MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 47 Docket: Pen

- 17

- 342 Submitted

On	Briefs: February	26,	2018 Decided: April	3,	2018
Panel: ALEXANDER , MEAD, GORMAN , JABAR , HJELM, and HUMPHREY, JJ.

DEUTSCHE	BANK NATIONAL	TRUST	COMPANY

v. JESSE S.	EDDINS	JR.	et	al.

HJELM ,	J. [¶1] Jesse S.	Eddins	Jr.	and	Naomi	L.	Eddins appeal from a	judgment	of foreclosure	entered	by	the Superior	Court	(Penobscot	County, Mallonee,	J. ) in favor	of	Deutsche	Bank	National	Trust	Company. The	Eddinses argue	on	appeal that	the	court	abused	its	discretion	by admitting in	evidence	a	copy	of the notice
of	defaul t	 that contains	 an	 assertion	 that	it	was	sent	by	mail. We	agree and
therefore v acate	 the	 judgment	 and	 remand	 for	 entry of	 judgment for the
Eddinses.
I.		BACKGROUND [¶ 2 ] The	 following	 facts	 are either	 undisputed	 or taken	 from	 the judgment,	viewed	in	the	light	most	favorable	to Deutsche Bank. See Homeward Residential, Inc.	v.	Gregor ,	2015	ME	108,	¶	2,	122	A.3d	947

.2 [¶ 3 ] On	 November	 9,	 2005,	 Francine Eddins and	 Jesse S. Eddins ,	 Jr.
executed	a promissory	note in	favor	of	Argent	Mortgage	Co mpany ,	LLC , in	the principal	 amount	 of	 $78,200

. To	 secure	 payment	 on	 the	 note, Francine	 and Jesse executed a mortgage on	 residential	 property	 located	 in	 Mount	 Chase

. Argent	later assigned	the note	to	Deutsche Bank	as	trustee.		Francine	died in
2009

. The	 following	 January ,	 Jesse executed	 a	 quitclaim	 deed	 to the encumbered	property	to	himself and	his	daughter,	Naomi L. Eddins. Later	in
2010 , Jesse agreed	to	a	modification	of the note ,	increasing the	amount	owed to approximately	$89,000

. [¶ 4 ] On	August	10,	2015, Deutsche Bank filed	a	complaint	for foreclo sure
in the District	Court (Lincoln) , naming	Jesse	as	the	defendant	and	Naomi	as	a

p arty in interest and alleg ing that	 Jesse had	 defaulted	 by	 failing	 to	 make payments	on	the	note	beginning	April	1,	2014.		The	Eddinses filed	an	answer
that	included	several affirmative	defenses,	including an	assertion t hat	the	Bank failed	 to	comply	with	 the	notice	provisions	of 14 M.R.S.	§	6111	(2017)

. 1 The
Eddinses also filed	 a	 notice of	 removal to	 the	 Superior	 Court (Penobscot County). See M.R.	Civ.	P

. 76C.

1 The	Eddinses	also	filed	a	counterclaim	against	the	Bank

. Th e counterclaim	is	not	relevant	to	this appeal	and,	in	any	event,	has been	dismissed , leaving o nly	the foreclosure claim.3 [¶ 5 ] After	 co nsiderable

— and contentious

— pretrial	 proceedings,	 in April of 2017 the	court	( Mallonee,	J. )	conducted a bench trial. Deutsche Bank ’s only witness	was Blaine	Shadle,	a	senior	loan	analyst	for	Ocwen	Loan	Servicing, the	 company	 responsible	 for	 servicing	 the Edd inses’	 mortgage	 on	 behalf	 of
Deutsche Bank

. [¶ 6 ] Shadle	testified	that he became	employed	by Ocwen	i n	February	of
2013 and has held a	variety	of	positions there , including working a s	a phone agent in	“customer	care,” a	member of	the	“ coach	line ” where	he assisted other agents	 with	 questions	 during	 phone	 calls with	 customers ,	 a	 supervisor	 in various	departments,	and	a	member of the	“email	live	chat	team.” In	his	current position	 a s	 a	 senior	loan	 analyst, he review s “mortgage	 accounts,	 records	in [Ocwen’s]	 system,	 also	 documents,	 usually	 the	 collateral	 file,	like	 originating
document [s] such	as	the	note,	the	mortgage,	things	like	that.” S hadle testified that	 in	 preparation	 for	 trial, he reviewed Deutsche Bank’s trial exhibits	 and
related documents , which	he	stated are kept	in	the	“normal	c ourse	of	business with	the	[B] ank [,]

.	.	. made	near	or	at	the	time	of	the	event	described [ , ]

.	.	. [and] maintained	on	a	regular	and	permanent	basis” to	ensure	accuracy. [¶ 7 ] Shadle	 identifie d	 Deutsche	 Bank’s	 Exhibit	 E,	 which is a	 notice	 of
default and	 right	 to	 cure purportedly sent	 in	 May of 2015	 to	 Jesse	 at	 two4 addresses	 and which	 states ,	 among	 other	 things,	 that	 there	 was an amount
overdue on	the	note .		The	notice wa s	printed	on	the	letterhead	of	Shechtman Halperin	Savage , which is the	law	firm that	represents	Ocwen in	this	action ,	and bears	 the	 signature	 of an attorney	 with the firm

. T wo	 sets	 of	 unidentified
numbers are	 on	 the	 notice , 2 as	 well	 as	 a	 statement	 at	 the end	 of	 the notice indicating that	 it	 was	 “sent	 via	 certified	 mail/rrr	 and	 regular	 mail.” Shadle testified	 that	he	had	no	“personal	knowledge as	 to	who	mailed	 [the notice	of
default ],”	and	when	asked	whether	he	had	proof	that	t he notice	was	mailed,	he

stat ed,	 “ N ot	 with	 me.” During	 his	 testimony,	 Shadle	 did	 not	 describe	 any familiarity	with	any	process	used	by	the	law	firm	to	create	or	maintain	records.
When	t he	Bank	offered	Exhibit	E	into	evidence,	the	Eddinses	objected,	arguing
that	Shadle	lacked personal	knowledg e about	the	law	firm’s	processes relating
to	its documents

. The	court summarily overruled	the	objection	and	admitted
the	document	in	evidence. [¶ 8 ] At	 the	 close	 of the evidence, the	 court	 stated	 that	it	would	 enter judgment	for	the	Ba nk ,	and	it	did	so	by	written	judgment later that	day

. After
the	court	denied	t he	Eddinses ’ motion	for	further	findings and	conclusions , see

2 In	its	brief	on	appeal,	Deutsche	Bank	states	that	those	numbers	represent	certified	mail	tracking numbers,	but	there	is	nothing	in	the	record	to	substantiate	that statement

.5 M.R.	 Civ.	 P.	 52(b), they filed	 a	 timely	 notice	 of	 appeal. See 14 M.R.S.	 §	 1851 (2017) ;	M.R.	App.	P.	2 (b)(3) (Tower	2016)

. 3
II.		DISCUSSION [¶ 9 ] To obtain a	 judgment	 of	 foreclosure, the	 Bank	 was	 required	 to

prove — among	other	things

— that it	had	provided	Jesse	with	proper	notice	of default	and	right	to	cure. 4 See	Bank	of	Am.,	N.A.	v.	Greenleaf ,	2014	ME	89,	¶	1 8,
96	A.3d	700. Here, Exhibit	E	was	Deutsche Bank’s	o nly	evidence	that	it	had	sent

a prope r	 notice	 of	 default	 to	 Jesse .	 	 Over the	 Eddinses’ objection,	 the	 court
admitted	 that	 document	 in	 evidence	 as	 a	 business	 record	 based	 on	 Shadle’s foundational	 testimony .	 	 T he	 Eddinses	 argue	 here	 that	 the	 admission	 of	 the
document	was	error. [¶1 0] When	the	admissibility	of	business	records	is	at	issue	on	appeal, we	 review	 the	 court’s	 foundational	 findings	 for	 clear	 error	 and	 its	 ultimate

3 The	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply	because	this	appe al	was	 filed prior	to	September	1,	2017. See M.R.	App.	P.	1	(restyled	Rules).

4 This basic requirement	of	proof is applicable	here	irrespective	of	whether	this action	is	governed by	the	requirements	of 14	M.R.S.	§	6111 (2017) ,	which	is an	issue	disputed by	the	parties because	of evidence	 that J esse	was not occupying	 the	mortgaged	premises	as	his	primary	 residence. See id. § 6111(1) ; Bordetsky	v.	JAK	Realty	Trust ,	2017	ME	42,	¶	7,	157	A.3d	233 .		If section	6111 does	apply , as	the	Eddinses	contend,	then th e	Bank	was	required	to	satisfy	the	statutory	req uirements	governing such	notice

. See 14	M.R.S.	§ § 6111 , 6321 (2017) ; see	also Bank	of	Am.,	N.A.	v.	Greenleaf ,	2014	ME	89, ¶	 18,	 96	 A.3d	 700 .	 	 Alternatively,	 if,	 as	 the	 Bank	 argues,	 section	 6111	 is	 inapplicable,	 then	 the mortgage	instrument	itself nonetheless required	the	Bank	to	send	Jesse	a	notice	of	default	and	right to	 cure	 with	 certain	 information	 contained	 in	 that	 notice. Therefore,	 e it her	 way,	 the	 Bank	 was required	 to prove	 that	it	 had	 sent	 Jesse a notice	 of	 default and	 that	 the	 notice contained certain information.6 determin ation	of	admissibility	for	an	abuse	of	discretion. See Bank	of	Am.,	N.A.
v.	Barr ,	2010	ME	124,	¶	17,	9	A.3d	816 ; see	also JPMorgan	Chase	Bank,	N.A.	v.
Lowell ,	2017	ME	32,	¶	8,	156	A.3d	727

. When “ making	foundational	findings, the	 court	 may	 only	 consider evidence	 established	 prior	 to	 the	 exhibit’s
admission	in	evidence.” Gregor ,	2015	ME	108,	¶ 14	n.11,	122	A.3d	947

. [¶1 1 ] A	 document	 that is	 supported	 by	 the foundational	 standards prescribed	in	Maine	Rule	of	Evidence	803(6) is	admissible	as	an	exception	to the	general	rule	precluding admission of	hearsay	evidence. 5 The	witness	who testifies	to	the	predicate	for the	admission	of	a	business	record	need	not	have personal	 knowledge	about	 the	matter	 that	is	memorialized	in	 the	do cument,

5 Maine	Rule	of	Evidence	803(6)	provides	in	full: (6)	Records	of	a	regularly	conducted	activity. A	record	of	an	act,	even t,	condition, opinion,	 or	 diagnosis	 [is	 not	 excluded	 by	 the	 rule	 against	 hearsay,	 regardless	 of whether	the	declarant	is	available	as	a	witness,]	if: (A)	 The	 record	 was	 made	 at	 or	 near	 the	 time	 by

— or	 from	 information transmitted	by

— someone	with	knowledge; (B)	The	record	was	kept	in	the	course	of	a	regularly	conducted	activity	of	a business,	organization,	occupation,	or	calling,	whether	or	not	for	profit; (C)	Making	the	record	was	a	regular	practice	of	that	activity; (D)	 All	 these	 conditions	 are	 shown	 by	 th e	 testimony	 of	 the	 custodian	 or another	 qualified	 witness,	 or	 by	 a	 certification	 that	 complies	 with Rule 902(11),	Rule	902(12)	or	with	a	statute	permitting	certification;	and (E)	Neither	 the	 source	 of	information	 nor	 the	method	 or	 circumstances	 of preparat ion	indicate	a	lack	of	trustworthiness.7 because	 the	 foundational	 elements	 of	 a	 Rule	 803(6)	 business record,	 by themselves,	provide sufficient	indication	that	the	information	contained	in	the record	is	reliable	and	trustworthy. See M.R.	Evid.	803(6); Lowell ,	2017	ME	32, ¶	11,	156	A.3d	72 7 ; Beneficial	Maine	Inc.	v.	Carter ,	2011	ME	77,	¶	12,	25	A.3d
96

. Pursuant	to	the	Rule,	and	as	we	have	stated,	however, to	demonstrate	the record’s	reliability	and	trustworthiness , the	proponent	of	the	document	must present	 evidence that	 the	 qualifying	 witness	 is	 either	 th e	 custodian	 of	 the record	or	some	other	person	with sufficient	knowledge	of	the	processes	used by	 the	 creator of	 the	 record to	 produce	 and	 retain	 the	 record. See M.R.
Evid. 803(6); Lowell ,	2017 ME	32,	¶¶	9,	11,	156 A.3d	727; Carter ,	2011	ME	77, ¶	12,	25 A.3d	96

. “A	qualified	witness	is	one	who	was	intimately	involved	in	the daily	 operation	 of	 the [ business ] and	whose	 testimony	 showed	 the	 firsthand nature	of	his	knowledge.” HSBC	Mor t g.	Servs.,	Inc. v.	Murphy ,	2011 ME	59,	¶	10,
19	A.3d	815 (alteration in	original )	(quotation	marks	omitted)

. [¶1 2 ] T he	witness	who	provides	foundational	testimony	need	not	be	an employee	of	the	entity	that	created	and maintained the	document	at	issue if ,	for purposes	of	Rule	803(6),	tha t witness has	adequate	knowledge of	the	processes used	 by	 the	 entity	 that	 created	 and	 preserved	 the	 document. See	 Carter , 2011 ME	77,	¶	1 3 ,	25	A.3d	96 ; see	also KeyBank Nat’l	Ass’n v.	Estate	of	Quint ,8 2017	ME	237,	¶	15,	176	A.3d 717

. Consequently,	when	a	document	is	created by	one	entity	and	then	transmitted	to	another,	and	the	document	is then offered as	a	business	record	pursuant	 to	Rule	803(6),	 the	witness	must	be	shown	 to have	 “sufficient	 knowledge	 of both businesses’	 regular	 pra ctices	 to demonstrate	 the	 reliability	 and	 trustworthiness	 of	 the	 information.” Carter , 2011	 ME	 77,	 ¶	 1 3 ,	 25	 A.3d	 96 (emphasis	 added) ; see	 also	 Estate	 of	 Quint , 2017 ME	237,	¶ ¶ 16

- 17,	176 A.3d 717

. The	incorporation	of	one	entity’s	record
into	the	records of	the	receiving	entity	is	not	a	sufficient	basis,	by	itse lf,	for	the admissibility	of	that record. [¶1 3 ] Here, Deutsche	Bank presented Shadle as	the	witness to	provide the	 foundational	predicate	 for admission in	evidence of	 the	notice	of	default. Shadle	 testified	 about	 various	 positions	 he	 held	 with	 Ocwen	 and described some	measure	 of	 familiarity	 wit h	Ocwen’s	 business	 practices. The	 notice	 of default,	however,	was	not	issued	by	Ocwen.		Rather,	the	notice	was	issued	and at	 least	 initially maintaine d by	 the	 law	 firm	 representing	 Ocwen.	 	 Deutsche Bank	 did	 not	 present any evidence	 that	 Shadle	 had any familiarity	 with	 the processes	 used	 by	 the	 law	 firm	 to	 generate	 documents , such	 as	 a	 notice	 of
default , and	to	main tain	any	such	documents.9 [¶1 4 ] I n the	absence	of	any	evidence	that	Shadle	had	knowledge	of	the law	firm’s	practices regarding business	records,	the	court abuse d	its discretion by	 admitting	 the	 document	 in	 evidence

. See Carter ,	 2011	 ME	 77,	 ¶ ¶ 12

- 14 , 25 A.3d	96 ; Murphy ,	2011	ME	59,	¶	10, 19	A.3d	815

. B ecause	Deutsche	Bank presented	no competent evidence that a notice	of	default	was	sent	to	Jesse or that	 any	 such	 notice	 met	 the	 requirements	 of	 either	 section	 6111	 or	 the mortgage	 instrument	 itself , the	 Bank	 failed	 as	 a	 matter	 of	 law	 to	 prov e	 a necessary	 element	 of	its	 foreclosure	 claim, see	 Greenleaf ,	 2014	ME 89,	 ¶	 18,
96 A.3d	700, and	the Eddinses are therefore entitled	to	judgment

. 6 See Lowell , 2017 ME	32,	¶ ¶	1, 21,	156	A.3d	727 (stating	that when a	mortgagee fails at	trial to	prove	a	required	element	of	a	foreclosure	claim,	the	mortgagor	is	entitled	to judgment) ; CitiMortgage,	 Inc.	v.	Chartier ,	2015	ME	17, ¶ ¶ 1, 10,	111	A.3d	39 (same ). The	entry	is: Judgment vacated

. Remand ed for	 entry of judgment for	 Jesse	 S. Eddins	 Jr.	 and	 Naomi	 L. Eddins.

6 Because	Deutsche	Bank’s	failure	of	proof	on	the	notice	of	default	and	right	to	cure	is	dispositive of	the	outcome	of	this	appeal,	we	need	not and	do	not	reach	the	Eddinses’ argument	that	the	court also	erred	by	ad mitting	in	evidence	a	different	document ,	which	purported	to	show	the	amount	due on	the	secured	loan

.10 Thomas	 A.	 Cox,	 Esq.,	 Portland,	 for	 appellants	 Jesse	 S.	 Eddings	 and	 Naomi	 L. Eddins Brett	 L.	 Messinger,	 Esq.,	 Andrea	 T.	 Hol brook, Esq.,	 and	 David	 C.	 West,	 Esq. , Portland,	for	appellee	Deutsche	Bank	National	Trust	Company

Lincoln	District	Court	docket	number	RE

- 2015

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