MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	122

Docket: Cum-19-48

Argued: March	2,	2020

Decided: October	22,	2020

Panel: MEAD,	 GORMAN,	 JABAR,	HUMPHREY,	 and	HORTON,	 JJ.,	 and	 HJELM	 and	 CLIFFORD,	

A.R.JJ.*

Majority: MEAD,	GORMAN,	JABAR,	HUMPHREY,	and	HORTON,	JJ.,	and	CLIFFORD,	A.R.J.

Dissent: HJELM,	A.R.J.

THE	BANK	OF	NEW	YORK	MELLON

v.

DANIELLE	SHONE et	al.

HORTON,	J.

[¶1]	 In	 this	 appeal	 from	 a	 residential	 foreclosure	 judgment	 of	 the	

Superior	Court	(Cumberland	County,	Warren,	J.),	we	are	called	upon	to	clarify	

the	 criteria	 under	 the	 business	 record	 exception	 to	 the	 hearsay	 rule	 for	

admitting	in	evidence	records	that	a	business	has	obtained	from	another	entity	

and	integrated	into	its	own	records	or	operations.		See	M.R.	Evid.	803(6).		Our	

decisions	 since	 1984	 have	 endorsed	 two	 conflicting	 interpretations	 of	

Rule 803(6)	as	it	relates	to	integrated	business	records,	and	this	case	affords	an	

 *	 	 Although	 not	 present	 at	 oral	 argument,	 Active	 Retired	 Justice Clifford	 participated	 in	 the	

development	 of	 this	 opinion.	 	 See M.R.	 App.	 P.	 12(a)(2)	 (“A	 qualified	Justice	may	 participate	in	 a	

decision	even	though	not	present	at	oral	argument.”).
2

opportunity	to	resolve	the	conflict.		We	hereby	reaffirm	the	interpretation	first	

set	 forth	 in	 our	 1984	 decision	 in	 Northeast	 Bank	 &	 Trust	 Co.	 v.	 Soley,	

481 A.2d 1123,	1127	(Me. 1984),	which	is	consistent	with	the	widely	accepted	

interpretation	 of	 the	 identical	 federal	 rule,	 see U.S.	 Bank	 Tr.,	 N.A.	 v.	 Jones,	

925 F.3d	534,	537 (1st Cir. 2019).		We	conclude	that	a	record	that	one	business	

has	received	from	another	is	admissible	under	Rule	803(6)	without	testimony	

about	the	practices	of	the	business	that	created	the	record,	provided,	first,	that	

the	 proponent	 of the	 evidence establishes that	 the	 receiving	 business	 has	

integrated	 the	 record	 into	 its	 own	 records,	 has	 verified	 or	 otherwise	

established	 the	 accuracy	 of	 the	contents	 of	 the	 record,	and	has	 relied on	 the	

record	 in	 the	 conduct	 of	 its	 operations,	 and, second,	 that	 the	 opponent	 of	

admission	 has	 not	 shown	 that	 the	 record	 is	 nonetheless	 not	 sufficiently	

trustworthy	to	be	admitted.

I.		BACKGROUND	AND	PROCEDURAL	HISTORY

[¶2]		We	draw	the	following	brief	account	of	this	case	from	the	procedural	

record	and	the	evidence	offered	or	referenced	at	trial.

[¶3]		In	2015,	The	Bank	of	New	York	Mellon	commenced	this	foreclosure	

action	against	Danielle	Shone	and	Michael	Buck.		The	Bank’s	complaint	alleged	

that	in	2005,	Buck	had	taken	out	a	loan	from	America’s	Wholesale	Lender and	
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that,	 to	 secure	 Buck’s	 performance	pursuant	 to	 the	 promissory	 note	 for	 that	

loan,	 Shone	 and	 Buck	 had	 executed	 a	 mortgage	 on	a	 Portland	 property	 they	

owned.		Although	the	original	lender	and	mortgagee	were	third-party	entities,	

the	Bank	alleged	that	it	ultimately	acquired	the	note	and	mortgage.		The	Bank	

also	alleged	that	Buck	had	stopped	making	payments	on	the	loan	in 2008.

[¶4]	 	 The	 court	 held	 a	 bench	 trial	 on	 the	 complaint	 in	 October	 2018.		

There,	 the	Bank	offered	an	exhibit	containing	a	notice	of	default	and	right	 to	

cure	purportedly	sent	to	Shone	and	Buck	by	the	law	firm	retained	by	Bayview	

Loan	Servicing,	which	serviced	the	note	and	mortgage	for	the	Bank,	along	with	

a	purported	U.S.	Postal	Service	certificate	of	mailing.		The	Bank	first	attempted	

to	qualify	the	exhibit	for	admission	in	evidence	by	calling	an	employee	of	the	

law	 firm	 to	 testify	 about	 that	 office’s	 procedures	 for	 creating	 and	 mailing	

notices	 of	 default,	 but	 the	 court	 barred	 that	 testimony	 because	 the	 Bank’s	

witness	 list had	 not	 properly	 identified	 the	 prospective	 witness	 by	 name	 or	

capacity.	 	 The	 Bank	 next	 attempted	 to	 submit	 an	 affidavit	 from	 a	 law	 firm	

employee	as	a	mechanism	for	admitting	the	notice	itself	pursuant	to	M.R.	Evid.

902(11).		The	court	did	not	allow	the	Bank	to	use	that	procedure	because	it	had	
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not,	as	required	by	the	rule,	provided	Shone	and	Buck	with	reasonable	advance	

notice	that	it	would	seek	to	do	so.1

[¶5]		The	Bank	 then	attempted	 to	present	a	 testimonial	 foundation	 for	

the	 exhibit	 through	 James	 D’Orlando,	 a	 litigation	 manager	 employed	 by	

Bayview.		After	D’Orlando	testified,	the	court	excluded	the	notice	from	evidence	

because	 the	 Bank	 failed	 to	 present evidence	 that	 D’Orlando	 had	 personal	

knowledge	about	the	law	firm’s	practices	relating	to	the	creation	and	mailing	of	

notices	of	default	and	right	to	cure.		Because	the	Bank	was	therefore	unable	to	

prove	that	it	had	satisfied	the	notice	requirements	imposed	by	14	M.R.S.	§	6111	

(2018),2 the	 court	 entered	 judgment	 for	 Shone	 and	 Buck.3	 	 After	 the	 court	

 1		Neither of	those	rulings	is	at	issue	on	this	appeal.

2		This	 statute	 was	 recently	 amended	 to	 change	 the	 procedure	 for	 providing	 the	 notice.		

See P.L. 2019,	ch.	361 §§	1-2 (effective	Sept.	19,	2019)	(codified	at	14	M.R.S.	§	6111(2-A)	(2020)).

3		Although,	in	the	end,	the	trial	in	this	case	was	limited	to	the	Bank’s	attempt	to	enter	in	evidence	

the	 notice	 of	 default	 and	 right	 to	 cure,	 the	 Bank	 does	 not	 suffer	 the	 same	 fate	 as	 the	

plaintiff-mortgagee	in	Wilmington	Savings	Fund	Society,	FSB	v.	Abildgaard,	2020	ME	48,	229 A.3d	789.		

There,	 after	 the	 court	 excluded	 a	 similar	 notice	 from	 evidence	 but	 before	 the	 plaintiff	 presented	

evidence	or	an	offer	of	proof	that	covered	the	remaining	elements	of	a	foreclosure	case,	the	plaintiff	

voluntarily	rested	its	case-in-chief,	and	the	court	entered	judgment	for	the	defendant.		Id. ¶	4.		On	

appeal,	we	held	that	as	the	result	of	the	plaintiff’s	choice	to	rest	without	presenting	evidence	that	

could	satisfy	all	elements	of	its	case,	we	were	required	to	affirm	the	adverse	judgment	irrespective	

of	whether	the	court’s	evidentiary	ruling	was	erroneous.		Id.	¶	5.

Here,	in	contrast,	at	Shone	and	Buck’s	own	suggestion,	the	parties	and	the	court	agreed	that,	as	

the	first	step	in	the	trial,	because	of	the	potentially	dispositive	nature	of	that	issue,	the	Bank	would	

present	 evidence	 to	 try	 to	 establish	 that	 the	 notice	 was	 an	 admissible	 business	 record.	 	 After	

excluding	the	document	following	D’Orlando’s	testimony	but	without	the	Bank	having	rested	its	case,	

the	court	proceeded	to	enter	judgment	against	the	Bank.		Even	though	the	Bank	did	not	make	any	

offer	of	proof	as	to	the	remaining	elements	of	its	claim,	it	is	clear	that	the	Bank	did	not	proceed	in	a	

way	that	forfeited	its	argument	on	appeal	as	the	mortgagee	did	in	Abildgaard.		Thus,	if	on	remand	the	
5

denied	the	Bank’s	motion	to	alter	or	amend	the	judgment	or	for	a	new	trial,	the	

Bank	appealed	to	us.		See	14	M.R.S.	§	1851	(2020);	M.R.	App.	P.	2A.

[¶6]		After this	case	was	initially	briefed	on	appeal,	we	invited	the	parties	

and	 any	amici	 to	 file	additional	briefs	 on	 the	question	 of	whether	we	 should	

“consider	adjusting	application	of	.	.	.	[Maine	Rule	of	Evidence]	803(6),	to	track	

application	 of	 [Federal	 Rule	 of	 Evidence]	 803(6)	 as	 addressed	 in U.S.	 Bank	

Trust,	N.A.	v.	Jones,	925	F.3d	534	(1st	Cir.	2019).”		In addition	to	briefs	filed	by	

the	parties,	we	received	amici	curiae	briefs	filed	by	the	Federal	Housing	Finance	

Agency;	Full	Disclosure,	LLC;	Gerald	F. Petruccelli, Esq.;	Maine	Attorneys	Saving	

Homes;	the	Maine	Bankers	Association;	the	Maine	Credit	Union	League;	Maine	

Equal	 Justice;	 the	 National	 Association	 of	 Consumer	 Advocates	 et	 al.;	 the	

National	 Consumer	 Law	 Center;	 PHH	 Mortgage	 Corporation;	 and	 Pine	 Tree	

Legal	Assistance,	Inc.

II.		DISCUSSION

[¶7]	 	 The	 pivotal	 issue	 here	 centers	 on	 the	 foundational	 showing	 that	

must	be	made	to	admit	an integrated	business	record—that	is,	a	record	created	

by	one	entity	and	later	integrated	into	the	records	of	a	second,	separate	entity.

 

trial	court	decides	to	admit	the	exhibit	at	issue,	the	court	likely	would	need	to	reopen	the	record	for	

a	full	trial	on	all	issues.
6

[¶8]		The	traditional	method	of	admitting	business	records	in	evidence	

pursuant	 to	Rule	803(6)	is	 through	 the	 testimony	of	a	witness	with	personal	

knowledge	 of	 the	 practices	 of	 the	 business	 or	 other	 entity	 that	 created	 the	

record.		The	integrated	records	method	is	a	different	method	that	applies	when	

the	record	has,	in	effect,	become	a	business	record	of	a	business	other	than	the	

business	 that	 created	 the	 record.4	 	 See	 MRT	 Constr.	 v.	 Hardrives,	 Inc.,	

158 F.3d 478,	483	(9th	Cir.	1998) (“[R]ecords a	business	receives	from	others	

 4		Under	both	 the	 traditional	approach	and	the	integrated	 records	approach,	 the	proponent	of	

admitting	a	business	record	must	establish	the	following:

(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.

M.R.	Evid.	803(6)(A)-(C).

Under	 both	 approaches,	 the	 proponent	 of	 an	 exhibit	 may	 satisfy	 these	 criteria	 through	 direct	

evidence	of	the	regular	practices of	either	the	business	that	created	the	record	or	a	business	that	has	

integrated,	verified,	and	relied	upon	a	record	received	from	another	business.		In	each	instance,	proof	

of	 the	 business’s	 regular	 practices	 can	 constitute	 circumstantial	 evidence	 of	 trustworthiness	

sufficient	 to	 justify	 the	 inference	 that	 the	 record	 was	 created	 in	 a	 manner	 that	 satisfies	 the	

Rule 803(6)	criteria.		See	Boca	Investerings	P’ship	v.	United	States,	128	F.	Supp.	2d	16,	18	(D.D.C. 2000)	

(“The	 theory	 [underlying	 Federal	Rule	 803(6)]	 is	 that	 if	 a	 statement	 is	 recorded	 in	 the	 ordinary	

course	of	a	regularly	conducted	activity,	and	if	it	is	the	regular	practice	of	the	business	to	record	such	

a	statement,	there	is	a	sufficiently	high	degree	of	trustworthiness	inherent	in	the	document	to	ensure	

its	 truthfulness,	 making	 cross-examination	 of	 the	 person	 who	 prepared	 the	 document	 less	

necessary.”);	U.S.	Bank,	N.A.	v.	Christmas,	No.	26695,	2016	Ohio	App.	LEXIS	205,	at	*10	(Ohio	Ct.	App.	

Jan.	 22,	 2016), vacated	 on	 other	 grounds,	 54	 N.E.	 3d	 1267	 (Ohio	 2016) (“[A] court	 may	 admit	 a	

document	as	a	business	record	even	when	the	proffering	party	is	not	the	maker	of	the	document,	if	

the	other	requirements	of	[Rule	803(6)]	are	met	and	the	circumstances	suggest	 that	 the	record	is	

trustworthy.	 Trustworthiness	of	a	record	is	suggested	by	the	profferer’s	incorporation	into	its	own	

records	and	reliance	on	it.”)	(citations	omitted).
7

are	admissible	under	Federal	Rule	of	Evidence	803(6) when	those	records are	

kept	in	 the	regular	course	of	 that	business,	relied	upon	by	 that	business,	and	

where	that	business	has	a	substantial	interest	in	the	accuracy	of	the	records.”).		

Thus,	the	integrated	records	approach	eliminates	the	need	for	testimony	about	

the	practices	 of	 the	entity	 that	created	 the	 record	and	 shifts	 the	 focus	 to	 the	

record’s	status	within	the	receiving	entity.

[¶9]	 	 Evidence	 of	 the	 receiving	 entity’s	 reliance	 on	 the	 record	 in	 the	

regular	 course	 of	 its	 business	 is	 important	 because	 a	 business’s	 reliance	 on	

information	in	a	record	it	did	not	create	helps	demonstrate	the	trustworthiness	

of	 the	 record.	 	 Compare	 MRT,	 158	 F.3d	 at	 483	 (holding	 that	 invoices	

incorporated	into	a	company’s	records were	admissible	under	Rule 803(6)	to	

establish	amounts	paid	because the company	relied	upon	the	amounts	shown	

in	the	invoices), with N.L.R.B. v.	First	Termite	Control	Co.,	646	F.2d	424,	429-30

(9th	Cir.	1981) (concluding	that	third-party	records	were not	admissible	under	

Rule 803(6)	to	prove	the	origin	of	lumber	because the recipient	business	did	

not	rely	on the records	to	determine	that	origin).

[¶10]		On	 the	 other	hand,	 “mere	possession	 or	‘custody’	 of	 records	.	 .	 .	

does	 not	 qualify	 employees	 of	 the	 possessing	 party	 to	 lay	 the	 requisite	

foundation,	 and	 reliance	 by	 the	 organization	 on	 records	 created	 by	 others,	
8

although	an	important	part	of	establishing	trustworthiness,	without	more	is	not	

sufficient.”		2	Kenneth	S.	Broun	et	al.,	McCormick	on	Evidence §	292,	at	476-77

(Robert	P.	Mosteller	ed.,	8th	ed.	2020) (footnote	omitted).		When	“the	business	

offering	the	records	of	another	has	made	an	independent	check	of	the	records,	

has	integrated	them	into	their	own	business	operation	in	a	way	that	establishes	

trustworthiness	 or	 contains	 other	 assurances	 of	 trustworthiness,	 or	 can	

establish	 accuracy	 by	 other	 means,	 the	 necessary	 foundation	 may	 be	

established.”	 	 Id. at	 477-48	 (footnotes	 omitted); see	 also	 United	 States	 v.	

Sokolow, 91	 F.3d	 396,	 403	 (3d	 Cir.	 1996)	 (stating	 that	 the	 business	 records	

exception	may	apply	to records	obtained	from	others	if	the	receiving	business	

obtains	 “adequate	 verification	 or	 other	 assurance	 of	 accuracy” (quotation	

marks	omitted)).

[¶11]	 	 The	 verification	 element	 of	 the	 integrated	 records	 approach	

requires	simply	 that	 the	business	receiving	a	record	establish	or	confirm	 the	

accuracy	 of the	 record	 in	 some	 way.	 	 See	 McCormick	 on	 Evidence §	 292,	 at	

477-78.		For	example,	the	recipient	business	may	check	the	record	for	accuracy	

before	integrating	and	relying	upon	it in	its	own	operations.		See	U.S.	Bank	Trust,	

N.A.	v.	Jones,	330	F.	Supp.	3d	530,	543	(D.	Me.	2018),	aff’d	925	F.3d	534	(1st Cir.	

2019)	 (noting	 that	 the	 loan	 servicer	 “took	 steps	 to	 review	 the	 previous	
9

servicer’s	 records	in	 a	way	 that	 assured	itself	 of	 the	 accuracy	 of	 the	 records	

during	the	boarding	process	before	placing	its	own	financial	interest	at	stake	

by	relying	on	those	records”).		Another	means	of	verification	could	be for	the	

receiving	 business	 to	 integrate	 and	 use the	 record	 in	 the	 course	 of	 its	 own	

operations	in	a	manner	 that	confirms	 the	accuracy	of	 the	record.		See	United	

States	v.	Ullrich,	580	F.2d	765,	771-72 (5th Cir.	1978)	(holding	that	the	vehicle	

inventory	schedule	prepared	by	the	manufacturer	and	received	by	the	dealer	

was	 integrated	 and	 used	 in	 the	 dealer’s	 daily	 operations	 in	 a	 manner	 that	

confirmed the	accuracy	of	the	schedule).

[¶12]		Regardless	of	how	verification	occurs,	“[t]he	custodian	company’s	

independent	check	of	the	documents	acts	as	a	proxy	for	the	requirement	that	

the	records	have	been	prepared	by	someone	with	personal	knowledge	of	the	

recorded	 events.	 By	 verifying	 the	 documents,	 the	 custodian	 company	 is	 in	

essence	 acquiring	 personal	 knowledge	 of	 the	 recorded	 events,	 and	 thereby	

effectively	 adopting	 the	 entries	 in	 the	 documents	 as	 his	 own.”	 	 Air	 Land	

Forwarders,	Inc.	v.	United	States,	172	F.3d	1338,	1348	(Fed.	Cir.	1999) (Bryson,	

J.,	dissenting).

[¶13]	 	 Multiple	 federal	 circuit	 courts	 and	 numerous	 other	 states	 have	

upheld	 the	 admission	 of	 integrated	 business	 records	 upon	 a	 showing	 of	
10

verification	and	reliance	on	the	part	of	the	receiving	business,	without	the	need	

for	testimony	from	the	originating	business.		See,	e.g.,	United	States	v.	Adefehinti,	

510	 F.3d	319,	325-26	 (D.C.	Cir.	2007);	Air	 Land	 Forwarders,	 Inc.,	172	 F.3d	at

1341-42;	United	States	v.	Childs,	5	F.3d	1328,	1334-36 (9th	Cir.	1993); United	

States	 v.	 Doe,	 960	 F.2d	 221,	 223	 (1st	 Cir.	 1992);	 United	 States	 v.	 Jakobetz,	

955 F.2d 786,	 801	 (2d	 Cir.	 1992); United	 States	 v.	 Parker,	 749	 F.2d	 628,	 633	

(11th	 Cir.	 1984);	 Ullrich,	 580 F.2d at 772; United	 States	 v.	 Carranco,	

551 F.2d 1197,	1200	(10th	Cir.	1977);	see	also State	v.	Fitzwater,	227 P.3d	520,	

531-36 (Haw. 2010); Pizza	Corner,	 Inc.	v.	C.F.L.	Transp.,	 Inc.,	792 N.W.2d	911,	

913-14 (N.D. 2010).

[¶14]	 	 We	 adopted	 the	federal	 courts’	 integrated	 records approach to	

Rule	 803(6)	 in	 Northeast	 Bank	 &	 Trust	 Co.	 v.	 Soley,	 481	 A.2d	 1123,	 1127	

(Me. 1984),	a	decision	that	has	never	been	overruled	or	questioned	and	that	is	

still	good	law.

[¶15]		In	Soley,	we	decided	that the	plaintiff	bank’s	practice	of	obtaining	

prime	rate	information	from	another	bank,	integrating	the	information	into	its	

own	records,	and	relying	on	the	information	in	its	operations	was	sufficient	to	

support	 the	 admissibility	 of	 that	 information	 for	 its	 truth,	 without	 any	
11

testimony	 by	 a	 witness	 with	 personal	 knowledge	 of	 the	 sending	 bank’s	

practices	in	developing	the	information:

Here,	 the	 information	 was	 transmitted	 by	 an	 employee	 of	 the	

banking	 institution	 which	 was	 the	 source	 of	 that	 information,	

which	information	was	then	integrated	into	the	plaintiff’s	records	

and	relied	upon	by	the	plaintiff	in	its	own	business	operations.		We	

hold	 that	 under	 these	 circumstances	 the	 schedule	 satisfied	 the	

requirements	of	M.R.	Evid.	803(6)	and	was	properly	admitted.

481	A.2d	at	1127.

[¶16]		The	Soley	court	emphasized	the	fact	that	the	receiving	entity	had	

relied	upon	the	integrated	records	in	its	own	business	operations.		See	id.		In	

extending	the	business	records	exception	to	include	business	records	created	

by	someone	“not	within	the	[proponent’s]	organization,”	id,	we	explained	that	

the	regular	indicia	of	reliability	had	been	demonstrated	because	the	bank	had	

an	 “obvious	 business	 incentive	 in	 assuring	 that	 this	 employee	 [of	 the	

transmitting	bank	who	reported	 the	prime	rate to	 the	receiving	bank]	would	

have	personal	knowledge	of	changes	in	the	prime	rate	and	would	report	those	

changes	accurately.”		Id.

[¶17]	 	 Our	 endorsement	 of	 the	 integrated	 records	 approach	 in	 Soley

rested	 solidly	 on	 federal	 precedent.	 	 See	 id. (citing In	 re Ollag	 Constr.	 Equip.	

Corp., 665	 F.2d	 43,	 46	 (2d	 Cir.	 1981) (emphasizing	 the	 receiving	 business’s	

regular	 use	 of	 and	 reliance	 on	 integrated	 records);	Ullrich, 580	 F.2d	 at	 772	
12

(upholding the admission	of	“records	transmitted	by	persons	with	knowledge	

and	 then	 confirmed	 and	 used	 in	 the	 regular	 course	 of	 the	 dealership’s	

business”)).	 	 Our	 holding	 in	 Soley also	 relied	 upon	 the	 factors	 confirming	

trustworthiness	 enumerated	in	 the	Notes	 of	 the	 Advisory	 Committee for	 the	

Federal	 Rules	of	Evidence).		481	A.2d	at	1127	n.3.

[¶18]		Eight	years	after	our	Soley	decision,	we confirmed	that	holding	by	

noting	that	“we	have	recognized	that	in	certain	circumstances	business	records	

may	include	information	prepared	outside	the	business.”		Leen	Co.	v.	Web	Elec.,	

Inc., 611	 A.2d	 83,	 83-84	 (Me.	 1992).	 	 However,	 in	 Leen we	 upheld	 the	 trial	

court’s	 exclusion of	 outside	 records,	 pointing	 out	that	 such	 documents	 “are	

admissible only	if	 they	contain	 the	indicia	of	reliability	 that	 form	 the	basis	of	

the	 business	 record	 exception.”	 Id. at	 84	 (quotation	 marks	 omitted).	 	 We	

specifically	 discussed	 how	 the	 proponent	 of	 the	 records	 had	 failed	 to	

demonstrate	that	reliability:

Here,	Web	 sought	 to	introduce	 through	 the	 testimony	 of	its	 own	

agent	 records	 of	 business	 correspondence	 prepared	 by	 others,	

without	providing	any	foundation	to	suggest	that	the	records	were	

prepared	by	a	person	with	knowledge	of	the	cause	of	the	delays	or	

were	created	in	 the	 ordinary	course	 of	 business.		The	 fact	 that	 a	

document	is	received	in	the	ordinary	course	of	business	does	not	

alone	satisfy	the	foundational	requirements	of	rule	803(6).

Id.	at	84.
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[¶19]		However,	we	adopted	a	different	view	of	 the	integrated	records	

approach	in	a	more	recent	line	of	cases,	beginning	with	Beneficial	Maine Inc. v.

Carter,	decided	twenty-seven	years	after	Soley,	and	nineteen	years	after	Leen.

5		

2011	ME	77,	¶	13,	25	A.3d	96.		Our	decision	in	Carter endorsed the	integrated	

records	approach,	citing	Soley:

The	 affiant	 whose	 statements	 are	 offered	 to	 establish	 the	

admissibility	of	a	business	record	on	summary	judgment	need	not	

be	an	employee	of	the	record’s	creator.		See,	e.g.,	Ne.	Bank	&	Trust	

Co.	v.	Soley,	481	A.2d	1123,	1127	(Me.	1984).		For	instance,	if	the	

records	 were	 received	 and	 integrated	 into	 another	 business’s	

records	 and	 were	 relied	 upon	 in	 that	 business’s	 day-to-day	

operations,	 an	 employee	 of	 the	 receiving	 business	 may	 be	 a	

qualified	witness.

Id. (citations	omitted).

[¶20]		Despite	its	reliance	on	Soley,	our	decision	in	Carter	departed	from	

Soley	by	requiring	 that	 the	qualified	witness	have	personal	 knowledge	of	 the	

practices	 of	 both	the	 business	 that	 created	 the	 record	 and the	 business	 that	

received	 it,	 a	 requirement	 that	 negates	 the	 entire	 point	 of	 the	 integrated	

 5		The	dissent	suggests,	Dissenting	Opinion	¶	38 n.14, that	we	arguably	began	to	depart	from	our	

holding	in	Soley	in	State	v.	Radley,	in	which	we	decided	that	the	trial	court	erred	in	admitting	business	

records	of	one	organization	“through	the	testimony	of	a	witness	employed	by	an	entirely	different	

organization,	simply	because	her	employer	relied	on	that	organization’s	records	in	its	own	business	

dealings.”		2002	ME	150,	¶	16,	804	A.2d	1127.		We	distinguished	the	situation	in	Radley	from	that	in	

Soley,	without	overruling	or	questioning	Soley.		Id. ¶	17	n.2.		What	Radley	stands	for,	in	keeping	with	

Soley	and	our	decision	today,	is	that	reliance by	one	business	upon	the	records	of	another,	without	

verification	or	corroboration	of	the	accuracy	of	the	records, is	insufficient	to	support	admission	under	

the	integrated	records	approach.
14

records	 approach	we	 adopted	in	 Soley.	 	 See	id.	 	Even	 so,	 our	Carter	decision	

contains	 no	indication	 that	we	intended	 to	depart	 from	 our	holding	in	Soley.		

Also,	the	underlying	facts	of	Carter did	not	even	involve	an	integrated	records	

issue	because	there	was	no	evidence	that	the	entity	that	created	the	records	in	

question	 had	 sent	 them	 to	 another	 entity.	 	 Carter,	 2011	 ME	 77,	 ¶¶	 2-8,	

25 A.3d 96. Instead,	Carter stands	for	the	proposition	that	an	entity’s	business	

records	cannot	be	admitted	based	on	 the	 testimony	of	a	witness	who	has	no	

personal	knowledge	of	the	practices	of	the	entity.6

[¶21]		In	three	decisions	since	Carter,	we	continued	to	depart	from	our	

holding	in	Soley,	still	without	saying	so	or	explaining	why,	by	maintaining	the	

requirement	 that	 the	 proponent	 of	 admitting	 an	 integrated	 business	 record	

present	foundational	testimony	about	the	practices	of	the	business	that	created	

the	record.		See	M & T	Bank	v.	Plaisted,	2018	ME	121,	¶¶	24,	31,	192	A.3d	601;	

Deutsche	Bank	Nat’l	Tr.	Co.	v.	Eddins,	2018	ME	47,	¶	14,	182	A.3d	1241;	KeyBank	

Nat’l	Ass’n	v.	Est.	of	Quint,	2017	ME	237,	¶	13,	176	A.3d	717.

 6		In	Beneficial	Maine	 Inc.	v.	Carter, Beneficial	was	the	plaintiff	in	a	mortgage	 foreclosure	case.		

2011 ME 77,	¶	2,	25	A.3d	96.		The	qualifying	witness,	who	was	the	affiant	in	the	motion	for	summary	

judgment,	was	an	employee	of	HSBC,	an	entity	that	serviced	the	loan.		Id.	¶	3.		The	witness	attempted	

to	 lay	 the	 proper	 foundation	 for	 the	 introduction	 of	 Beneficial’s	 records,	 not	 HSBC	 records	 that	

contained	integrated	records	from	Beneficial.		Id.	¶	4.		The	Carter court	held	that	the	affiant	did	not	

have	 first-hand	information	 regarding	 Beneficial’s	 records	 and	 therefore	 was	 not	 able	 to	lay	 the	

proper	foundation	pursuant	to	Rule	803(6).		Id.	¶¶	15-17.
15

[¶22]		Although	 these	decisions	postdate	Soley	and	Leen,	none	of	 them	

overrules	or	distinguishes	Soley	or	Leen,	or	even	acknowledges	any	substantive	

departure	from	Soley’s	holding.		Indeed,	two	of	the	four	decisions	nominally	rely	

on	Soley—the	most	recent	of	the	four	decisions	cites	to	Soley, as	did	Carter.		See	

Plaisted, 2018	ME	121,	¶ 31	n.10.

[¶23]		In	other	words,	Soley	and	Leen	remain	good	law.		Thus,	although	

the	doctrine of	stare	decisis	supports	following	Carter,

7 the	case	for	reaffirming	

our	holding	in	Soley also	rests	upon	stare	decisis.		 In	 that	sense,	 the	question	

before	us	is	less	a	matter	of	honoring	stare	decisisthan	a	matter	of	resolving	the	

sharp	 and	 hitherto	 unexplained	 conflict	 between	 the	 two	 interpretations	 of	

Rule	803(6)	that	we	have	endorsed	at	various	times	since 1984.

[¶24]		Rule	803(6)	was	restyled	in	2014	and	 then	amended	in	2018	 to	

align	 with	 its	 federal	 counterpart.	 	 See M.R.	 Evid.	 803 Advisory	 Committee	

 7		The	dissent	advances	several	objections	to	our	endorsement	of	the	integrated	records	approach,	

including	an	objection	based	on	stare	decisis.	Dissenting	Opinion ¶¶	54-61.		Given	that	Soley predates	

Carter and	has	never	been	questioned	or	overruled,	 the	integrated	 records	approach	has	its	own

foundation	in stare	decisis.		The	dissent	also	contends	that	the	integrated	records	approach	rewrites	

Rule	803(6).		Dissenting	Opinion ¶¶	32, 65.	 But	the	traditional	approach	and	the	integrated	records	

approach	 are	 two	 similar	 evidentiary	 paths	 to	 proving	 the	 same	 Rule	 803(6)	 criteria.	 	 Both	

approaches	call	for	first-hand	testimony	about	the	practices	of	a	business—either	the	business	that	

created	the	record	or	the	business	that	received	the	record—based	upon	which	it	can	be	inferred,	as	

a	matter	of	circumstantial	evidence,	that	the	record	in	question	meets	the	Rule	803(6)	criteria.		Based	

on	its	view	that	we	are	rewriting	the	rule,	the	dissent	also	contends	that	we	should	be	engaging in	

rulemaking	as	the	Supreme	Judicial	Court	rather	than	opining	as	the	Law	Court.		Dissenting	Opinion

¶¶	65-67.	 The	contention	would	be	well-taken	if	we	were	adopting	a	new	interpretation	of	the	rule,	

but	we	are	simply	reaffirming	an	interpretation	of	the	rule	that	we	first	endorsed	thirty-six years	ago.
16

Note—August	 2018;	 M.R.	 Evid 803	 Maine	 Restyling	 Note—November	 2014.		

The	 Advisory	 Committee	 Notes	 accompanying	 both	 the	 2014	 restyling	 of	

Rule 803(6)	and	the	2018	amendment	indicate	that	the changes	in	the	language	

of	the	rule were	not	intended	to	make	any	substantive	change	in	the	rule,	and	

therefore neither	 of	 these	changes	 to	 Rule 803(6)	 addressed	 or	 resolved	 the	

conflict	between	the	Soley and	Carter	lines	of	cases.

[¶25]	 	 As	 our	 reliance	 in	 Soley	 on	 federal	 authority	 illustrates,	 we

regularly	look	to	federal	analysis	when	interpreting	our	own	identical	or	nearly

identical	rules.		See,	e.g., State	v.	Gorman,	2004	ME	90,	¶¶	30-31,	854	A.2d	1164	

(comparing	M.R.	Evid.	Rule	803(5)	with	Fed.	R.	Evid.	803(5));	State	v.	Discher,	

597	 A.2d	 1336,	 1342	 (Me.	 1991)	 (same).	 	 Reaffirming	 Soley	 aligns	 our	

interpretation	 of	 Maine	 Rule	 of	 Evidence	 803(6)	 with	 the	 widely	 accepted	

interpretation	 that	 federal	 courts	 apply	 to	 the	 identical	 federal	 rule.	 	 It	

promotes	 a	 uniformity	 of	 application	 of	 the	 business	 records	 exception	 in	

Maine’s	 federal	 and	 state	 courts,	 and—in	 that	 sense—discourages	

forum-shopping.

[¶26]		The	opposition	of	the	appellees	and	some	of	the	amici	to	the	Jones	

and Soley	 integrated	 records	 approach	 appears	 grounded	 primarily	 in	 their	

view	 that	 the	 recordkeeping	 practices	 of	 mortgage	 loan	 servicers	 such	 as	
17

Bayview	are	too	unreliable	to	justify	the	admission	of	a	record	that	one	servicer	

has	received	from	a	prior	servicer	or other	entity	without	testimony	based	on	

personal	 knowledge	 regarding	 the	 practices	 and	 procedures	 of	 the	 business	

that	 created	 the	 record.	 	 The	 lack	 of	 reliability	 of	 records	 submitted	 in	

foreclosure	cases	by	some	residential	mortgage	lenders	or	loan	servicers	has	

been	 amply	 documented.	 	 See,	 e.g., HSBC	 Mortg.	 Servs., Inc.	 v.	 Murphy,	

2011 ME 59,	¶	15	n.8,	19	A.3d	815	(noting	“the	recurring	problem	of	lenders	

submitting	 unreliable	 affidavits	 and	 documents	 in	 residential	 foreclosure	

proceedings”).

[¶27]	 	 Still,	 the	 recordkeeping	 shortcomings	 of	 some	 members	 of	 a	

particular	 business	 sector	 should	 not	 drive	 our	 interpretation	 of	 a	 rule	 of	

evidence	 that	 applies	 to	 the	 records	 of	 all	 businesses	 and,	 more	 broadly,	 as	

Rule 803(6)(B)	indicates,	 to	 the	 records	 of	 any “organization,	 occupation,	 or	

calling.” If	the	records	kept	by	mortgage	lenders	or	loan	servicers	in	particular	

are	 categorically	 unreliable,	 more	 stringent	 proof	 requirements	 might	 be	

appropriate.8		But	there	is	no	good	reason	to	require	in	every	case	testimony	

based	 on	 personal	 knowledge	 of	 the	 practices	 of	 the	 business	 that	 created	 a	

 8	 	 For	 example,	 the	 Maine	 Legislature	 has	 enacted	 special	 requirements	 for	 collection	 actions	

brought	by	consumer	debt	buyers.		See	32	M.R.S.	§ 11019	(2020);	see	 also P.L.	2017,	ch.	216,	 §	6

(effective	Nov.	1,	2017).
18

record	when	 the	business	 that	 received	 the	 record	can	meet	 the	integration,	

verification,	and	reliance	criteria	of	the	integrated	records	approach.

[¶28]		Moreover,	 the	 federal	and	Maine	 versions	 of	Rule	803(6)	guard	

against	 the	 admission	 of	 untrustworthy	 integrated	 business	 records	 by	

precluding	admission,	even	when	 the	proponent	makes	an	initial	 showing	 of	

integration,	verification,	and	reliance,	if	 the	opposing	party	“show[s]	 that	 the	

source	of	information	or	the	method	or	circumstances	of	preparation	indicate	

a	lack	of	trustworthiness.”		Fed.	R.	Evid.	803(6)(E);	M.R.	Evid.	803(6)(E).		Lastly,	

the	integrated	records	approach	is	only	a	means	of	laying	a	foundation	for	the	

admission	in	evidence	of a	record;	it	does	not	purport	to	define	or	establish	the	

weight	to	be	given	to	the	record.

[¶29]		In	this	case,	the	trial	court’s	exclusion	of	the	exhibit	at	issue	was	

consistent	with	the	Carter	line	of	cases,	because	the	Bank	did	not	present	any	

first-hand	 testimony	 about	 the	 practices	 of	 the	 law	 firm	 that	 purportedly	

created	and	mailed	the	notices	of	default.

[¶30]		Because	we	today	reaffirm	the	integrated	records	approach	that	

we	adopted	in	Soley, under	which	such	foundational	evidence	is	unnecessary,

we	 must vacate the	 judgment and	 remand the	 matter	 for the	 trial	 court	 to	

determine,	 based	 on	 the	 current	 record,	 whether	 the	 Bank’s	 exhibit,	 which	
19

includes	 the	 two	 purported	 notices	 of	 default	 and	 a	 separate	 purported	U.S.	

Postal	 Service	 certificate	 of	 mailing,	 meets	 the	 integration,	 verification,	 and	

reliance	criteria	for	admission	in	evidence	as	an	integrated	record.9

The	entry	is:

Judgment	 vacated.	 	 Remanded	 for	 further	

proceedings	consistent	with	this	opinion.

HJELM,	A.R.J.,	dissenting.

[¶31]		The	Court	today	remands	this	case for	the	trial	court	to	reconsider	

its	ruling	that	excluded	from	evidence	an	integrated	business	record	critical	to	

the	Bank	of	New	York	Mellon’s	foreclosure	claim,	with	the	new	determination	

to	 be	 based	 not	 on	 Maine	 law	 but	 on	 a	 materially	 different	 standard	 for	

admissibility	 that	is	 used	 in	 other	jurisdictions,	 notably	 a	 number	 of	 federal	

courts.		

 9	 	 When	 admission	 of	 evidence	 under	 the	 business	 records exception	 to	 the	 hearsay	 rule	 is	

challenged,	“‘we	review a	trial	court’s	foundational	findings	to	support	admissibility for	clear	error

and	its	ultimate	determination	of	admissibility for	an	abuse	of	discretion.’”		Am. Express	Bank, FSB	v.	

Deering,	2016	ME	117,	¶ 12,	145	A.3d	551	(quoting State	v.	Abdi, 2015	ME	23,	¶	16,	112 A.3d 360).		

Thus,	the	determination	of	whether	some	or	all	of	the	materials	contained	in	the	exhibit	at	issue is	

admissible	based	on	the	current	record	should,	at	least	initially,	be	made	by	the	trial	court.		Nothing	

in	this	opinion	should	be	taken	to	imply	a	view	regarding	whether	the	exhibit	should	be	admitted	as	

an	integrated	record.		In	light	of	our	adoption	of	a	different	evidentiary	standard	than	was	argued	at	

trial,	the	court	may	reopen	the	record	to	allow	further	argument	by	the	parties.		If	the	court	decides	

to	admit	the	exhibit,	the	trial	may	resume	on	all	issues	in	contention.
20

[¶32]		To	arrive	at	its	conclusion,	the	Court	errs	in	two	fundamental	ways.		

The	 first	 is	 analytical.	 	 As	 the	 Court	 acknowledges, the	 trial	 court	 correctly	

applied	Maine	law	that	governs	the	admissibility	of	business	records.		See M.R.	

Evid. 803(6).	 	 By	 nonetheless	 vacating	 the	 judgment,	 however,	 the	 Court	

derogates	from	principles	of	stare	decisis and improperly dispenses	with	that

well-established	Maine	jurisprudence—jurisprudence	that	we	have	developed	

over	nearly	 the	past	decade	and	 that	is	entirely	consonant	with	Rule	803(6).		

The	second	error	is	structural.		Because	the	Court’s	reasoning	is	not	supported	

by	 a	 sound	 jurisprudential	 rationale,	 the	 Court	 must	 be	 seen	 as	 rewriting	

Rule 803(6),	 thereby	 improperly	 blending	 its	 nonadjudicatory	 authority	 to	

promulgate	rules	in	its	capacity	as	 the	Maine	Supreme	 Judicial	Court	with	its	

adjudicatory	authority, when	sitting	as	the	Law	Court, to	consider	appeals.		For	

these	reasons,	I	respectfully	dissent.

[¶33]		In	this	opinion,	I	will	first	review	Maine’s	governing	law	that	the	

Court	 now	 abandons	 and	 discuss	 the	 reasons	 why	 that	 law should	 remain	

controlling	authority	in	Maine	courts.		Second,	 I	will	explain	 the	basis	 for	my	

conclusion	that	the	remaining	rationale	for	the	Court’s	decision	wrongly	strays	

into	its	discrete	regulatory	rulemaking	function.
21

A. Maine’s	Law on	Integrated	Business	Records

1. Maine’s	Case Law

[¶34]		The	essential	issue	presented	in	this	case	focuses	on	the	showing	

that,	 pursuant	 to	 Maine	 Rule	 of	 Evidence	 803(6),10 must	 be	 made	 by	 the	

proponent	of	an	integrated	business	record—a	document	created,	maintained,	

and	handled	by	one	entity	and	then	transferred	to	and	held	by	a	second	entity—

for	the	record	to	be	admitted	in	evidence.		The	particular	record	at	issue	here	

is	 a notice	 of	 default	 and	 right	 to	 cure	 purportedly	 mailed	 by	 the	 law	 firm	

engaged	 by	 the	 mortgage	 servicer	 to	 the	 mortgagors,	 Danielle	 Shone	 and	

Michael	Buck.		

 10		In	its	current	formulation,	Maine	Rule	of	Evidence	803(6)	creates	an	exception	to	the	general	

exclusion	of	hearsay	evidence	and	allows	the	court	to	admit	a	business	record,	i.e.,	a	“[r]ecord[]	of	a	

regularly	conducted	activity,”	if	the	following	criteria	are	satisfied:

(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	 the	 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)	 The	opponent	does	not	show	 that	 the	source	of	information	or	 the	method	or	

circumstances	of	preparation	indicate	a	lack	of	trustworthiness.
22

[¶35]		In	its	opinion,	the	Court	states	that	an	integrated	business	record	

is	 admissible	 pursuant	 to	 Rule	 803(6)	 if	 the	 proponent	 presents,	 as	 a	

foundational	predicate,	testimony	from	a	witness,	who	need	not	have	personal	

knowledge	 of	 the	 originating	 entity’s	 record-related	 practices,	 that	 the	

receiving	 entity	 merely	 integrated,	 verified,	 and	 relied	 on	 the	 document.		

Court’s	Opinion	¶	30.		Over	the	course	of	nearly	the	past	decade,	however,	we	

have	 consistently	 and	 explicitly	 articulated	 two	 categorical	 foundational	

elements	for	an	integrated	business	record,	which, as	I	will	discuss	below, are	

very	different from	the	elements	that	the	Court	prescribes	today.		First,	our	case	

law	 establishes	 that	 the	 proponent	 of	 an	 integrated	 business	 record	 must	

demonstrate	 that	 the	 record-related	 protocols	 of	 both the	 originating	 and	

receiving	 entities	 meet	 the	 requirements	 of	 Rule	 803(6)(A)-(C),	 which	 set	

specific	evidentiary	standards	for	when	the	document	must	have	been	created,	

how	 it	 was	 maintained,	 and	 whether	 those	 business	 practices	 were	 routine.		

And	second,	to	be	a	“qualified	witness”	within	the	meaning	of	Rule	803(6)(D),	

the	foundational	witness	must	have	personal	knowledge	about	those	protocols	

maintained	by	each	entity.

[¶36]	 	 It	 is	 manifest	 that	 the	 standard	 that	 the	 Court	 now	 adopts	 is	

materially	different	from	the	criteria	prescribed	in	controlling	Maine	case	law.		
23

A	review	of	those	cases	demonstrates	that	our	articulation	of	the	evidentiary	

standards	was	not,	as	the	Court	seems	to	suggest,	unintentional	or	inadvertent.		

Indeed,	 the	clear	and	explicit	language	we	used	 to	 frame	 those	requirements	

demonstrates	that,	in	those	cases,	we	meant	what	we	said.

[¶37]		The	line	of	cases	defining	our	current	jurisprudence	began	no	later	

than	our	2011	opinion	in	Beneficial	Maine	Inc.	v.	Carter,	2011	ME	77,	25	A.3d	

96,11 which	addressed	Rule	803(6)	in	its	then-existing	formulation.12		There, we	

stated	that	for	an	integrated	business	record	to	be	admissible,	the	proponent	

 11		The	articulation	of	our	current	standard	arguably	had	its	genesis	even	earlier,	in	State	v.	Radley,	

where	we	stated,	“To	permit	the	State	to	proffer	the	[integrated	business]	records	.	.	.	through	the	

testimony	of	a	witness	employed	by	an	entirely	different	organization,	simply	because	her	employer	

relied	on	that	organization’s	records	in	its	own	business	dealings,	is	wholly	unsupported	by	rule	or	

law.”	 	 2002	ME	 150,	 ¶	 16,	 804	 A.2d	 1127.	 	We	 further	 stated	 that,	 instead,	 the	 proponent	 must	

demonstrate	 through	a	 knowledgeable	witness	that	 the	upstream	entity	created,	maintained,	and	

transmitted	the	record	in	a	way	 that	satisfied	the	requirements	now	 found	in	Rule	803(6)(A)-(C).		

Radley, 2002	ME	150,	¶ 16,	804	A.2d	1127.		These	are	the	criteria	for	the	admissibility	of	an	integrated	

business	record	that	we	again	articulated	beginning	nine	years	later	in	Beneficial	Maine	Inc.	v.	Carter,	

2011	ME	77,	25	A.3d	96.		Despite	the	analysis	contained	in	Radley,	however,	for	the	reasons	I	discuss	

below,	 see	 infra	 n.14, that	 opinion	 may	 not	 constitute	 a	 full	 and	 clear	 demarcation	 from	 the	

evidentiary	 standard	 described	 in	 Northeast	 Bank	 & Trust	 Co.	 v.	 Soley,	 481	 A.2d	 1123,	 1127	

(Me. 1984)—the	standard	to	which	the	Court	now	returns.		Rather,	that	change	in	our	law	was	more	

definitively	established	in	Carter.

12		The	Rule	then	stated	in	pertinent	part	that	a	business	record	was	admissible	if	the	record	was

“made	 at	 or	 near	 the	 time	 by,	 or	 from	 information	 transmitted	 by,	 a	 person	 with	

knowledge, if	kept	in	the	course	of	a	regularly	conducted	business,	and	if	it	was	the	

regular	 practice	 of	 that	 business	 to	make	 the	 .	 .	 .	 record	 .	 .	 .	 ,	 all	 as	 shown	 by	 the	

testimony	 of	 the	 custodian	 or	 other	 qualified	 witness,	 .	 .	 .	 unless	 the	 source	 of	

information or	 the	 method	 or	 circumstances	 of	 preparation	 indicate	 lack	 of	

trustworthiness.”

Carter,	2011	ME	77,	¶	12	n.5,	25	A.3d	96	(quoting	M.R.	Evid.	803(6)	(Tower	2010)).		As	I	discuss	in	

the	 text,	 infra	 ¶¶	 39,	 48-51,	 the	 current	 version	 of	 the	 Rule	 is	 substantively	 the	 same	 as	 the	

formulation	of	the	Rule	discussed	in	Carter.	
24

must	demonstrate	that	the	originating	entity	routinely	used	specified	protocols	

to	create the	business	record,	maintain it,	and	transmit	it	to	the	receiving	entity,	

all in	a	way	that,	in	the	end,	is	sufficient	to	allow	the	receiving	entity	to	rely	on	

it.		Id. ¶¶	13-14.		Thus,	although,	as	the	Court	states	today,	Court’s	Opinion	¶	9,	

reliability	generally	is	germane	to	the	evidentiary	framework,	there	is	more	to	

it	 than	 that	 because,	 as	 we	 stated	in	Carter and	 subsequent	 cases	 described	

below, the	rule	still	requires	foundational	evidence	of	certain	specific	historical	

circumstances,	 which	 could	 then	 form	 the	 basis	 to	 allow	 some resulting

assurance	that	the	information	in	the	record	is	reliable.		We	also	stated	in	Carter

that	 although	 the	 foundational	 witness	 need	 not	 be	 an	 employee	 of	 the	

originating	 entity,	 that	 witness	 must—as the	 rule explicitly	 requires—be	

“qualified,”	which	means	that	the	witness	must	“demonstrate	knowledge”	of	the	

originating	 entity’s	 specific	 record-related	 practices	 now	 described	 in	

Rule 803(6)(A)-(C).13		2011	ME	77,	¶¶	13-14,	25	A.3d	96.

 13		The	Court	asserts	that,	because	Carter	stated	that	the	witness	need	not	be	an	employee	of	the	

originating	entity, our	opinion	in	that	case “endorsed	the	integrated	records	approach”	that had	been	

set	out	in	Soley,	481	A.2d	at 1127.		Court’s	Opinion	¶	19.		For	the	reasons	I	explain	in	the	text,	however,	

Carter	superseded	Soley	by	articulating	materially	different	criteria	for	an	integrated	business	record	

to	 be	 admissible.	 	Additionally,	we	 have	 never	 held	 that,	 to	 be	 “qualified”	within	 the	meaning	 of	

Rule 803(6)(D),	 the	 foundational	witness	must	be	an	employee	of	 the	entity	whose	record-related	

practices	 are	 being	 described	 in	 that	 witness’s	 testimony.	 	 The	 test	 for	 whether	 a	 witness	 is	

“qualified”	rests	on the	nature	and	source	of	the	witness’s	knowledge,	not	the	witness’s	employment	

or	capacity.		See	M	&	T	Bank	v.	Plaisted,	2018	ME	121,	¶¶ 7-12,	24,	192	A.3d	601;	Deutsche	Bank	Nat’l	

Tr.	Co.	v.	Eddins,	2018	ME	47,	¶	12,	182	A.3d	1241;	KeyBank	Nat’l	Ass’n	v.	Est.	of	Quint,	2017	ME	237,	
25

[¶38]		As	the	Court	correctly	notes,	Court’s	Opinion	¶ 20,	those	standards	

heightened	 the	 requirements	 for	 the	 admissibility	 of	 integrated	 business	

records	as	set	out	in	our	previous	case	law,	which	had	allowed	the	trial	court	to	

admit	 such	 evidence	 when	 there	 were	 merely	 “indicia	 of	 [the	 record’s]	

reliability”—something	that	could	be	demonstrated	by	as	little	as	foundational	

evidence	 that	 the	 receiving	 entity	 had	 integrated	 the	 record	 into	 its	 own	

records	 and	 relied	 on	 it.	 	 Ne.	 Bank	 &	 Tr.	 Co.	 v.	 Soley,	 481	 A.2d	 1123,	 1127	

(Me. 1984).14		Carter’s	clear	and	explicit	articulation	of	more	exacting	criteria	

 

¶	15,	176	A.3d	717;	Carter,	2011	ME	77,	¶¶ 13-14,	25	A.3d	96.		Thus,	the	Court’s	attempt	to	equate	

the	analyses	in	Carter and	Soley is	a	curious	one.	

14		As	I	state	above,	see	supra	n.11,	in	Radley	we	at	least	began	our	move	away	from	the	approach	

described	in	Soley	a	full	nine	years	before	Carter.		At	issue	in	Radley was	the	admissibility	of	a	report	

of	a	funds	transfer	offered	by	the	State.		2002	ME	150,	¶	5,	804	A.2d	1127.		The	foundational	witness,	

who	was	an	employee	of	the	receiving	entity,	testified	that	her	office	had	received	the	report	from	

another	entity	and	 relied	on	it—a	 foundation	that	was	sufficient	pursuant	 to	Soley.		Id.		We	held,	

however,	that	the	witness	was	not	“qualified”	within	the	meaning	of	Rule	803(6)	because	she	had	no	

knowledge	of	the	manner	by	which	the	sending	entity	created,	maintained,	or	transmitted	the	report	

to	the	receiving	entity.		Id.	¶	15.		Additionally,	at	trial	the	proponent—the	State—had	failed	to	present	

any	evidence	of	whether	the	record	was	created	at	or	near	the	time	of	the	event	it	described,	whether	

the	 record	 was	 created	 by	 someone	 with	 knowledge	 of	 the	 event,	 and	whether	 the	 entity	 had	 a	

regular	practice	of	creating	such	a	record.		Id.	¶	16.		These	are	the	criteria	for	the	admissibility	of	an	

integrated	business	record	that	we	articulated	nine	years	later	in	Carter.		Because	in	Radley the	State	

had	 failed	to	develop	a	 foundation, based	 on	 the	 testimony	 of	a	witness	with	 knowledge,	 that	 the	

sending	 entity’s	 record-related	 practices	 met	 the	 requirements	 that	 are	 now	 found	 in	

Rule 803(6)(A)-(C),	we	concluded	that	the	trial	court	erred	by	admitting	the	record	in	evidence.		Id.

In	a	footnote in	Radley,	however,	we	did	bring	into	question	the	scope	of	the	holding	and	its	effect	

on	Soley.		Id. ¶	17	n.2,	804	A.2d	1127.		We	addressed	 the	State’s	contention	 that	admission	of	 the	

integrated	business	record	was	a	“natural	extension”	of	Soley	because	the	foundational	witness	had	

testified	that	the	receiving	entity	received	and	relied	on	it.		Id.		We	rejected	that	entreaty	because	the	

report	provided	information	that	had	been	reported	from	yet	another	underlying	source	and	because	

it	described	the	defendant’s	conduct	rather	than	“objective	and	verifiable”	information	such	as	was	

involved	in	Soley (information	about	interest	rates).		Id.
26

for	admissibility,	however,	can	leave	no	doubt	that	we	intended	to	implement	

those	 more	 refined	 and	 disciplined	 standards,	 which	 also,	 unlike	 those	

described	in	Soley,	 track	 the	 requirements	as	 they	were	 plainly	 stated	in	 the	

rule.	

[¶39]	 	 The	 entire	 body	 of	 the	 Maine	 Rules	 of	 Evidence	 was	 restyled	

effective	at	the	beginning	of	2015,	more	than	three	years	after	we	issued	our	

decision	in	Carter.		See	2014	Me. Rules	 15	 (effective	 Jan.	1,	 2015).		 The	 only	

change	to	Rule	803(6)	created	by	the	restyling	was	the	helpful separation	of the	

rule’s	 foundational	 elements	 into	 discrete	 subparts.	 	 Cf. M.R.	 Evid.	 803(6)	

(Tower	2010).		When	the	Advisory	Committee	on	the	Maine	Rules	of	Evidence	

presented	 the	 proposed	 restyled	 rules	 to	 the	 Supreme	 Judicial	 Court,	 the	

Committee	made	explicit	that	the	purpose	of	the	restyling	effort	was	to	make	

the	 language	 contained	 in	 the	 rules	 clearer	 while	 still	 “preserv[ing]	 the	

substance	of	the	respective	rules	without	change.”		Advisory	Committee	on	the	

Maine	 Rules	 of	 Evidence	Note:	 Proposed	 Restyled	 Rules	 of	 Evidence [2014].		

 Therefore,	at	the	very	least,	nine	years	before	Carter,	our	decision	in	Radley	signaled	a	limitation	

on	 the	 holding	 in	 Soley	 by	 requiring	 the	 proponent	 to	 present	 testimony	 from	 a	 knowledgeable	

foundational	witness	that	the	practices	of	the	originating	entity	met	the	requirements	now	set	out	in	

subparts	A	through	C	of	Rule	803(6).		But	Radley did	not	make	a	clean	break	from	Soley because	of	

the	discussion	in	the	footnote	that	appears	to	have	distinguished	Soley in	part	based	on	differences	

in	the	facts.		Radley,	2002	ME	150,	¶	17	n.2,	804	A.2d	1127.		I	therefore	treat	Carter as	the	analytical	

divide	even	though	Radley certainly	presaged	that	development	by	bringing	Soley	into	considerable	

question	that	much	earlier.
27

This	means	that,	although	having	occasion	to	do	so	through	its	comprehensive	

review	of	the	rules,	the	Advisory	Committee	did	not	recommend	a	change	from	

the	way	we	had	construed	Rule	803(6)	several	years	earlier	in	Carter.		Further,	

our	consideration	of	the	proposed	restyled	body	of	rules	also	presented	us with	

the	opportunity	to	rewrite	or	otherwise	clarify	Rule	803(6)	in	a	way	that	would	

alter	Carter’s	standards	for	the	admissibility	of	integrated	business	records	and	

restore	 Soley’s.	 	 If	 our	 analysis	 in	 Carter	 had	 been	 mistaken,	 as	 the	 Court	

concludes	today,	we	could	and	presumably	would	have	done	so.		But	we	did not,	

and	so	the	substance	of	Rule	803(6)	remained	the	same,	and	Carter	remained	

good	law.

[¶40]	 	When	 we	 first	 considered	 and	 applied	 restyled	 Rule	 803(6),	 in	

KeyBank	National	Ass’n v.	Estate	of	Quint,	we	quoted	directly	from	Carter and	

reiterated	the	requirement	for	the	admissibility	of	integrated	business	records	

that	the	foundational	witness,	if	an	employee	of	only	the	receiving	entity,	must	

have	 the	 requisite	 knowledge	 of	 the	 regular	practices	 of	both the	 originating	

and	receiving	entities:	“[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.”	 	 2017	 ME	 237,	 ¶	 15,	 176	 A.3d	 717	

(quotation	 marks	 omitted).	 	 But	 the	 foundational	 witness	 need	 not	 be	 an	
28

employee	 of	 the	 originating	 entity,	 in	 which	 case	 the	 witness must	 have	

“sufficient	knowledge	of	both	 businesses’ regular	practices”	in	a	measure	 that	

demonstrates	the	reliability	and	trustworthiness	of	the	information	contained	

in	 the	document.	 	Id.	(quotation	marks	 omitted).	 	We	 affirmed	 the	judgment	

entered	for	the	mortgagor	because	the	trial	court	had	correctly	concluded	that	

the	mortgagee	did	not	develop	foundational	evidence	that	the	originating	entity	

had	engaged	in	the	regular	business	practices	meeting	the	requirements	of	the	

rule	as	explained	in	Carter.		Id.	¶	19.		Further,	true	to	the	provisions	of	the	rule	

and	the	Advisory	Committee’s	explanation	of	the	proposed	restyled	rules,	we	

viewed	restyled	Rule	803(6)	as	containing	the	same	substantive	requirements	

as	the	previous	version.		See	id. ¶¶	14-15.		In	other words,	we	reaffirmed	the	

Carter analysis,	and	that	case	therefore	again	remained	good	law.

[¶41]		Similarly,	in	Deutsche	Bank	National	Trust	Co. v.	Eddins,	another	

foreclosure	 case	involving	 an	integrated	 business	 record	 where	 the	 restyled	

version	of	Rule 803(6)	was	applicable,	we	again	stated	that,	for	the	document	

to	be	admissible,	the	foundational	witness	must	have	“adequate	knowledge	of	

the	 processes	 used	 by	 the	 entity	 that	 created	 and	 preserved	 the	 document.”		

2018	 ME	 47,	 ¶	 12,	 182	 A.3d	 1241.	 	 We	 also stated	 explicitly	 that	 “[t]he	

incorporation	of	one	entity’s	record	into	the	records	of	the	receiving	entity	is	
29

not a	 sufficient	 basis,	 by	 itself,	 for	 the	 admissibility	 of	 that	 record.”	 	 Id.	

(emphasis	added).

[¶42]		The	most	recent	case	in	which	we	considered	the	admissibility	of	

integrated	business	records	is	M	&	T	Bank	v.	Plaisted,	2018	ME	121,	192	A.3d	

601.		There,	the	foundational	witness	was	an	employee	of	the	originating	entity	

and	 was	 familiar	 with	 that	 business’s	 record-related	 practices,	 but we	

concluded	 that,	 because	 he	 had	 no	 “personal	 knowledge”	 of	 the	 receiving	

entity’s	business	practices,	the	integrated	business	record	in	the	possession	of	

the	 receiving	 entity	 was	 not	 admissible.	 	 Id. ¶¶	 7-12,	 24.	 	 This	 again	

demonstrates	that	the	proponent’s	foundation	must	include	testimony	from	a	

witness	 with	 firsthand	 knowledge	 that	 the	 record-related	 practices	 of	 each	

entity	satisfy	the	requirements	of	Rule 803(6)(A)-(C).

[¶43]	 	 These	 cases—decided	 over	 the	 course	 of	 nearly	 a	 decade and	

perhaps	longer,	see	supra	nn.11,	14,	and	all	decided	unanimously	and	without	

doctrinal	interruption—establish	 the	 standards	 that	govern	 the	admissibility	

of	integrated	business	records	pursuant	to	Rule	803(6). The	cases	confirm	that	

the	proponent	must	present	evidence	that	the	practices	of	both	the	originating	

and	receiving	entities	meet	the	specific	criteria	set	out	in	subparts	A	through	C;	

an	 attempt	 to	 show	 reliability	in	 some	 other	way	 falls	 short.	 	The	cases	 also	
30

require	 that	 the	 foundation	emanate	 from	one	or	more	witnesses	who,	 to	be	

“qualified”	within	the	meaning	of	Rule	803(6)(D),	must	have	actual	familiarity	

with	 the	 processes	 used	 by	 both	 the	 originating	 and	 receiving	 entities	 for	

creating,	handling,	and	retaining	the	business	record	at	issue.		

[¶44]	 	 In	 contrast,	the	 standard	 announced	 today	 by	 the	 Court	 allows	

admission	of	an	integrated	business	record	on	foundational	evidence	that	the	

receiving	 entity	 integrated,	 verified,	 and	 relied	 on	 the	 document	 it	 received	

from	the	originating	entity.		Further,	as	 the	Court	describes	the	standard,	the	

receiving	 entity	 can	 “verify”	 the	 record	 when	 that	 entity	 “simply	

. . . establish[es]	or	confirm[s]	the	accuracy	of	the	record	in	some	way.”		Court’s	

Opinion	 ¶	 11	 (emphasis	 added).	 	 That standard—particularly	 the	 highly	

nonspecific	 criterion	 for	 how	 the	 receiving	 entity	 may	 verify	 a	 record’s	

accuracy—is	 entirely	 at	 odds	 with,	 and	 is	 insufficient	 to	 satisfy,	 the	 plain	

language	 of	 Rule	 803(6)	 and	 our	 interpretive	 case	 law	 since	 at	 least	 2011.		

Despite	that	legal	authority and the	clear	requirements	of	Rule 803(6)(A)-(D),	

based	on the	Court’s	decision	today,	no	longer	will	the	proponent	be	required	

to	present	evidence,	based	on	the	testimony	of	a	“qualified	witness”	as	we	have	

construed	 that	 term,	see	 Carter,	 2011	ME	 77,	 ¶¶	 13-14,	 25	 A.3d	 96,	 that	 the	

record	was	made	at	the	time	or	near	the	time of	the	recorded	event by	someone	
31

with	knowledge	of	the	event,	that	the	document	was	kept	in	the	course	of	the	

originating	business’s	regularly	conducted	activity,	and	that	creating	the	record	

was	among	the	originating	business’s	regular	practices.

[¶45]		Notwithstanding	 the	interpretation	 of	Rule	803(6)	it	announces	

today,	 the	Court	states	 that	 the	requirements	of	Rule	803(6)	will	continue	 to	

govern	the	admissibility	of	integrated	business records	and	that	the	proponent	

will	 still	be	 required	 to	 present	 foundational	 evidence	 from	which	it	may	be	

“inferred”	that	the	originating	entity’s	practices	satisfy	the	predicate	elements	

in	 the	 Rule.	 	 Court’s	 Opinion	 ¶	 23 n.7.	 	 This	 assertion	 is	 belied by	 the	 very	

evidentiary	standard	the	Court	adopts	here.		For	an	integrated	business	record	

to	be	admissible	from	now	on,	the	proponent	will	need	only	present	evidence	

that	 the	 downstream	 entity	 received,	 verified,	 and	 relied	 on	 the	 document	

created	 by	 the upstream	 entity.	 	 As	 I	 have	 discussed	 above,	 however,	

Rule 803(6)	 prescribes	 standards	 that	 are	 different	 and	more	 exacting.	 	 The	

three	 steps	 to	 be	 taken	 by	 the	 receiving	 entity	 that	 the	 Court	 finds	 to	 be	

cumulatively	 sufficient—receipt,	 verification,	 and reliance—do	 not	 bear	 any	

meaningful	 or	 predictable	 relationship	 to	 the	 particularized	 requirements	 of	

the	Rule,	which	center	on	a	showing	of	specific	practices	used	by	the	originating	

entity	 in	 creating,	 maintaining,	 and	 transmitting	 the	 document.	 	 See	 M.R.	
32

Evid. 803(6)(A)-(C).		Despite	 the	Court’s	attempts	 to	minimize	 or	even	 erase	

the	 differences,	 the	 requirements	 prescribed	 by	 the	 Rule	 in	 fact	 are	

qualitatively	distinct	from	the	more	tolerant	criteria	the	Court	adopts	today.	

[¶46]	 	 The	 Court	 also	 asserts	 several	 times	 that	 within	 our	 current	

jurisprudence	 there	 is	 a	 “conflict”	 regarding	 the	 admissibility	 of	 integrated	

business	records.		Court’s	Opinion	¶¶	1,	23,	24.		I	submit,	with	respect,	that	the	

Court	is	wrong.		Our	decisions	beginning	no	later	than	with	the	2011	opinion	in	

Carter	establish	a consistent	and clear	set	of	standards	for	the	admissibility	of	

integrated	business	records.		That	the	evidentiary	criteria	articulated	in	those	

cases	may	differ	from	those	set	out	in	older	cases, such	as	Soley, does not	create	

an	 ongoing	 conflict.	 	 Rather,	 Carter	 and	 the	 cases	 that	 follow	 represent	 a	

succession	 by	 which	 previous law	 has	 been	 superseded.	 	 Further,	 the	 Court	

describes	Soley as	“good	law”	and	states	that	there	was	no	indication	in	Carter

of	an	intention	to	depart	from	Soley.		Court’s	Opinion	¶¶	20,	23.		That	is	plainly	

not	the	case, as	is	made	clear	by	our	analysis	and	discussion	of	the	issue	in	our	

opinions	 beginning	 with	 Carter—cases	 that	 the	 Court	 now	 effectively	 must	

overrule	to	reinstate	pre-Carter jurisprudence.15

 15		Not	 once	in	its	opinion	does	 the	Court	directly	state	 that	it	is	 overturning	 the	line	 of	cases	

beginning	with	Carter,	although	that	is	clearly	what	the	Court	is	doing.
33

[¶47]		In	doing	so,	the	Court	writes	off	a	decade’s	or	more	worth	of	our	

decisions,	beginning	with	Carter	(if	not	State	v. Radley,	2002	ME	150,	804	A.2d	

1127,	see	infra	nn.11,	14) and	continuing	through	Plaisted,	because,	the	Court	

suggests,	 we	 did	 not	 pay	 enough	 attention	 to	 the	 admissibility	 standards	

contained	 in	 earlier	 decisions	 and	 therefore	 decided	 those	 cases	 based	 on	

oversight	and	inadvertence.		See	Court’s	Opinion	¶¶	20-22.		That	view,	however,	

cannot	account	for	our	explicit	articulation	of	pertinent	evidentiary	standards	

in	the	cases	beginning	with	Carter, and,	regrettably,	it	reflects	a	diminution	of	

the	weight	and	significance	 that	should	be	attributed	 to	our	decision-making	

process,	which,	although	certainly	not	infallible,	is	exercised	with	care,	and	with	

sensitivity	to	and	appreciation	for	our	role	as	the	court	of	last	resort.

2. 2018	Amendment	to	Rule	803(6)

[¶48]		The	Bank	and	several	of	its	supporting	amici	place	significance	on	

a	2018	amendment	to Rule 803(6)(E),	2018	Me.	Rules	09	§	2	(effective	Aug.	1,	

2018),	to	support	the	conclusion	that	we	should	now	interpret	the	rule	as	do	

other	jurisdictions,	including	 specifically	 the	 federal	courts	as	 exemplified	in	

U.S.	Bank	Trust,	N.A.	v.	Jones,	925	F.3d 534	(1st	Cir.	2019).16		I	disagree.		

 16		In	that	case,	the	First	Circuit	stated	that	there	is	no	material	difference	between	the	Maine	and	

federal	approaches	to	the	admissibility	of	integrated	business	records.		U.S.	Bank	Tr.,	N.A.	v.	Jones,	925	

F.3d	534,	539	&	n.1	(1st	Cir.	2019).		 I	 respectfully	submit	 that	this	is	not	so	because	 the	analysis	

described	 in	 Jones tolerates	 the	 absence	 of	 any	 personal	 knowledge	 by	 the	 witness	 about	 the	
34

[¶49]		The	modest	change	implemented	by	 the	2018	amendment	does	

not	have	such	a	radical	effect.		The	amendment	did	nothing	more	than	fill	a	gap	

in the	 allocation	 of	 the	 burden	 of	 proof	 on	 a	 limited	 aspect	 of	 the	 rule,	 by	

providing	that	the	burden	to	demonstrate	a	lack	of	trustworthiness	sufficient	

to	defeat	admission	of	the	proffered	document	rests	with	the	opponent,	thereby	

clarifying	 that	 the	 proponent	 is	 not	 required	 to	 demonstrate	 the	 absence	 of	

indicia	of	untrustworthiness.17		See	M.R.	Evid.	803(6)(E).		The	amendment	did	

not	 introduce	 the	 general	 consideration	 of	 a	 business	 record’s	

untrustworthiness.		That	factor	was	already	present	in	the	prior	formulation	of	

the	rule.		See	M.R.	Evid.	803(6)(E)	(Tower	2017).		The	amendment	also	did	not	

touch	 the	 specific	 predicate	 criteria	 for	 admission	 of	 a	 business	 record	

contained	in	subparts	A	through	C:	whether	the	document	was	made	at	or	near	

the	 time	 of	 the	 recorded	 event	 by,	 or	 with	 information	 from,	 someone	 with	

 

originating	entity’s	 records	practices	and	does	not	require	 the	proponent	 to	present	 foundational	

evidence	 that	 the	 record-related	 practices	 of	 the	 originating	 entity	 meet	 the	 requirements	 of	

Rule 803(6)(A)-(C).	 Jones,	925	F.3d	at	538.		These	principles	run	contrary	to	Maine	law,	as	is	shown	

by	my	review	of	our	case	law.		Indeed,	in	now	abandoning	Maine’s	current	case	law	and	adopting	the	

framework	described	in	Jones,	the	Court	confirms	the	existence	of	the	differences	between	the	two	

approaches.	

17		As	 the	 result	 of the	2018	amendment,	Rule	803(6)(E)	now	provides	 that	a	business	 record	

meeting	the	standards	set	out	in	the	remaining	aspects	of	the	Rule	is	admissible	if	“[t]he	opponent	

does	not	show	that	the	source	of	information	or	the	method	or	circumstances	of	preparation	indicate	

a	lack	of	trustworthiness.”		See	2018	Me.	Rules	09	§	2	(amending	M.R.	Evid.	803(6)(E));	see	also	supra	

n.10 (setting	out	the	current	Rule	in	its	entirety).
35

knowledge;	whether	the	record	was	created	in	the	normal	course;	etc.		Further,	

the	 amendment	 did	 not	 alter	 the	 basis	 or	 measure	 of	 knowledge	 that	 the	

foundational	witness	must	have:	the	witness	still	must	be	“qualified”	pursuant	

to	Rule	803(6)(D),	a	concept	that	we	had	addressed and	explained in	our	case	

law	outlined	above.		

[¶50]	 	 The	limited	 nature	 of	 the	 2018	 amendment	is	made	 even	more	

apparent	by	 the	 statement	 of	 the	Advisory	Committee	 on	 the	Maine	Rules	 of	

Evidence,	accompanying	 the	 submission	 of	 the	proposed	 rule	 amendment	 to	

the	Supreme	Judicial	Court,	that	the	rule	change	was	not	substantive—it	would	

not	 change	 the	 factors	 that	 bear	 on	 the	 determination	 of	 admissibility.	 	M.R.	

Evid. 803	Advisory	Committee	Note	– August	2018.		As	the	Advisory	Committee	

explained,	the	amendment	merely	codified	the	practice	that	was	already	being	

followed	 by	 Maine	 courts	 and	 litigants.	 	 Id.	 	 Both	 this	 description	 of	 the	

amendment	and	the	nature	of	the	amendment	itself	confirm	its	nonsubstantive	

content,	further	undermining	use	of the	amendment	as	a	springboard	to	justify	

substantial	 substantive	 changes	 to	 separate	 components	 of	 the	 evidentiary	

standard	 governing	 the	 admissibility	 of	 integrated	 business	 records.	 	 To	

conclude	 that	 this	limited	amendment	contributes	 to	a	wholesale	 revision	 of	
36

the	entire analysis	governing integrated	records	reads	far	too	much	into	such	a	

narrow	rule	change.

[¶51]		In	my	view,	Maine	law	is	clear,	and	the	Court’s	efforts	to	tease	out	

vestiges	of	pre-Carter	jurisprudence	from	current	case	law,	see	Court’s	Opinion	

¶¶	19,	22,	do	not	change	 that	 fact.		The	proponent	 of	an	integrated	business	

record	must	demonstrate,	through	testimony	of	a	witness	with	knowledge,	that	

the	originating	and	receiving	entities	each	engaged	in	record-related	practices	

that	 satisfy	 the	 requirements	 of	 Rule 803(6)(A)-(C).	 	Contrary	 to	 the	 Court’s	

conclusion,	the	receiving	entity’s	mere	integration, verification, and	reliance	on	

the	originating	entity’s	record	is	not	sufficient	to	render	the	record	admissible.		

See	supra	¶¶	44-45.

[¶52]	 	 At	 the	 trial	 in	 this	 action,	 the	 dispositive	 issue	 became	 the	

admissibility	 of	 a	 notice	 of	 default	 and	 right	 to	 cure	 ostensibly	 created	 and	

issued	by	the	law	firm	engaged	by	the	servicer	of	the	mortgage.		See	Bank	of	Am.,	

N.A.	v.	Greenleaf,	2014	ME	89,	¶	18,	96	A.3d	700	(stating	that	proof	of	mailing	

or	other	authorized	method	of	service	is	one	of	the	elements	of	a	foreclosure	

case);	14	M.R.S.	§	6111(3)	(2018),	repealed	and	replaced	by P.L.	2019,	ch.	361	

§§	1,	2	(effective	Sept.	19,	2019)	(codified	at	14 M.R.S.	§	6111(2-A)	(2020)).		The	

Bank	 developed	 no	 evidence	 that	 the	 foundational	 witness,	 who	 was	 an	
37

employee	 of	 the	 servicer,	 oversaw,	 reviewed,	 or	had	any	 familiarity	with	 the	

law	firm’s	internal	processes	for	creating	and	mailing	default	notices,	and	the	

witness	did	not	describe	any	such	processes	themselves,	including	the	mailing	

process.		As	the	Court	itself	recognizes,	Court’s	Opinion	¶	29,	and	contrary	to	

the	Bank’s	contention	on	appeal,	the	trial	court	correctly	determined, based	on	

that	 record	 and	 the	 current,	 controlling	 Maine	 law, that	 the	 Bank	 had	 not	

qualified	the	notice	as	an	admissible	integrated	business	record.		

[¶53]		Because	the	court	committed	no	error	when	it	excluded	the	notice,	

the	 judgment	 should	 be	 affirmed,	 unless	 our	 cases,	 beginning	 with	 Carter,	

establishing	the	standards	for	the	admissibility	of	integrated	business	records	

should	 be	 overturned.	 	 This	 question	 directly implicates	 principles	 of	stare	

decisis.

3. Stare	Decisis18

[¶54]		An	analytical	cornerstone	of	jurisprudence,	 the	doctrine	of	stare	

decisis calls	 upon	 the	 courts	 to	 respect	 legal	 precedent	 in	 order	 to	 provide	

 18		It	bears	note	that	the	Bank	itself	has	not	explicitly	asserted	that	current	Maine case	law	should	

be	overturned.		In	fact,	while	this	appeal	was	pending	we	raised	the	issue	and	invited	the	parties	and	

amici	to	submit	briefs	on	the	question	of	whether,	in	light	of	the	First	Circuit’s	decision	in	Jones,	we	

should	change	 the	way	we	apply	Rule	803(6)	 to	integrated	business	records.		 In	its	supplemental	

brief,	the	Bank	then	asserted	that	adoption	of	Jones would	actually	clarify	rather	than	change	Maine’s	

current	law	on	integrated	business	records.		Nonetheless,	the	Bank	also	argued	that	the	trial	court	

incorrectly	 applied	Maine’s	 current	 law	 to	 the	 evidence,	 thereby	 making	 it	 unduly	 difficult	 for	 a	

proponent	to	achieve	admission	of	integrated	business	records—a	particular	challenge,	presumably,	

for	mortgagees	 given	 that	 sequential	 ownership	 and	management	 of	mortgages	is	 common.	 	See	
38

“stability	 to	 the	 law	 and	 enable[]	 the	 public	 to	 place	 reasonable	 reliance	 on	

judicial	decisions	affecting	important	matters.		Even	when	we	have	a	certain	

unease	with	 the	analysis	of	a	prior	decision,	we	do	not	overrule	 the	decision	

without	a	compelling	and	sound	justification.”		McGarvey	v.	Whittredge,	2011	

ME	97,	¶	63,	28	A.3d	620	 (Levy,	 J.) (quotation	marks	 omitted).		As	 the	Chief	

Justice	of	the	United	States	has	recently	stated,	the	principle	of	stare	decisis “is	

grounded	in	a	basic	humility	that	recognizes	today’s	legal	issues	are	often	not	

so	different	from	the	questions	of	yesterday	and	that	we	are	not	the	first	ones	

to	try	to	answer	them.		Because	the	private	stock	of	reason	.	.	.	in	each	[person]	

is	small,	.	.	.	individuals	would	do	better	to	avail	themselves	of	the	general	bank	

and	capital	of	nations	and	of	ages.”		June	Med.	Servs.,	L.L.C.	v.	Russo,	--- U.S.	---,	---,	

140	 S.	 Ct.	 2103,	 2134	 (2020) (Roberts,	 C.J.,	 concurring)	 (quotation	 marks	

omitted).

[¶55]		To	be	sure,	respect	for	precedent	is	not	an	absolute	bar	that	ossifies	

obsolete	judicial	reasoning	and	conclusions.		Dyer	v.	Me.	Drilling	&	Blasting,	Inc.,	

2009	ME	126,	¶	28,	984	A.2d	210;	MacDonald	v.	MacDonald,	412	A.2d	71,	74	

 

Homeward	Residential,	 Inc.	v.	Gregor,	2015	ME	108,	¶	13,	122	A.3d	947.		To	 the	contrary,	 the	 trial	

court’s	analysis	was	entirely	 faithful	 to	Maine’s	current	evidentiary	standards.		Consequently,	 the	

Bank’s	complaint	about	the	effect	of	the	court’s	ruling	can	be	seen,	at	most,	as	a	de	facto	challenge	to	

our	present	case	law	governing	Rule	803(6),	even	though	the	Court	has	now	proceeded	as	if	the	Bank	

had	asked	us	more	directly	to	overrule	our	precedent.
39

(Me.	1980)	(stating	that	stare	decisis	does	not	require	“judges	of	the	present,	

who	like	their	predecessors	cannot	avoid	acting	when	called	upon,	.	.	.	to	act	as	

captives	of	the	judges	of	the	past,	restrained	without	power	to	break	even	those	

bonds	so	withered	by	the	changes	of	time	that	at	the	slightest	touch	they	would	

crumble”).		Nonetheless,	in	order	to	promote	predictability	and	stability	in	the	

law	and	to	avoid	arbitrariness,	“appellate	courts	proceed	with	great	care	before	

overruling	a	prior	decision,	and	do	so	only	after	careful	analysis	and	based	on	a	

compelling	 reason.	 	 We	 do	 not	 disturb	 a	 settled	 point	 of	 law	 unless	 the	

prevailing	 precedent	 lacks	 vitality	 and	 the	 capacity	 to	 serve	 the	 interests	 of	

justice.”		State	v.	Bromiley,	2009	ME	110,	¶	6,	983	A.2d	1068	(citation	omitted)	

(quotation	marks	omitted).

[¶56]		Considerations	relevant	to	whether	precedent	should	be	cast	aside	

include	 whether	 the	 existing	 approach	 has	 “fallen	 into	 jurisprudential	

disrepute	 and	 is	 disapproved	 in	 better-considered	 recent	 cases	 and	 in	 the	

authoritative	 scholarly	 writings,”	 Dyer,	 2009 ME	 126,	 ¶	 28,	 984	 A.2d	 210	

(quotation	 marks	 omitted);	 whether	 “the	 passage	 of	 time	 and	 changes	 in	

conditions”	call	 for	a	reassessment	of	existing	law	 to	 the	point	of	“reaching	a	

different	result,”	Est. of	Galipeau	v.	State	Farm	Mut.	Auto.	Ins.	Co.,	2016	ME	28,	

¶ 15,	132	A.3d	1190	(quotation	marks	omitted);	and	the	administrability	of	the	
40

law	 at	 issue,	June	 Med.	 Servs.,	--- U.S.	 at	---,	 140	 S.	 Ct.	 at	 2134	 (Roberts,	 C.J.,	

concurring)	 (citing	 Janus	 v.	 AFSCME,	 Council	 31,	--- U.S.	---,	 138	 S.	 Ct.	 2448,	

2478-79 (2018)).

[¶57]		This	case	does	not	present	a	justification	for	abandoning	current	

Maine	 law	 governing	 the	 admissibility	 of	 integrated	 business	 records.	 	 We	

suggested	those	evidentiary	standards	as	early	as	2009	in	State	v.	Radley,	2002	

ME	 150,	 804	 A.2d	 1127,	see	 supra	 nn.11,	 14,	 and	 we	 have	 articulated	 them	

clearly	 and	 consistently	 since	 2011	 and	 as	 recently	 as	 2018—hardly	 an	

antiquated	body	of	law.		Our	case	law	has	not	become	obsolete	or	 fallen	into	

disrepute	over	 time	because	of	advances	in	legal	 thought.		Cf. Dyer,	2009	ME	

126,	 ¶	 18,	 984	 A.2d	 210	 (concluding	 that	 developments	in	 the	law	 over	 the	

previous	half-century	warranted	changes	in	applicable	Maine	law).		This	is	also	

not	 a	 situation	 where	 our	 current	 law	 creates	 such	 unfairness	 as	 to	 justify	

rejection	of	recent	precedent.		Cf. Myrick	v.	James,	444	A.2d	987,	999	(Me.	1982),	

superseded	by	statute	on	other	grounds	as	stated	in Sears,	Roebuck	&	Co.	v.	State	

Tax	Assessor,	2012	ME	110,	¶	1,	52	A.3d	941	(overturning	Maine	precedent	that	

we	 determined	 was	 “harsh	 and	 unjust”	 and	 “counterproductive	 to	 the	

achievement	 of	 any	 principled	 conception	 of	 fair	 and	 even-handed	 justice”).		

Further,	there	is	no	significant	difficulty	in	administering—i.e.,	applying—the	
41

rule (although,	 as	 is	 evident	 from	 the	 cases	 I	 review	 above,	 mortgagees	

sometimes	 have	 difficulty	 at	 trial	 meeting	 the	 standards	 prescribed	 in	

Rule 803(6)).	

[¶58]	 	 The	 divergence	 between	 Maine	 law	 and	 the	 law	 of	 other	

jurisdictions,	exemplified	by	Jones,	is	not	a	new	circumstance	that	would	justify	

departing	from	our	precedents.		Jones	relies	on	several	federal	cases	going	as	

far	back	as	1992.		925	F.3d	at	537	(citing	United	States	v.	Doe,	960	F.2d	221,	223	

(1st	Cir.	1992)).		And	here	the	Court	itself	cites	to	federal	and	state	appellate	

court	 opinions	 that	were	issued	decades	ago.		See	Court’s	Opinion	¶	13.		We	

developed	 our	 modern-day	 standards	 for	 the	 admissibility	 of	 integrated	

business	records	in	our	decisions	beginning	no	later	than	Carter in	2011,	well	

after	some	other	courts	had	put	their	less	stringent	model	in	place.		This	means	

that	 the	 approach	 described	 in	 Jones and	 elsewhere	 was	 available	 for	 us	 to	

consider	 and	 possibly	 adopt	 throughout	 the	 entire	 time	 that	 we	 have	 been	

articulating	 our	 different	 standard	 for	 the	 admission	 of	 integrated	 business	

records.		Nonetheless,	we	took	a	different	route.		

[¶59]		Finally,	the	Court	states	that	there	is	benefit	to	interpreting	Maine’s	

rule	 uniformly	 with	 the	 construction	 found	 in	 other	 jurisdictions,	 in	 part	 to	

discourage	forum-shopping.		See	Court’s Opinion	¶	25.		When	the	Maine	Rules	
42

of	Evidence	were	restyled	effective	in	2015,	however,	the	Advisory	Committee	

on	 the	Maine	 Rules	 of	 Evidence	 presented	 the	 proposed	 amendments	 to	 the	

Supreme	Judicial	Court	with	the	explicit	explanation	that	“[r]estyled	Rule	803	

preserves	 the	 substantive	 differences	 between	 the	 Maine	 and	 the	 Federal	

Rules.”	 	M.R.	 Evid.	 803	Maine	 Restyling	Note	 [November	 2014].	 	 This	makes	

clear	 that	 the	 restyled	 rules	were	not	proposed	 to	us	in	 order	 to	create	 that	

uniformity—and	in	 fact	 they	were	intended	 to	preserve	 the	independence	of	

our	 own	 jurisprudence.	 	 Since	 then,	 we	 have	 done	 nothing	 to	 call	 that	

framework	into	question.		Based	on	this	history,	homogeneity	between	Maine	

law	and	the	law	of	other	jurisdictions,	while	not	without	some	ancillary	value,	

is	nonetheless	not	an	objective	to	be	pursued	for	its	own	sake.19

[¶60]	 	 The	 question	 here	 is	 not	 whether	 the	 approach	 to	 integrated	

business	records	embodied	in	Jonesis	reasonable.		Rather,	the	issue	now	before	

the	Court	is	whether	Maine’s	current	case	law	governing	Rule	803(6)	is	wrong.		

It	is	not.		As	I	have	discussed,	our	case	law	going	back	at	least	as	far	as	2011	

could	not	be	clearer	in	requiring	a	greater	foundational	showing	than	Jones	and	

 19		Another	example	of	the	lack	of	symmetry	between	Maine’s	rules	of	evidence	and	the	federal	

rules	is	that	the	latter	include	a	residual	hearsay	exception.		See	Fed.	R.	Evid.	807.		Maine’s	rules	do	

not.		See	M.R.	Evid.	803	Maine	Restyling	Note	 [November	2014];	M.R.	Evid.	803	Advisers’	Note	 to	

former	M.R.	Evid.	803	(February	2,	1976).		
43

the	courts	of	other	jurisdictions	insist	on,	but	that	divergence	does	not	prove	

Maine’s	criteria	to	be	incorrect;	the	existence	of	one	approach	does	not	prove	

the	 other	 wrong.	 	 Rather,	 the	 difference	 in	 approaches	 simply	 represents	

different	levels	of	sensitivity	to	the	measure	of	reliability	that	must	characterize	

an	integrated	business	record	to	allow	its	admission	in	evidence.		Additionally,	

Maine’s	 current	 approach	 has	 the	 benefit	 of	 faithfulness	 to	 the	 language	 of	

Rule 803(6)	itself.		What	the	Court	does	today	is	simply to	adopt	one	approach,	

which	is	 described	in	Jones and	 has	 existed	all	 along,	 as	 the	 replacement	 for	

another,	which	is	described	in	Carter and	is	different	but	in	no	way	incorrect.		

In	 my	 view,	 to	 jettison	 a	 well-established	 and	 perfectly	 appropriate	 and	

defensible	 legal	 standard	 established	 in	 Maine’s	 authoritative	 case	 law	 does	

damage	 to	 the	 safeguard	 and	 stability	 of	 legal	 precedent	 achieved	 through	

adherence	to	the	basic	principle	of	stare	decisis.

[¶61]	 	 Given	 the	 fundamental	 importance	 of	 respecting	 and	 following	

precedent,	 and	 the	 absence	 of	 any	 rationale	 that	 constitutes	 a	 “compelling”	

justification	 necessary	 for	 departing	 from	 settled	 and	 well-established	 law,	

Bromiley,	2009	ME	110,	¶	6,	983	A.2d	1068,	we	should	not	overrule	the	case	
44

law	establishing	our	current	jurisprudence	on	 the	admissibility	of	integrated	

business	records.20

B. The	Court’s	Rulemaking	Authority

[¶62]	 	 For	 the	 reasons	 I	 have	 explained,	 there	 does	 not	 exist	 a	 sound	

jurisprudential	 basis	 for	 the	 Court’s	 decision to	 change	 its	 construction	 of	

Rule 803(6)	as	applicable	to	integrated	business	records.		As	a	result,	today’s	

decision	must	be	viewed	as	a	de	facto	change	to	the	meaning	and	content	of	the	

rule	 itself—something	 the	 Court	 may	 do	 pursuant	 only	 to	 its statutory	

authority	 to	 promulgate	 the	 rules	 that	 govern	 judicial	 proceedings,	 not	 in	

exercise	of	its	appellate	authority.		See	4	M.R.S.	§§	1,	8,	9-A,	51	(2020).		

[¶63]		By	concluding	that	the	proponent	need	present	evidence	only	that	

the	receiving	entity	received,	verified,	and	relied	on	a	record	generated	by	the	

originating	entity,	see	Court’s	Opinion	¶ 30,	the	Court	effectively	eliminates	the	

specific	 requirements	 imposed	 by	 Rule 803(6)(A)-(C)	 as	 they apply to	

 20		To	the	extent	that	the	Court	concludes—without	the	benefit	of	any	advocacy	on	the	point,	see	

supra	n.18,	and	while	simultaneously	stating	 that	Carter	is	entitled	 to	 respect	as	precedent—that	

Carter	and	the	cases	that	followed	were	themselves	decided	in	contravention	of	principles	of	stare	

decisis,	Court’s	Opinion	¶	23 &	n.7, the	Court	collaterally	attacks	those	decisions.		This	leaves	one	to	

wonder	about	 the	consequences	of	 the	application	of	Rule	803(6)	 to the	judgments	addressed	in	

those	cases,	and the	many	additional	judgments	that	have	been	issued	in	the	trial	courts	based	on	

our	current	law	governing	the	admissibility	of	integrated	business	records,	not	only	in	foreclosure	

cases	but	in	all	other	types	of	cases	where	such	records	were	material.		Additionally,	the	fact	remains	

that	our	current	jurisprudence	is the	law,	so	the	question	presented	here	is	whether	we	should	now	

reject	that authority.
45

integrated	 business	 records,	 namely,	 that	 the	 proponent	 must	 present	

foundational	evidence	 that	 the	 record	 “was	made	at	 or	near	 the	 time	by—or	

from	information	transmitted	by—someone	with	knowledge,”	that	it	“was	kept	

in	the	course	of	a	regularly	conducted	activity	of	a	business,”	and	that	“[m]aking	

the	record	was	a	regular	practice	of	that	activity.”		As	I	have	discussed	above,	

supra	¶¶	44-45,	the	rule,	as	the	Court	now	interprets	it,	therefore	will	now	allow	

a	materially	lesser	foundational	showing	than	is	required	by	the	plain	terms	of	

the	rule	for	a	proffered	integrated	business	document	to	become	admissible	in	

evidence.		

[¶64]		The	Court	describes	this	as	an	integrated	records	“method,”	which	

it	bases	on	a	generalized	notion	of	reliability.		Court’s	Opinion	¶¶	8-10.		No	such	

“method”	 exists	 within	 Rule	 803(6),	 however.	 	 As	 written,	 the	 specific	

requirements	of	the	rule,	including	those	set	out	in	subparts	A	through	C,	apply	

irrespective	of	whether	the	record	is	that	of	a	single	entity	or	is	an	integrated	

record.	 	 By	 construing	 the	 rule	 as	 it	 does,	 the	 Court	 effectively	 exempts	

integrated	business	records	from	the	particularized	foundational	predicate	set	

out	in	subparts	A	through	C	and	thereby	rewrites	the	rule	by	eliminating	those	

requirements	for	such	records	to	be	admitted	in	evidence.21		See	Radley,	2002	

 21 Although	the	Court	denies	that	it	is	rewriting	Rule	803(6)	because	it	is	simply	returning	to	our	

interpretation	of	the	Rule	from	the	Soley era,	Court’s	Opinion	¶	23 & n.7,	the	fact	remains	that	the	
46

ME	 150,	 ¶	 17,	 804	 A.2d	 1127	 (stating	 that	 the	 erroneous	 admission	 of	 an	

integrated	 business	 record,	 where	 it	 is	 not	 supported	 by	 the	 foundational	

requirements	 of	 Rule	 803(6),	 cannot	 be	 transformed	 into	 a	 correct	 ruling	

because,	 unlike	 the	 federal	 rules,	 see	 Fed.	 R.	 Evid.	 807,	 the	 Maine	 Rules	 of	

Evidence	do	not	include	a	residual	or	“catch-all”	exception	to	the	hearsay	rule,	

which	might	allow	the	record	to	be	admissible).

[¶65]		When	promulgating	or	amending	rules	of	court,	the	Court	invokes	

and	 exercises	 authority	 in	 its	 capacity	 as	 the	 Supreme	 Judicial	 Court.	 See	

4 M.R.S.	§§	1,	8,	9-A,	51. That	authority	is	separate	and	mutually	exclusive	from	

the	 authority	we	 exercise	when	 sitting	 as	 the	 Law	 Court,	 an	 appellate	 body.	

Compare	4	M.R.S.	 §	8	 (rulemaking	authority), with	4	M.R.S.	 §§	51,	57	(2020)	

(appellate	 authority); see	 also	 State	 v.	 Doucette,	 544	 A.2d	 1290,	 1294	

(Me. 1988).	 	 Here,	 by	 effectively	 rewriting	 the	 way	 Rule	 803(6)	 applies	 to	

integrated	business	records,	the	Court	is	improperly	exercising	its	regulatory

rulemaking powers	in	an	adjudicatory	context.		See	Conservatorship	of	Emma,	

2017	ME	1,	¶¶	1,	10,	153	A.3d	102	(declining	to	answer	a	question	reported	by	

the	Kennebec	County	Probate	Court	in	part	because	questions	“of	policy,	with	

 

construction	of	the	Rule	now	embraced	by	the	Court	changes	the	substance	and	structure	of	the	Rule	

as	established	by	our	current	controlling	jurisprudence.		This	amounts	to	an	amendment	of	the	Rule	

itself.	
47

long-ranging	 and	 far-reaching	 implications”	 are	 properly	 answered	 not	

through	adjudication	but	through	the	rulemaking	process	in	which	the	related	

issues	“can	be	addressed	together	in	an	open	forum”).

[¶66]		I	have	no	quarrel	with	the	suggestion that	it	may	be	beneficial	to	

reexamine	 the	 way	 Rule	 803(6)	 should	 be	 applied to	 integrated	 business	

records,	at	least	in	foreclosure	cases.		The	Bank	and	its	allied	amici	assert	that	

Rule 803(6),	 as	 we	 have	 construed	 it	 since	 2011,	 imposes	 an	 unfair	 and	

unnecessary	obstacle	to	admitting	those	records,	which	can	contain	necessary	

aspects	 of	 proof	in	 foreclosure	 cases	where	 mortgages	 are	 often	 transferred	

from	 one	 entity	 to	 the	 next	 and	 the	 servicing	 of	 a	 single	 mortgage	 can	 also	

change	 hands.	 	 See Plaisted,	 2018	 ME	 121,	 ¶	 1,	 192	 A.3d	 601	 (noting	 the	

challenges	 faced	by	mortgagees	in	 proving	a	 foreclosure	case	because	 of	 the	

industry’s	 “practice	 of	 securitization,	 spawning	 a	 byzantine	 mass	 of	

assignments,	 transfers,	and	documentation” (quotation	marks	 omitted)).		On	

the	other	side,	several	amici	in	support	of	Shone	and	Buck’s	position	point	to	a	

checkered	 track	record	in	 the	efforts	of	mortgagees	 to	present	sufficient	and	

reliable	information	about	the	history	of	mortgages	on	which	they	have	sought	

to	foreclose,	and	those	amici point	to	the	incentive	that	mortgagees,	servicers,	

and	 others	 involved	 in	 administering	 mortgages	 may	 have	 to	 simply	 adopt,	
48

verify, and	 rely	 on	 one	another’s	 records.		See	id. ¶ 2 (“The	law,	 the	 rules	 of	

evidence,	 and	 court	 processes	 have	 not	 become	 more	 complicated	 in	 these	

matters.		Applying	established	law,	however,	has	become	more	problematic	as	

courts	 address	 the	 problems	 the	 financial	 services	 industry	 has	 created	 for	

itself.” (quotation	marks	omitted));	see	also	HSBC	Mortg.	Servs.,	Inc.	v.	Murphy,	

2011	ME	59,	¶ 15	&	n.8,	19	A.3d	815.

[¶67]		Although	this	is	a	discussion	that	may	be	well	worth	having,	it	must	

occur	in	a	forum	other	than	this	appeal,	where	we	are	called	upon	to	interpret	

and	apply	Rule	803(6)	as	it	exists.		The	proper	vehicle	to	address	the	efficacy	of	

the	 current	 Rule	 to	 serve	 its	 purposes	 effectively	 in	 some	 or	 all	 contexts	 is	

through	 the	 Advisory	 Committee	 on	 the	 Maine	 Rules	 of	 Evidence	 or	 other	

interested	 persons	 or	 entities,	 and	 ultimately	 within	 the	 Supreme	 Judicial	

Court,	exercising	its	 rulemaking	authority—a	deliberative	process	 that	likely	

would	require	consideration	of	broad	empirical	industry-wide	practices	based	

on	 information	 that	 goes	 well	 beyond	 the	 present	 record.	 	 For	 the	 Court	 to	

de facto	rewrite	the	rule	in	the	context	of	this	appeal	is	an	improper	exercise	of	

its	rulemaking	authority	in	an	adjudicatory	proceeding.
49

C. Conclusion

[¶68]		The	 trial	court	correctly	applied	 Rule	803(6)	and	committed	no	

error	when	it	excluded	the	notice	of	default and	right	to	cure,	directly	resulting	

in	 the	 entry	 of	 judgment	 for	 mortgagors	 Danielle	 Shone	 and	 Michael	 Buck.		

Further,	 there	 is	 no	 proper	 persuasive	 basis	 for	 casting	 aside	 our	 clear	 and	

well-established	 jurisprudence	 governing	 the	 admissibility	 of	 integrated	

business	records.		The	judgment	should	be	affirmed.

Santo	Longo,	Esq.,	Bendett	&	McHugh,	P.C.,	Portland,	and	William	A.	Fogel,	Esq.

(orally),	San	Diego,	California,	for	appellant	the	Bank	of	New	York	Mellon

Mark	A.	Kearns,	Esq. (orally),	and	Mark	L.	Randall,	Esq.,	Portland,	for	appellees	

Michael	Buck	and	Danielle	Shone

Jeremy	 Kamras,	 Esq.,	 Arnold	 &	 Porter	 Kay	 Scholer	 LLP,	 San	 Francisco,	

California,	for	amicus	curiae	Federal	Housing	Finance	Agency

Andrea	 Bopp	 Stark,	 Esq.,	 National	 Consumer	 Law	 Center,	 Boston,	

Massachusetts,	for	amicus	curiae	National	Consumer	Law	Center

Daniel	 L.	 Cummings,	 Esq.,	 and	 Michael	 T.	 Devine,	 Esq.,	 Norman,	 Hanson	 &	

Detroy,	LLC,	Portland,	for	amicus	curie	Maine	Credit	Union	League

Diane	 Cipollone,	 Esq.,	 Yarmouth,	 for	 amici	 curiae	 National	 Association	 of	

Consumer	Advocates,	Marc	Dann,	 the	Dann	 Law	 Firm,	 James	Sturdevant,	 the	

Sturdevant	Law	Firm,	Phillip	Robinson,	and	the	Consumer	Law	Center	LLC

Frank	D’Alessandro,	Esq.,	Augusta,	for	amicus	curiae	Maine	Equal	Justice
50

Jonathan	 E.	 Selkowitz,	 Esq.,	 Pine	 Tree	 Legal	 Assistance,	 Inc.,	 Portland,	 for	

amicus	curiae	Pine	Tree	Legal	Assistance,	Inc.

Catherine	R.	Connors,	Esq.,	 John	 J.	Aromando,	Esq.,	and	Sara	A.	Murphy,	Esq.,	

Pierce	Atwood	LLP, Portland,	for amicus	curiae	The	Maine	Bankers	Association	

Brett	L.	Messinger,	Esq.,	and	Elizabeth	M.	Lacombe,	Esq.,	Portland,	for	amicus	

curiae	PHH	Mortgage	Corporation

Kelly	W.	McDonald,	Esq.,	Murray,	Plumb	&	Murray,	Portland,	for	amicus	curiae	

Full	Disclosure,	LLC

Thomas	A.	Cox,	Esq.,	Portland,	for	amicus	curiae	Maine	Attorneys	Saving	Homes

Gerald	F.	Petruccelli,	amicus	curiae	pro	se

Cumberland	County	Superior	Court	docket	number	RE-2015-116

FOR	CLERK	REFERENCE	ONLY