) that the legislature intended
otherwise in foreclosure proceedings.  In fact, the foreclosure statute
requires that the action be commenced and service of process be made "in
accordance with the Maine Rules of Civil Procedure."  See 14 M.R.S.A.
§ 6321 (Supp. 1999).
	[¶21]  Although Sargent is correct that there are certain actions that
can be filed in the Courts of this State in which counterclaims are not
allowed, in those cases that stricture is stated explicitly in the statute
creating the action.  Two examples are actions for forcible entry and
detainer and actions for divorce.  In an action for forcible entry and
detainer, all counterclaims are expressly forbidden.  See M.R. Civ. P. 80D(g)
("Forcible entry and detainer actions shall not be joined with any other
action, nor shall a defendant in such action file any counterclaim.").  In
actions for divorce, only certain counterclaims are permitted.  See M.R. Civ.
P. 80(b).  
	[¶22]  Rule 80A, which governs foreclosure actions, see M.R. Civ. P.
80(g), requires that "[a]ll defenses shall be made by answer as in other
actions," see M.R. Civ. P. 80A(d).  It does not make any reference to
counterclaims.  See id.  Given the clarity with which the rules spell out
those circumstances when counterclaims are forbidden, however, the only
conclusion that can be drawn from the failure to explicitly address
counterclaims in Rule 80A is that counterclaims are governed by M.R. Civ. P.
13. Accordingly, Sargent's contention that the rules forbid courts from
entertaining counterclaims in foreclosure actions is without merit.{7}
	[¶23]  Sargent also contends that her claim under the ITTA did not
ripen until her home was sold by the bank to satisfy the foreclosure
judgment, making M.R. Civ. P. 13 inapplicable to that claim.  We disagree.
	[¶24]  Whether a claim is ripe is an issue of law.  See generally Wagner
v. Secretary of State, 663 A.2d 564, 569 (Me. 1995).  A case is ripe if it is fit
for judicial decision.  See Patrons Oxford Mut. Ins. Co. v. Garcia, 1998 ME
38, ¶ 4, 707 A.2d 384, 385 (holding that claim against insurance company
based on its duty to defend ripens when complaint is filed against insured). 
A case is fit for judicial decision if it "presents a concrete and specific legal
issue" that "has a direct, immediate, and continuing impact" on the parties. 
See Maine Pub. Serv. Co. v. Public Utils. Comm'n, 524 A.2d 1222, 1226 (Me.
1987).
	[¶25]  All of the claims raised by Sargent in CV-97-21 were ripe for
judicial consideration when Sargent executed the guarantee and
accompanying security agreement.  Each of those claims was based on
alleged wrongs committed by KeyBank in both inducing Sargent to
guarantee Edward's loan and in conducting the transaction whereby Sargent
conveyed to KeyBank a security interest in her property.  The moment
Sargent completed the transaction, her legal obligations to KeyBank had a
direct and continuing impact on her, and she could have sought judicial
relief.  See id.  Accordingly, those claims were ripe when KeyBank filed its
foreclosure action, and they should have been raised as counterclaims to that
action pursuant to M.R. Civ. P. 13.

B.  Claims Against Hart

	[¶26]  The trial court dismissed all of Sargent's claims against Donna
Hart.  As an initial matter, we agree with Sargent that because Hart was not a
party to the foreclosure action and because that action addressed issues
different than those raised in her complaint against Hart, her claims against
Hart are not barred by Rule 13 or the principles of issue and claim
preclusion.
	[¶27]  Rule 13(a)(1) provides that the pleadings must state any
counterclaim "the pleader has against any opposing party."  See M.R. Civ. P.
13(a)(1) (emphasis added).  Accordingly, Sargent was not required to plead
her claims against Hart in the foreclosure action in which Hart was not a
party.  See id.
	[¶28]  Nor are those claims barred by principles of issue or claim
preclusion.  Issue preclusion bars relitigation of issues that were decided by
a prior judgment, and claim preclusion bars relitigation of a claim only if the
same parties were involved in both actions.  See Machias Sav. Bank v.
Ramsdell, 1997 ME 20, ¶ 11, 689 A.2d 595, 599.  None of the issues raised
against Hart, however, were litigated in the foreclosure action, making issue
preclusion inapplicable.  See id.  Likewise, Sargent's claims are not barred
by claim preclusion, as Hart was not a party to the foreclosure action. 
See id.
	[¶29]  In reviewing the dismissal of Sargent's claims against Hart
pursuant to M.R. Civ. P. 12(b)(6), we examine Sargent's complaint in a light
most favorable to her, as we must, to determine if she has alleged facts that
would entitle her "to relief pursuant to some legal theory."  See Danforth v.
Gottardi, 667 A.2d 847, 848 (Me. 1995).
	[¶30]  In the complaint filed in CV-97-21, Sargent alleges that she was
not provided certain truth-in-lending documents regarding her right to
rescind the guarantee transaction.  Because this transaction was a guarantee
of a commercial loan, however, it was not a consumer transaction and
federal and state truth-in-lending statutes are not applicable.  See
15 U.S.C.A. § 1635(a) (1994) (noting that federal disclosure statute only
applies to "consumer credit transaction[s]"); 15 U.S.C.A. § 1603(1) (1994)
(exempting from disclosure requirements "[c]redit transactions involving
extensions of credit primarily for business, commercial, or agricultural
purposes); 9-A M.R.S.A. §§ 3-206(1), (7) (1997) (stating that disclosure
must only be given to "cosigners" when they are involved in "consumer
credit transactions"); 9-A M.R.S.A. § 1-301(14)(A) (Supp. 1999) (defining as
consumer credit transactions those loans made to "a person other than an
organization" where debt is "incurred primarily for a personal, family or
household purpose"). 
	[¶31]  Sargent also seeks to hold Hart liable to her under 33 M.R.S.A.
§ 1022 (1999), alleging as she does, claims of fraud and breach of a
confidential relationship, and construing the complaint most favorably in her
favor, breach of the common law presumption of undue influence arising
from a confidential relationship she had with Hart.  See Ruebsamen v.
Maddocks, 340 A.2d 31, 35 (Me. 1975).  Sargent's general allegation of a
confidential relationship, however, is an insufficient basis for establishing
the existence of such a relationship with Hart, who is a bank employee.  See
Bryan R. v. Watchtower Bible & Tract Soc., 1999 ME 144, ¶ 20, 738 A.2d
839, 846.  Sargent is required to set out "specific facts regarding the nature
of the relationship alleged to have given rise to a fiduciary duty in order to
determine whether a duty may exist at law."  Id.  This she failed to do, and
that failure is fatal to her claim of common law presumption of undue
influence arising from a confidential relationship.  See Ruebsamen v.
Maddocks, 340 A.2d at 35.
	[¶32]  In her allegation pursuant to the statute, Sargent alleges that
she is entitled to the presumption of undue influence raised by 33 M.R.S.A.
§ 1022 (1999).
In any transfer of real estate . . . for less than full consideration
by an elderly person who is dependent on others to a person
with whom the elderly dependent person has a confidential or
fiduciary relationship, it shall be presumed that the transfer was
the result of undue influence, unless the elderly dependent
person was represented in the transfer by independent counsel.
33 M.R.S.A. § 1022(1) (1999).
	[¶33]  Even if Sargent's allegations were sufficient to bring her within
the statutory provisions, and we were to conclude that the statute is not
limited to raising the presumption against the actual transferee of the
property interest, in this case KeyBank, Sargent cannot obtain any relief
against Hart pursuant to the ITTA.  The only relief available under the ITTA
is "relief enabling the elderly dependent person to avoid the transfer,
including the rescission or reformation of a deed or other instrument, the
imposition of a constructive trust on the property or an order enjoining use
of or entry on property or commanding the return of property."  See
33 M.R.S.A. § 1023(2) (1999).  Because the ITTA offers no avenue of
obtaining relief from Hart, that claim was properly dismissed.
III. JUDGMENT FOR DEFENDANTS IN CV-98-33
	[¶34]  Sargent claims in CV-98-33 that because the first of the three
statutorily required notices of public sale was published with a photograph of
a house different than her house, KeyBank must begin the entire foreclosure
process anew.{8}  We disagree.
	[¶35]  We generally review a trial court's refusal to set aside a
foreclosure sale "only for manifest injustice."  See Farm Credit of Aroostook
v. Sandstrom, 634 A.2d 961, 962-63 (Me. 1993).  "The findings of fact that
support the trial court's ultimate decision are reviewed only for clear error." 
Id. at 963.  Sargent, however, contends that a different standard of review
should apply.  She argues that the entire foreclosure process is a unified
action requiring strict adherence to all statutory requirements.  She
contends that failure to follow even a single requirement invalidates the
entire foreclosure.
	[¶36]  We have said that "[i]n order to effect a legal foreclosure all
steps required by the statute must be strictly performed."  See Winter v.
Casco Bank and Trust Co., 396 A.2d 1020, 1024 (Me. 1979); see also
Stafford v. Morse, 97 Me. 222, 223-25, 54 A. 397, 398 (1902).  In Winter,
the Court held that even the minor procedural requirement that the
foreclosure notices be attested could not "be judicially excised from this
statute."  See Winter v. Casco Bank and Trust Co., 396 A.2d at 1022. 
Similarly, in Stafford, we held that in a foreclosure by publication, because
there was no record evidence that the foreclosure had been recorded within
30 days of the last publication, as required by statute, the foreclosure
proceedings were ineffective to give the mortgagee absolute title.  See
Stafford v. Morse, 97 Me. at 226-27, 54 A. at 399.
	[¶37]  Stafford and Winter stand for the proposition that technical
errors in procuring a judgment of foreclosure may render that judgment
void.  Sargent, however, wants the holdings in those cases to be extended to
apply to the entire foreclosure process, including the sale following the
judgment of foreclosure.  She relies on Key Bank of Maine v. Walton, 673
A.2d 701, 703 (Me. 1996) to support her position.  In Walton, we held that
"[t]he judicial mortgage foreclosure procedure set forth in sections 6321-25
establishes a unified civil action for foreclosing the mortgagor's equity of
redemption and collecting from the mortgagor any deficiency."  Id.  That
language, however, must be understood in the context of a determination
that a party who challenged and participated in proceedings regarding the
foreclosure sale of his property could not argue for the first time on appeal
that the judgment of foreclosure was void because the court lacked personal
jurisdiction over him.  See id.  In those circumstances, such a holding
makes sense.  We cannot apply the "unified action" rationale to cases such
as this, however, where there is no allegation of any defect in the judgment
of foreclosure itself, but a defect is alleged only in the sale following the
foreclosure.
	[¶38]  The notice of public sale was published after the redemption
period expired.  After the redemption period expires, "all rights of the
mortgagor to possession terminate."  See 14 M.R.S.A. § 6323(1)
(Supp. 1999).  Accordingly, any error in the sale process should not serve as
grounds to set aside the foreclosure judgment itself.  The "strict
compliance" doctrine is limited to those procedures leading to the
foreclosure judgment.  See Winter v. Casco Bank and Trust Co., 396 A.2d at
1024; Stafford v. Morse, 97 Me. at 223-25, 54 A. at 398.  When the
challenge is to the procedures used to conduct the foreclosure sale, the
proper analysis for the trial court is whether it would be equitable to set
aside the sale given the procedures that were employed by the mortgagee. 
See Farm Credit of Aroostook v. Sandstrom, 634 A.2d at 962-63 (noting that
action to set aside foreclosure sale "presumably rel[ies] on the equitable
power granted to the court in actions to foreclose mortgages").  In such a
case we are limited to reviewing factual findings for clear error and
reviewing the court's use of discretion for "manifest injustice."  See id. 
	[¶39]  The trial court found that the wrong photo had been included
in the first of the three notices of public sale.  It also found, however, that
the incorrect picture was of a similar one story house with
"indistinguishable characteristics" from Sargent's home; that the property
was adequately marked with signs on the days leading up to the sale; that
"the notice of sale included all of the required essential elements called for
by the statutes, specifically the book and page, the tax map and the street
and town;" and that the error was harmless.   In reaching its decision the
court relied on expert testimony, and its findings are not clearly erroneous.
	The entry is:
			Judgments affirmed.
                                                                          


Attorneys for the appellant: Joseph L. Ferris, Esq. (orally) N. Lawrence Willey, Jr., Esq. Ferris, Dearborn & Willey 120 No. Main St. P.O. Box 609 Brewer, Maine 04412-0609 Attorneys for the appellees: Michael S. Haenn, Esq. (orally) Key Plaza 23 Water St. P.O. Box 9l5 Bangor, Maine 04402-0915 (for KeyBank National Association) Anthony J. Giunta, Esq. (orally) 92 State St. P.O. Box 735 Ellsworth, Maine 04605-0735 (for Westly & Carney L. Williams)
FOOTNOTES******************************** {1} . A default judgment was entered against Edward Sargent on August 13, 1997. {2} . The fact that the redemption period has run, however, may impact on the court's decision to grant such relief. See M.R. Civ. P. 60(b) (stating that relief is to be granted "upon such terms as are just"). {3} . Rule 60(b) provides: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . or (6) any other reason justifying relief from the operation of the judgment. M.R. Civ. P. 60(b). {4} . Also unpreserved is KeyBank's argument that Sargent's Rule 60(b) motion was not timely filed, as that issue was not raised in the trial court. Though the record is not entirely clear, there is some indication that Sargent did not learn of the existence of the fraud or misrepresentation she alleges occurred during the course of the foreclosure judgment until after the court denied her Rule 60(b) motion for relief. Even if that were the case, it was incumbent upon Sargent to file an additional Rule 60(b) motion to allow the trial court the opportunity to decide the issue. {5} . Rule 13 provides, in part: (a) Compulsory Counterclaims. (1) Pleadings. Unless otherwise specifically provided by statute . . . , a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . . . (e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. M.R. Civ. P. 13. {6} . Sargent also argues that 14 M.R.S.A. § 859 (Supp. 1999) operates to allow her to bring her claims in an independent action. She contends that because KeyBank fraudulently concealed certain documents in the foreclosure action that would have alerted her to the existence of the claims raised in CV-97-21, she was not required to plead those claims as counterclaims in the foreclosure action. Section 859 provides that where a potentially liable party has fraudulently concealed a cause of action from a person entitled to bring that action, the action may be brought at any time within six years of the discovery of the action. See 14 M.R.S.A. § 859 (Supp. 1999). Pursuant to section 859, however, the statute of limitations begins to run "when the existence of the cause of action or fraud is discovered or should have been discovered by the plaintiff in the exercise of due diligence and ordinary prudence." See Westman v. Armitage, 215 A.2d 919, 922 (Me. 1966). In this case, Sargent had already brought her independent claim for relief when she discovered what she alleges to be fraudulently concealed documents, documents that she asserts bolster her claim for fraud relating to the underlying transaction. Since she already knew enough about her fraud claim to have brought the independent claim for fraud before the discovery of the documents, she cannot argue that she did not know about the claims prior to their discovery. {7} . Sargent also argues that because her claims for fraud, misrepresentation, and violation of the ITTA "are all actions that can be brought independently of the foreclosure action," they should not have been dismissed because they are not compulsory counterclaims. The fact that those actions can be brought independently of a foreclosure action simply highlights the difference between a defense and a counterclaim. It does nothing to change the analysis of when those claims must be plead. {8} . Title 14, section 6323 provides that, after a judgment of foreclosure is entered and the period of redemption expires, "the mortgagee shall cause notice of a public sale of the premises stating the time, place and terms of the sale to be published once in each of 3 successive weeks in a newspaper of general circulation in the county in which the premises are located." See 14 M.R.S.A. § 6323 (Supp. 1999).