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Calaska v. McClintick, et al. (corrected 4-1-98)
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MAINE SUPREME JUDICIAL COURT                      Reporter of Decisions
Decision:1998 ME 69
Docket:Yor-97-312
Submitted
on Briefs:March 9, 1998
Decided:March 27, 1998


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.




CALASKA PARTNERS L.P. v. JACK ALLEN McCLINTICK, et al.



WATHEN, C.J.


	[¶1]  Defendants Jack and Alice McClintick appeal from the judgment
of the Superior Court (York County, Fritzsche, J.) ordering the
reinstatement and foreclosure of a mortgage on their property.  The
McClinticks contend that there was insufficient evidence to support the
court's judgment and that the court erred in considering a post-trial
affidavit to calculate the interest due on the mortgage note.   Finding no
error, we affirm the judgment.
	[¶2]  The relevant facts may be summarized as follows: In 1988, the
McClintick's co-signed a $200,000 demand note to evidence a debt to
Maine National Bank so that their son could purchase drilling equipment for
use in his business.  As security for the note, the McClintick's executed a
mortgage on their home. Although payments totaling approximately $40,000
were made on the note through November of 1990, no payments have been
made since then, and the remaining principal balance is $156,356.84. 
	[¶3]  Following the financial failure of Maine National Bank in 1991, its
successor bank discovered that, although three quarters of the demand note
remained unpaid, an employee of the bank had filed a discharge of the
McClintick's mortgage in the registry of deeds.  Once the discharge was
discovered, the bank employee who signed it filed an affidavit in the registry
of deeds stating that the mortgage had been discharged in error.  The bank
then instituted foreclosure proceedings against the McClinticks.
	[¶4]  In 1993, plaintiff Calaska Partners L.P. purchased the
McClinticks' demand note and mortgage and was substituted as plaintiff in
the original complaint for foreclosure.  In September of 1996, Calaska filed a
second amended complaint for foreclosure to include a claim for equitable
reinstatement of the discharged mortgage. 
	[¶5]  The case was heard by the court and judgment issued for Calaska
on its claim for reinstatement of the mortgage and its demand for
foreclosure.  The court ordered Calaska to submit its request for attorney
fees and to submit a "sheet demonstrating how the claimed total interest
figure was derived."
	[¶6]  In response to the court's request, Calaska filed the affidavit of
Alyn Byrne, general partner of Calaska.  Although the McClinticks objected
to the introduction of the affidavit, the court accepted the document and in
its amended judgment ordered that as of March 24, 1997, a total of
$265,502.12 was due to Calaska, with $40.17 interest accruing daily.  The
McClinticks now appeal from the court's judgment.
	[¶7]  An equitable claim for the reinstatement of a mortgage that has
been discharged by accident or mistake will be granted so long as "such
relief does not operate to the detriment of intervening rights of third
persons who may have relied upon the release and who are not chargeable
with notice of the mistake or who will be prejudiced by reinstatement of the
lien"  Maine National Bank v. Morse, 30 B.R. 52, 56 (citing Federal Land
Bank of Springfield v. Smith, 129 Me. 233, 237 (1930)).  The McClinticks
do not dispute that there are no third party rights in jeopardy in this case. 
Thus, the only issue before the court was whether or not the mortgage was
discharged in error.  
	[¶8]  In its order, the court concluded that it "was convinced by both a
preponderance of the evidence and clear and convincing evidence that the
discharge was in error and that the mortgage should be reinstated."
Contrary to the McClinticks' contentions, there was sufficient evidence to
sustain the court's judgment under either standard.  We therefore need not
address their additional argument that we should adopt a clear and
convincing burden of proof in claims seeking equitable reinstatement of a
mortgage.	
	[¶9]  The McClinticks next contend that Calaska failed to introduce
credible evidence of the amount of interest that accrued on the outstanding
balance of the original demand note.  They argue that the court improperly
considered Calaska's post-trial affidavit.  It is true that, in his affidavit, Byrne
conceded that the calculation presented at trial was erroneous, and that he
recalculated the interest due.  Beyond illustrating the method of calculation,
the affidavit contained nothing other than that which was either a matter of
record or properly subject to judicial notice.  The court committed no error
in considering the affidavit in calculating the outstanding interest due on the
principal.  See Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1128
(Me. 1984).
	The entry is:
				Judgment affirmed.

Attorneys for plaintiff: William H. Leete, Jr,, Esq. Peter H. Froelicher, Esq. Leete & Lemieux, P.A. 95 Exchange Street Portland, ME 04112 Attorney for defendants: Steven E. Cope, Esq. Cope & Cope P O Box 1398 Portland, ME 04104