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	 make s it	 “difficult	 or2 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	cr eated	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	 authenticatio n	 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	 th at	 evidence	 should	 meet to	 sufficiently	 support	 a3 claim	 i n	 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	 determination s 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	esta blishing	 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	t he	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	 busines s	 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	fo reclosure alleging that	Plaisted	had	defaulted	by	failing	to	make	payments	on	the	note	beginning

on November	1,	2013. 2 Plaisted	timely	answer ed ,	and,	after mediation proved unsuccessful, the	parties proceeded	to	trial in	July 2017

. [¶7 ] At	trial,	t he	only	witness was	a litigation	manager for	Bayview	Loan Servicing who	 te stified	 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	 include d reviewing the	 business	 records	 for	 a	 loan

— including	 the	 note,	 mortgag e, payment	history,	and	default	notices

— and	attending	court	proceedings. The

2 The	complaint	also	name d	CitiBank	(South	Dakota),	N.A. as	a	party	in	interest.		CitiBank	did	not appear	before	the	trial	court	and	is	not	a	parti cipant	in	this	appeal.5 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	 record keeping
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	 payment s	 and
disbursements are entered	into	the syst em 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	 i s	 an	 encrypted record keeping system	that	requires	a log

- in	and password. [¶1 0 ] 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 ,6 while	 Bayview	 handles “ the	 back	 end	 of	 the	 loan , ” which includes loss
miti gation	and	foreclosure

. [¶1 1 ] He	testified that	M&T	Bank use s	Bayview’s servicing	platform.		He explained that,	on	the	live	pla tform,	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. [¶1 2 ] T he 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	wi th	 anyone	 from	M&T	Bank ,	and	did not	 know	where	M&T	 Bank	is
located. 3 [¶1 3 ] The	 court	 admitted sev eral	 exhibits	 offered	 by	 M& T	 B ank, 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.” [¶1 4 ] T he	litigation manager was	unable	to	explain certain discrepancies
in amounts claimed	to	be	due .		For	example, a	notice	of	default	sent	t o	Plaisted in	 July	 2014	 indicated that	 the loan	 payoff	 amount was	 $509,906.69.	 	 A subsequent	notice	 of	defau lt	 sent in	September	 2015 indicated that	 the loan payoff	 amount was	 $632,618.71. No	 docu ment,	 ledger,	 or	 digital	 exhibit tracked	 the	changes	in	 the	sums	due	or	the	reasons	 for	 the	changes	between July	2014	and	September	2015. [¶1 5 ] 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	d on’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	giv e	you	a	specific amount.		 I	don’ t	 think	we	have	 that	 kind	 of	 time	 today.		 I	have	 a differen t	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	.	.	.	. [¶1 6 ] When	 asked	 why	 M&T	 Bank	 was seek ing	 $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	 j udgment was	 less	 than	 the	 amount	 in	 the	 notice	 of	 default. The litigation	manager was un able	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 testif ied	 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. [¶1 7 ] During	closing	arguments,	M&T	Bank	conceded	that	the Bayview litigation	 manager was un able	 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 h as no bearing	 on	 the	 amount9 sought	 in	 the	 judgment. M&T	 Bank	 argued	 that	 Exhibit E and	 the	 litigation manager’s	 testimon y ,	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. [¶1 8 ]		On	August	24,	2017,	the	court	entered	a	judgment	of	foreclosure
in	 favor	of M&T Bank in	 the	amount	of $60 4,616.22 , 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	p rovided	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 $ 604,616.2210
II. LEGAL	ANALYSIS [¶1 9 ] 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	t he adequacy	of	the	notice.11 (D)	 All	 these	 conditions	 are	 shown	 by	 the	 testimony	 of	 the custodian	 or	 another	 qualified	 w itness,	 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. [¶ 2 1] A	p erson	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.	Se rvs. , 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	that12

• 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	 recor d	 at	 issue	 employed	 regular	 business practices	for	transmitting	them	to	the	receiving	business;

• by	 manual	 or	 electronic	 processes,	 the	 receiving	 busin ess integrated	the	records	into its	own	records	and	maintained	them through	regular	business	processes;

• the	record	at	issue	was,	in	fac t,	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 claim ed that	he	w as	a	custodian of
records	 for M& T	 Bank, but he	 did	 not provide any testimony	 demonstra ting
that	h e	had firsthand	knowledge	of M& T	Bank’s	business	practices

. In	fact,	he
testified	 that he had never	 spoken	wi th	anyone from	M&T	 Bank	and	did not
know	where	M&T	Bank	is	located

. Although	he testified	that	Bayvie w	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	 crea ting	 and	 maintaining	 loan	 records. See	 Carter ,	 2011	 ME	 77,	 ¶ 14,
25 A.3d	 96

. A lthough	 the	 litigation	 manager had	 the	 ability	 to observe the

remote actions	 taken	 by	 M&T	 Bank	 employees	 while	 those	 employees	 were13 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
in to	 the	loan	records	 through the servicing platform are	made at	or	near	 the
time	 of	 the	 events	 or whether the	 records	 a re	 transmitted	 b y	 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	paymen t	history ,	which integrated	records from	both	businesses

. 6 See Gregor ,	2015 ME	108,	¶ 14	n.11,	122	A.3d	94 7. [¶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	ina dequate
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	th e	plaintiff

— and	Bayview	Loan	Servicing	and	M&T	Bank	maintained	a ser vicer

- subservicer	relationship

— there	was	nothing	preventing	M&T	Bank	from	calling	a	custodian of	its	own	records	or attempting	to	authe nticate	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	manag er	 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 Cont racting	 v.	 LeBlanc , we	 stated	 that otherwise	 admissible	 business	 records	were	 rendered	 inadmissible	 where amounts	listed	 i n	 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	 request s	 by	 the	 opposing	party

. 2006	ME	 106,	 ¶¶	 15

- 17,	 907	 A.2d	802

. As	in LeB lanc ,	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	rea son	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	numb er,	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 ;	s ome	pages	appeared	 to	contain raw data	entries,	 yet others	appear ed	 to	be	summaries	 or	 reports;	and	t he	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.	Progre ssive	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 exp lain	the
contents	of	Exhibit E and the	proc ess	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	abili ty	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	 c ases	 will	 require	 a	 demonstration of	 the	 loan16 payment	history, an	itemized	list of	other charged amounts ,	and	an	indication of	changes	in	the	sums	due	on	the	loan. [¶29 ] Regardi ng	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	sche dule	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) ; th e	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

w as	 res ponsible	 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	 wi tness	 supported	 by	 an	 affidavit that	 qualifies	 for	 admission under	 M.R.	 Evid.	 803(6),	 unless	 the	 evidence	 is	 admitted	 by	 stipulation	 or throug h	an	admission obtained	during	the	discovery	process pursuant	to	M.R.
Civ.	P.	36. In	this	case,	a lthough	the litigation	manager testified to	som e	of	these17
items ,	primarily	during	cross

- examination , ascertaining this	in formation	was primarily	left	to the	court

. 9 [¶ 3 1]		As	the	party	bearing	the	burden	of	proof,	it	was	M&T	Bank’s	duty to	prove	the	amount	owed	by	present ing	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,	w hen	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	 effectiv e	 for the	 ascertainment	 of	 the	 truth). 10 Because M&T	 Bank
f

ailed	to	m eet	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,	 t he	 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,	 th at	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	 deprive d	 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	 Pipe18 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 F OR C LERK R EFERENCE O NLY

& 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 , 8 03(6)(a ),	1006 ; Ashley	S.	Lipson, Art	of Advocacy:	 Demonstrative	 Evidence §§ 16.01

- .05 , - .08 (2018) ,	 LexisNexis ; s ee generally 16 M.R.S. § 456

- A	(2017)

.