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D & S Partners v. Magno
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 	1997 ME 172
Docket:  	Cum-96-636
Submitted 
on Briefs: 	June 23, 1997
Decided: 	July 24, 1997

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




D & S PARTNERS v. ARVID G. MAGNO


LIPEZ, J. 

	[¶1]  Arvid G. Magno appeals from the judgment entered in the
Superior Court (Cumberland County, Mills, J.) in favor of D & S Partners
after the entry of a partial summary judgment and a jury-waived trial.  D & S
brought this action against Magno for foreclosure and for the debt owed on a
promissory note arising out of a mortgage on residential property in
Portland.  Contrary to Magno's contentions, the affirmative defenses set
forth in his answer and referenced in his pretrial memorandum did not
create disputed issues of material fact, M.R. Civ. P. 56(c), (e); and the court
did not err by failing to find that there was an accord and satisfaction
between the parties, see E.S. Herrick Co. v. Maine Wild Blueberry Co., 670
A.2d 944, 946 (Me. 1996) (unless evidenced by unambiguous writing,
existence of an accord and satisfaction is question of fact; accord and
satisfaction exists as matter of law only when there is proof that amount is
tendered on unambiguous written condition that it be accepted in full
settlement of all claims pending between the parties and the claimant
accepts payment of the amount tendered).  
	[¶2]  Magno argues that because the note and mortgage make no
provision for attorney fees, the court erred by awarding such fees to D & S. 
This argument overlooks the explicit statutory authority for the court to
award reasonable attorney fees pursuant to a judicial foreclosure apart from
any attorney fee provisions in the note and mortgage.  14 M.R.S.A. § 6101
(Supp. 1996) ("For the foreclosure of a mortgage by any method authorized
by this chapter, the mortgagee or the person claiming under him may
charge a reasonable attorney's fee which shall be a lien on the mortgaged
estate, and shall be included with the expense of publication, service and
recording in making up the sum to be tendered by the mortgagor or the
person claiming under him in order to be entitled to redeem, provided the
sum has actually been paid in full or partial discharge of an attorney's fee.");
see 14 M.R.S.A. § 6321 (Supp. 1996) (authorizing judicial foreclosure).  
	The entry is:
					Judgment affirmed.
                   
Attorney for plaintiff: Richard J. Abbondanza, Esq. Hopkinson & Abbondanza, P.A. 511 Congress Street, Suite 801 Portland, ME 04101 Attorney for defendant: Peter W. Evans, Esq. 70 Deering Street Portland, ME 04101