MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	20

Docket: Yor-16-7

Submitted

On	Briefs: October	13,	2016

Decided: January	26,	2017

Panel: ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

BANK	OF	AMERICA,	N.A.

v.

JOHN	CAMIRE

HUMPHREY,	J.

[¶1]	 	 John	 Camire appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Biddeford,	Cantara,	J.)	entered	in	 favor	of	Bank	of	America,	N.A. (the	Bank).		

The	 judgment	 arises	 out	 of	 an outstanding	 credit	 card	 debt.	 	We	 affirm	 the	

judgment	in	 favor	 of	 the	 Bank,	 but	 because	 we	 conclude	that	the trial court	

erred	 in	 dismissing	 Camire’s	 counterclaim, we	 vacate	 that	 portion	 of	 the	

judgment	and	remand the	case for	further	proceedings.

I.		BACKGROUND

[¶2]		On	March	24,	2014,	FIA	Card	Services,	N.A., initiated	this	action	in	

the	 District	 Court (Biddeford) against	 John	 Camire	 to	 recover	 damages

totaling	 $11,573.40	 arising	 out	 of	 a	 debt	 incurred	 using	 a	 Bank	 of	 America	

credit	card.		Camire	answered,	moved	to	dismiss	the	complaint,	and	asserted	
2

various	affirmative	defenses. He	also	filed	a	counterclaim	pursuant	to	the	Fair	

Debt	 Collection	 Practices	 Act (FDCPA),	 15	 U.S.C.S.	 §§ 1692-1692p	 (LEXIS	

through	Pub.	L. No. 114-284);	32	M.R.S. §§	11001-11054 (2016).

1

[¶3]		FIA	Card	Services moved	to	dismiss	the	counterclaim and	attached	

an	affidavit	from	its	attorney,	N.	Laine	Astbury,	to	the	motion.		Attached	to	the	

Astbury	 affidavit	 was	 a	 computer	 printout	 from	 the	 National	 Information	

Center,	 a	 website that	 purportedly	 maintains	 data	 collected	 by	 the	 Federal	

Reserve	about	 financial	institutions.		Astbury	averred,	based	on	 the	printout,	

that	 FIA	 Card	 Services,	 N.A.,	 acquired	 Bank	 of	 America,	 N.A., on	

October 20, 2006.	 	Astbury also averred that the	 printout	was authentic	and	

admissible	 pursuant	 to M.R.	 Evid.	 902(5),	 which	 provides	 that	 books,	

pamphlets,	 and	 official	 publications	 “purporting	 to	 be	 issued	 by	 a	 public	

authority”	are	self-authenticating.

[¶4]	 	 The	 court	 (Cantara,	 J.)	 denied	 Camire’s	 motion	 to	 dismiss	 the	

complaint and	 granted	 the	 motion	 filed	 by	 FIA	 Card	 Services to	 dismiss	

Camire’s	 counterclaim.	 	 In	 granting	 the	 motion	 to	 dismiss,	 the	 court	

concluded,	based	on	the	Astbury	affidavit	and	printout,	that FIA	Card Services	

was	not	a	third	party	collecting	the debt,	but	rather	stood	in	the	place	of	Bank	

 1		Camire’s	pleading	is	unclear as	to whether	he	asserts	a claim	pursuant	to	the	Maine	FDCPA	or

the	federal	FDCPA.		The	trial	court	addressed	both and	our	analysis	follows	accordingly.
3

of	America,	the	card	issuer	that extended	credit	to	Camire, and	thus	FIA	Card	

Services	was exempt	from liability	pursuant	to the	Act.2

[¶5]		On April	28,	2015,	the	court	(Driscoll,	J.)	issued	an order	following	

a	pretrial	conference	setting	the	matter	for	trial	and	stating	that	two	hours	or	

less would	 be	 required. The	 Bank was	 substituted	 as	 the	 plaintiff	 on	

November	 25,	 2014.3	 	 The	 court	 (Cantara,	 J.)	 held	 a	 bench	 trial	 on	

November 24,	2015.		The	trial	began	at	1:14 p.m. and	concluded	at	4:55 p.m.,	

running	 over	 the	 two	 hours	 allocated,	 even	 excluding	 breaks	 and	 recesses.		

The	court	reminded Camire	of	time	constraints on numerous	occasions during	

the	 trial,	 but	 allowed	 proceedings	 to	 continue	 longer	 than	 scheduled	 and	

beyond	the	extensions	of	 time	 for	 testimony	granted	by	 the	court	during the

trial.		

[¶6]		The court	entered	a	judgment in	favor	of	the	Bank	in	the	amount	of	

$11,573.40	plus	costs.		Camire	timely	appealed.	

 2	 	 Camire	 appealed	 the	 court’s	 rulings	 on	 the	 motions	 and	 we	 dismissed	 the	 appeal	 as	

interlocutory.		

3	 	At	 trial,	 the	 Bank’s	 witness	 testified	 that	 FIA	 Card	 Services,	 N.A.,	 was	 a	 division	 of	 Bank	 of	

America,	N.A.,	that	changed	its	name	to	Bank	of	America,	N.A.,	in	October	2015.
4

II.		DISCUSSION

A. Due	Process

[¶7]		In	this	appeal,	Camire	primarily	argues	that	the	trial	court	failed	to	

provide	 him with an	 adequate	 opportunity	 to	 present	 his	 defenses	 and	

thereby	denied	him	due	process	of	law. Camire contends	that	two	hours	were	

insufficient	to	present	his	case.		“We review	questions	of	law,	including	alleged	

constitutional	 violations . . . de novo.” Sparks	 v.	 Sparks,	 2013	 ME	 41,	 ¶	 19,	

65 A.3d	1223 (quotation	marks	omitted).		

[¶8]		Procedural due	process	claims	follow	a	two-step	analysis:	first,	the	

claimant	 must	 demonstrate	 “a	 deprivation	 of	 .	 .	 .	 life,	 liberty	 or	 property	

interests”	and	 “[s]econd,	if	such	a	deprivation	has	occurred,	a	determination	

must	 be	 made	 as	 to	 what	 process	 is	 due.”	 Jackson	 v.	 Town	 of	 Searsport,	

456 A.2d	 852,	 856	 (Me.	 1983).	 	 That	 Camire	 was	 deprived	 of	 a	 property

interest is	undisputed.		The	parties	dispute	 the	second	step,	whether	Camire

received	adequate	process.	

The	fundamental	requirement	of	due	process	is	an	opportunity	to	

be	 heard upon	 such	 notice and	 proceedings	 as	 are	 adequate	 to	

safeguard	 the	 right	 which	 the	 particular	 pertinent	 constitutional	

provision	 purports	 to	 protect.	 The	notice and	 opportunity	 for	 a	

hearing must	be	granted	at	a	meaningful	time	and	in	a	meaningful	

manner.
5

Kirkpatrick	 v.	 City	 of	 Bangor,	 1999	 ME	 73,	 ¶	 15,	 728	 A.2d	 1268 (citation	

omitted)	 (quotation	 marks	 omitted).	 	 Procedural	 due	 process	 requires	 an	

opportunity	to	be	heard,	not	an	optimal	opportunity	to	be	heard.		See Portland	

Pipe	 Line	 Corp.	 v.	 Envtl.	 Improv.	 Comm’n,	 307	 A.2d	 1,	 14	 (Me.	 1973)

(“Procedural	 due	 process requires	 no	 particular	 form	 of	 procedure.”).

Unrepresented	 parties	 receive	 no	 special	 consideration	 and	 are	 held	 to	 the	

same	standards	as	represented	parties. See New	England	Whitewater	Ctr.,	Inc.	

v.	Dep’t	 of	 Inland	 Fisheries	&	Wildlife,	 550	A.2d	 56,	 60	 (Me.	 1988).	 The trial	

court	has	discretion	 to	reasonably	manage	 time	during	evidentiary	hearings.		

See	Dolliver	 v.	Dolliver,	 2001	ME	 144,	 ¶	 10,	 782	A.2d	 316 (“A	trial court has	

broad	discretion to	control	 the	order	and	 timing	of	presentation	of	evidence	

and	 to	 set	 and	 enforce	 reasonable	 time	 limits	 on	 testimonial	 hearings.”);	

M.R. Evid.	611(a).		

[¶9]	 	 Contrary	 to	 Camire’s assertions,	 he was	 not	 entitled	 to	 as	 much	

time	as	he	wanted	or believed	he	needed	to	present	his	case.		Not	only	did	the	

trial	 stretch	longer	 than	 the two	 hours	 allocated, but	 Camire	 fails	 to explain	

what	evidence,	if	any,	 he	would	 have	 presented	 to	 the	 court	with	additional	

time.		On	numerous	occasions	when	the	court	urged	Camire	to	use	time	wisely	
6

or	 to	 move	 the	 testimony	 forward,	 the	 court	 was	 enforcing	 relevance	

objections	that	it	had	sustained.4		See M.R.	Evid.	401.		

[¶10]	 	 Because	 Camire received	 ample	 notice	 of	 time	 constraints,	

appeared	at	trial,	and	had	an	opportunity	to	present	his	defenses,	we	conclude	

that	the	trial	court	properly	exercised	its	discretion	in	managing	trial	time	and

that no	 due	 process	 violation	 occurred.	 See Daud	 v.	 Abdullahi,	 2015	ME	 48,	

¶ 8 n.2,	 115	 A.3d	 77 (concluding	 that	 no	 procedural	 due	 process	 violation	

occurred	 where	 an	 unrepresented	 defendant	 had	 sufficient	 time	 to	 prepare	

for	 hearing);	 Sparks,	 2013	 ME	 41,	 ¶	 29,	 65	 A.3d	 1223;	 City	 of	 Old	 Town	 v.	

Dimoulas,	2002	ME	133,	¶	24,	803	A.2d	1018.

[¶11]	 	 Camire	 raises	 no	 other	 argument concerning	 the	 judgment	

against	 him.	 We	 therefore affirm	the	 judgment	 in	 favor	 of	 the	 Bank	 in	 the	

amount	of	$11,573.40	plus	costs.

5

B. Fair	Debt	Collection	Practices	Act Counterclaim

[¶12]	 	 Camire	 contends	that	the	 court	 erred	 in	 dismissing	 his	 FDCPA	

counterclaim.	 	The	 court dismissed	 the	 counterclaim	 relying on	 the	 Astbury	

 4		Camire	does	not	argue that the	court	erred	in	any	evidentiary	rulings.

5		Although	Camire	also	asserted	a	counterclaim	pursuant	to	the	FDCPA,	he	does	not	argue,	and	

the	federal	and	Maine	FDCPA do	not	provide,	that	an FDCPA	violation	is	a	defense	to	the	underlying	

debt.	 Remedies	are	limited	to	legal	relief	and	attorney	fees.		See	15	U.S.C.S.	§	1692k (LEXIS through	

Pub.	L.	No. 114-284);	32	M.R.S.	§	11054(1)	(2016).		We	accordingly	affirm	the	judgment	in	favor	of	

the	Bank	with	respect	to	the	debt.	
7

affidavit	attached	 to	 the	Bank’s	motion to	 dismiss,	effectively	 converting	 the	

motion to	 dismiss into	 one for	 summary	 judgment.	 	 See M.R.	 Civ.	 P.	 12(b);	

Beaucage	 v.	 City	 of	 Rockland,	 2000	 ME	 184,	 ¶	 5,	 760	 A.2d	 1054.	 	 In	 these	

circumstances,	we	review the	judgment	to	determine	whether	a	genuine	issue	

of	 material	 fact	 exists and	 whether	 the	 party	 that	 obtained a	 summary	

judgment	 is	 entitled	 to	 judgment	 as	 a	 matter	 of	 law.	 	 See Libner	 v.	 Me.	 Cty.	

Comm’rs	 Ass’n,	 2004	 ME	 39,	 ¶	 8,	 845	 A.2d	 570;	 see	 also M.R.	 Civ. P. 12(b),	

56(c).	 	 The	 court	 relied	 on	the	 Astbury affidavit	 and	 attached	 printout,	 but	

made	 no	 subsidiary	 factual	 findings	 and	 did	 not	 state	 the	 legal	 basis	 for	

admitting	the	evidence.		We	therefore	review	admission	of	the	evidence	for	an

abuse	of	discretion.		See State	v.	Mills,	2006	ME	134,	¶	8,	910 A.2d	1053.		

[¶13]		We begin	with	a	summary	of	relevant	FDCPA provisions—a	legal	

issue	 of	 statutory	 interpretation	 that	 we	 review	 de	 novo.	 	 Commerce	 Bank	

& Tr.	Co.	v.	Dworman,	2004	ME	142,	¶	7,	861	A.2d	662. The	Maine	FDCPA and	

federal	FDCPA each	provide consumers	with	a	private	right	of	action	against	

“debt	 collectors,”	 as	 defined	in	 each	 act. See 15 U.S.C.S.	 §§	1692a(6),	1692k	

(LEXIS);	32	M.R.S.	§§	11002(6),	11054. Creditors	are	generally	exempt	 from	

the	definition	of	“debt	collector”	and are thereby	exempt	from	FDCPA	liability.		

See 15	U.S.C.S.	 § 1692a(6)(A) (LEXIS);	32	M.R.S.	 §	 11003(1)	 (excluding	from	
8

the	definition	of	“debt	collector”	“[a]ny	officer	or	employee	of	a	creditor	while,	

in	 the name	 of	 the	 creditor,	 collecting	 debts	 for	 that	 creditor”).	 	Pursuant	 to	

the	Maine	FDCPA,	a creditor	may,	however, be	considered a	“debt	collector”	if,	

“in	 the	process	of	collecting	 the	creditor’s	own	debts,	[the	creditor]	uses	any	

name	 other	 than	 the	 creditor’s	 that	 would	 indicate	 that	 a	 3rd	 person	 is	

collecting	 or	 attempting	 to	 collect	 these	 debts.”	 32	 M.R.S.	 §	 11002(6).	 	The	

federal	 FDCPA	 similarly	 defines	 “debt	 collector”	 to	 “include[]	 any	 creditor	

who,	in	the	process	of	collecting	his	own	debts,	uses	any	name	other	than	his	

own	 which	 would	indicate	 that	 a	 third	 person	is	 collecting	 or	 attempting	 to	

collect	such	debts.”		15	U.S.C.S.	§	1692a(6) (LEXIS).

[¶14]	 	If FIA	 Card	 Services is	 not	 a “debt	 collector” as	 defined by	 the	

FDCPA, Camire’s	 counterclaim	 would	 fail	 as	 a	 matter	 of	 law and	 FIA	 Card	

Services	 was	 entitled	 to	 a	 summary	 judgment.	 	 See 15	 U.S.C.S.	 §§	 1692a(6),	

1692k (LEXIS);	32	M.R.S.	§§ 11002(6),	11003(1),	11054.		The	issue	is	whether	

admissible	 evidence in	 the	 record	 establishes without	 dispute	that	FIA	 Card	

Services	is	not	 a	 “debt	 collector”	 and	 thus exempt	 from liability	 pursuant	 to

the	Maine	and	federal	FDCPA.

[¶15]	 	 Relying	 on	 the	 Astbury	 affidavit,	 the	 court	 concluded	 that	 FIA	

Card	Services	was	a	“creditor”	and	not	a “debt	collector.”	 Astbury averred that	
9

FIA	Card	Services,	N.A.,	acquired	Bank	of	America,	N.A., on	October 20, 2006,	

based	 upon	 an	 attached	 computer	 printout	 from	 the	 National	 Information	

Center’s	website. Astbury	thus	has	no	personal	knowledge of	the	facts	stated	

in	 the	 affidavit,	 but	 asserts	that	the	 printout	 is admissible	 pursuant	 to	 M.R.	

Evid.	902(5).	

[¶16]		Maine	Rule of	Evidence 902(5),	however, is not	an	independent	

basis	 to	 admit	 evidence; it merely dispenses	 with	 ordinary	 authentication	

rules.	 	 See	 State	 v.	 Lane,	 591	 A.2d	 866,	 867	 (Me.	 1991)	 (explaining	 that	 a	

document	within	M.R.	Evid.	902(5)	requires	no	extrinsic	evidence	to	establish	

authenticity,	 but	 does	 not	 render	 the	 evidence	 admissible,	 as	 “[t]he	issue	 of	

admissibility	 is	 a	 completely separate	 question”); see	 also Field	 &	 Murray,	

Maine	 Evidence §	 902.5 at	 551	 (6th ed.	 2007) (“[S]elf-authentication	 under	

[Rule	 902(5)] does	 not	automatically	make	any	 document,	 public	 or	 private,	

admissible	in	evidence.”).		

[¶17]	 	Therefore,	even	if	 the printout	qualifies	as a self-authenticating	

“official	 publication,” which	 is	 unclear, see M.R.	 Evid.	 902(5)	 Advisory	

Committee’s	Note	to	1976	amend.	(noting	that	records	admissible	pursuant	to	

the	rule	“are	most	commonly	statutes,	court	reports,	rules,	and	regulations”),	

there	must	be	an	additional	independent	basis	to	properly	admit	and	consider	
10

the	printout.	 See Lane,	591	A.2d	at 867.		The	printout	was	offered	to	prove	the	

truth	of	the	matter	asserted—that	FIA	Card	Services	and	the	Bank are	one	and	

the	 same—and	 is	 therefore	 hearsay.	 	 M.R.	 Evid.	 801(c)(2),	 802.	 	 The	 Bank	

makes	no	argument	that	the	printout	is	admissible,	but	presumes as	a	factual	

matter	 that	 FIA	 Card	 Services	 is	 a	 creditor, and	 argues FIA	 Card	 Services	 is	

thus exempt	from	FDCPA	liability.

[¶18]	 	 Yet	 even	 assuming that	 the	 affidavit	 and	 printout	 were	

admissible,	and	accepting	that	FIA	Card	Services	is	a	“creditor”	as	defined	by	

the	 FDCPA,	 this	 does	 not	 necessarily	 establish	 an	 exemption from FDCPA

liability as	 a	 matter	 of	 law.	 	 See	 FIA	 Card	 Servs.	 v.	 Saintonge,	 2013	 ME	 65,	

¶ 3 n.1,	70	A.3d	1224 (assuming,	without	deciding,	that	a National	Information	

Center	 printout,	 even	 if	 admissible,	 did not	 entitle	 the	 moving	 party	 to	 a	

summary	judgment).		This	is	because	a creditor	 that	uses	a	name	other	 than	

its	own	to	collect	the	debt	may still	be	considered a	“debt	collector”	pursuant	

to	 the FDCPA. See 15	 U.S.C.S.	 §§	 1692a(6),	 (6)(A) (LEXIS); 32	 M.R.S.	

§ 11002(6) (stating	that	creditors	may	be	“debt	collectors” for	the	purposes	of

the	Act if they	use “any	name	other	than	the	creditor’s	that	would	indicate	that	

a	 3rd	 person	 is	 collecting	 or	 attempting	 to	 collect	 these	 debts” (emphasis	

added));	 32	 M.R.S.	 § 11003(1) (excluding	 “[a]ny	 officer	 or	 employee	 of	 a	
11

creditor	while,	in	 the	 name	 of	 the	 creditor,	 collecting	 debts	 for	 that	 creditor”	

from	the	term	“debt	collector” (emphasis	added)).

[¶19]		As	the	plain	language	of	the	foregoing	provisions makes clear,	the	

name	in	 which	the	 creditor	 attempts	 to	 collect the	 debt matters. Here,	it	is	

undisputed	that	although	Bank	of	America	was	the	original	creditor	and	card	

issuer,	 FIA	 Card	 Services	 brought	 suit	 against	 Camire	 to	 collect	 the	 debt.

6		

Because FIA	Card	Services	proceeded	in its	own	name rather	than	in	the	name	

of	the	creditor,	it	failed	to	establish	as	a	matter	of	law that it	was	not	a “debt	

collector”	 and	 thereby	 exempt	 from FDCPA	 liability.	 	 See 15 U.S.C.S.	

§§ 1692a(6),	(6)(A),	1692k (LEXIS);	32 M.R.S.	§§ 11002(6),	11003(1),	11054.

As	a	result,	FIA	Card	Services	was	entitled	to	neither	a	summary	judgment	nor	

dismissal	 of Camire’s	 counterclaim on	 the	 basis	 that	 it	 was	 exempt	 from	

FDCPA	liability.		See id.;	see	also Libner,	2004	ME	39,	¶	8,	845 A.2d	570;	M.R.	

Civ.	P.	12(b),	56(c).		Camire’s pleading	stated	a	claim for	relief	pursuant	to	the	

FDCPA in	all	other	respects.7 M.R.	Civ.	P.	12(b).

 6	 	The	 relationship	 between	 FIA	 Card	Services,	N.A.,	 and	 Bank	 of	America,	N.A.,	is	 not	 entirely	

clear	from	the	record.		We	conclude	that	the	record	developed	at	the	time	the	court	dismissed	the	

counterclaim	did	not	establish	FIA	Card	Services	was	not	a	“debt	collector”	as	a	matter	of	law.

7	 	 Several	 Maine	 federal	 district	 court	 decisions	 have	 denied	 motions	 to	 dismiss	 Maine	 and	

federal	FDCPA	claims	brought	against	third	party	entities,	concluding that	the	pleadings	established	

a	 plausible	 basis	 that	 the	 third	 party	 was	 a	 “debt	 collector”	 pursuant	 to	 the	 FDCPA.	 	 See,	 e.g.,	

Napolitano	 v.	 Green	 Tree	 Servicing,	 LLC,	 No.	 2:15-cv-00160-JAW,	 2016	 U.S.	 Dist.	 LEXIS	 14122,	 at	

*24-25	 (D.	 Me.	 Feb.	 4,	 2016) (concluding	 plaintiffs	 alleged	 sufficient	 facts	 for	 a	 servicer	 of	 a	
12

[¶20]		The	court	erred	in	concluding	that	FIA	Card	Services	was	exempt	

from	the	FDCPA	as	a	matter	of	law.		We	therefore	vacate the order	dismissing	

the	counterclaim and	remand	the	case	for	further	proceedings consistent	with	

this	opinion.

The	entry	is:

The	judgment in	favor	of Bank	of	America,	N.A.,

in	 the	 amount	 of	 $11,573.40	 plus	 costs is	

affirmed.		The	order dismissing	Camire’s	FDCPA

counterclaim is	 vacated,	 and	 the	 case	 is	

remanded	 for	 further	 proceedings	 consistent	

with	this	opinion.

John	Camire,	appellant	pro	se

Kate	 E.	 Conley,	 Esq.,	 Susan	 J.	 Szwed,	 P.A.,	 Portland, for	 appellee	 Bank	 of	

America,	N.A.

Biddeford	District	Court	docket	number	CV-2014-76

FOR	CLERK	REFERENCE	ONLY

 mortgage	loan	 to	 be	 treated	 as	 a	 debt	 collector	 for	federal	FDCPA	 purposes);	Beaulieu	 v.	 Bank	 of	

Am.,	N.A.,	No.	 1:14-cv-00023-GZS,	 2014	U.S.	Dist.	 LEXIS	 136876,	at	 *28-29	 (D.	Me.	Sep.	 29,	 2014)

(“At	 the	 motion	 to	 dismiss	 stage,	 these	 combined	 allegations	 plausibly	 suggest	 that	 BANA	 was	

‘using	 a	 name	 other	 than	 its	 own’	 that	 indicated	 a	 third	 party	 was	 attempting	 to	 collect	 on	

Mr. Beaulieu’s	default.”).