Bayview Loan Servicing, LLC v. Jacobsen

• Court: Superior Court of Maine
• Decided: May 14, 2015
• Docket: YORre-12-152
• Status: Unpublished

Opinion

- ---STATE OFNrAINE___ ·-·-----SUPER10RCUURT___ YORK, SS. DOCKET NO. RE-12-152

BAYVIEW LOAN SERVICING, LLC,

Plaintiff,

v. ORDER

MARK C. JACOBSEN, in his capacity as co-personal representative of the EST ATE of CRAIG L. JACOBSEN, et al.,

Defendants.

J.P. Morgan Chase Bank, N.A. filed this foreclosure action after a mortgage

granted to Craig L. Jacobsen went into default following his death. Bayview Loan

Servicing, LLC ("Bayview"), has since acquired the loan from J.P. Morgan Chase and

has been substituted as Plaintiff The mortgage, dated October 14, 2005, was originally

granted to Washington Mutual Bank, F .A. and recorded at the York County Registry of

Deeds at Book 14649, Pages 863-882. Mark and Heidi Jacobsen, co-personal

representatives of Craig Jacobsen's estate, have been substituted as Defendants.

A hearing was held on March 19, 2015. A representative from Bayview, Terrence

Schonleber, testified. Mark Jacobsen also testified. The Defendants objected to the

admission of several exhibits. Exhibits 4 and 5 are two copies of the same notice of

default that were purportedly mailed to different addresses and Exhibit 6 is a system

print-out with the payoff amount due on the loan. The court accepted the exhibits

1 u n--Conditionaiiy,-tooK tlie-ri:iaffer- under advrsement, anainstructeCflliepartres- to--suom1f--

briefs on the admissibility of each exhibit.

At the hearing, Mr. Schonleber testified about the recordkeeping and business

practices at Bayview. The court finds Mr. Schonleber credibly testified that he was

familiar with Bayview's recordkeeping and business practices and the processing system

known as "MSP," which Bayview utilizes to track loan data and generate payoff printouts

like those depicted in Exhibit 6. He testified he was generally aware that MSP was also

utilized by the prior loan servicer, J.P. Morgan Chase. He was unable, however, to testify

from personal knowledge as to the actual recordkeeping practices at J.P. Morgan Chase

beyond the fact the business also uses the MSP processing system. Mr. Schonleber

conceded that the accuracy of the records kept and maintained by Bayview would depend

on the accuracy of J.P. Morgan Chase's records, and he had no personal knowledge of

how the records were kept and whether they were accurate. Because Mr. Schonleber

could only speculate as to how J.P. Morgan Chase kept the records and whether they

were accurate, he was not a custodian or qualified witness who can establish the

reliability or trustworthiness and thus admissibility of Exhibit 6. See Bank of Am., NA. v.

Greenleaf, 2014 ME 89, ~~ 26-27, 96 A.3d 700; Beneficial Me. Inc. v. Carter, 2011 ME

77, ~,-r 13-14, 25 A.3d 96.

As to Exhibits 4 and 5, the notice standards set forth in 14 M.R.S. § 6111 require

the mortgagor occupy the property as a primary residence. The statute does not apply in

this case because the default arose only after Craig Jacobsen was deceased and thus no

longer occupied the premises. The notice provisions set forth in the mortgage contract,

however, remain in force notwithstanding the mortgagor's death. (Ex. 2 ,-r 15.) Exhibits 4

2 establish notice was provided. Deficient notice is therefore a second, independent ground

that precludes judgment for Plaintiff. See Camden Nat 'l Bank v. Peterson, 2008 :rv1E 158,

,-r 11, 957 A.2d 591 (holding notice requirements set forth in mortgage contract applied

independently of 14 M.R.S. § 6111).

The clerk will make the following entry, by reference, on the docket pursuant to Rule 79(a):

Judgment for the Defendant.

SO ORDERED.

DATE: May Jj_, 2015

John O'Neil, Jr. Justice, Superior Court

3 RE-12-152

ATTORNEYS FOR PLAINTIFF: ELIZABETH .M YOUNG LEONARD F MORLEY WILLIAM B JORDAN SHAPIRO & MORLEY LLP] 707 SABLE OAKS DRIVE STE 250 SOUTHPORTLANDME 04106

ATTORNEY FOR DEFENDANT: MARK JACOBSEN CO-PR THOMAS COX POBOX 1314 PORTLAND ME 04104

HEIDI JACOBSEN CO-PR PRO SE HEIDI JACOBSEN, CO-PR 259 CAT MOUSAM ROAD KENNEBUNK ME 04043