MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	121

Docket: Pen-17-510

Submitted

			On	Briefs: May	31,	2018

Decided: August	16,	2018

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

M&T BANK

v.

LAWRENCE	F.	PLAISTED

ALEXANDER,	J.

[¶1]		In	Homeward	Residential,	Inc.	v.	Gregor,	2015	ME	108,	122	A.3d	947,	

a	residential	mortgage foreclosure case,	we	addressed	issues,	also	presented	in	

this	 appeal,	 of	 gaps	 in	 evidence	 regarding	 elements	 essential	 to	 prove	 the	

financial	 institution’s	 claim.	 	 There	 we	 observed:	 “The	 financial	 services	

industry,	through	the	practice	of	securitization,	spawning	a byzantine	mass	of	

assignments,	transfers,	and	documentation,	has	made	it	difficult	for	subsequent	

assignees	to	demonstrate	that	they	have	standing	to	bring	foreclosure	claims	

and	prove	the	elements	necessary	to	prevail	in	a	foreclosure	action	in	a	manner	

compliant	with the	laws	governing	 foreclosure.”		Id. ¶	13 (footnote	omitted)

(citation	omitted).		We	further	observed	that	reliance	on	multiple	entities	that	

create,	 assign,	 process,	 and	 service	 a	 mortgage	 loan	 makes it	 “difficult	 or	
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impossible	to	acquire	necessary	records	that	qualify	for	admission	under	the	

business	records	exception	to	the	hearsay	rule,	M.R.	Evid.	803(6),	in	order	to	

prove	ownership	of	the	mortgage,	proper	notice	of	defaults,	and	sums	due	and	

paid.” Gregor,	2015	ME	108,	¶ 13,	122	A.3d	947.

[¶2]	 	 Here,	 where	 the record	 indicates	 that	 multiple	 entities	 were	

involved	 in	 servicing	 the	 loan at	 issue, M&T	 Bank presented insufficiently	

authenticated	 and conflicting	evidence	 as	 to	 the	sums	due	and	 owing	 on	 the	

mortgage	loan.		In	Gregor, we	stated: “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.” Id. ¶	14	(citing	

Bank	of	Am., N.A.	v. Greenleaf,	2014	ME	89,	¶¶	8-17,	24-27,	96	A.3d	700).		

[¶3]	 	 This	 appeal	 does	 not	 involve	 a	 residential	 mortgage,	 but	 the	

problems	 of	 evidence	 quality,	 accuracy,	 and	 authentication	 it	 presents	 are	

similar	 to	problems	 observed in	 other	 foreclosure	appeals coming	before	us.		

To	 assist	 the	 parties	 and	 the	 courts	 in	 assessment	 of	 the evidence	 quality,	

accuracy,	 and	authentication	in	 this	and	 future	cases,	we	use	 this	 opinion	 to	

suggest	 some	 standards	 that	 evidence	 should	 meet to	 sufficiently	 support	 a	
3

claim	 in	 a	 foreclosure	 action	 where	 several	 entities	 have	 been	 involved	 in	

servicing	the	loan.

[¶4]	 	 Lawrence	 F.	 Plaisted	 appeals	 from	 a	 judgment	 of	 foreclosure	

entered	 by	 the	 District	 Court	 (Bangor,	 Mallonee,	 J.)	 in	 favor	 of	 M&T Bank

following	 a	 nonjury	 trial on	 M&T	 Bank’s	 complaint.	 	 Plaisted	 challenges	 the	

court’s	 determinations that (1) M&T	 Bank	 laid	 a	 proper	 foundation	 for	

admitting	loan	servicing	records	pursuant	to	the	business	records	exception to	

the	hearsay	rule,	M.R.	Evid.	803(6) (Tower	2017),

1 and	(2) M&T	Bank	proved

the	amount	owed	on	the	note.		We	agree	with	Plaisted’s	arguments, vacate the	

judgment,	and	remand	for	entry	of	a	judgment	in	favor	of Plaisted.

I.		CASE	HISTORY

[¶5]	 	 The	 following	 facts	 are	 either	 undisputed	 or	 taken	 from	 the	

judgment,	viewed	in	the	light	most	favorable	to	M&T Bank,	the	prevailing	party	

in	 the	 trial	court.		See	Deutsche	Bank	Nat’l	Tr.	Co.	v.	Eddins,	2018	ME	47,	¶	2,	

182 A.3d	1241.		On	February	8,	2007, Plaisted	executed	a	promissory	note	in	

favor	of	InterBay	Funding,	LLC,	in	the	principal	amount	of	$478,500.		To	secure	

 1	 	 Maine	 Rule	 of	 Evidence	 803(6)	 was	 recently	 amended	 to	 clarify	 that	 the	 proponent	 of	 the	

business	 record	 bears	 the	 burden	 of	 establishing	 the	 foundational	 elements	listed	in	subsections	

(A)-(D)	of	Rule	803(6)	and	 that	 the	opponent	bears the	burden	of	establishing	 that	 the	source	 of	

information	 or	 the	 method	 or	 circumstances	 of	 preparation	 of	 the	 record	 indicate	 a	 lack	 of	

trustworthiness pursuant	 to	 subsection	(E).	 2018	 Me.	 Rules	 09	 (effective	 Aug.	 1,	 2018).	 	 This

amendment	is	not	a	substantive	change to	the	Rule and	does	not	affect	the	present	case.		See M.R.	

Evid.	803(6)	Advisory	Committee	Note	to	2018	amend.
4

payment	on	 the	note,	Plaisted	executed	a	mortgage,	also in	 favor	of	 InterBay	

Funding,	 on	 real	 property	 in	 Hampden	 to	 be	 used	 for	 business	 purposes.		

InterBay	Funding	executed	a	document	purporting	to	assign	an	interest	in	the	

mortgage	 to	 Bayview	 Loan	 Servicing,	 LLC,	 and	 Bayview	 Loan	 Servicing	

executed	a	document	purporting	to	assign	its	interest in	the	mortgage to	M&T

Bank.		

[¶6]		In	May 2016,	M&T Bank	filed	a	complaint	for	foreclosure alleging	

that	Plaisted	had	defaulted	by	failing	to	make	payments	on	the	note	beginning	

on	November	1,	2013.2		Plaisted	timely	answered,	and,	after	mediation proved	

unsuccessful, the	parties proceeded	to	trial in	July 2017.		

[¶7]		At	trial,	the	only	witness	was	a	litigation	manager	for	Bayview	Loan	

Servicing who	 testified	 that	 Plaisted’s	loan had	 two	 servicers:	 Bayview	 Loan	

Servicing	and	M&T	Bank.		

[¶8]		The	witness testified about	his	training	and	job	responsibilities	as	a	

litigation	 manager for	 Bayview.	 	He	 testified	 that	 he	 had been	 employed	 by

Bayview	 for	 four	 and	 a	 half	 years	 and	 that his	 responsibilities	 included	

reviewing the	 business	 records	 for	 a	 loan—including	 the	 note,	 mortgage,	

payment	history,	and	default	notices—and	attending	court	proceedings.		The	

 2		The	complaint	also	named	CitiBank	(South	Dakota),	N.A. as	a	party	in	interest.		CitiBank	did	not	

appear	before	the	trial	court	and	is	not	a	participant	in	this	appeal.
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litigation	manager testified	 that	during	his	 training	he	“[sat]	down	with	each	

and	 every	 department	 within	 Bayview,”	 including	 the	 payment	 processing

department,	 to	 observe	 their operations.	 	He	 described	 the	 training	 as	 both	

“classroom”	and	“hands	on.”		He	also	testified	that	he	participates	in	ongoing	

training to	stay current	with	industry	practices.		

[¶9]	 	 The	 litigation	 manager	 testified about	 Bayview’s	 recordkeeping	

system	 and	 security practices.	 	He	 stated	that	 Bayview’s electronic	 servicing	

platform	 stores	 all	 of	 the	 data related	 to	 a	 loan,	 including	 digital	 images	 of	

documents	 and	 payment	 information.	 	 He	 testified	 that	 payments	 and	

disbursements	are	entered	into	the system at	or	near	the	time	of	the	event	and	

that	Bayview	relies	on	these	records	in	its day-to-day	operations.	 He	further	

testified	 that	 Bayview’s	 servicing	 platform	 is	 an	 encrypted	 recordkeeping	

system	that	requires	a	log-in	and	password.		

[¶10]		The	litigation	manager testified	that	Bayview	has	been	servicing	

Plaisted’s	 loan	 since	 its	 origination	 and	 claimed	 that,	 at	 some	 point	 after	

Plaisted	 defaulted,	 M&T	 Bank	 began	 “subservicing” the	 loan	 on	 behalf	 of	

Bayview.		He	described	the	relationship	between Bayview	and	M&T	Bank	as	a	

“component	relationship”	and	a	“working	relationship.”		He	explained	that	M&T	

Bank	handles	“the	front	end	of	the	loan,”	which	includes	payment	processing,
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while	 Bayview	 handles	 “the	 back	 end	 of	 the	 loan,” which	 includes loss	

mitigation	and	foreclosure.		

[¶11]		He	testified that	M&T	Bank	uses	Bayview’s servicing	platform.		He	

explained that,	on	the	live	platform,	Bayview	is	“able	to	see	.	.	.	when	an	M&T	

employee	is	in	the	system, updating	the	system	.	.	.	. We can	physically	interact	

with	 an	M&T	 employee	 through	 the	 same	 system.	 	 It’s	 almost	 as	if	we	work	

together	.	.	. . We’re	just	not	in	the	same	location.”		He	added,	however,	that	M&T	

Bank	does	not	use	Bayview’s imaging	system	for	storing loan	documents.		

[¶12]		The Bayview litigation	manager	claimed to	be a	custodian	of	M&T	

Bank’s	records	but testified that	he	is	not	employed	by	M&T	Bank, has	never

spoken	with	 anyone	 from	M&T	Bank,	and	did not	 know	where	M&T	 Bank	is	

located.3

[¶13]	 	 The	 court	 admitted	 several	 exhibits	 offered	 by	 M&T	 Bank,	

including	 a	 copy	 of	 the	 original	 promissory	 note,	 a	 copy	 of	 the	 recorded	

mortgage	and the subsequent	assignments,	and	a	copy	of	the	notice	of	default	

and	right	to	cure.		The	court	also	admitted	Exhibit	E,	which	consisted	of	many	

screenshots	of	Bayview’s	servicing	platform,	purporting to	show	the	payment	

 3		When	asked	during	voir	dire	where	M&T	Bank	is	located,	the	litigation	manager	guessed	that	

the	bank	is	located	in	Ohio,	but,	after	reviewing	mortgage	documents,	testified	that	it	is	located	in	

New	York.		
7

history	and	 the	amount	 owed	 on	 the	loan.		Apparently, no	 single	printout	 or	

digital	 record	 demonstrating	 the	 payment	history and	 amounts	 owed	 on	 the	

loan—the	equivalent	 of	 a	ledger	 sheet	 from	the	 days	 of	paper	 records—was	

available.		The	litigation	manager	testified	that,	based	on	his	review	of	Exhibit

E,	the	loan	remained	in	default	and	that	“the	amounts	set	forth	in	[M&T Bank’s]	

proposed	judgment	are	fully	substantiated	by	Bayview’s	system	of	record.”		

[¶14]		The	litigation	manager	was	unable	to	explain certain discrepancies	

in amounts	claimed	to	be	due.		For	example,	a	notice	of	default	sent	to	Plaisted	

in	 July	 2014	 indicated that	 the	 loan	 payoff	 amount was	 $509,906.69.	 	 A	

subsequent	notice	 of	default	 sent	in	September	 2015 indicated that	 the	loan	

payoff	 amount was	 $632,618.71.	 	 No	 document,	 ledger,	 or	 digital	 exhibit	

tracked	 the	changes	in	 the	sums	due	or	the	reasons	 for	 the	changes	between	

July	2014	and	September	2015.

[¶15]		When	asked	 to	explain	 the	$122,712.02	increase	over	that	 time,	

the	litigation	manager,	after	engaging	in	extensive	mathematical	calculations,

was	 unable	 to	 account	 for	 $94,627.59 of	 the	 increase	 with	 any	 degree	 of	

certainty.		He	stated that	it	“could	have	been” for	attorney	fees	and	other	costs

and	that	“[i]t’s	all	kind	of	lumped	into	one	amount,	so	.	.	.	I	don’t	know	what	the	

breakdown	is.”		He	explained:
8

If	 I	 were	 to	 go	 line	 by	 line	 with	 a	 couple	 of	 different	 colored	

highlighters,	it	would	take	me	a	couple	hours	to	give	you	a	specific	

amount.		 I	don’t	 think	we	have	 that	 kind	 of	 time	 today.		 I	have	 a	

different	department	that	usually	runs	these	figures	for	me	and	can	

give	 me	 a	 nice	 clean	 breakdown	 for	 Your	 Honor	 and	 for	 both	

lawyers	 aside.	 .	 .	 .	 I	just—if	we	were	 to	 go	line	 by	line	with	 the	

payment	history,	we	have	other	departments	that	can	do	that	that	

would—produce	 a	 document	 that—that	 is	 a	 little	 bit	 more	

comprehensive	to	what	you	are	seeking.		The	document	that	I	was	

able	to	find	was	a	payoff up	until	September	of	2015	.	.	.	.	

[¶16]	 	 When	 asked	 why	 M&T	 Bank	 was seeking	 $604,616.22	 in	 its	

proposed	judgment—$28,000	less	than	the	September	2015	payoff	amount—

the	litigation	manager	 testified	 that	 he	 was	 “unsure” why	 the	 amount	in	 the	

proposed	 judgment was	 less	 than	 the	 amount	 in	 the	 notice	 of	 default.	 	 The

litigation	manager was unable	to	state	how	much	Plaisted	had	paid on	the	loan

between	2007	and	2013,	stating	that	he	would	“need	some	time	to	add	up	all	

the	 payments.”	 	Nevertheless,	 he	testified	 that he	 was	 certain	 that the	 total	

amount	 owed	 on	 the	loan	as	 of	 July 2017	was	 $600,520.22,	plus	 outstanding	

fees	and	costs	incurred	by	counsel	for	the	trial.		

[¶17]		During	closing	arguments,	M&T	Bank	conceded	that	the Bayview

litigation	 manager	 was unable	 to	 explain	 “mathematically”	 the	 differences	

among the purported payoff	amounts	but	argued	that	there	is	no	requirement	

that	a	payoff	amount	listed	in	a	notice	of	default	be	accurate	and further	argued

that	 the	 amount	 listed	 in	 a	 notice	 of	 default has	 no bearing	 on	 the	 amount	
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sought	 in	 the	 judgment.	 	 M&T	 Bank	 argued	 that	 Exhibit E and	 the	 litigation	

manager’s	 testimony,	confused	as	it	was, established the	amount	 owed.		The	

court	asked	whether	it	was	M&T	Bank’s	position	that	“if	[the	court]	were	to	go	

through	 Exhibit	 E,	 exhaustively,	 and	 add	 up	 every	 transaction,	 the	 numbers	

would	 correlate	 with	 the	 numbers	 you’ve	 incorporated	 in	 your	 proposed	

judgment,”	to	which	M&T	Bank agreed.		

[¶18]		On	August	24,	2017,	the	court	entered	a	judgment	of	foreclosure	

in	 favor	of	M&T Bank in	 the	amount	of $604,616.22,

4 the	same	amount	as	in	

M&T	Bank’s	proposed	judgment. Plaisted	filed	a	motion	for	further	findings	of	

fact	 and	 conclusions of	 law,	 see M.R.	 Civ.	 P.	 52(b),	 which	 the	 court	 denied.		

Plaisted	timely	filed	a	notice	of	appeal.		See 14 M.R.S.	§	1901	(2017);	M.R.	App.	

P.	2A,	2B.

 4		The	court’s	judgment	provided	that	the	following	amounts	are	owed	to	M&T	Bank:

a.		Principal	Balance $ 491,172.36

b.		Accrued	Interest $			74,	985.59

(plus	interest	at	a	per	diem	of	$54.57)

c.		Pre-acceleration	Late	Charges $						1,754.61

d.		Escrow	Advances $				27,834.80

e.		Property	Inspections $										546.00

g.		Market	Analysis $										900.00

h.		NSF	Charges $												20.00

i.		Attorney’s	Fees $						6,125.00

j.		Attorney’s	Costs $						1,277.86

____________________________________________________________

Total $ 604,616.22
10

II.		LEGAL	ANALYSIS

[¶19]		Plaisted	argues that	the	court	abused	its	discretion	by	admitting	

Exhibit	E	pursuant	 to	 the	business	records	exception to	 the	hearsay	rule	and	

erred	in	concluding	that	M&T Bank	proved	the	amount	owed	on	the	note.5 “A	

trial	court’s	determination	regarding	whether	the	necessary	factual	foundation	

to	admit	evidence	pursuant	to	the	business	records	exception	has,	or	has	not,	

been	established	is	reviewed	for	clear	error.”		KeyBank	Nat’l	Ass’n	v.	Estate	of	

Quint,	2017	ME	237,	¶	13,	176	A.3d	717.

[¶20]	 	 “Business records are hearsay and therefore inadmissible

pursuant to M.R. Evid. 802 unless they meet the requirements of the business

records exception in M.R. Evid. 803(6).” Ocean	Communities	Fed.	Credit	Union	

v.	 Roberge,	 2016 ME 118, ¶ 9, 144 A.3d 1178.	 	Rule 803(6) provides that a

business record is admissible 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;

 5		Plaisted	also	challenges	the	adequacy	of	 the	notice	of	default	and	 right	 to	cure.		Because	we	

conclude	 that	 the	 court	 erred	 in	 determining	 that	 the	 foundational	 requirements	 for	 admitting	

Exhibit	E	had	been	established,	we	need	not	address	the	issue	of	the	adequacy	of	the	notice.
11

(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)	 Neither	 the	 source	 of	 information	 nor	 the	 method	 or	

circumstances	of	preparation	indicate	a	lack	of	trustworthiness.

[¶21]	 A	person	is	a	custodian	of	records	“if	 the	custody	of	 the	records	

comes	 anywhere	 within	 the	 immediate	 or	 ultimate	 purview	 of	 his	 duties.”		

Field &	Murray,	Maine	Evidence §	803.6	at	484	(6th	ed.	2007).		Likewise,	“[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”	 but	 who	 “need	 not	 be	 an	 employee	 of	 the	 record’s	 creator.”	

Estate of	Quint,	2017	ME	237,	¶	15,	176	A.3d	717;	accord	HSBC	Mortg.	Servs., Inc.

v.	Murphy,	2011 ME	59,	¶	10,	19	A.3d	815.		

[¶22]		When	a	business	integrates	and	relies	upon	the	records	of	another	

business in	that	business’s	day-to-day	operations,	the presenting witness	must	

have	“sufficient	knowledge	of	both	businesses’	regular	practices	to	demonstrate	

the	 reliability	 and	 trustworthiness	 of	 the	 information.”	 	 Estate	 of	 Quint,	

2017 ME	237,	¶	15,	176	A.3d	717.

[¶23]		A	witness	for	a	party	seeking to	admit integrated	business	records	

must	demonstrate	knowledge	that
12

•	 the	 producer	 of	 the	 record	 at	 issue	 employed	 regular	 business	

practices	 for	 creating	 and	 maintaining	 the	 records	 that	 were	

sufficiently	accepted	by	the	receiving	business	to	allow reliance	on	

the	records	by	the	receiving	business;

•	 the	 producer	 of	 the	 record	 at	 issue	 employed	 regular	 business	

practices	for	transmitting	them	to	the	receiving	business;

•	 by	 manual	 or	 electronic	 processes,	 the	 receiving	 business	

integrated	the	records	into	its	own	records	and	maintained	them	

through	regular	business	processes;

•	 the	record	at	issue	was,	in	fact,	among	the	receiving	business’s	own	

records;	and

•	 the	 receiving	 business	 relied	 on	 these	 records	 in	 its	 day-to-day	

operations.

Id. ¶	16; Beneficial	Me.	Inc.	v.	Carter,	2011	ME	77,	¶ 14,	25	A.3d	96.

[¶24]		Here,	the	litigation	manager claimed that	he	was	a	custodian	of	

records	 for	M&T	 Bank,	but	he	 did	 not provide any testimony	 demonstrating	

that	he	had firsthand	knowledge	of	M&T	Bank’s	business	practices.		In	fact,	he

testified	 that he	had never	 spoken	with	anyone	from	M&T	 Bank	and	did not	

know	where	M&T	Bank	is	located.	 Although	he testified	that	Bayview	and	M&T	

Bank	 use	 the	 same	 electronic servicing	 platform,	 the	 witness did	 not	

demonstrate that	he	was	familiar	with	M&T	Bank’s regular	business	practices	

for	 creating	 and	 maintaining	 loan	 records.	 	 See	 Carter,	 2011	 ME	 77,	 ¶ 14,	

25 A.3d	 96. Although	 the	 litigation	 manager had	 the	 ability	 to observe	 the	

remote	 actions	 taken	 by	 M&T	 Bank	 employees	 while	 those	 employees	 were	
13

using	Bayview’s	live	platform,	he	did not	testify	to personal knowledge	of	the	

business	practices	that	occurred	on	site	at	M&T	Bank,	such	as	whether	entries

into	 the	loan	records	 through the	servicing	platform	are	made	at	or	near	 the	

time	 of	 the	 events	 or	whether	the	 records	 are	 transmitted	 by	 a	 person	with	

personal	 knowledge	 of	 the	 events.	 	 See id.;	 M.R.	 Evid.	 803(6).	 	 Without	

knowledge	of	M&T	Bank’s	business	practices,	Bayview’s	litigation	manager was

not	qualified	 to	lay	 the	 foundation	necessary	 to	admit	 the	screenshots	of	 the	

loan’s	payment	history,	which	integrated	records from	both	businesses.

6		See

Gregor,	2015 ME	108,	¶ 14	n.11,	122	A.3d	947.

[¶25]		Even	if	M&T	Bank	had	laid	a	proper	foundation	for	the	admission	

of	 the	 screenshots,	 the conflicting evidence submitted	 to	 prove	 the	 amount	

owed—Exhibit	E and	the	testimony	of	the	litigation	manager—was	inadequate	

under	the	circumstances.		See Greenleaf,	2014	ME	89,	¶¶ 18,	24-27,	96	A.3d	700;	

Chase	Home	Fin.	LLC	v.	Higgins,	2009	ME	136,	¶	11,	985	A.2d	508 (providing	

 6		Because M&T	Bank	was	the	plaintiff—and	Bayview	Loan	Servicing	and	M&T	Bank	maintained	a	

servicer-subservicer	relationship—there	was	nothing	preventing	M&T	Bank	from	calling	a	custodian	

of	its	own	records	or	attempting	to	authenticate	the	exhibit	through M.R.	Evid.	902(11),	which	may

have	 satisfied	 the	 requirements	 of	 the	 business	 records exception that	 are missing	 here. Rule	

902(11) “makes	it	possible	to	lay	the	foundation	for	domestic	business	records	without	the	need	to	

call a	live	witness.”		Avis	Rent	A	Car	System,	LLC	v.	Burrill,	2018	ME	81,	¶	17,	--- A.3d	---(quoting Field	

&	Murray,	Maine	Evidence §	902.11	at	554	(6th	ed.	2007)).
14

that	the	amount	due	on	a	note	is	an	element	of	proof	to	support	a	judgment	of	

foreclosure).

[¶26]	 	 Described	 by	 the	 litigation	 manager	 as	 a	 “packet,” Exhibit E	

consisted	 of	 sixty-one	 unnumbered	 pages	 of	partially	 redacted	 screenshots.

7		

Review	 of	 Exhibit	 E	 indicates	 that	 it	 lacks uniformity	 and appears to	 be	 a	

compilation	of	data	and	reports	from	various	sources.8		It	is	far	from	a ledger	

sheet	or	other	paper	or	digital	document	demonstrating,	in	one	place,	balances	

due,	dates	and	amounts	of	payments	made,	and	changes	in	balances	due	as	a	

 7		The	litigation	manager	 testified	 that	it	is	Bayview’s	practice	 to	 require	its	counsel	 to	 redact	

personal	information	 from	exhibits	submitted	to	the	court.		When	business	records	are	offered	in	

evidence, they	 must	 be	 “in	 the	 same	 form	 as	 when	 maintained	 for	 business	 purposes.”	 	 Field	

& Murray,	Maine	 Evidence §	803.6	at	 488.	 	In	LDC	 General Contracting	 v.	 LeBlanc, we	 stated	 that	

otherwise	 admissible	 business	 records	were	 rendered	 inadmissible	 where	 amounts	listed	 in	 the	

records had	been	highlighted because	the	highlighting	took	place long	after	the	events	reflected	in	

the	records,	was	not	performed	in	the	regular	course	of	business,	and	was	not	a	regular	practice	of	

the	 business,	 and	because	the	proponent	 of	 the	 exhibit	 failed	 to	 produce	 the	 underlying	 records	

despite	 repeated	 requests	 by	 the	 opposing	party. 2006	ME	 106,	 ¶¶	 15-17,	 907	 A.2d	802.	 	As	in	

LeBlanc,	the	records	here	were	redacted	in	anticipation	of	litigation	and	not	in	the	regular	course	of	

Bayview’s	business,	and	therefore	were	not	admissible	business	records	for	this	reason	alone.		The	

best	practice	is	 that,	once	 the	admissibility	of	 the	unredacted	document	has	been	established,	 the	

proponent	should	be	prepared	to	present	to	the	court	a	copy	with	redactions	of	sensitive	personal	

information,	such	as	a	Social	Security	number,	that	should	not	be	publicly	disclosed.		The	unredacted	

copy	can	then	be	impounded	by	the	court,	allowing	the	redacted	copy	to	remain	part	of	the	public	

record.

8		For	example,	some	pages	contained	 “M&T	Bank”	or	 “Bayview	Loan	Servicing”	in	 the	header,	

whereas	 others	contained	no	header	at	all;	some	pages	appeared	 to	contain	 raw	data	entries,	 yet	

others	appeared	 to	be	summaries	 or	 reports;	and	the	pages	that	exhibited	 the	M&T	Bank	header	

displayed	a	web	address	at	the	bottom,	possibly	indicating	a	source external	to	Bayview’s	platform.		

The	 court	 could	 have	 excluded	 Exhibit	 E	 if	 the	 sources	 of	 information	 or	 other	 circumstances	

indicated	a	lack	of	trustworthiness	even	if	it	otherwise	would	have	been	admissible.		See M.R.	Evid	

803(6)(E);	Adamatic	v.	Progressive	Baking	Co.,	667	A.2d	871,	874-75	(Me. 1995).
15

result	of	accumulation	of	interest,	late	payment	fees, and	other	charges	allowed	

by	the	loan	documents.		

[¶27]		The	litigation	manager	offered	insufficient testimony	to	explain	the	

contents	of	Exhibit	E and the	process	for	generating	its	contents,	leaving	it	to	

the	court	to	sift	through	numerous	pages and	large amounts	of	data,	frequently	

displayed	 using	 abbreviations	 and	 code, to	 determine	 whether	 the	 evidence	

supported	the	amount	claimed	in	M&T	Bank’s proposed	foreclosure	judgment.		

In	effect,	M&T	Bank	gave	the	court,	as	Exhibit	E,	a	large	pile	of	paper,	urged	the	

court	to	sift	through	the	pile,	and	argued	that	the	amount	it	claimed	to	be	due	

could	be	found	somewhere	in	the	pile.

[¶28]		Exhibits, such	as	the	one	offered	here,	should	be	published to	the	

fact-finder “in	a	way	that	will	generate	the	most	appreciation	for	the	exhibit	and	

its	 significance.”	 	 Murray,	 Basic	 Trial	 Advocacy 304	 (1995).	 	 “[T]he	 most	

powerful	means	of	publication	of	an	exhibit	is	with	the	aid	of	a	witness”	who

has	the	ability	to point	out	its	features	and	“discuss	its	contents	as	a	part	of	the	

fact	 presentation.”	 	 Id. at 307.	 	 In	 a	 foreclosure	 action,	 the	 party	 seeking	 a	

judgment	of	foreclosure should	present	testimony	and	documentary	evidence	

establishing,	with	specificity,	how	that	party	calculated	the	total	amount	owed	

on	 the	 note,	 which	 in	 most	 cases	 will	 require	 a	 demonstration of	 the	 loan	
16

payment	history, an	itemized	list of	other	charged	amounts,	and	an	indication	

of	changes	in	the	sums	due	on	the	loan.

[¶29]		Regarding	the	loan	payment	history,	a party	seeking	a	judgment	of	

foreclosure	should	submit	evidence	identifying	the	following	information: the

original	amount	of	the	loan; the date the	debt	was	incurred; the	schedule	and	

due	dates	for	payments;	the dates	and amounts	of	each	payment, including	any	

payments	made	after	default; the	dates	and	amounts	of	each	charge	assessed

(interest,	escrow	payments,	costs,	fees,	and	other	charges); the	balance	due	on	

the	note	after	each	payment and	charge	assessed; the	date	of	the	last	payment	

before	 default; the	 total	 amount	 paid	 by	 the	mortgagor; and,	if	 the	loan	was	

serviced	by	more	than	one	loan	servicer,	the	time	during	which	each	servicer	

was	 responsible	 for	 collecting	 and	 recording	 loan	 payments and	 charges.		

Preferably, this	information	should	be	presented	in	chronological	order.		

[¶30]	 	 The	 evidence	 must	 be	 presented	 through	 the	 testimony	 of	 a	

witness,	 or	 a	 witness	 supported	 by	 an	 affidavit that	 qualifies	 for	 admission	

under	 M.R.	 Evid.	 803(6),	 unless	 the	 evidence	 is	 admitted	 by	 stipulation	 or	

through	an	admission obtained	during	the	discovery	process pursuant	to	M.R.	

Civ.	P.	36. In	this	case,	although	the	litigation	manager testified	to	some	of	these	
17

items,	primarily	during	cross-examination,	ascertaining this	information	was	

primarily	left	to the	court.

9		

[¶31]		As	the	party	bearing	the	burden	of	proof,	it	was	M&T	Bank’s	duty	

to	prove	the	amount	owed	by	presenting	evidence of	the	information	described	

above in	 a	 form	 that was	 both	 accessible	 and admissible.	 	 See Higgins,	

2009 ME 136,	¶	11,	985	A.2d	508;	see	also Warner	v.	Warner,	2002	ME	156, ¶ 21	

n.10,	807	A.2d	607 (providing	that,	when	a	party	fails	to	adequately	organize

the	presentation	of	evidence	of	complicated	and	lengthy	financial	transactions,	

the	court	may	require	the	party	to	submit	illustrative	aids,	summary	exhibits,	

and	other	testimonial	aids	so	as	to	make	the	interrogation	and	presentation	of	

evidence	 effective	 for the	 ascertainment	 of	 the	 truth).10	 	Because	M&T	 Bank	

failed	to	meet	its	burden,	we	vacate	the	judgment.

 9		Because	it	appears	that	the	litigation	manager	did	not	closely	inspect Exhibit	E	at	trial,	the	record	

is	unclear	whether the litigation	manager’s	testimony	regarding	the	payment	and	servicing	history	

was supported	 by	the	 documentary	 evidence.	 	 For	 example,	 the	 litigation	 manager	 testified	 that	

Plaisted’s	last	payment	was	made	to	Bayview	on	November	4,	2013.		No	evidence	was	presented	

regarding	when	Bayview	transferred	loan	servicing	responsibilities	to M&T	Bank,	but	the	litigation	

manager	testified	that	Plaisted	went	into	default	before	M&T	Bank	took	over	servicing	the	loan	and	

that	Plaisted	made	no	payments	to	M&T	Bank.		The	loan	servicing	history	buried	in	Exhibit	E appears	

to	demonstrate,	however,	 that	Bayview	ceased servicing	the	loan	on	March 1, 2011,	and	that	M&T	

Bank	began	servicing	at	that	time,	receiving	payments	for	more	than two-and-a-half	years.		Because	

of	 the	 limited	 testimony	 regarding	 the	 contents	 of Exhibit	 E,	 the	 trial	 court	 was	 deprived	 of	 the	

opportunity	 to	 weigh	 this	 potentially	 conflicting	 or	 inconsistent	 evidence. See State	 v.	 True,	

2017 ME 2,	¶	19,	153	A.3d	106 (stating	that	“the	weighing	of	conflicting	or	inconsistent	evidence	.	.	.	

falls	solidly	within	the	province	of	the	.	.	.	fact-finder”).

10		Caution	must	be	exercised	when	using	computerized	business	records	pursuant	to	M.R.	Evid.	

616	and	1006.		See,	e.g., LeBlanc,	2006	ME	106,	¶¶	10-13,	907	A.2d	802; United	Air	Lines,	Inc. v.	Hewins	

Travel	 Consultants,	 Inc.,	 622	 A.2d	 1163,	 1167-68 (Me.	 1993); Cives	 Corp.	 v.	 Callier	 Steel	 Pipe	
18

The	entry	is:

Judgment	 vacated.	 Remanded	 for	 entry	 of	 a	

judgment	in	favor	of Lawrence	F.	Plaisted.

Patrick	E.	Hunt,	Esq.,	Patrick	E.	Hunt,	P.A., Island	Falls,	for	appellant	Lawrence	

F.	Plaisted

Andrew	J.	Schaefer,	Esq.,	Bendett	&	McHugh, P.C.,	Portland,	for	appellee	M&T	

Bank

Bangor	District	Court	docket	number	RE-2016-71

FOR	CLERK	REFERENCE	ONLY

 

& Tube, Inc.,	 482	 A.2d	 852,	 859	 (Me.	 1984); Ne. Bank	 &	 Tr.	 Co.	 v.	 Soley,	 481	 A.2d 1123,	 1127-28	

(Me. 1984);	see	also	Field	&	Murray,	Maine	Evidence §§ 616,	803(6)(a),	1006;	Ashley	S.	Lipson,	Art	of	

Advocacy:	 Demonstrative	 Evidence §§ 16.01-.05,	 -.08 (2018),	 LexisNexis;	 see generally 16	 M.R.S.	

§ 456-A	(2017).