LLC v. Donna Vogel et al. (2010)

ORDER

In this foreclosure action, the defendants filed special defenses that the debt is subject to the jurisdiction of the Probate Court and the plaintiff's claim was untimely and also that the plaintiff's conduct modified the note and the note was the responsibility of the corporate defendant.   No credible evidence was presented to support either of these special defenses.

The third special defense, and the only one briefed, was a claim of “commercial unreasonableness.”   The note and mortgage at issue arose out of the settlement of an appeal taken from the plaintiff's efforts to obtain a prejudgment remedy to secure the original indebtedness in Premier Capital, LLC v. Glocalt, Inc., d/b/a Tony's Huntington Inn et al.   Nothing was presented to indicate that the defendants and makers of the note were misled as to its terms or in any other way.   All defendants involved were represented by Attorney Lawrence Pamoff in the appeal as well as in the settlement.   No credible evidence was presented to show lack of knowledge and/or understanding of the elements of the settlement or loan transaction.   To prevail on this special defense, the burden of proof was on the defendants and they have not satisfied this burden.

Judgment of strict foreclosure shall enter in favor of the plaintiff. $57,785.59 consisting of principal $32,314.86 plus interest of $25,473.73.   Per diem interest shall be at rate of $18.20 from 9/23/10 through date of judgment.   The court finds fair market value of the property to be $270,000.   Law Day will be September 26, 2011.   The court awards the following:  title search fee $225, appraisal fee of $325 and attorneys fees of $3,900.   Counsel will submit a bill of costs.

Hiller, J.

Hiller, Arthur A., J.