Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-15-116
12-21-2018
BANK OF NEW YORK MELLON, Plaintiff v. MICHAEL BUCK, et al., Defendants
Plaintiff-Tristan Birkenmeier, Esq.
Defendants-Mark Randall, Esq. and Mark Kearns, Esq. STATE OF MAINE
CUMBERLAND, ss ORDER
Before the court is plaintiff's motion to alter or amend the judgment or for a new trial.
Counsel for mortgage lenders have known at least since the Law Court issued its decision last February in Deutsche Bank National Trust Co. v. Eddins, 2018 ME 47, 182 A.3d 1241, that it was perilous to offer a notice of default issued by a law firm unless it had a witness who could lay a proper foundation for the admission of the law firm's notice of default as a business record.
It is not enough to establish that the law firm's notice of default was properly integrated into the mortgage lender or servicer's records. 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." Keybank N.A. v. Estate of Quint, 2017 ME 237 ¶ 15,176 A.3d 717 (emphasis in original). In this case the Bayview servicing witness was aware that Bayview audited the law firm's practices but did not himself have personal knowledge of the law firm's practices in generating and mailing notices of defaults.
This does not mean that a law firm employee with knowledge of the firm's practices in generating and mailing notices of default has to testify in every case. It does require that the testifying witness, if not a law firm employee, have sufficient personal knowledge of the law firm's regular practices to supply the necessary foundation.
Evidence that counsel for the plaintiff anticipated the problem is demonstrated by his proposal to offer the notice of default with a certification pursuant to M.R.Evid. 902(11). A proper certification might be accepted unless opposing counsel can raise a legitimate objection to its use. In this case the court did not have to determine whether the certification was adequate because written notice of intent to offer the record in question with a certification was not provided to defendants' counsel prior to trial as required by M.R.Evid. 902(11). The entry shall be:
Plaintiff's motion to alter or amend the judgment and in the alternative for a new trial is denied. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: December 21, 2018
/s/_________
Thomas D. Warren
Justice, Superior Court Entered on the Docket: 1/3/19